R.K. Das, J.
1. This is an appeal against the order of a Magistrate, 1st Class, Puri, acquitting the respondent of an offence under Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954.
2. On 8-3-63. P. W. 1, the Food Inspector, Puri Municipality, purchased half a seer of cow's milk and half a seer of buffalo's milk from the accused, a milk-hawker, on payment of usual price, and obtained a receipt (Ext. 2) from him He divided the cow's milk into three parts and put them into three bottles adding two drops of formalin to each ounce of milk by way of preservative. He then sealed the bottles, gave one bottle to the accused, sent one bottle to the Public Analyst for chemical analysis, keeping one with himself. The Public Analyst by his report, Ext. 3 reported that the milk was adulterated. Thereafter P. W. 1 after obtaining necessary sanction from the District Magistrate, submitted a prosecution report (Ext. 4), under Section 16(1)(b) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act').
3. The plea of the accused is one of a denial.
4. The prosecution examined two witnesses, P. W. 1 is the Food Inspector and P. W. 2 is a witness in whose presence the Food Inspector took sample of milk in the manner laid down under Section 10(7) of the Act. It is admitted by the prosecution that though the sample of the milk was taken on 8-3-63 it was sent to the Public Analyst on 22-3-63 after a delay of two weeks. In the report (Ext. 3) of the Public Analyst, no date of examination has been given, but the report was signed by the Analyst on 18-6-63. Though no time limit is fixed as to within how many days of the receipt of the sample the Public Analyst must examine the sample of food sent to him, Rule 7(3) lays down that after the completion of the analysis the Public Analyst shall forthwith supply to the person concerned, a report in Form III. The Court therefore thought that the Public Analyst must have examined the sample milk by about the date of the report, i.e.. 18-6-63. He held that in view of the unusual delay in examination of the milk, that is, about three months after the sample was taken the natural contents of the milk must have been spoiled and the examination could not have yielded the correct result. Thus, the report of the Analyst cannot be a safe foundation for a conviction under the provisions of the Food Adulteration Act. He accordingly acquitted the respondent. Hence this appeal.
5. Mr. Misra, the learned Counsel for the appellant, contended that Rule 20 lays down the procedure for use of preservatives in respect of milk and milk-products including toned and skimmed milk It says that the liquid commonly known as Formalin, that is, a liquid containing about 40 per cent of formaldehyde in aqueous solution in proportion of two drops has to be added to each ounce of sample of milk The evidence of P W 1 discloses that such preservative was added to the milk in question as prescribed under the Rules Therefore the constitution of the milk could not have been affected before the milk was analysed by the public analyst, though of course the actual date of examination does not find place in the report,
6. No doubt, nothing has been mentioned in Rule 7 as to within what time the Food Inspector should send the sample to the Public Analyst or that the latter should examine the sample of milk sent to him for analysis. In consideration of the unusual delay in the examination of the sample of milk in this case, there should have been some indication in the report or in the evidence that in fart no change in the constitution of the milk was found at the time of examination That at least would have shown that the constitution of the milk was not disturbed in any way at the time of such examination. No doubt the rule prescribes that Formalin should be added as a preservative, but there is nothing to show as to how long such preservative can remain effective or it will retain its preservative character for ever. In the absence of any such material it is difficult to convict the accused on such insufficient data. There are authorities where it has been held that the delay in the examination should be discouraged and should be taken into account in assessing the value of the report. See In re Mohammed Sherif Saheb AIR 1962 Mad 342; In re Velu Konar, 1964 (2) Cri LJ 97.
7. In a case reported in Jahneswar v. Abdul AIR 1964 Tripura 48 the food inspector purchased a sample of milk on 5-12-58 and after adding the preservative as required under the rules, sent one sample to the public analyst on 6-12-58 and after the analysis was made it was sent back by the public analyst and was received by the food inspector on 9-1-59 and the sample was found to be adulterated. In the circumstances, the Court held that in the case of analysis of milk the court has to be satisfied that the public analyst has conducted the analysis without any avoidable delay. It may be that refrigeration is not necessary where the preservative is added to the sample, but even in such cases the delay in conducting the analysis has to be taken into account by the court in assessing the value of the report of the analyst Further, in view of Rule 3 of the Rules, in a case where the date of analysis is not mentioned in the report and the report is dated more than a month after the date of receipt of the sample, a presumption would arise thai the analysis was not done immediately on receipt of the sample, but much later.
8. In a case of this nature the Madhya Pradesh High Court appears to have taken a similar view as will be seen from a Division Bench decision of that Court reported in Municipal Corporation Gwalior v. Kishan Swaroop AIR 1965 Madh Pra 180 In that case the food inspector purchased some milk from the accused on 10-5-60, but added insufficient formalin and sent it to the Public Analyst on 17-5-60. The Public Analyst analysed the sample on 19 5 60 and found the same to be adulterated Their Lordships were of the opinion that the report of the Public Analyst loses its weight when the analysis is found to have been carried out some days after the sample was taken It cannot be disputed that the composition of milk undergoes a rapid change unless the milk is either pasteurised or is sent under refrigeration. Their Lorships further observed:
To obviate the possibility of the changes, it was absolutely necessary to get the samples examined at the earliest possible time and if there was some delay it was necessary for the prosecution to establish that the milk was preserved in the interval under ice or refrigeration,
There is yet another side of the picture. No doubt, it is possible to secure a conviction on the basis of the analysis report when the milk is adulterated, but when there was a, delay in launching the prosecution, it deprived the accused of a valuable right to challenge the report of the Public Analyst in the manner laid down in Section 13(2) of the Act.
I am in respectful agreement with these observations. No doubt in the present case Rule 20 has been fully complied with inasmuch as the requisite preservative was added to the milk. But in view of such unusual delay it was the duty f the prosecution to examine the Analyst or to lead some evidence to prove that on the date of the analysis the constitution of the milk did not undergo any deterioration so as to affect the result of the examination. In absence of such evidence by the prosecution, it is bound to affect the weight that is ordinarily to be given to the report of a Public Analyst. In that view of the matter, it cannot be said that the trial court has taken an incorrect view of the case.
9. Mr. Ram Ram, learned Counsel for the accused, contended that Section 10(7) of the Act has not been complied with in this case as the milk in question was not seized in the presence of two witnesses. This, however, is not the correct position. From Ext. 1 it appears that one Rama Chandra Behera and Dama Das (P. W 2) were both present when the sample of milk was taken from the accused. Further, Section 10(7) lays down that where the food-inspector takes any action under Clause (a) of Sub-section (11 or Sub-section (2) or Sub-section (4) or Sub-section (6) 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. Of course the expression 'as far as possible' does not mean that it was open to the Food-Inspector to commit deliberate violation of the provisions of Section 10(7). All that it requires is that the Food Inspector shall first attempt to secure the attendance of two wit-nesses, when he takes action under Section 10. That means whenever it is possible to avail such witnesses, he must do so and he must explain the justification for any departure from the rules in a particular case. The seizure itself, however, cannot be made illegal for non-compliance of the provisions of Section 10(7) : See Patna Municipal Corporation v. Dular Chand Sao : AIR1964Pat565 . It may be stated here that the expression 'as far as possible' does not find place in Section 103, Cr. P.C. which undoubtedly is stricter in its scope and application, than the aforesaid provision in Section 10(7). But even in respect of searches made in contravention of the provisions of Section 103, the search itself cannot be made illegal and all that the courts are called upon to do in such cases, is to examine the evidence more carefully in respect of such seizures In a case reported in Radha Kissen v. State of Uttar Pradesh : (1963)IILLJ667SC which was a case of seizure under Section 103, Cr P C., their Lordships observed that the illegality of the seizure has the result that the Court will be inclined to examine carefully the evidence regarding the seizure and no further consequence would follow. Thus, the contention raised on behalf of the accused that the seizure was illegal, has no force.
10. As already stated, this was a case where there was an unusual delay in the analysis of the milk and there is nothing in the report of the Public Analyst to indicate the condition of the sample milk at the time of examination or even about the presence of Formalin or to the length of time Formalin can act as an effective preservative to maintain intact the constitution of the milk. Moreover the prosecution has not explained whether such unusual delay could or did interfere with the result of such examination.
11. No doubt, cases of adulteration of food have to be strongly dealt with, but this cannot be a ground for a departure from the ordinary principles of a criminal trial that no conviction can be based on insufficient or unsatisfactory evidence. Adulteration of food is a crime against society and in the interest of public health it is necessary that all such prosecutions should be launched with great despatch so that a really guilty person might not escape punishment and in that view of the matter, it is also necessary that the examination of the samples particularly like of milk, should be made without any unusual delay.
12. In view of the state of evidence the learned Magistrate was justified in acquitting the accused. I see no reason to interfere with his order
13. In the result the appeal is dismissed.