C.P. Sen, J.
1. The applicant has been convicted Under Section 16(1)(a)(i) of the Prevention of food Adulteration Act, 1954, for selling adulterated milk and sentenced to rigorous imprisonment for six months and fine of Rs. 500/- or in default to undergo further rigorous imprisonment for three months.
2. The facts are that on 12-9-1968, Food Inspector Jagdish Prasad (P. W. 1) stopped the applicant while he was carrying milk on his cycle for sale. After giving notice and paying the price, the Inspector purchased 660 ml of milk and divided the milk so purchased into three parts, which were kept and duly sealed in 3 bottles. One sample was given to the applicant, another was sent to Public Analyst and the third was kept by him for production in the Court. The Inspector prepared necessary documents on the spot in the presence of panchas showing that all formalities were performed properly. The Analyst certified the sample to be adulterated with 18 per cent of added water. The conviction has been based on the testimony of Food Inspector duly corroborated by panch Devi Prasad (P. W. 2) and the documents Exs. P.l to P. 5. The defence was of denial that the applicant was carrying any adulterated milk but it was contended that he was merely a carrier of the milk and was not dealing in milk. The learned Sessions Judge Was of the view that the applicant could not make any grievance about the delay in filing the complaint against him as he did not apply Under Section 13(2) of the Act for sending a sample to the Director of Central Food Laboratory, thereby it would have been known whether the sample was still fit for analysis or not. Probation of Offenders Act was not invoked as the applicant in his statement Under Section 342 of the Code of Criminal Procedure gave his age to be 28 years.
3. The conviction and sentence are mainly challenged firstly on the ground that in View of inordinate delay in launching the prosecution, the applicant has been seriously prejudiced in his defence and secondly, in any case, the Courts below should have released the applicant Under Section 6 of the Probation of Offenders Act, 1958, as he was only 16 years on the date of the offence.
4. In Munpl. Corpn. of Delhi v. Ghisa Ram : 1967CriLJ939 it has been held :--
Prevention of Food Adulteration Act 1954, Section 13 (2) and (5) -- Right of accused to get sample examined by Director of Central Food Laboratory -- Inordinate delay in prosecution Sample becoming decomposed and hence impossible of analysis -- Accused deprived of his valuable right--Conviction cannot be sustained.
In that case the prosecution was launched after 8 months and Under Section 13(2) the sample was sent after another 4 months on the application of the vendor to the Central Laboratory. The sample taken was of curd and no preservative was added. The Laboratory wrote back that the sample had decomposed and was not fit for analysis. It was also found that if preservative is added, sample could have remained fit for analysis for 4 months without refrigeration and for a period of 6 months under refrigeration. It was however pointed out that the above principle must be applied to cases where the conduct of the prosecution has resulted in the denial to the vendor of any opportunity to exercise this right.
Explaining further, in Babulal v. State of Gujarat : 1971CriLJ1075 it has been held :--
Prevention of Food Adulteration Act, Section 13(2)-- Defence that the accused has been deprived of his right Under Section 13(2) to send the sample in his custody to the Director Central Food Laboratory due to delay in launching the prosecution is not open when the accused has not filed an application Under Section 13(2) during the trial and there is no evidence to show that no preservative was added to the sample.
In that case the prosecution was launched after 4 months but no application was made by the accused to send the sample to the Director, Central Food Laboratory, The sample was of milk and preservative was added.
The principle enunciated above has been reiterated in Ajit Prasad v. State of Maharashtra : 1972CriLJ1026 , that unless the accused filed an application Under Section 13(2) for getting the sample analysed by the Director, Central Food Laboratory, he could not complain that he was deprived of his right to have sample analysed by the Director.
In that case the summons of the case was served on the accused after 3 months. The sample was of milk and preservative was added.
5. A Full Bench of this Court in A. P. Apte, v. Md. Amir, 1974 MPLJ 241 considering all the above cases has laid down :--
Sub-rule (3) of Rule 7 of the Prevention of Food Adulteration Rules can be meant as laying down that a prosecution can be launched at least beyond the period of sixty days but without any further unexplained delay In normal circumstances a period of four months can easily be taken before the accused has any opportunity of exercising his right Under Section 13(2) of the Prevention of Food Adulteration Act. Where the question of delay is raised in defence the real test is whether at the time when the accused has an opportunity of exercising his right Under Section 13(2) the sample remains in a condition fit for analysis by the Director, Though therefore promptness in prosecuting the accused is always necessary and expedient mere delay will not be fatal to the prosecution unless it is established that the delay which is attributable to the prosecution has resulted in a denial or frustration of the right of the accused Under Section 18(2) on account of the sample having become deteriorated and unfit for analysis. It cannot be contended that the accused is not expected to retain the sample for an indefinite period because the third sample required to be retained by the Food Inspector would always be available. In normal circumstances therefore a period of three or four months in prosecuting the accused is not fatal subject to the condition that provisions of Rule 20 in the matter of addition of the preservative is substantially complied with.
In that case, the Food Inspector filed the complaint after 21/2 months and it was said that he did not add requisite quantity of the preservative. It was held that the delay of 2% months in launching prosecution was not much and slight deviation in adding the required quantity of formalin was inconsequential. It was also pointed out that it is of utmost importance that the prosecution agency should take immediate steps to prosecute the accused soon after a report is received from Public Analyst.
6. Lactic organisms are present in milk in varying numbers even when produced under clean conditions. The composition of milk with the bacterial content undergoes a rapid change unless the milk is pasteurised or unless it is sent under refrigeration. The following passage from the book 'Milk Production and Control' by Harvey and Hill at pages 177-178 is quoted hereunder :--
The keeping properties of milk depend upon the number of bacteria contained. Bacteria multiple more rapidly at High temperature than at low, and the higher the temperature the more rapidly do they increase, this being specially the case with those organisms which cause rapid souring and objectionable flavours in milk. The bacteria most commonly found in milk grow more rapidly at temperature above 60 F. at temperatures above 70 F., milk speedily sours. If the liquid contains as few as 10,000 bacteria and is held at 60 F. it will become sour in fifty three hours. If the same milk is held at 50 F, it will not sour for eighty-six hours. Every effort should, therefore, be made to ensure that the milk is cooled to temperature as law as is possible under the prevailing circumstances.
Mudholkar J. (as he then was) in Datta-ppa v. Buldana Municipality AIR 1951 Nag 191 : 1952 Cri LJ 471 has observed 'where milk is kept in its natural condition for a long time, it may be taken, therefore, that its fat and non-fat content would be reduced.'
In Encyclopaedia of Britannica (1970 Edition), Volume IX at page 546, on the subject of 'Food Preservation', it has given a table showing the safe storage period of various food products. Though milk is not mentioned in the table but butter and cheese have been included in the table and it has been stated that safe period of storage of these two articles is 9-8 months under freezing point refrigeration. Evidently, the period for milk will be lesser.
So considering the various authorities cited above, it can be said that a sample of milk, even after adding preservative, can remain fit for analysis at the most for a period of 6 months, if kept under refrigeration, The period given in the Encyclopaedia of Britannice is of course under the conditions prevailing in cold countries but our climate is much warmer. In fact, temperature is normally above 70 F. throughout the year, the summer temperature being very much higher. There are also not such facilities available here for preservation of the samples as in those advanced countries.
7. The sample in the present case was taken on 18-9-1968 and preservative was added in requisite quantity. The sample was analysed by the Public Analyst on 16-10-68. The prosecution was launched on 24-6-1969 and the applicant appeared on 9-9-1960 that if about one year after taking of the sample. The applicant could not have exercised his right Under Section 13(2) for sending the sample to the Director, Central Food Laboratory earlier than 9-9-1969. Them is no explanation from the prosecution as to why there was undue delay of 8 months after the sample was analysed by the Public Analyst. Food Inspector Jagdish Prasad (P. W. 1) has stated in his examination in-chief itself that the third sample bottle Art. A was produced along with the complaint in the Court. He also stated that Art. A which was shown to him was open without any cork and there was no content inside and he expressed that rats may have eaten the cork and the contents. Clearly therefore the third sample bottle was not available for analysis, It was, therefore, of, no consequence even if the prosecution had taken all the precaution for keeping the third sample bottle under refrigeration. There is no facility available in the Nazarat for keeping the sample bottle under refrigeration, so, in any case, the sample would have deteriorated by the time the applicant appeared in the case. Now, it is also not expected that a poor milk vendor like the applicant would keep his sample bottle under refrigeration. No such facilities are available. So even if the applicant had kept the sample bottle with him, still no useful purpose would have been served after lapse of one year because by that time the sample must have decomposed and would not have been fit for analysis. In view of the inordinate delay in this case, it does not matter that the applicant did not apply Under Section 13(2) of the Act for sending the sample bottle to the Director of Central Food Laboratory. Perhaps, the applicant being minor did not preserve this bottle. The unusual delay in launching the prosecution has resulted in denial of the opportunity to the applicant of his right Under Section 13(2) of the Act. Evidently, this is the only method by which the applicant could have effectively challenged the report of the Public Analyst. Therefore, the conviction and sentence passed against the applicant have to be set aside.
8. The Courts below have also erred in not considering the case of the applicant Under Section 8 of the Probation of Offenders Act as he was clearly of 16 years of age on the date of the offence. In the complaint filed by the Food Inspector, the age of the applicant has been stated to be 18 years. In his cross-examination, the Food Inspector has also admitted that the age of the applicant was 16 years on the date of the taking of sample. The learned Sessions judge was not justified in inferring the age of the applicant to be 28 yean simply because in the examination of the applicant Under Section 342 Cr. P., C. his age and apparent age have been shown to be 28 years. This must have been the estimate of the trial Magistrate. It could not be the age given by the applicant because in the cross-examination of the Food Inspector it has been brought out that his age was only 16 years. It was, therefore, incumbent on the Courts below to consider the case of the applicant under the Probation of Offenders Act. It has come in evidence that the applicant was a carrier and he was carrying milk on behalf of others. The incident is of 1968 and more than 7 years have passed. Under these circumstances, I feel this is a fit case looking to the age of the applicant that he ought to have been let off under the Probation of Offenders Act, even if the convietion was to be maintained.
9. The revision is therefore allowed, the conviction and sentence passed against the applicant are set aside and he is acquitted of the offence for which he has been convicted, Fine, if paid, be refunded.