M.L. Jain, J.
1. This is an appeal of the Municipal Council, Jaipur against the judgment of the Municipal Magistrate Court No. 2, Jaipur, dated 5.10.1971.
2. I have heard arguments and perused the record.
3. The facts are that on 29-9-66, Food Inspector Tribhuvan Ram checked the accused Noor Khan at 10.30 a.m. when he was taking milk for sale near the Ramnivas garden in Jaipur. His drum contained about 15 Kgs. of milk. On being asked, Noorkhan said that his drum contained goat's milk. The drum also contained on it the words 'Goat's inilk'. A sample was purchased by the said Food Inspector. He divided the sample in three bottles, put formalin as required, sealed and labelled the samples. One of the betties of sample was sent to the Chief Public Analyst on 1-10-66. The Public Analyst reported that the goat's milk was adulterated because it contained 29% of added water and was deficient in solid non-fats. The required minimum sold non-fats is 9% while the sample contained 6.39%. A complaint was lodged against the accused in the court of the Municipal Magistrate However, the learned Magistrate acquitted the accused because he was deprived of a valuable right given by Sub-section (2) of Section 13 of the Prevention of Food Adulteration Act, 1954, to have the sample analysed by the Director of the Central Food Laboratory. The circumstances in which such right was held to have been taken away have been stated in this manner. The sample was taken on 29-9-66, was analysed on 17-10-66 but the complaint was presented six months afterwards that is on 30-3-67. The delay was not explained by the prosecution Noorkhan accused was being summoned but the summons could not be served by the Food Inspector on the accused and was reported absconding. On 30 12.67 the Food Inspector reported that the accused could not be traced. On 2-2-68 the accused appeared in the Court and he made an application that he had been out of Jaipur and when he returned, he found that a case has been launched against him Thus, the accused appeared before the court 17 months after the occurrence. By that time, the sample must have deteriorated and become unfit for analysis. The accused was thus deprived of his right to have sample examined by the Director of the Central Food Laboratory. On this the preliminary ground, the learned Magistrate made an order of acquittal.
4. The learned Counsel for the appellant challenged the order on the basis of Ajid Prasad v. State of Maharastra : 1972CriLJ1026 in which it was held that in the absence of any application by the accused under Sub-section (2) of section his for getting the sample analysed by the said Director, the accused could not complain that he was deprived of the right to have the sample analysed by the Director Here delay on the part of the complainant is getting the summons served was not, in the absence of evidence to show that the sample had deteriorated when the summons was severed, sufficient to hold that the accused was prejudiced by reason of deprivation at the light under Sub-section (2) of Section 13. The next case railed upon by the learned Counsel for the appellant is Municipal Council Jaipur v. Bhanwarlal 1974 WLN 68 in which the same view was followed. I therefore, find little justification in the view taken by the learned Magistrate and his order of acquittal made on the preliminary objection seems to be contrary to the Saw declared by the Supreme Court.
5. I therefore, accept this appeal, sat aside the acquittal and remand the case for fresh trial according to law by the Chief Judicial Magistrate Jaipur City.