JUDGMENT B.D. Gupta, J. - The applicant Net Ram has been convicted under Section 7 read with Section 16 of the Prevention of Food Adulteration Act (Central Act No. XXXVII of 1954) . He has been sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 2,000/-. 2. The prosecution case, which has been accepted by the courts below, was that on the evening of the 12th of December, 1964, the applicant was found selling milk at his shop in mohalla Raja Mandi within the limits of Nagar Mahapalika, Agra. Sri M.C. Kalra, a Food Inspector, purchased sample of the milk, divided it into three bottles and, after mixing sixteen drops of formalin of 40 per cent strength to the contents of each bottle, they were sealed and one of those bottles was handed over to the applicant. The sample retained by the Food Inspector was sent to the Public Analyst who found that the sample was deficient in fat content by about 26% and was also deficient in non-fatty solids by about 15%. The prosecution of the applicant appears to have been sanctioned on the 20th of January, 1965, and complaint was, subsequently, filed by the Nagar Swasthya Adhikari of the Nagar Mahapalika, Agra. The original complaint is on record. It purports to bear the signature of the Nagar Swasthya Adhikari as having been made on the 23rd of March, 1965, but an endorsement at the bottom of this complaint discloses that cognisance of the complaint was taken on the 16th of June, 1965, by an order directing the summoning of the applicant for the 16th of July, 1965. The applicant pleaded not guilty, but was convicted and sentenced, as stated above. 3. A perusal of the judgment of the learned Magistrate makes out that it had been urged before him that by reason of delay in filing the complaint, the applicant had been prejudiced in the matter of his right, under Section 13 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act), of challenging the report of the Public Analyst by applying for and obtaining an order directing the sample which had been handed over to the applicant to be sent to the Director of the Central Food Laboratory in order to establish that the report given by the Public Analyst was not correct. As regards this contention, the learned Magistrate observed that though the complaint had been filed after a period of about seven months, the effect of formalin was destroyed after a period of eight months. The learned Magistrate took the view that the applicant appeared to have deliberately avoided challenging the report of the Public Analyst by getting the sample in his possession sent for examination by the Director of the Central Food Laboratory. The learned Magistrate accepted the prosecution case and convicted and sentenced the applicant, as stated earlier in this judgment. The applicant filed an appeal to the Sessions Judge. The only point raised before the learned Sessions Judge was the one, mentioned above, viz., that the right of the applicant under Section 13 of the Act had been frustrated by reason of delay in prosecuting the applicant. Reliance was placed on the decision of the Supreme Court in the case of Municipal Corporation of Delhi v. Ghisa Ram, A.I.R. 1967 S.C. 970. The learned Judge observed that the case before the Supreme Court related to curds, that no preservative had been added in that case, that the accused of that case had appeared for the sample in his possession being sent to the Director of Central Food Laboratory, but the Director had found that the sample was not capable of being analysed as it was decomposed, that blame for failure of the applicant, in the present case, to have the sample in his possession analysed by the Central Food Laboratory, could not be laid on prosecution and that the case decided by the Supreme Court was distinguishable from the present case with the result that the learned Judge dismissed the appeal. 4. At the hearing of the revision before me, It learned counsel for the applicant again pressed the above contention founded on the provisions contained in Section 13 of the Act. After hearing him, and the counsel for the State, I am of the opinion that the &mention raised by the learned counsel must prevail. 5. A perusal of the judgment recorded 11 the Supreme Court in the case of Municipal Corporation of Delhi v. Ghisa Ram makes it clear that the Court proceeded to decide the case before it on the basis of certain criteria furnished by one Dr. Sat Prakash, which are to be found in Para. 6 at page 972 of the report. A perusal of the judgment recorded 11 the Supreme Court in the case of Municipal Corporation of Delhi v. Ghisa Ram makes it clear that the Court proceeded to decide the case before it on the basis of certain criteria furnished by one Dr. Sat Prakash, which are to be found in Para. 6 at page 972 of the report. The opinion of Dr. Sat Prakash, which appears to have been accepted by the Supreme Court, was that in the case of a food article like curd, if a preservative was mixed with the sample, the percentage of fat and non-fatty solids contents for purposes of analysis will be retained for about four months at room temperature and, in case the sample is kept in a refrigerator, the total period which may be available for making analysis with-out decomposition will be six months. To repeat the observation of the Supreme Court, in para. 6, when the Food Inspector handed over the sample to the applicant, the applicant was not expected to keep it in a refrigerator. It would, therefore, appear that in order to enable the applicant to exercise his right under Section 13 of the Act, the applicant should have been prosecuted within four months because if the prosecution of the applicant was held up for a period of over four months, the bottle containing the sample which had been handed over to the applicant was bound to have got decomposed to such an extent as to render its analysis by the Director of the Central Food Laboratory completely useless, and the valuable right given to the applicant under Section 13 of the Act was bound to be frustrated. As the Supreme Court observed : "The right is a valuable one, because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analysed by a greater expert whose certificate is to be accepted by Court as conclusive evidence." 6. Under the provisions contained in Section 13 of the Act, the right conferred on the applicant can be exercised only after the institution of a prosecution under the Act. Under the provisions contained in Section 13 of the Act, the right conferred on the applicant can be exercised only after the institution of a prosecution under the Act. I understand this to mean that until the Court takes cognisance of the offence, and the accused against whom cognisance is taken has information of the fact, no question of exercising the right under Section 13 arises. Clause (2) of Section 13 itself provides that : "the accused,.......may, on payment of the prescribed fee, make an application to the Court for sending the part of the sample mentioned in sub-clause (i) or sub-clause (ii) of clause (c) of sub-sec. (1) of Section 11 of the Director of the Central Food Laboratory for a certificate." 7. It is, therefore, obvious that in case the present applicant could not and did not have any information, until after the expiry of four months from the date on which samples were taken, that he was being prosecuted in respect of the milk sample whereof had been taken from his possession and also given to him in a bottle on the 12th of December, 1964, his right under Section 13 of the Act was bound to stand frustrated and rendered nugatory. It is not reasonable to expect that on the possible hypothesis of his prosecution in future, the applicant should have continued to are serve the sample handed over to him on :he 12th of December, 1964, even though more than four months had expired leading to the result that the sample was bound to have become decomposed to such an extent that analysis for the purpose of finding out the extent of fat and non-fatty solid contents thereof had been rendered out of question. Learned counsel for the State has failed to point out any reason why, in the matter of applying the time-table of decomposition accepted by the Supreme Court on the evidence of Dr. Sat Prakash a distinction should be drawn between curd and milk. 8. Learned counsel for the State has failed to point out any reason why, in the matter of applying the time-table of decomposition accepted by the Supreme Court on the evidence of Dr. Sat Prakash a distinction should be drawn between curd and milk. 8. I would like to add, in order to avoid being misunderstood, that there may be cases where even though the court had taken cognisance and had directed the issue of summons to the accused, the accused may have evaded the service of summons with the result that by the time he appeared in court availing himself of the right under Section 13 of the Act had been frustrated by reason of lapse of time in the light of the schedule furnished by Dr. Prakash in the case of Municipal Corporation of Delhi v. Ghisa Ram. In such cases it may be that the accused person cannot be allowed to take advantage of his conduct by taking the plea that he had been disabled from availing himself of the protection offered to him by the provisions contained in Section 13 of the Act. But in cases where the cognisance of the complaint was itself delayed, either by reason of delay in the Public Analyst's report, or by reason of delay on the part of the authorities concerned in filing the complaint, or by reason of delay as a result of inaction on the part of the Magistrate in taking cognisance of the complaint, no blame can be laid at the door of the accused, and the case against the accused is liable to be thrown out if there are good grounds for holding that the protection afforded to the accused under the provisions contained in Section 13 of the Act has been rendered nugatory, not by-reason of any conduct attributable to the accused himself but by reason of facts and circumstances beyond his control. 9. In the present case, the sample was taken on the 12th of December, 1964. Four months' period expired on the 12th of April, 1965. 9. In the present case, the sample was taken on the 12th of December, 1964. Four months' period expired on the 12th of April, 1965. The date on which the complaint was filed in Court does not appear on the record, but this much is clear that cognisance of the complaint was taken, for the first time, on the 16th of June, 1965 on which date the first order passed by the court was that the accused be summoned for the 16th of July, 1965. The 16th of June, 1965, was not only far beyond the period of four months, but beyond even six months so that even if the applicant had preserved the sample given to him in a refrigerator, it was bound to have been rendered useless for analysis by the time he could apply to the court under Section 13 of the Act, to send that sample to the Director of Central Food Laboratory for analysis. In these circumstances, I am of the opinion that it is not possible to uphold the conviction of the applicant. 10. This revision is, therefore, allowed. The conviction of the applicant, as also the sentence awarded to him, are both set aside, and the applicant is acquitted of the charge upon which he was tried. The fine, if already realised, shall be refunded to the applicant. The applicant is on bail. His bail bonds are discharged. He need not surrender