N. Krishnaswamy Reddy, J.
1. This appeal has been preferred by the Public Prosecutor against the order of acquittal by the Sessions Judge, Nagapattinam, in C.A. No. 74 of 1965, reversing the conviction and sentence of the respondent passed by the Additional First Class Magistrate, Mayuram, in C.C. No. 174 of 1965, under Section 16 (1) (a) (ii) of the Prevention of Food Adulteration Act.
2. The prosecution case is briefly this : The respondent Thangavelu Pillai was a ghee merchant at Sirkali. P.W. I Ellappan purchased sample of ghee from the respondent for analysis and after observing the formalities, he divided the ghee purchased by him into three parts and put them in three bottles. He gave one to the respondent, retained the other with him and sent the third to the analyst. This was on 29th April, 1965. The Public Analyst received the sample sent by P.W. 1 an 30 th April, 1965, and submitted a report signed by him on 2nd July, 1965. He found on analysis that the sample of ghee centained 37 per cent. of fat and that the fat was not derived from milk or cream. The respondent pleaded guilty to the charse. He happened to be a second offender and he was convicted and sentenced to undergo simple imprisonment for three months and to pay a fine of Rs. 200. The learned Magistrate took a lenient view by not providing the minimum sentence for his second conviction as the respondent happened to be an old man Against the conviction and sentence, the respondent preferred an appeal. The learned Sessions Judge acquitted the respondent on the grounds that the plea of guilty could not be accepted as the ingredients of the offence were not made out, that there was inordinate delay in analysing the ghee and that the increase of fat in the ghee might be due to exposure and other circumstances. He relied upon a decision of this Court in Mohammed Sheriff Sahib v. State (1961) M.W.N. 712 : (1961) M.W.N. 195, that the prosecution should establish, in case where there was a delay in analysis, that such delay had no relation to incriminating excess percentage of the fatty content of the oil. I am unable to agree with the reasons given by the Sessions Judge in acquitting the respondent.
3. On the first point that the ingredients of the offence were not proved, there is absolutely no basis for the learned Sessions Judge to come to that conclusion. The fact hat the sample has been sold by the respondent and that it contained 37 per cent fat would be sufficient to bring he me the guilt against him in respect of the offence with which he was charged. In regard to the second point, it is unfortunate that the decision of the Division Bench reported in Chandran v. State (1964) M.W.N. 156, overruling the decision in Mohammed Sheriff Sahib v. State (1961) M.W.N. 712 : (1961) M.W.N. 195, was not brought to the notice of the learned Sessions Judge. It is stated by the Division Bench that it Will always be open to an accused in any particular case to show that the packing was inadequate or that it was so defective that it could not have prevented air and light affecting the sample oil contained in the bottle and further stated that each case will have to be decided upon its own facts and no rigid rules can be laid down concerning the appreciation of the technical evidence.
4. However I am not inclined to interfere with the order of acquittal in this case. Unfortunately in the report of the analyst, it is not mentioned as to when the analysis was made. The sample was received on 30th April, 1965. Till the report was sent by the analyst, namely, 2nd July, 1965, it was not known as to when the bottle was opened and when it was analysed. in the absence of any material as time when actually the ghee was analyed, it would not be safe to hold that even at the time when the ghee was purchased, it must have been adulterated. It is possible in those circumstances that certain intervening causes might have occurred. In any event, the conclusion of the learned Sessions Judge cannot be said to be incorrect.
In the result, the appeal is dismissed.