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Further, the Public Analyst, Kolhapur sent report in respect of sample of buffalo milk bearing Sample No. BKK/19/81 vide report No. 1005 dated 1st April, 1981 from Local Health Authority, Kolhapur on 10th April. 1981.

The Public Analyst, in his report, declared the result of analysis as below :

"1. Total solids % - 12.94

2. Milk fat % - 5.20

3. Solids not fat % - 7.74."

The report of the Public Analyst, thus, reveal that the sample contained milk fat which was less than 6.0%, and solid, not fat less than 9.0%, and therefore did not confirm to the standards of the buffalo milk as per the Rules made under the Act.

4. The learned Judicial Magistrate, First Class, after hearing both the sides, came to the conclusion that the prosecution failed to prove that the milk was stirred and was made homogeneous before sample of milk was purchased from the accused by Karyappa, the Food Inspector. The learned Judicial Magistrate, First Class, also came to the conclusion after recording evidence and after hearing both the sides that the Food Inspector had not given proper intimation to the Local Health Authority, after one part of the sample was sent to the Public Analyst, Kolhapur about the same. The learned Magistrate also observed that the prosecution did not prove that notice under Section 13(2) of the Act was properly served upon the accused. He also gave a finding that the prosecution did not prove beyond reasonable doubt that the sample milk did not confirm to the standards of the buffalo milk as per Act and Rules made thereunder. Giving these findings, the Trial Court held that the accused has not committed any offence and acquitted him for the charges framed against him. Being aggrieved, the State has now approached this Court by way of filing Criminal Appeal under Section 378(1) of the Cr.P.C.

6. We have gone through the proceedings, including the report of the Public Analyst, the depositions of both the Food Inspectors and the impugned Judgment. We find no infirmity in the impugned Judgment.

7. The report of the Public Analyst (Exhibit 26) reveals that the milk fat contains to the extent of the panchnama (Exhibit 16) did not disclose that the sample milk purchased by P.W. 1 Karyappa was stirred and that, it was made homogeneous. The panch witness Mahadeo also did not support the prosecution story on this point. P.W. 1 Karyappa also stated in his cross-examination that there was no mention, either in the complaint or in the panchnama that he asked the Respondent/accused to give stirred milk, and that, thereafter, the sample milk was purchased by him from the accused. He also admitted that no such mention is there about the stirred milk in the complaint or in the panchnama that the milk was stirred and was made homogeneous after it was collected by him in the aluminum pot or in the aluminum can. P. W. 1, however, for the first time in the Court, deposed in his substantive evidence that the milk was stirred. However, the absence of mentioning the said fact in the panchnama or in the complaint, speaks volumes, and it has to be held and it was rightly held that this was an afterthought and an improvement of the prosecution case of P. W. 1. The Trial Court has rightly observed that, "It is a matter of common knowledge that cream accumulates on the top of the milk and if the milk is not properly stirred when the sample is taken, it is bound to be deficient ingredients .......". Thus, when the obvious conclusion is that sample was collected by the Food Inspector without milk being stirred, and without making it homogeneous, and when no such mention is there in the panchnama or in the complaint, his statement to that effect only in the Court for the first time, has got no credibility. The Trial Court was therefore right in coming to the conclusion that the prosecution has failed to prove that the milk was stirred and was made homogeneous before sample of milk was collected by the Food Inspector Mr. Karyappa from the accused.

We have carefully considered both the authorities, and we respectfully agree with the decision given by the Punjab and Haryana High Court (supra). There are proper manners and methods of taking a sample of say; curd or milk. As far as taking a sample of curd is concerned, the proper manner and method would be that the set curd should be divided vertically and the entire one compartment should be taken churned and divided into three parts. As far as taking of sample of milk is concerned, it goes without saying that the milk has to be homogeneous, and it cannot be homogeneous unless it is stirred. In our opinion, non-mentioning of the fact that while taking the sample of the milk, it was stirred and if it is not mentioned also in the panchnama, but it is stated by the witness in the Court for the first time, the witness should not be believed. In the present case at hand, the Food Inspector has admitted that no mention is made either in the complaint or in the panchnama that the milk was stirred before sample was taken. We disbelieve and disregard the statement made by the Food Inspector in the Court for the first time, and hold that the Trial Court was right in rejecting the prosecution case on this point to the effect that before sample of milk was purchased by Mr. Karyappa from Respondent, the milk was not stirred and was not made homogeneous.