Jyotirmoyee Nag, J.
1. The petitioners have come up in this Rule for quashing a proceeding that is pending before the learned Metropolitan Magistrate, Calcutta, being Case No. 119-D of 1973 for offences under Sections 16(1)(a)(i) and 7(i) of the Prevention of Food Adulteration Act. The petitioner No. 1 is the proprietor of a sweetmeat shop at 47, Surjya Sen Street, and petitioner No. 2 is a tea shop owner at 48, Sujya Sen Street, Calcutta having his own trade licence and separate establishment. The Food Inspector visited the shop of petitioner No. 1 on 21-6-1973 and inspecting certain curd stored there and exposed for sale for human consumption as adulterated (sic) took samples for analysis of the same. The Analyst's report stated that the sample of curd was found to be adulterated inasmuch as it did not conform to the specifications relating to curd prepared from buffalo's milk. On the basis of the report of the inspector under the Prevention of Food Adulteration Act and the Analyst's report the learned Metropolitan Magistrate framed charges under the sections of the Prevention of Food Adulteration Act mentioned above.
2. The learned Advocate appearing for the petitioners submit that the samples seized conformed to the specifications laid down for curd prepared from cow's milk and the Food Inspector did not in his evidence state whether any declaration was made as to the class of milk from which the curd was prepared whether from cow's milk or buffalo's milk. The learned Advocate appearing for the Corporation of Calcutta has referred me to the specification A 11.02.04 wherein it is provided that where dahi or curd other than skimmed milk dahi is sold or offered for sale without any indication of class of milk, the standards prescribed for dahi prepared from buffalo milk shall apply. There is no evidence whatsoever either oral or documentary, as to whether there is any indication in the shop to the effect that the sample of curd which was seized contained any indication as to the class of milk from which the same was prepared. This is a necessary ingredient of the offence itself and as the same is absent the charge cannot stand.
3. Accordingly I quash the present proceeding and make the Rule absolute.