K.D. Sharma, J.
1. This is an appeal filed by special leave Under Section 417(3), Criminal Procedure Code against the judgment of the learned Municipal Magistrate First Class Court No. 2, Jaipur, dated 20th August, 1969 by which Kanhaiya Lal, respondent, was acquitted of the offence punishable Under Section 7/18 of the Prevention of Food Adulteration Act, hereinafter referred to as the Act.
2. The brief facts giving rise to This appeal may be stated as follows. On 6th May, 1966, at about 6 a.m. Kanhaiya Lal was carrying at in containing cow milk for sale. He had obtained a licence for selling cow milk from the Municipal Council Jaipur. In the way at Mirza Ismail Road, near Gopal Misthan Bhandar, he met Shri Prem Chand, Food Inspector of the Municipal Council, Jaipur, who disclosed his identity to the former and intimated to him that be was purchasing sample of milk for analysis. Thereafter the Food Inspector purchased twenty-four ounces of cow milk from Kanhaiyalal for 56 P. The Food Inspector divided the sample of the milk into three parts and poured each part into a bottle after adding sixteen drops of formalin to it as a preservative. He then corked, wrapped and sealed all the three bottles in the presence of Motbirs Dayal Singh and Ganga Ram. who were asked by the Food Inspector to put their signatures the wrappers and seals. Out of these three bottles, one was given to Kanhaiya Lal, the other was kept by the Food Inspector for production in court. The third one was sent to the Public Analyst, Jaipur, on 6th May, 1966 for analysis. The Public Analyst analysed the sample contained in the sealed bottle and made a report that the milk was adulterated as it contained fat content 3.2% and solids non-fat 6.52% instead of 3.5% and 8.50% respectively, which was the minimum prescribed. The Public Analyst further opined that the sample of the milk contained about 23% of added water. After the receipt of the report of the Public Analyst, the Food Inspector filed a complaint on 16th November, 1966, against Kanhaiya Lal Under Section 7/16 of the Act. It will not be out of place to mention that the Food Inspector was authorised to launch prosecution in food adulteration cases by the local authority, i.e. Administrator Municipal Council, Jaipur. The learned Municipal Magistrate, in whose court the complaint was filed, took cognizance of the offence against Kanhaiya Lal and tried him for the said offence. The plea of Kanhaiya Lal at the trial was that of complete denial. He further pleaded that he used to do electricity work and never sold milk and that he was falsely implicated by the Food Inspector. The learned Magistrate considered the entire evidence available on the record and arrived at a conclusion that the prosecution had succeeded in proving that the sample of cow milk sold by Kanhaiya Lal to the Food Inspector was adulterated but he acquitted the accused on the ground of unexplained inordinate delay of about five months filing the complaint against him, because in his opinion such delay had deprived Kanhaiya Lal of his right Under Section 13(2) of the Act to send the sample in his custody to the Director, Central Food Laboratory for analysis. For holding the above view, he placed reliance on a decision of the Hon'ble Supreme Court of India reported as Municipal Corporation, Delhi v. Ghisa Ram : 1967CriLJ939 wherein it was held that the prosecution should act in such a manner that the valuable right 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 is not denied to him. As the sample sent to the Director, Central Food Laboratory by the accused was found highly decomposed and unfit for analysis on account of deliberate delay on the part of the prosecution to make a complaint, their Lordships were of the opinion that the conduct of the prosecution has seriously prejudiced the accrued and has taken away a valuable right conferred upon him by Section 13(2)Babu Lal v. State of Gujarat : 1971CriLJ1075 it is now not open for him to contend that Respondent Kanhaiya Lal has been deprived of his right Under Section 13(2) of the Act to have his sample analysed by the Director, Central Food Laboratory on account of delay on the part of the prosecution in launching prosecution against him, because, in this case the Respondent failed to make an application Under Section 13(2) of the Act that the sample of cow milk may be sent for analysis to the Director, Central Food Laboratory Calcutta. I have gone through the authority cited above by the learned Counsel for the Respondent. The Hon'ble Supreme Court has observed therein that if the accused has not filed an application Under Section 13(2) of the Act for his sample being sent to the Director, Central Food Laboratory for analysis, and if he has fail d to show that no preservative was added to the sample, he cannot be permitted to contend that he has been deprived of his right Under Section 13 to send the sample in his custody to the Director, Central Food Laooratory on account of delay in launching prosecution against him. Kanhaiya Lal, Respondent, therefore, cannot legitimately make a grievance on the ground of delay in instituting the complaint The main ground on which he was acquitted of the offence punishable Under Section 7/16 of the Act, therefore, goes away.
4. As regards the merits of the case, it may be observed that there is reliable evidence of the Food Inspector Prem Chand Ganga Ram and Dayal Singh Motnirs to prove the connection of the Respodent with the offence. The Food Inspector stated on oath that he had seen Kanhaiya Lal Respondent having a tin of cow milk in his possession for sale on 6th May, 1966 at Mitza Ismail Road, near Gopal Mashthan Bhandar He disclosed his identity to Kanhaiya Lal and informed the latter that he was purchasing sample of cow Milk for analysis. The Food Inspector further stated that he purchased 25 ounces of cow milk from Kanhaiya Lal for 56 P. and after dividing it into three partSectionpoured each part into a bottle after adding sixteen drops of formalin to it as a preservative. He then sealed each and every bottle in the presence of Dayal Singh and Ganga Ram. Both Dayal Singh and Ganga Ram have corroborated the version given out by the Food Inspector in all its essential particulars. The learned Counsel appearing on behalf of the Respondent could not assail the evidence of the Food Inspector and the two Motbirs before me on any reasonable score. Nothing has been elicited from their cross-examination which may destroy the value of their evidence or to impeach their credit. Consequently, I have no hesitation in placing reliance on their testimonies for convicting the Respondents of the offence punishable Under Section 7/16 of the Act The report of the Public Analyst clearly reveals that the sample f the cow-milk sent to him for analysis was found adulterated as it did not conform to the prescribed standard laid down under the rule for cow-milk. It is, therefore, proved by the prosecution that Kanhaiya Lal Respondent was selling adulterated cow-milk to customers. The trial court committed an error in not convicting him of the said offence. He is, therefore, convicted of the offence punishable Under Section 7/16 of the Act.
5. As regards sentence, it may be observed that there is unexplained delay of about five months on the part of the Food Inspector in launching prosecution against the respondent. This inordinate delay is a material circumstance to be taken into consideration for determining the question of sentence to be awarded to the respondent. Apart from this, more than seven years have elapsed since the offence was committed by Kanhaiya Lal when the sample of cow milk was taken from him by the Food Inspector. An application supported by Kanhaiya Lai's affidavit has been filed by the learned Counsel for the respondent in Court to show that Kanhaiya Lal had left the business of selling milk soon after his prosecution and that at present he ha been serving at a shop of electrical goods. The facts stated in the application and the affidavit of Kanhaiya Lal have not been controverted by any counter-affidavit from the side of the appellants, Having considered all the facts the circumstances of the case, I feel inclined to take a lenient view in the matter of sentence. In my opinion, ends of justice shall meet if he is sentenced to pay a fine of Rs. 300/-, only and in default of payment of fine to undergo simple imprisonment for two months.
6. For the foregoing reasons, the appeal filed by the appellant is accepted and the acquittal of Kanhaiya Lal is set aside and he is convicted Under Section 7/16 of the Prevention of Food Adulteration Act, 1954 & sentenced to pay a fine of 300/-, in default of payment of the fine he shall undergo simple imprisonment for two months. One month's time is granted to Kanhaiya Lal for depositing the amount of fine in the trial court.