JUDGMENT G.R. Udhwani, J.(Oral) - Judgment and order dated 30.04.1996 passed by the learned Judicial Magistrate, First Class, Dhoraji recording acquittal of the respondents for the offences punishable under section 7(1) and 16 of the Prevention of Food Adulteration Act, 1954 (for short 'PFA Act') in Criminal Case No.1032 of 1992, is sought to be assailed in appeal under section 378(1)(3) of the Code of Criminal Procedure (for short 'Cr.PC'). 2. Having considered rival contentions it appears that the complainant-Food Inspector had collected the sample of milk as described in Panchnama - Exh.15 on 17.08.1992, at about 10.30 AM. Before collection of sample it appears that he found more than one container of milk in the shop. On inquiry from the vendor he learnt that container from which he intended to collect the sample of milk is 'separate milk' and is being separately sold at the rate of Rs.4-00 per litre. The laboratory also described the product as 'separate milk' and found it to be substandard since its fat contents were 1.5% and Milk Solids Not Fat was 9.61% against the prescribed standard of maximum of 0.5% and 8.7% respectively under the Prevention of Food Adulteration Rules, 1955 (for short 'the Rules'). The Trial Court, however, probed into Item A.11.01.11 of Appendix 'B' of the Rules and traced the aforesaid value to 'skimmed milk' and acquitted the respondents on the ground, inter alia, that no standards were prescribed for 'separate milk'. 3. The laboratory appears to have treated the sample as 'skimmed milk' and applied the standards prescribed in the Rules, accordingly, without any further official information with it justifying taking the sample as 'skimmed milk' for the purpose of applying such standards. It however, did not specify in the report the sample to be 'skimmed milk'; instead it was specified as 'separate milk'. 4. The arguments advanced by the learned APP is that 'separate milk' was referable to 'skimmed milk, as it was known as such in the area where the respondents used to sell it and therefore, the Trial Court ought to have accepted the report of the Public Analyst showing that the milk sold by the respondents did not comply with the standards prescribed for 'skimmed milk', in Entry No. A.11.01.11 of Appendix 'B' of the Rules. 5. 5. In order to appreciate the afore-stated contention raised by the learned APP, reference to Entry No. A.11.01.11 of Appendix 'B' of the Rules is necessitated at this stage. The said entry classifies the milk into buffalo milk, cow milk, goat or sheep milk, mixed milk, standardised milk, toned milk, double toned milk, skimmed milk, full cream milk with different standards for different states for the purpose of the Act. The Note to the said entry indicates that if the milk is offered for sale without indication of the class, the standards prescribed for buffalo milk shall apply. Thus, criminality of a person under the Act would be dependent upon the class of milk he offers for sale and in absence of the indication of the class, it has to be presumed that the milk offered by him is buffalo milk and accordingly the prescribed standards for buffalo milk will apply. This aspect can be better appreciated in light of the illustration and thus, to illustrate, it can be noted that the minimum fat contents required for sale of mixed milk or standardised milk is 4.5%, whereas minimum fats required for re-combined milk and toned milk is 3%. Therefore, the milk offered as re-combined milk or toned milk containing minimum 3% fat would not be hit by the provisions of the Act, whereas if the same milk is sold as mixed milk or standardised milk with minimum fat contents of 3%, it will be hit by the provisions of the Act since the minimum fat contents of 3% is below the prescribed standards of 4.5% for mixed milk and standardised milk. 6. Thus, the prosecution of a person would be dependent upon the class of milk being sold by him and he would be required to comply with the prescribed standards qua the class of milk sold by him. It would thus be obligatory for the Food Inspector to collect appropriate material qua the class of milk being sold. The material can be in the nature of statement of seller, manufacturer, dealer, etc. dealing with the milk or it can be in the nature of other independent evidence. If the milk is packed and labelled there would not be any difficulty in getting such material. The material can be in the nature of statement of seller, manufacturer, dealer, etc. dealing with the milk or it can be in the nature of other independent evidence. If the milk is packed and labelled there would not be any difficulty in getting such material. In case of sale of loose milk the above said extra care will have to be taken by the Food Inspector before or at the time of collection of the sample or before sending it to the Public Analyst for analysis. It would be only on the basis of such material that the Public Analyst would be able to apply appropriate standards provided in Entry No.A.11.01.11 of Appendix 'B' to the Rules and other authorities, viz. sanctioning authority and the Court would be respectively able to consider grant or non grant of sanction or framing of charge or discharge of the accused. 7. Concededly the milk was all through out specified as 'separate milk' which is not one of the classes specified in Entry No.A.11.01.11 of Appendix 'B' to the Rules. No standards referable to the buffalo milk were applied at the time of collection of the sample of milk and its analysis. It is not the prosecution case that the accused indicated the 'separate milk' as 'skimmed milk' to the Food Inspector. It is also not the case of the prosecution that the accused indicated to the Food Inspector that 'separate milk' was known as 'skimmed milk' in the area where it was being sold by the accused. Moreover, no evidence to establish that 'separate milk' was known as 'skimmed milk' in the area where the accused used to sell it was adduced. Thus, in absence of the information with the Food Inspector as to the class of milk he had no reason to treat the same as 'skimmed milk'. Similarly in absence of required information, there was no reason for the Public Analyst and the sanctioning authority to treat 'separate milk' as 'skimmed milk' as also there was no reason for the court below to frame charge against the accused by treating 'separate milk' as 'skimmed milk'. 8. It is thus, seen that the case all the while proceeded on misconceived facts. All the authorities, viz. 8. It is thus, seen that the case all the while proceeded on misconceived facts. All the authorities, viz. Food Inspector, Public Analyst, sanctioning authority as well as the Court failed to apply their mind before the analysis of the milk, the sanction, framing of the charge and the prosecution of the respondents, which has resulted into huge wastage of man hours, public time and energy. It is hoped that all the above authorities will henceforth minutely look into the papers before launching prosecution. 9. In view of the above findings, the submission made by the learned Additional Public Prosecutor that ''separate milk' was referable to the skimmed milk for which the respondents failed to comply with minimum/maximum standards as reported in the aforesaid laboratory report cannot be countenanced. 10. In the above circumstances, no substance is found in this appeal. It fails and is dismissed. Appeal dismissed.