JUDGMENT I.A. Ansari, J. 1. On the basis of the scrutiny done by the learned Portfolio Judge, Tinsukia, of the common judgment and order, dated 19.04.1999, passed in Criminal Appeal Nos. 18 (1)/1995 and 19(4)/l 995, this revision was taken up by the High Court suo-moto. By the judgment and order, dated 19.04.1999, aforementioned, the learned Sessions Judge set aside the judgment and order, dated 22.11.1995, passed by the learned Chief Judicial Magistrate, Tinsukia, in CR. Case No. 921/1991, convicting the accused opposite parties under Section 16 read with Section 7 of the Prevention of Food Adulteration Act (in short, "PFA Act") and sentencing each of them to suffer simple imprisonment for six months and to pay a fine of Rs. 1,000/- and, in default of payment of fine, to suffer simple imprisonment for a further period of 3 months. 2. I have perused the materials on record including the impugned judgment I have heard Mr. GP Bhowmik, learned Counsel for the accused opposite parties, and Mr. FH Laskar, learned Additional Public Prosecutor, Assam, for the State. 3. The case against the accused-opposite parties, as unfolded at the trial, may, in brief, be stated as follows: On 31.05.1991, the Food Inspector, Sri CAM Gogoi, accompanied by his office peon, Anar Khan, visited the restaurant run under the name and style of "Sweet Assam" at AT Road, Tinsukia, and found the accused opposite parties, Paresh Sarkar (i.e., the accused opposite-party No. 2) present in the said restaurant. The Food Inspector and his peon also noticed curd prepared from cow milk lying exposed for sale for human consumption, in the show-case, at the said restaurant. The Food Inspector, suspecting the quality of the curd, expressed his intention to take sample from the curd, so offered for sale, for the purpose of analysis. Though the Food Inspector requested 3/4 customers present at the shop to become witnesses to the taking of samples of the curd, the customers declined, whereupon the Food Inspector requested his said peon to become a witness. As the peon agreed to become a witness, the Food Inspector (P.W. 1), in the presence of the peon (P.W. 2), served a notice, in form- VI, to the accused Paresh Sarkar and purchased 600 grams of curd on payment of Rs. 12/-. The accused Paresh Sarkar acknowledged the receipt of the price of the said curd so paid. As the peon agreed to become a witness, the Food Inspector (P.W. 1), in the presence of the peon (P.W. 2), served a notice, in form- VI, to the accused Paresh Sarkar and purchased 600 grams of curd on payment of Rs. 12/-. The accused Paresh Sarkar acknowledged the receipt of the price of the said curd so paid. The Food Inspector churned the curd so purchased and divided the same into 3 equal parts and kept the same in three dry clean glass containers and added formalin as preservative. The vendor, Paresh Sarkar, also informed the Food inspector that Sardar Sardul Singh, (i.e., the accused-opposite party No. 1 herein) was the proprietor of the said restaurant. The sample of the curd, so taken, was, on analysis by Public Analyst, found to be adulterated. After obtaining requisite sanction, a complaint was accordingly lodged by the Food Inspector against the two accused-opposite parties aforementioned. 4. In course of time, a charge under Section 16 read with Section 7 of the PFA Act was framed against the accused-opposite parties, but both of them pleaded not guilty thereto. 5. In support of their case, prosecution examined the Food Inspector (P.W. 1) and his office peon (P.W. 2). The accused were, then, examined under Section 313 Code of Criminal Procedure and in their examinations aforementioned, the accused did not deny the taking of sample of curd by the Food Inspector; what they alleged was that the Food inspector had not paid for the curd purchased by him, the further case of the accused-opposite party No. 1, namely, Sardar Sardul Singh, being that he had already handed over the said restaurant to the accused-opposite party No. 2, namely, Paresh Sarkar on condition of payment of rent by way of a written agreement entered into by the parties concerned in the year 1997. The defence also adduced evidence by examining as many as six witnesses. On conclusion of the trial, the trial Court found both the accused-opposite parties guilty of the charge, it convicted them accordingly and passed sentence against them as hereinabove mentioned. On appeal, the learned Sessions Judge, as already indicated hereinabove, set aside the judgment and order of conviction and sentence. 6. On conclusion of the trial, the trial Court found both the accused-opposite parties guilty of the charge, it convicted them accordingly and passed sentence against them as hereinabove mentioned. On appeal, the learned Sessions Judge, as already indicated hereinabove, set aside the judgment and order of conviction and sentence. 6. The learned Sessions Judge, it transpires on close scrutiny of the impugned judgment, interfered with the conviction and sentence passed against the accused-opposite parties on two grounds, namely, (i) that the Public Analyst had not prepared his report with due care and caution and (ii) that the Food Inspector had not taken the sample of curd in accordance with law. 7. While considering the question as to whether the Public Analyst's report is or is not correct and dependable, it is of immense importance to note that the Public Analyst was examined as a Court witness. In his examination by the defence, while the Public Analyst admitted that he had not tested the curd to determine if it was prepared from buffalo milk or cow milk, he (Public Analyst) had, at the same time, asserted that it was not necessary for him to determine as to whether the curd was prepared from buffalo or cow milk inasmuch as the Food Inspector had, while sending the sample for analysis, indicated therein that the curd was prepared from cow milk. 8. As the Public Analyst has not determined as to whether the curd was prepared from cow milk or buffalo milk, the learned Sessions Judge concluded, as indicated hereinabove, that the report of the Public Analyst seems to have prepared without due care and caution. While considering this aspect of Public Analyst's report, it is important to bear in mind that the Food Inspector's evidence was that the curd was prepared from cow's milk and that the same was exposed for sale at the said restaurant. This assertion of the Food Inspector remained unchallenged by the defence. It was, therefore, not material that the Public Analyst did not try to find out as to whether the curd was prepared from buffalo or cow milk. 9. It is, no doubt, true that the standard of milk in the case of cow milk and buffalo milk are slightly different. It was, therefore, not material that the Public Analyst did not try to find out as to whether the curd was prepared from buffalo or cow milk. 9. It is, no doubt, true that the standard of milk in the case of cow milk and buffalo milk are slightly different. For the State of Assam, the milk fat in buffalo milk shill be 6% vis-a-vis 3.5% milk fat required to be in the cow milk and milk solid non-fat for buffalo milk is 9%, whereas solid-not-fat in respect of cow milk is 8.5%. The Public Analyst's report, in the present case, reveals that the milk fat was 2.05% and solid non-fat was 6.25%. Thus, the standard of the milk used for preparation of the curd, in question, was not in accordance with the prescribed standard for buffalo as well as cow milk. 10. What follows from the above discussion is that apart from the fact that the undisputed evidence of the Food Inspector, as mentioned hereinabove, discloses that the curd, in question, was prepared out of cow milk, the fact remains that the percentage of milk fat and solid non-fat, in the curd, was found to be much less than what it should be in respect of cow milk as well as buffalo milk. Such curd has to be treated as adulterated (See Mahedrakumar G. Patel v. State of Gujrat, reported in AIR 2003 SC 4058 .) 11. Coupled with the above, 27% water was found added in the milk with which the curd, in question, was prepared. In the case at hand, since water was, admittedly, present in the curd, it clearly implies that the milk, which was used for the preparation of the curd, was an admixture of milk with water, which is prohibited under Rule 44 of the PFA Rules and sale of the curd, prepared from such milk, was punishable under Section 16 of the PFA Act. (See Ramlal v. State of Rajasthan, reported in AIR 2001 SC 47 .) 12. (See Ramlal v. State of Rajasthan, reported in AIR 2001 SC 47 .) 12. It is also of utmost importance to note that the fact that the ingredients of the curd were not conforming to the standard was, in fact, not challenged at the trial and, hence" merely on the ground that the Public Analyst had not determined as to whether the curd was prepared out of cow or buffalo milk could not have been made a ground for interfering with the conviction of the accused-opposite parties. 13. Turning to the question as to whether the sample of curd was taken by the Food Inspector in accordance with law, I notice that the learned Sessions Judge has held that the Food Inspector has deposed, for the first time, in the Court that he had drawn the sample after churning the same and that no such statement had been made by him in his complaint. For appreciating this aspect of the matter, it is of paramount importance to note that the Food Inspector's evidence given at the trial that he had churned the curd before dividing the same into three equal parts was not at all disputed by the defence. This apart, the evidence, so given by P.W. 1 (Food Inspector), was also supported by P.W. 2. Thus, when the veracity of the evidence given by both the witnesses, namely, P.Ws. 1 and 2 that the sample taken by P.W. 1 was churned and, then divided into three parts, having remained unassailed, could not have been discarded by the learned appellate Court below. It is also significant to note that according to the Public Analyst's report, the curd had water as much as 27%. Such curd could not have been solid. Hence, the question of cutting of such curd vertically did not arise at all. The evidence, on record, discloses that upon purchase of 600 grams of curd, the Food Inspector churned the same and, then, divided the same into three equal parts. Such taking of the sample of the curd cannot be said to have suffered from any infirmity. 14. A11.02.04, contained in Appendix B to the PFA Rules, states that where dahi or curd is sold or offered for salt without any indication of class of milk, the standards prescribed for dahi prepared fix)m buffalo milk shall apply. Such taking of the sample of the curd cannot be said to have suffered from any infirmity. 14. A11.02.04, contained in Appendix B to the PFA Rules, states that where dahi or curd is sold or offered for salt without any indication of class of milk, the standards prescribed for dahi prepared fix)m buffalo milk shall apply. In the case at hand, however, the undisputed evidence on record is that the curd was prepared from cow milk. Hence, it was immaterial, if I may reiterate, that the Public Analyst had not determined whether the curd was prepared from cow milk or buffalo milk. It is only in the absence of any explanation offered by the person from whom the curd is purchased, that curd shall be deemed to be prepared out of the buffalo milk. (See Mahendrakumar G. Patel (Supra).) 15. In the case at hand, as already indicated hereinabove, the Food Inspector purchased 600 grams of curd, churned the curd so purchased and, then, divided the same into three parts and one of these three parts was, on analysis, find to be adulterated. Such churning of the curd weighing 600 grams and taking of sample therefrom was in accordance with law. In Food Inspector V. Ramlal Sharma, reported in (1983) 1 SCC 435, the food inspector purchased 600 grams of curd and after churning the curd so purchased, he divided the same into three equal parts and prepared three separate samples. In this case, the only defence taken was that the churning was done by hand and not by any instrument. The Apex Court found such churning sufficient for the purpose of making the same a homogeneous representative sample. The following observations made in Madanlal Ramlal Sharma (Supra) are relevant for the purpose of this revision: In milk and milk preparations including curd, it is possible that the fat settles on the top and in order to find out whether the milk or its preparation, such as curd, has prescribed contents, the sample must be homogeneous and representative so that the analysis can furnish reliable proof of nature and content of the article of food under analysis. For this purpose, churning is one of the methods of making the sample homogeneous and representative. 16. As already indicated hereinabove; the Food Inspector had churned the 600 grams of curd and drew three samples therefrom. For this purpose, churning is one of the methods of making the sample homogeneous and representative. 16. As already indicated hereinabove; the Food Inspector had churned the 600 grams of curd and drew three samples therefrom. Such churning was sufficient and could not have been doubted and interfered with, as has been done by the learned appellate Court, when the factum of churning of the curd was not disputed at the trial. Thus, no infirmity can be said to have taken place, while drawing the sample of the curd by the Food Inspector. 17. As regards the plea of the accused-opposite parties No. 1, namely, Sardar Sardul Singh that he had already handed over the restaurant to the accused opposite party No. 2, namely, Paresh Sarkar, and was, therefore, not responsible for the business which was being carried out at the said restaurant, it is worth noticing that the learned trial Court has taken this aspect of the defence case into consideration and rejected the same. Learned Sessions Judge has not dealt with this aspect of the matter in the appellate order, dated 19.04.1999, aforementioned. In this regard, it is however, of great importance to note that the accused-opposite parties No. 1, namely, Sardar Sardul Singh, had himself appeared as witness and deposed that he was the proprietor of the said restaurant, but he had handed over the management of the restaurant to the accused-opposite party No. 2, namely, Paresh Sarkar, on monthly rent of Rs. 2500/-. The learned trial Court, however, noticed that though the restaurant was said to have been handed over to the opposite party No. 2, Paresh Sarkar, no such agreement could be produced by accused opposite party No. 1 namely, Sardar Sardul Singh. This apart, the licence of the restaurant was, admittedly, in the name of accused-opposite party No. namely, Sardar Sardul Singh at the time, when the sample of curd was taken by the Food Inspector. Further, as per the evidence of D.W. 2, accused Paresh Sarkar was a mere worker in the said restaurant. This apart, the licence of the restaurant was, admittedly, in the name of accused-opposite party No. namely, Sardar Sardul Singh at the time, when the sample of curd was taken by the Food Inspector. Further, as per the evidence of D.W. 2, accused Paresh Sarkar was a mere worker in the said restaurant. On the basis of these facts, the learned trial Court was wholly justified in coming to the conclusion that so far as the accused-opposite party No. 1, namely, Sardar Sardul Singh is concerned, he was the proprietor and owner of the said restaurant and accused-opposite party No. namely, Paresh Sarkar was, in his capacity as a worker, the vendor from whom the sample of curd was taken. 18. In the result and for the reasons discussed above, the impugned judgment and order, dated 19.04.1999, is hereby set aside and the judgment and order, dated 22.11.1995, passed by the learned Chief Judicial Magistrate, Tinsukia, against the accused-opposite parties is hereby upheld. The conviction of the accused-opposite parties and the sentence passed against them shall accordingly stand upheld. 19. The accused-opposite parties are hereby directed to surrender forthwith in the Court of learned Chief Judicial Magistrate, Tinsukia, to undergo the sentence passed against them. 20. Send back forthwith the case record with copies of this judgment and order.