STATE OF MAHARASHTRA Vs. NARAYAN DEVRU SHANBHAG

JUDGEMENT

(1.) These two appeals are directed against the two orders of acquittal passed by the learned Metropolitan Magistrate, 34th Court, Bombay, in cases Nos. 46/S of 1976 and 47/S of 1976. In both these cases the accused was same conducting a shop at Bombay. In that shop he sold, among other things, boiled milk. On the day in question, which was 23rd of Sept. 1975, the Food Inspector purchased from the accused two quantities of milk from two containers which were in his shop. One-third of each of the sample was sent to the Public Analyst who reported that there was less fat and added water in the samples analysed by him. On these facts the accused was prosecuted in both the cases. The defence of the accused was that the buffalo milk, the sample of which was taken by the Food Inspector, was being sold by him after boiling the same. When the milk was boiled, the fat content of the milk comes to the surface in the form of cream and when the samples were taken by the Food Inspector he did not take representative sample in as much as he did not stir the entire milk and take samples from the containers. The learned trial Magistrate accepted this part of the defence and acquitted the accused in both the cases by orders passed on the same day. These two orders of acquittal are the subject matter of challenge in these two appeals.

(2.) Mr. Patil, the learned Public Prosecutor, criticised the judgments of the Court below by contending that if there was an excuse for the lesser fat content in the sample purchased by the Food Inspector there was no excuse for the added water in the milk, but Mr. Zambre, the learned Advocate appearing for the accused, has rightly relied upon some admissions given by the Public Analyst examined in this case. In paragraph 8 of his deposition the Public Analyst has mentioned that the fat percentage in both the samples was found out by him by following Gurber's method which was admittedly not certified by I.S.I. He admits that I.S.I. marked tubes stand for quality and accuracy. Implicit in this admission is the fact that Gurber's tube used by the Public Analyst was not assured of accuracy and quality. That apart, the Public Analyst has further admitted that he has found percentage of extraneous water on the basis of percentage of solid nonfat which he has determined. I have already mentioned above that the learned trial Magistrate accepted the case of the defence which I also accept that when the Food Inspector took the sample the solid part of the milk which was being boiled was on the surface. Naturally, the samples taken by the Food Inspector automatically contained less fat and less solid nonfat. The procedure adopted by the Public Analyst would automatically give a result of higher percentage of extraneous water. I am therefore inclined to agree with Mr. Zambre when he says that the entire procedure adopted by both the Food Inspector and the Public Analyst is such that, the result of the analysis in the instant case is not reliable. Apart from this I also find from the deposition of the Food Inspector that he has totally failed to follow the mandatory provisions contained in Rule 17 of the Rules framed under the Act.

(3.) For both these reasons the orders of acquittal passed by the learned Metropolitan Magistrate, 34th Court, in Case Nos. 46/S and 47/S of 1976 are confirmed. The appeals are dismissed. The bail bond of the accused stand cancelled.