H.C.P. Tripathi, J.
1. Applicant was convicted Under Section 16(1)(a)(i) of Act No. 37 of 1954 and sentenced to a fine of Rs. 750/-. In default of payment of fine, he was to undergo six months' rigorous imprisonment.
2. According to the presecution, Sri. N. N. Dubey, Food Inspector, went to the shop of the applicant situated in Phullatti Bazar, Agra on 14-3-1962 at about 7.35 A. M. and found him selling Ghee. He purchased 12 ounces of Ghee from the applicant, divided it into three parts, handed over one of them to the applicant and sent one to the Public Analyst for his examination. The report of the Public Analyst indicated that the sample contained a large pro-portion of Vegetable fat or oil foreign to pure Ghee. Accordingly, a complaint was filed against the applicant for exposing for sale adulterated Ghee.
2. The prosecution case was unfolded by Sri N. N. Dubey, Food Inspector, who had taken the sample. Applicant had pleaded not guilty and had denied that the sample was taken from him. He examined one Bhuri Singh, who stated that he had taken Ghee to deliver it to his son, who was studying in a educational Institution at Dayal Bagh and the Food Inspector had taken the sample from his Ghee.
3. The trial Magistrate rejected the evidence of Bhuri Singh as unreliable and placing reliance on the evidence furnished by the Food Inspector convicted and sentenced the applicant.
4. On appeal, the learned Sessions Judge agreed with the findings arrived at by the trial Magistrate.
5. learned Counsel for the applicant has raised two points in support of his revision. It is urged that as the evidence of Food Inspector has not been supported by any witness and as the Food Inspector has not taken any other person to be present at the time when he took the sample, the conviction of the applicant on his sole testimony is not sustainable. It has been urged further that as the complaint was filed on September, 10, 1962 more than six months after the receipt of the sample, it was not possible for the applicant to have it analysed by the Director of the Central Food Laboratory after such a long time and as such he has been prejudiced in his defence and a valuable right conferred on him by Section 13(2) of the Act has been denied. I find force in these contentions.
6. Section 10(7) of the Act as it then stood provides that
Where the Food Inspector takes any action ......... he shall, as far as possible, call not less than two persons to be present at the time when such action is taken and take their signatures.
In this case, there is no evidence to suggest that the Food Inspector had called such two persons at the time when he took the sample. There is no explanation also on behalf of the prosecution as to why the Food Inspector was unable to get two persons to witness the taking of the sample. It must, therefore, be held that the provisions of Section 10(7) of the Act have not been complied with.
7. The sample was admittedly taken on 14th of March, 1962. The report of the Public Analyst is dated 27th of March 1962. The complaint was, however, filed on 10th of September, 1962, i.e., about six months after the date of receipt of sample by the Food Inspector and first date in the case was 21st of Jajrmary 1963. There is no evidence to suggest that any preservative was added to the sample for preserving its constituents. There is no explanation on behalf of the prosecution as to why such an inordinate delay was caused in filing the complaint. It would have been futile for the applicant to have asked for the analysis of the sample by the Director of the Central Food Laboratory after a lapse of such a long time. In these circumstances, it must be held that the applicant has been deprived of a valuable right conferred by Section 13(2) of the Act on him. (See : 1967CriLJ939 , Municipal Corpn. of Delhi v. Ghisa Ram.)
8. In the result, this revision is allowed. The conviction and sentence of applicant are set aside. The fine, if paid, shall be refunded to him.