E.K. Moidu, J.
1. The State has filed this appeal against the order of the Additional First Class Magistrate, Muvattupuzha acquitting the respondent of the charge under Section 7(i) read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act. 1954 (Act 37 of 1954) in that the respondent sold to P. W. 1. Food Inspector, some 2 Kg. of prepared food known by the name 'Madakasan' on 11-10-1969. The sample when analysed by the Public Analyst, Kerala, was found adulterated as the food contained metanil yellow, a non-permitted coal-tar dye (Vide Ext. P. 6). P. W. 1 purchased the sample on 11-10-1969 and Ext. P. 6. the report of the Public Analyst, is dated 7-11-1969. However, the complaint against the respondent was filed in court only on 13-1-1970 after the lapse of more than two months. During the trial of the case, the respondent applied to the court on 23-2-1972 for sending the sample retained by P. W. 1, Food Inspector, to the Director of Central Food Laboratory, Calcutta, as required by Section 13(2) of the aforesaid Act But the report of the Director was that the sample food was highly decomposed and that therefore it could not be analysed.
2. The learned Magistrate held that on account of the delay in filing the complaint after the seizure of the article, prejudice has been caused to the respondent by depriving him of the right of testing the correctness of the Public Analyst's report by getting the sample analysed by the Central Food Laboratory and that it is unfair and unjust to enter a conviction against the respondent whose rights were prejudicially affected by the laches of the prosecution. Accordingly the Magistrate acquitted the respondent.
3. Though the delay in the instant case was only two months in filing the complaint after the analysis of the sample by the Public Analyst, the nature of the food in the instant case was such that it would have decomposed in a short period of time. It is not the case of P. W. 1 that he added any preservative to the sample. It is also not proved that the sample in question would have retained its purity and freshness for any length of time. Under those circumstances, the delay of two months in this case, taking into consideration the nature and quality of the food sample, could not be ignored.
4. There was 5i months' delay in a case decided in Satrughna Behera v. Puri Municipality (1968 Cri LJ 123 (Orissa)). where the milk sample was sent to the Public Analyst on 29-8-1963 and after analysis the prosecution was launched on 5-12-1963. It is held in. that decision:
Even if the accused did not exercise his right under Section 13(2). no useful purpose would have been served by doing it after such a long time. In the facts and circumstances of this case, the delay in prosecution affected the right of the accused to challenge the report of the Public Analyst which could be superseded by the certificate of a greater expert. The accused was entitled to take advantage of tile aforesaid defect of prosecution. He was entitled to benefit of doubt.
5. In Public Prosecutor v. Pilagala Venkateswara Rao (1969 Cri LJ 1278 (Andh Pra)), the acquittal was not interfered with on the ground of delay in filing the charge as it was found that even if the accused wanted to challenge the finding of the Public Analyst he would not have been able to do so due to lapse of time. In that case the offence was detected on 26-6-1965 and the sample was analysed on 23-7-1965. But the complaint was laid only on 13-11-1965 after a lapse of four months. The delay in that case had not been explained with the result that if the accused wanted to challenge the finding by the Public Analyst he would not have been in a position to do so due to lapse of time. So the, acquittal order was not interfered with.
6. This Court in Food Inspector, Trichur Municipality v. Devadas (1967 Ker LT 1145) also held that where there has been unexplained and avoidable delay, which was 8 months in that case, the accused would be prejudiced as he was deprived of a valuable right conferred upon him under Section 13(2) of the Act.
7. The law on the point is fully considered by the Supreme Court in Municipal Corporation of Delhi v Ghisa Ram. : 1967CriLJ939 . It said:
When a valuable right is conferred by Section 13(2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him. The right is a valuable one. because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be- able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as con elusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, e. g. delay in prosecution as a result of which the sample is highly decomposed and could not be analysed, the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein.
The Supreme Court has. however, cautioned the application of this principle in every case. It stated'
The principle must, however, 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. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible.
8. It may be remembered that there may occur some delay in the analysis by the Public Analyst and in his despatching of the report to the prosecution. So the prosecution should have thought of the elementary precaution of adding preservative to the sample which is handed over to the vendor-accused. In this case no preservative had been added to the sample. In the facts and circumstances of the case on hand a favourable consideration for the benefit of the respondent has to be made as it was likely that the food sample in question would have decomposed within a short period after it was seized by the. Food Inspector. The respondent is accordingly entitled to benefit of doubt There is no ground to interfere with the1 order of acquittal.
9. In the result. The appeal is dismissed.