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4. Respondents No.1 to 4 have filed their return stating inter-alia that the petitioner was found selling sub-standard cow milk, accordingly, sample of milk was taken and analysis was made and it was found that milk does not conform to standard of cow milk in its report dated 27.7.2012 and therefore, imposition of fine against the petitioner is absolutely justified and no interference is warranted in exercise of supervisory jurisdiction under Article 227 of the Constitution of India.

13. There is one more reason for not upholding the impugned order of imposing fine to the petitioner. It is the case of the petitioner that sample was taken by the Food Safety Officer and notice dated 22.5.2012 was given to the petitioner as he was transporting 60 kg. of milk and thereafter the Food Safety Officer has paid 60/- towards cost of milk to the petitioner. Panchnama was also prepared as per rules. A bare perusal of the statement of Shri H. C. Panji, Food Safety Officer would show that the petitioner was carrying 60 kg. of milk in a container out of which on notice and payment of 60/-, two kg. of milk was purchased by the Food Safety Officer and it was sealed, labelled and formalin was mixed. The panchnama nowhere states that the Food Safety Officer before taking the sample of cow milk in a container thoroughly mixed it either from one vessel to another or by shaking it gently or it nowhere records that milk had no globules or bubbles before the sample was taken. Even otherwise, Food Safety Officer was not examined before the Adjudicating Officer to prove the aforesaid fact. It was the imperative duty of the Food Safety Officer while taking the sample to bring evidence on record to show that cow- milk was thoroughly stirred before taking the sample and sent to the Public Analyst for examination in order to make it homogeneous as the Food Inspector had obtained the sample of milk from the container in which the petitioner had 60 kg. of milk. Thus, the Food Safety Officer had taken the sample of milk from the bulk milk kept in the container of 60 kg. without stirring it and without making it homogeneous in order to make the sample truly represent the milk to be tested. Reference in this connection may be made to a book "A Laboratory Manual of Milk Inspection" by A.C. Aggarwala and B.M. Sharma, Fourth Edition, 1961, wherein guidelines have been laid down for careful and accurate sampling of milk. The learned authors observed as follows at page 115 of the said book:-

"General Sampling :
The careful and accurate sampling of milk is of utmost importance in all analysis of milk. Probably more errors are caused through careless preparation of samples than in the actual performance of the tests. The most important thing to bear in mind in this connection is that the whole body of milk from which a sample is to be drawn should be uniform throughout in its composition, and any sample of milk drawn out of it for analysis must necessarily be a true representative of the whole body of milk. The factors disturbing the uniformity of composition of milk are mainly the separation and partial churning of fat. Thorough mixing of milk must first be ensured either by stirring with a long handled dipper if the container is big, or by pouring from one vessel to another or by shaking gently."

15. In the light of the rules noticed hereinabove, law laid-down by the Supreme Court in K. Harikumar (supra) and in view of the guidelines laid down for careful and accurate sampling of milk by learned authors A.C. Aggarwala and B.M. Sharma in the aforesaid book, if the facts of the present case are examined, it appears that sample of cow milk was taken by the Food Safety Officer without thoroughly mixing the milk either by stirring with long handled dipper or by pouring with one vessel to another vessel or by shaking it gently, therefore it cannot be said that the sample taken was the representative sample and it is possible that the sample of milk might not have a true representative of a whole body of the milk contained in the container on account of presence of flat globules or bubbles in it. The Food Analyst in its report dated 5.6.2012 has found the milk fat as 3.5% and solid not fat as 8.7% and the Referral Food Laboratory, Pune in its certificate of analyst dated 27.7.2012 found the milk fat 6% and milk sold not fat 8.01% and on account of that it has been held that it does not conform to the standards laid by the Act and the Regulations made under the Act of 2006. Therefore, in a case like present where sampling of cow milk has not been carefully done by the Food Safety Officer, it cannot be safely held that sample of milk sent to the Food Analyst truly represented the milk to be tested. I am of the considered opinion that the sampling done is not in accordance with the FSS Act, 2006 and Regulation, 2011 and therefore, the prosecution has failed to bring home the offence under Section 26(2) (i) of the FSS Act of 2006 and consequently penalty imposed is vulnerable.