Order The petitioner, a milk vendor, was convicted and sentenced by the District Magistrate of Tirunelveli to rigorous imprisonment for one year and a. fine of Rs. 1,000, under sections 7 and 16 (1) read with section 2 (1) (a) and (l) and Rule 44 (b) of the Prevention of Food Adulteration Act for having sold milk, with 61 per cent. of added water and this conviction and sentence have been confirmed in appeal by the learned Sessions Judge of Tirunelveli. I might at once state that, having regard to the high percentage of added water in this case I would have had no hesitation to maintain the sentence had I been satisfied that the conviction was sustainable. The contention of the petitioner is that the conviction cannot be upheld because the milk in this case after purchase by the Food Inspector on 22nd November, 1960 at about 6-30 A.M. was added only with one drop of formalin, was analysed sometime ten months later when it should have disintegrated due to lapse of time and the public analyst of the Director of Central Laboratory was not examined to speak to its condition even though an application was made by the petitioner for that purpose. It is also contended that the burden was on the prosecution to examine the expert witness. The question is whether these contentions are liable to be upheld, in the circumstances of this case. Allegations had been made by the petitioner to make out that the Food Inspector was ill-disposed to him and that the high percentage of added water could be due to meddling by him with the sample after it was taken. The Courts below have found these allegations to be devoid of merits and in view of their concurrent findings, I am not inclined to entertain them either. In the course of the trial of the case the sample of milk in question was sent for analysis to the Director of Central Food Laboratory, Calcutta at the instance of the petitioner. He found the same to be adulterated with 53 per cent. instead of 61 per cent. of added water. The difference being insignificant, the result was not helpful to the petitioner. It is however, not contended that milk will always preserve its quality and will not disintegrate or undergo change in its composition due to and in the lapse of time. instead of 61 per cent. of added water. The difference being insignificant, the result was not helpful to the petitioner. It is however, not contended that milk will always preserve its quality and will not disintegrate or undergo change in its composition due to and in the lapse of time. To prevent such disintegration and decomposition the Rules framed under the Act provide addition of formalin as a preservative. When the milk in the present case was purchased by P.W. 2, the quantity of formalin to be added was two drops per ounce. P.W. 2 had added only one drop of formalin per ounce and appears to have pleaded in excuse his ignorance of the change in the rule requiring two drops to be added which of course could not be accepted as an excuse. It was nevertheless open to the prosecution to have shown that the omission to add two drops of formalin per ounce had not or could not have brought about any difference in the case of this particular sample by calling in the Public Analyst as a witness. That was not done in spite of a petition filed by the petitioner. The facts also remain that even though the sample in this case was analysed, after the lapse of ten months after it was taken, no evidence was sought to be let in by the prosecution that the long lapse of time could not have brought about any change in the composition of the milk. In cases like the present one, this Court has declined to uphold convictions where there was unexplained long delay in analysing the milk and the requisite number of drops of formalin had not been added, for the obvious reason that the condition of the milk received and tested must remain the same as seized or purchased by the Food Inspector. Such evidence is lacking in this case and in the absence of such evidence I am constrained to hold that the petitioner is entitled to benefit of doubt and an acquittal. Such evidence is lacking in this case and in the absence of such evidence I am constrained to hold that the petitioner is entitled to benefit of doubt and an acquittal. As pointed out by Veeraswami, J., in Mohammed Sheriff Shaheb v. State1 a case of food adulteration of gingelly oil it is for the prosecution to establish their case beyond doubt and if there is delay in analysing the sample it is for the prosecution to satisfy the Court that the delay had no relation to the incriminating excess percentage of fatty content of the oil. I am in respectful agreement with the principle expressed above. This petition is, therefore, allowed and the petitioner is acquitted. The fine, if recovered, will be refunded to him. K.S.-----Petition allowed.