JUDGMENT Arun Kumar Goel, J.—This appeal is directed against the judgment passed by learned Additional Sessions Judge, Kullu in Criminal Appeal No. 2/97 on 29th May, 1997. By means of impugned judgment while allowing the appeal of the respondent Yusuf, Additional Sessions Judge has set aside the judgment passed by learned Additional Chief Judicial Magistrate, Kullu on 6th January, 1997 in Criminal Case No. 304-1/93. Consequently, the appellant has been acquitted of the offence under Section 16(l)(a)(i) of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as the Act. 2. Brief facts giving rise to this case are that P.L. Sharma, Food Inspector (PW-1) on 22nd June, 1993 at about 11 a.m. came across the respondent at Gompa Road, Manali. Respondent was having one can full of milk weighing 40 litres. PW-1 expressed his intention to draw sample from the can in question. He issued notice in this behalf vide Ex. PW1/ A. He claims to have stirred the milk with a jug and then took out 750 grams of milk on payment of Rs. 4.50 vide receipt Ex. PW1/B. This milk was distributed in three equal parts and was put in three neat, clean and dry bottles. Thereafter, 20 drops of formalin were added to each of the three bottles. Then all the three bottles were stoppered and properly sealed as required under law. Paper seal issued by Local Health Authority was pasted on each of the three bottles as required under the provision of the Act as well as the rules framed thereunder. Signatures of the respondent were also obtained on the samples. This entire process was witnessed vide Panchnama Ex. PW1/C. One sample alongwith Form No. VII and seal impression was forwarded to Public Analyst at Kandaghat for analysis whereas two other samples were deposited with the Local Health Authority, Kullu. 3. After analysis, it was found by the Public Analyst that the sample was found containing 3.3 per cent milk fat against the minimum prescribed standard of 3.5 per cent and milk solds-not-fat were found 6.14 per cent against the minimum prescribed standard of 8.5 per cent. The standard applied in this case was as applicable in case of cows milk. 4. The standard applied in this case was as applicable in case of cows milk. 4. After receipt of the report of the Public Analyst, prosecution was launched with prior sanction of the competent authority under Section 20 vide Annexure Pl/J. Simultaneously, Local Health Authority intimated the respondent under Section 13(2) of the Act so as to enable him to have recourse to law by getting another sample sent to the Central Food Laboratory. Copy of the notice has been proved on record as PW 2A and postal receipt of its despatch as Ex. PW2/B. 5. After receipt of intimation, respondent exercised his right to get the sample analysed from Central Food Laboratory. Accordingly, it was sent for analysis there. Its report was received as Ex. PW1/K when it was opined that the contents of milk fat and milk solid not fat were found deficient. 6. In the aforesaid background respondent was put to notice of accusation and after recording evidence of the prosecution i.e. of PW 1 Food Inspector Mr. PL. Sharma, PW-2 Pravin Kumar, dealing Assistant from office Local Health Authority and statement of respondent under Section 313 of the Code of Criminal Procedure, the trial Court came to the conclusion that offence against the respondent stands duly established under Section 16(l)(a)(i) of the Act and thus he was convicted to undergo one year rigorous imprisonment as also to pay fine of Rs. 1,000 in the default of payment whereof he was required to suffer simple imprisonment for two months. Feeling aggrieved by this judgment of the learned trial Court, respondent preferred an appeal, which has been allowed by the learned appellate Court below and thus, he has been acquitted; hence this appeal at the instance of the State. 7. Mr, J.S. Guleria, learned Law Officer appearing on behalf of the State, submitted that decision of the first Appellate Court below on both points cannot be sustained. By referring to the statement of PW 1, he stated that milk in question was properly stirred. Thus the findings to the contrary recorded in that behalf are not correct and are liable to be reversed. He further submitted that non examination of Daya Ram, a witness of Panchnama Ex. PW1/C is also not fatal to the prosecution case. He was won over by the respondent and thus was given up as such on 19th June, 1996. 8. He further submitted that non examination of Daya Ram, a witness of Panchnama Ex. PW1/C is also not fatal to the prosecution case. He was won over by the respondent and thus was given up as such on 19th June, 1996. 8. On the other hand, Mr. O.P. Sharma, learned Counsel appearing for the respondent has controverted both these pleas. As according to him on the admitted facts unless prosecution was able to establish that the sample was representative one after it was made homogeneous, prosecution case must fail. In addition to this, he also submitted that mere word of mouth of the PW-1 cannot be accepted so as to declare Daya Ram an admitted witness of Panchnama Ex. PW1C having been won over as such he prayed for upholding the judgment of the learned Appellate Court below by dismissing the appeal. In the alternative, without either conceding and/or in any manner admitting what was urged by the prosecution, he stated that this case has been looming over the head of his client for more than 12 years, which is worst than the undergoing sentence itself. Therefore on the basis of decision of Supreme Court in N. Sukumaran Nair v. F.I. Maveli, 1997 SCC Cr. 608. He has prayed for dismissing this appeal. 9. One thing is clear that in case prosecution has to sustain its case against the respondent, it was necessary as well as incumbent upon it to have shown that the sample of the milk was representative. In this behalf when a reference is made to the statement of PW-1 PL. Sharma, retired Food Inspector who had drawn the sample it is clear that there was 40 Kgs. milk in the can itself. He claims to have stirred the milk with a jug. Admittedly, he had intercepted the respondent at Gompa Road Manali, who brought the jug and from where, there is not a murmur in his statement. Besides this, how the entire milk was stirred so as to make it homogeneous/representative; what he has stated in this behalf in his statement when translated in english is as under : 10. "In stirred the milk of can properly and then took it into a jug which was clean and dry". It is no bodys case that the sample in question was taken either in a shop or at a place where jug was available. "In stirred the milk of can properly and then took it into a jug which was clean and dry". It is no bodys case that the sample in question was taken either in a shop or at a place where jug was available. In this view of the matter as well as on consideration of statement of PW-1 PL. Sharma, I am satisfied that this part of the statement regarding him having stirred the milk upside and down in the can itself cannot be accepted. To be fair to Mr. Guleria his further submission in this behalf needs to be noted. According to him respondent has not at all been prejudiced on account of non stirring. This is an argument of despair, raised simply to be rejected. 11. The purpose and intention of making the sample representative is to ensure that all the contents are mixed in a manner so whatever is left at the bottom or thereafter at the top is mixed in a manner that all the contents become one. Further, view that has been taken on the basis of evidence, submission urged on behalf of the prosecution that the sample was representative has to be rejected. For taking this view reference can be made to the decisions reported in:— 12. State of H.P. v. Madan Lal, Latest HLJ 2000 (HP) 534; The State of Punjab v. Balvant Singh, 1992 (1) Sim. LJ. 1274; Food Inspector, Municipal Corporation Baroda v. Madan Lai Ram Lai Sharma and another, (1983) 12 SCC 135; K. Harikumar S/o Karunakaran Nair v. Food Inspector, Punaloor Municipality, 1995 Supp. (3) SCC 405. 13. So far other contentions regarding non examination of Daya Ram, marginal witness in whose presence Panchnama Ex. PW1/C was prepared and process of drawing sample after the milk was purchased etc. are concerned, those are not gone into in this appeal. Since the appeal has been dismissed on merits, therefore, alternative plea urged by Mr. O.P. Sharma calls for no finding. No other point is urged. 14. In view of the aforesaid discussion, there is no merit in this appeal, which is accordingly dismissed. Respondent is on bail, his bail bonds are discharged. Fine, if deposited shall be refunded to him. Appeal dismissed. -