S.K. Kaul, J.
1. This is an appeal against an order of acquittal directed in favour of the accused-respondent by the Magistrate who had found the accused-respondent not guilty Under Section 7/16 of the Prevention of Food Adulteration Act and had acquitted him of the charge read with Rule 50 of the aforesaid Act.
2. In short the allegations of the prosecution are that on 20-6-1970. at about 11.45 a.m., Sri G. P. Sahu, Food Inspector purchased a sample of Ghee to the tune of 450 grams from Mushir Ahmad, a Kirana Merchant owning a shop in Mohalla Katra Abuturab Khan. He paid Rs. 5.85 for the same. He divided the sample into three phials and sealed them after adding preservative and gave one phial to the accused. The relevant documents, namely, notice, receipt of payment of money etc., were prepared by the Food Inspector on the spot. When the sample was sent to the Public Analyst for report, the report of the Public Analyst was that the sample contained more than the prescribed percentage of acid. The intimation of the report of the Public Analyst was sent to the accused-respondent, Mushir Ahmad. Later on, after obtaining sanction for the prosecution from the relevant authorities, a complaint was filed against the accused respondent and on that basis he was .asked to stand his trial Under Section 7/16 of the Prevention of Food Adulteration Act.
3. The accused admitted that sample of Ghee was taken from him but he denied that any price was paid to him. He further contended that the sample phials were washed and thereafter Ghee was sampled. The learned Magistrate acquitted the accused-respondent mainly on the ground that since prosecution was launched after unusual delay, the accused was deprived of a legitimate right to get the sample tested from the Director of the Central Food Laboratory. The Magistrate relied upon a ruling of this Court reported in Bindra Ban Das v. Nagar Swasthya Adhikari 1971 All WR (HC) 306 : 1971 Cri Lj 1366. It is against this order of acquittal that the present appeal has been preferred by Nagar Swasthya Adhikari, Nagar Mahapalika, Luck-now.
4. On the facts of the case, I do not think there can be any dispute. The prosecution led evidence to show that on the relevant date and time 450 grams of Ghee was purchased from the accused by the Food Inspector who had paid relevant price also to the accused. One oi the samples was given to the accused on the spot. The relevant documents were also prepared by the Food Inspector on the spot. There can, therefore be no doubt that the Food Inspector purchased the necessary sample from the accused relating to Ghee. The report of the Public Analyst goes to show that the prescribed limit of 3% of free fatty acids (as Oleic Acid) was exceeded inasmuch as the sample was found to contain 5.2% of the aforesaid type of acid. The question arises whether for the delay in launching the prosecution the accused can be said to have been prejudiced. It is true that a decision of the Supreme Court on this point is a direct authority on the subject. That decision is: Ajitprasad Ramkishan Singh v. State of Maharashtra : 1972CriLJ1026 . In that case also the sample was taken on July 1, 1965. The complainant was summoned in November. 1965. The Magistrate had observed that since time, by which the sample could have been referred to the Director, had elapsed to this extent that the sample would have become decomposed, the accused had lost a valuable right and, as such, he being prejudiced, had to be acquitted. On appeal the High Court reversed the finding and convicted the accused. He thereupon went ,up in appeal to the Supreme Court. The Supreme Court noticing its own decision referred to in Babulal Hargovindas v. State of Gujarat : 1971CriLJ1075 and Municipal Corporation of Delhi v. Ghisa Ram : 1967CriLJ939 observed that:-
(1) in the absence of any application by the accused under Section 13(2) for getting the sample analysed by the Director the accused could not complain that he has been deprived of his right to have the sample analysed by the Director.
(2) mere delay and laches on the part of the complainant in getting the summons served was not. in the absence of evidence to show that the sample had deteriorated when the summons was served, sufficient to hold that accused was prejudiced by reason of deprivation of the right Under Section 13(2).
5. In this case the record shows that the accused did not give any application that his sample may be sent to the Director for test. In that view of the matter, delay in launching the prosecution will not come to the rescue of the accused. The ground for acquittal, that found favour by the trial court, is not correct and indeed the decision of this Court quoted by the trial court will be deemed to be overruled by the Supreme Court decision noted above by me.
6. Nevertheless, the question arises whether such a change in the free fatty acids can be as a result of adulteration or it could be as a result of Ghee coming into exposure with the atmosphere. The learned counsel for the respondent showed to me a decision of Hon'ble C. B. Kapoor, J., in Criminal Appeal No. 1426 of 1963 and Criminal Appeal No. 1429 of 1&63. Nagar Swasthya Adhikari, Nagar Mahapalika, Agra v. Bedi Lal, decided on 17th Nov. 194 (All). That was also a case based upon the sample of Ghee. The sample of Ghee was taken on 2-4-I960 and was sent to the Public Analyst on 18-5-1960. In that case also the content of the free fatty acid found was 5.8% (underlining is mine) as against 3%. Capoor, J., noting with approval the decision of Madras High Court reported in In re. P. Mohammud Sheriff Saheb AIR 1962 Mad 342 : 1962 (2) Cri LJ 380 and also relying upon an unreported decision of our court in Criminal Appeal No. 889 of 1959, decided on 27-4-1930 (All), observed that:
Oleic acid denotes freshness of ghee of ghee is kept for a longer time and in open container the acidity is likely to increase due to oxidation process.
7. In the case before me the percentage of oleic acid was found to be 5.2% only, That being so, on the same reasoning which found favour with Capoor. J., I am of this view that in this case 6 well it cannot be said that the sample was deficient to the extent to attract the provisions of the Food Adulteration Act.
8. As a result, I would maintain the order of acquittal though on other ground as noted above, and reject the appeal. The respondent Is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged.