V.P. Tyagi, J.
1. Municipal Council, Jaipur, has filed this appeal against the judgment of the Municipal Magistrate First Class Court No. 2, Jaipur date 3rd July, 1969 whereby respondent Bhanwarlal milk vendor was acquitted of the charge under Section 16 read with Section 7 of the Prevention of Food Adulteration Act (hereinafter called the Act).
2. On the 13th of May, 1966, at about 8.30 a.m. the Food Inspector took from the respondent sample of milk after conforming to the formalities enjoined by the Act and added 16 drops of formalin in each of the three bottles in which the sample was divided. After the sample was examined by the Chief Public Analyst & was found deficient a complaint was lodged against the respondent in the court of the Municipal Magistrate on 17-11-1966. The accused surrendered himself before the Court on 19th of December, 1966. The learned Magistrate, on the basis of the prosecution evidence found that the milk contained 42% of water and that 3% of the original fat was taken out of it and, therefore, it did not conform to the prescribed standard of the milk, but acquitted the accused respondent on the ground that by taking proceedings against the accused after 4 months the accused was deprived of his valuable tight under Section 13(2) of the Act, and therefore, conviction could not be ordered because of the delay in taking the matter to the court.
3. Inspite of the notices having been served on the respondent, nobody has appeared before this Court.
4. Leraned Counsel appearing on behalf of the Municipal Council has urged that the learned Magistrate has erred in holding that the accused has been deprived of his right to get the sample tested by the Director of the Central Food Laboratory because of the delay in taking the matter to the court of law as the accused did not make any application before the trial court under Section 13(2) of the Act to get his sample examined by the Director of the Central Food Laboratory. It was also urged that the quantity of 16 drops of formalin added to the sample was sufficient preservative to keep the sample intact till a com plaint was lodged against the accused in the court of law. Since no prejudice has been caused to the accused, it is vehemently urged that the order of acquittal passed by the trial court is ex facie erroneous. In support of his argument leraned Counsel relied on a latest Supreme Court authority in Ajit Prased Ramkishan Singh v. The State of Maharashtra : 1972CriLJ1026 .
5. In this case a sample of milk was obtained by the Food Inspector on July 1. 1965 and eight drops of formalin were added in each bottle of the sample. The case was taken to the court of law after a month but the summons could not be served till November 13, 1965. and the date for the appearance of the accused was 26th of November, 1865. The Magistrate acquitted the vendor on the ground that he was deprived of a valuable right under Section 13(2) of the Act, but the High Court on appeal reversed the order of acquittal and held that in the absence of any application having been made by the accused to get his bottle of sample examined under Section 13(2) of the Act, no prejudice was caused to the vendor and, therefore, his acquittal was set aside and was convicted for an offence under Section 16 read with Section 7 of the Act and sentenced to six months' rigorous imprisonment. The matter was taken to the Supreme Court and a contention was raised that the vendor was deprived of his right to have the sample analysed by the Director of Central Food Laboratory on account of the delay in the service of the summons because after such a long time it would have been a futile exercise to have sent the sample for analysis to the Director and as the laches of the complainant was the reason for the delay in the service of summons and the proximate cause of the appellant losing his right to get the part of the sample delivered to the vendor analysed by the Director, the appellant was entitled to be acquitted. In support of that argument reliance was placed by the appellant on an earlier Supreme Court case in Municipal Corporation of Delhi v. Ghisa Ram : 1967CriLJ939 , but after examining the entire case the learned Judges of the Supreme Court rejected the contention of the appellant and held that the previous authority reported in Municipal Corporation of Delhi vs. Ghisa Ram : 1967CriLJ939 could not make any application for getting the sample analysed by the Director. The learned Judges in the circumstances of that case observed.
If he had made the application after paying the prescribed fee, the Magistrate would have had no option but to send the part of the sample for analysis by the Director. If in pursuance of the application the part of the sample was sent to the Director and he had reported that the part of the sample was incapable of analysis for the reason that it was decomposed, the appellant could perhaps, have contended that he was deprived of his right to have the sample analysed by the Director an account of the laches of the complaint and that he should be acquitted. But, since the appellant never applied under Section 13(2) of the Act, he cannot complain that he has been deprived of any right. In Rabulal Haraovindas v. The State of Gujarat : 1971CriLJ1075 Jaganmohan Reddy, J, at peaking for the Court, said that unless an application to send the sample to the Director is made, the vendor cannot complain that he was deprived of his right to have the sample analysed by the Director.
6. In the present case, leraned Counsel appearing on behalf of the appellant urged that no application was ever made by the accused-respondent under Section 13(2) of the Act to get the sample contained in the bottle which was lying with him, examined by the Director and, therefore, it cannot be said that prejudice of any nature has been caused to the respondent on account of the delay in filing a complaint against him It is difficult for this Court to say that the sample of milk gets decomposed after five months because only 16 drops of formalin were added to the sample, In the Supreme Court case only 8 drops of formalin were added to the part of the sample, even then the Court held that no prejudice had been caused to the accused-vendor though he was served after about four and a half months. In this view of the matter, I feel that the acquittal of the respondent ordered by the trial court cannot be held to be justified.
7. The appeal is, therefore, allowed, the order of acquittal passed by the Magistrate First Class, Jaipur is set aside and the respondent is convicted for an offence under Section 16 read with Section 7 of the Act and he is sentenced to one year rigorous imprisonment and a fine of Rs. 500/- or in default to further undergo three months' rigorous imprisonment.
8. Direction be issued to the District Magistrate, Jaipur to get the respondent arrested and sent to jail to serve out the sentence awarded to him.