S. Malik, J.
1 This is an application under Section 417(3) of the Code of Criminal Procedure for leave to appeal to this Court against the judgment dated 1-12-1971 of a Magistrate 1st Class at Agra acquitting the opposite-party of an offence punishable under Section 16 read with Section 7 of the Prevention of Food Adulteration Act.
2. Heard learned Counsel for the applicant and perused the impugned judgment.
3. The facts of the case are that accused Gopi Chand was selling cow's milk on 29th April. 1971 at 7.00 P. M. Kunwar Singh, Food Inspector, gave him a notice under Rule 12 and obtained from him a receipt (EX, Ka. 1) He then purchased 660 millilitres of milk for 75 paise and obtained the receipt (Ex. Ka. 2).
4. He divided the milk into three parts put them into three phials and sealed them as required by Section 11(6) of the Prevention of Food Adulteration Act (Act No. 37 of 1954) and gave one phial to the accused sent one to the Public Analyst for analysis and report and one phial was retained in the office of the Nagar Swasthya Adhikari.
5. On receipt of the report of the public Analyst that the milk was deficient in non-fatty solids and its fatty contents were below normal, the accused was prosecuted for selling adulterated milk and a charge under Section 7/16(1)(a)(i) of the Prevention of Food Adulteration Act was framed against the accused.
6. The accused in the course of the trial applied under Section 13(2) for sending the sample given to him to the Director for analysis and report and pleaded not guilty,
7. His application was allowed and the sample given to him by the Food Inspector was sent to the Director. The sample phial, however, got smashed in transit. The counsel for the Nagar Mahapalika produced the sample phial retained in the Nagar Mahapalika and stated that if the accused likes, he can have it sent, The complainant's counsel was not prepared to have the sample sent on behalf of the prosecution. The counsel for the accused refused to have the phial sent on his behalf and as he could not rely on it for various reasons which it is not necessary to deal with here.
8. The result, therefore is that the accused through no fault of his was not able to get the sample examined by the Director. He was not bound to accept the sample in the possession of the prosecution which had been sealed by the Food Inspector and the seal also probably remained in the custody of the prosecution.
9. In view of the reasons discussed, I see no force in this application and reject it.