JUDGMENT B.N. Lokur, J. - On account of the difference of opinion between Single Judges of this High Court on the question `whether the accused is entitled to the benefit of Section 13(2) of the Prevention of Food Adulteration Act even though the accused has not made an application challenging the report of the Public Analyst and has not attempted to send sample with him for examination of the Director, Central Food Laboratory, Calcutta', Bishambhar Dayal, J., as he then was, has referred it to a Division Bench for decision so that the controversy be resolved. 2. On a scrutiny of the views expressed by the Single Judges, it appears to us that the question which had really been agitated before them was whether inordinate delay in prosecuting an accused for selling adulterated milk was fatal to the prosecution on the ground that he was denied the right conferred by Section 13(2) of the Prevention of food Adulteration Act, 1954, even though no application was made under that sub-section challenging the adverse report of the Public Analyst and at the same time making a request for the examination of the sample by the Director of Central Food Laboratory. 3. At the outset, we may respectfully refer to the following observations of the Supreme Court in Municipal Corporation of Delhi v. Ghisa Ram, 1967 ACC 97 SC: "It appears to us that when a valuable right is conferred by Section 13(2) of the Act on the vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that the right will not be denied to him. 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. 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. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, we think that the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein."' 4. In the case considered by the Supreme Court, a sample of curd of cow's milk taken on September 20, 1961, was found by the Public Analyst, on analysis on October 23, 1961, to be substandard but the prosecution was instituted long after the other parts of the sample had so deteriorated and become decomposed that no analysis of the sample by the Director of Central Food Laboratory was possible. The Supreme Court observed: "The prosecution, on the other hand, committed inordinate delay in launching the prosecution on May 23, 1962, and no explanation is forthcoming why the complaint in court was filed about seven months after the report of the Public Analyst had been issued by him. This is, therefore, clearly a case where the respondent was deprived of the opportunity of exercising his right to have his sample examined by the Director of the Central Food Laboratory by the conduct of the prosecution. In such a case, we think that the respondent is entitled to claim that his conviction is vitiated by this circumstance of denial of this valuable right guaranteed by the Act, as a result of the conduct of the prosecution." 5. The decision of the Supreme Court is not, however, a direct authority on the question posed to us, for, in the case before the Supreme Court the accused had made an application under Section 13 (2) while the question we are called upon to consider is whether even where such an application is not made, the prosecution ought to fail on the ground of excessive delay. 6. 6. The ratio decidendi of the Supreme Court decision nevertheless is that if the prosecution is instituted after such delay as to virtually deny to the accused the valuable right to take the benefit of Section 13 (2) of the Act, the delay operates to the prejudice of the accused. The right conferred on the accused by Section 13 (2) is to apply to the Court, after the institution of the prosecution, for sending the sample in his possession or retained by the Food Inspector to the Director of Central Food Laboratory for analysis and certificate. Such an application would, indeed, be infructuous if, at the time of the application, the two samples are decomposed to such an extent as would render them incapable of analysis. If then the court is satisfied that the delay in the institution of the prosecution has resulted in decomposition of the samples, no useful purpose would be served by the accused making an application under Section 13(2). We are, therefore, of opinion that even when the accused does not make an application under Section 13(2), if the Court has sufficient reason to believe that due to delay in launching the prosecution the samples have undergone such a change as to defy analysis by the Director of the Central Food Laboratory, the right conferred on the accused under Section 13 (2) ought to be held to have been denied to him by the conduct of the prosecution and he is thereby prejudiced at the trial. In such circumstances the application contemplated by that section is a meaningless formality and it is futile for the court to insist that the accused should go through that formality. Consequently, if the prosecution is instituted after the lapse of such time as would clearly render the samples incapable of analysis in view their deterioration and decomposition, the Court must hold that the accused is `deprived of the valuable right conferred by Section 13 (2) and he is seriously prejudiced thereby and that on this ground the prosecution must fail even though accused has not formally made application envisaged by Section 13 (2) the Act. 7. We are aware that the court would experience some difficulty in determining whether, on account of the delay in initiating the prosecution, the samples have deteriorated to such an extent as to make the analysis by the Director of Central Food Laboratory impossible. 7. We are aware that the court would experience some difficulty in determining whether, on account of the delay in initiating the prosecution, the samples have deteriorated to such an extent as to make the analysis by the Director of Central Food Laboratory impossible. Nevertheless, we have the advantage of a laborious test made by the Analyst under the orders of one of us at the hearing of Cr. Rev. Applications Nos. 1612 of 1962, 1309 of 1963, 432 of 1964 and 595 of 1964, decided on September 30, 1965. A question arose in these cases whether the samples of milk had undergone such change as to render them unfit for fresh analysis due to considerable delay in instituting the prosecution. The directions given to the Public Analyst may best be set out be reproducing the following passage from the order in these cases: "The Public Analyst was directed to take 121 samples of cow's milk, if available, otherwise of buffalo's milk, each sample to be of 8 oz. One sample was to be analysed within one hour of the taking of the sample. The Public Analyst was to add one drop of formalin per oz. of milk, i.e. 8 drops of formalin, to each of 60 samples and two drops of formalin per oz. of milk, i.e., 16 drops of formalin, to each of the remaining 60 samples. One sample of each set, i.e., one sample to which was added one drop of formalin per oz. of milk and the other to which two drops of formalin per oz. had been added, was to be tested every four days for the first four weeks and thereafter every week. All the 120 samples were to be kept in an ordinary almirah ..... all these samples were kept in a Godrej almirah after each sample had been properly corked and sealed. All the 121 samples were of cow's milk. ..... The formalin added had the strength of 40.7% of formaldehyde. Total solids in the milk were determined by evaporating the water contents thereof. 5 gm. of milk was taken and after evaporation of the water, the residue was carefully weighed, and from these two readings the percentage by weight of total solids in the milk under test was determined. Fat contents were determined by taking 10 cc. sulphuric acid, 11 cc. milk and 1 cc. amyl alcohol. 5 gm. of milk was taken and after evaporation of the water, the residue was carefully weighed, and from these two readings the percentage by weight of total solids in the milk under test was determined. Fat contents were determined by taking 10 cc. sulphuric acid, 11 cc. milk and 1 cc. amyl alcohol. The tests were conducted by the standard Gerber method. As a result of the centrifugal action fat was separated and it collected at the top of the Gerber tube. The tube was so calibrated that the reading indicated the percentage by weight of fat in the milk." 8. The fresh cow's milk, the samples of which were tested, was, on analysis, found to contain by weight 4.8% fat and 8.4% non-fatty solids. 9. The results of the test are detailed in the judgment in the above Cr. Revisions, and were summarised therein as follows: In the case of samples containing one drop of formalin per oz. of milk, fat was found to range from 4.7% to 5% and non-fatty solids form 8.35% to 8.1%. The composition of fresh cow's milk was 4.8% fat and 8.4% non-fatty solids. It shall be noticed that fat contents were invariably found to be 4.8% or more. It was in. only three samples examined after 63, 70 and 189 days that fat contents were found to be less than 4.8%. Broadly speaking it can, therefore, be said that with the lapse of time fat contents were found to be more than in fresh, cow's milk and variation in fat contents was to the extent of 4%. In samples containing one drop of formalin per oz. of milk non-fatty solids were always found to be 8.4% or less, the minimum being 8.1% Variation in non-fatty solids comes to less than 4%. In samples containing two drops of formalin per oz. of cow's milk fat contents were never found to be less than 4.8%. There was a gradual increase in the fat contents and before curdling fat was found to be 5%. Variation in the fat contents comes to 4% and as in the case of other samples containing only one drop of formalin fat contents increased with the lapse of time. Non-fatty solids in samples containing two drops of farmalin per oz. of milk show a slightly different picture. Therein there was increase in non-fatty solids also. Variation in the fat contents comes to 4% and as in the case of other samples containing only one drop of formalin fat contents increased with the lapse of time. Non-fatty solids in samples containing two drops of farmalin per oz. of milk show a slightly different picture. Therein there was increase in non-fatty solids also. The maximum increase was noticed after 28 days when the percentage of non-fatty solids was found to be 3.5%. It will not be safe to draw inferences from the result of analysis after deterioration had set in. Consequently, the analysis of the samples examined after 301 and 308 days can be disregarded. It will thus be found that non-fatty solids range from 8.5% to 8.1%, variation being generally on the lower side Non-fatty solids were found to be more than 8.4% in only five samples examined after 4, 12, 21, 28 and 63 days. Broadly speaking, it can, therefore, be said that with the lapse of time there was in these samples also decrease in non-fatty solids." 10. The Public Analyst was examined and he stated that there was not appreciable change in the fat and non-fatty solids of the cow's milk to which formalin had been added till such milk curdled and that the test could not be conducted after the milk had curdled. It was recognised that there could be an experimental error ranging to 4% in the data obtained after analysis. However, the fat was invariably found to be more than 4.8% and, generally speaking non-fatty solids decreased with the lapse of time. 11. The conclusions to be drawn from the test were summed up as follows:- "Cow's milk to which one drop of formalin per oz. of milk has been added and kept in ordinary conditions is likely to curdle after 210 days, while such milk to which has been add two drops of formalin per oz. of milk, curdles after 308 days though partial. deterioration sets in after 295 days. Samples of milk can be tested and data found after analysis accepted till the stage of curdling. Partial deterioration of the milk has no effect on fat contents though non-fatty solids are likely to decrease slightly. However, where milk to which formaline has been added is stored at a cool place, say, in a refrigerator, it will curdle after a much longer period. Partial deterioration of the milk has no effect on fat contents though non-fatty solids are likely to decrease slightly. However, where milk to which formaline has been added is stored at a cool place, say, in a refrigerator, it will curdle after a much longer period. There can be an experimental error not exceeding 4% in the result of the analysis. Consequently, where the fat and non-fatty solids are found to be within 4% of the permissible limits, the accused persons shall deserve acquittal, in any case, shall be entitled to a nominal sentence ..... To be on the safe side, one can lay down that adulterated and unadulterated milk do not behave differently and the time taken in curdling is roughly the same; and that variations in the constituents of buffalo's milk, with the lapse of time are roughly the same as noticed in cow's milk and the two kinds of milk curdle after about the same period. One can, therefore, lay down that both the cow's and the buffalo's milk whether adulterated or unadulterated, when stored in ordinary conditions, is likely to curdle after 210 days if one drop of formalin per oz. of milk has been added, and after 308 days in cases where two drops of formalin per oz. of milk has been added. The latter milk is likely to show signs of deterioration after 295 days." 12. On the basis of this test, it can be safely assumed that cow's milk as well as buffalo's milk would not curdle before 210 days if one drop of formalin of 40.7% strength is added per oz. of milk and kept in a Godrej almirah, and would be fit for analysis by the Director of Central Food Laboratory within a period of 210 days and further that if two drops of formalin of that strength are added per oz. of milk, whether cow's or buffalo's milk, the sample would be capable of analysis upto 308 days, though partial deterioration accompanied with partial curdling might take place after 295 days when kept in a Godrej almirah. If, however, the sample is kept in a refrigerator or other like cool container, the period of curdling would be very much longer and the sample can be successfully analysed after a much longer period. 13. If, however, the sample is kept in a refrigerator or other like cool container, the period of curdling would be very much longer and the sample can be successfully analysed after a much longer period. 13. The answer to the question raised is, accordingly, that if the samples have deteriorated and have become decomposed by reason of delay in the prosecution to such an extent as to have become incapable of analysis, the accused ought to be deemed to have been deprived of the valuable right conferred on him by Section 13 (2) of the Prevention of Food Adulteration Act, 1954, even though he has not made a formal application challenging the report of the Public Analyst and asking for analysis by the Director of the Central Food Laboratory and the deprivation of such right would be fatal to the prosecution. 14. The appeal will now be placed before the Bench concerned for final disposal.