1. The Food Inspector of Nandurbar Municipal Council has preferred this appeal against the acquittal of the accused by the Judicial Magistrate, First Class Nandurbar, in Criminal Case No. 1204 of 1975. The said case was with respect to an offence under Section 7(1) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, (hereinafter referred to as 'the said Act').
2. As the appeal deserves to be dismissed on a very short; point, it is not necessary to give all the details of the offence in the case. Suffice it to say that on 17-4-1970, at 9-0 a.m. the complainant Food Inspector Y. M. Koli, took a sample of milk from the accused after following the necessary procedure. The sample was divided into three parts. One of the parts was sent to the Public Analyst, on 23-4-1970 for examination and report, the Public Analyst prepared a report dated 26th June 1970 that the sample contained 17-8% added water so as to make the sample adulterous. The said report was received by the complainant on 18-7-1970. The complainant filed a case against the accused after about five years viz., on 23-7-1975. Copies of the relevant documents including the copy of the Public Analyst's report was served on the accused on 1-8-1975. Thereafter the case was heard by the learned Judicial Magistrate, who acquitted the accused on various grounds.
3. Section 13(2) of the said Act gives a right to the accused to have the remaining parts, of the sample analysed by the Central Food Laboratory. The very purpose of this section is .that the accused should have an 'opportunity to verify as to whether the report of the Public Analyst is worthy to be acceptable. In the present case, the accused had not made any such application to the trial Magistrate that the other sample should be sent to the Central Food Laboratory. There is, thus no evidence by the Central Food Laboratory.
4. It is true that in the absence of an application under Section 13(2) of the said Act, it will be difficult for the accused to contend that his right to get the analysis from the Central Food Laboratory is taken away simply because there was a delay in filing the complaint. For example, the Supreme Court in the case of Babulal Hargovindas v. State of Gujarat : 1971CriLJ1075 , has considered this aspect. There the sample was taken on 2-12-1965. The complaint was filed on 6-4-1966. The accused had not made any application under Section 13(2) of the said Act and the question arose as to whether this delay of four months in filing the complaint can be said to be fatal so as to take away the rights of the accused under Section 13(2) of the said Act. The Supreme Court held that mere delay as such .would not dome to the help of the accused for the purpose of contending that at the time when the complaint was filed the remaining two samples had become deteriorated so as to make analysis unfit by the Central Food Laboratory unless the accused made an application for such analysis. In the present case, the facts are however, somewhat different. I have observed that the sample was collected in 1970 and the complaint was filed after five years i.e. in 1975. The taking away the right of the accused under Section 13(2) will depend upon various factors and one of them would be as to whether the remaining two samples would be fit to be analysed by the Central Food Laboratory. It is true that there is no good and cogent evidence in this case as to for how much period the milk would continue to be milk (for analysis) if Formalin drops are added. But by no stretch of imagination it can be successfully urged on behalf of the prosecution that such milk after adding Formalin drops would continue to be milk fit for analysis even after five years. In view of this peculiar position the fact that the accused had not made any application to the court under Section 13(2) of the said Act, would fall in the background. In the facts of this particular case, I hold that long delay of five years would make the sample deteriorated and would thus be unfit for analysis by the Central Food Laboratory. Of course I am maintaining the acquittal not on the ground of mere delay in filing the complaint, but as I have come to the conclusion that on the date of the complaint the samples must have deteriorated and must have 'become unfit for analysis. It is for this reason that the accused deserves an acquittal and consequently the appeal stands dismissed.