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The case of the respondent is that a complaint under section 16 of the PFA Act was filed against the appellant before learned Metropolitan Magistrate alleging that on 7/7/1988 at about 5 p.m. the Food Inspector Shri Baljit Singh visited M./S. New Uphar Daily, Chirag Delhi, New Delhi where he found cow's milk stored in open in the drum bearing declaration as a cow's milk. He purchased sample of the said milk after homogenising with the help of plunger. The sample was sent to the Public Analyst whose report shows that the said sample was adulterated on account of solids not fat being 6.78% which was less than the minimum prescribed 8.5%. The sanction for prosecution was obtained and the complaint was filed against him before learned Metropolitan Magistrate. The accused also exercised his right under section 13 ­: 4 :­ (2) of the PFA Act and the second counterpart of the sample is selected and was got analysed from the Director CFSL who by his certificate dated 1/5/1989 reported in December it to be adulterated on account of milk fat 2.8% which was less than the specified limit of 3.5%. Further the milk solids not fat contents were found 7.5% which fell below the minimum specified limit of 8.5%..

The above citations relied upon by learned counsel ­: 14 :­ for appellant clearly shows that though the Certificate of Director CFL supersedes that of Public Analyst but the variation between the two leads to the inference that the sample taken was not of representative character of the whole milk available at the spot. In the present case the report of Public Analyst Ex PW1/E shows that the milk fat contents in the sample were 5.1 per cent while milk solids not fat contents 6.78%. But according to the Certificate of Director CFL the milk fat contents in the samples sent to him were 2.8% while the milk solids not fat 7.5%. If the sample milk was taken by properly homogenising the whole milk how can the two counterparts of the sample milk could have such a noticeable variation. Although the Food Inspector PW1 Shri Ghopal Singh has stated in the statement that before purchasing the sample milk it was properly homogenised with the help of the clean and dry plunger, the plunger was inserted up and down then the sample was taken. The so purchased sample of cows milk was equally ­: 15 :­ divided into three parts and poured into three clean and dry bottles and 20 drops of Formaline were poured in each counterpart of the sample bottle. But if the milk was so, homogenised with the help of the plunger as stated by PW1 why there was so much difference in the report of Public Analyst and the Certificate of the Director CFL, referred before? In the light of the above case law this difference leads to the inference that the sample taken was not representative of the whole milk available at the spot. On behalf of the respondent State it is argued that the Certificate of Director CFL having superseded the report of Public Analyst the former shall only needs to be looked into in the case and difference between the two in the sample analysis has no bearing in the case. Reliance is placed upon the authority "Jagdish Prasad v. State of Delhi" AIR 1982 SC 57, wherein it was observed as follows:

"There is, therefore, no gainsaying that before a sample of milk is taken by the Food Inspector he must ensure that the milk has been made homogeneous. Otherwise the report of the analyst is bound to be misleading regarding the contents of fat and solids not fat. While assessing the value of the report it becomes the duty of the Court to ascertain if the sample of milk had been properly taken by the Food Inspector. The proper ­: 24 :­ sample would only be of milk made homogeneous by stirring. If the Court comes to the conclusion that the milk was not properly stirred and made homogeneous it is not bound to rely upon the report of Public Analyst to base conviction of the milk vendor. To come to a conclusion that the milk was made homogeneous when the sample was taken the contents of the complaint have necessarily to be looked into. In case the factum of stirring of the milk is missing in the complaint, it is open to the trial Court to entertain doubt on the statements of the Food Inspector and his witnesses in respect thereof."
213. Considering all these judgement I am clearly of the view that no latitude can be granted to the Food Inspector to make improvement in the case at the time of the trial and this material fact having been proved that the milk was not stirred properly before taking the sample is also a ground on account of which the conviction and sentence are liable to be set aside."

In the present case the panchnama Ex PW1/C does not show that the milk was homogenised before taking sample iand any plunger was used for this purpose. The complaint filed by Local Health Authority before learned Metropolitan Magistrate also does not show this fact specifically. Therefore, in the light of the above case law the statement of the PW1 and other witnesses of the prosecution regarding homogenisation of the milk before taking sample by use of plunger for this purpose , cannot be believed.