JUDGMENT M.H. Beg, J. - This is an appeal by the State against an acquittal of the Respondent from a charge u/s 7/16, Prevention of Food Adulteration Act (hereinafter referred to as the Act). The Respondent manages a non-vegetarian restaurant at the Aligarh Railway station. A sample of milk, which was presumably available for sale at the restaurant, was taken from the Respondent's restaurant on 28-9-1965 by the Food Inspector S.P. Kakkar, (PW 1). Shambhu Dayal (PW 2), a Sanitary Inspector, acted as a witness. The taking of the sample of milk of eight chhataks, which was shown to have been sold by the Respondent on payment of 0-40 paise, was duly proved. A receipt for it (Ext. Ka 2) was given. The milk was sealed in three phials one of which was sent to the Public Analyst for analysis and another given to the Respondent. After the receipt of the report of the Public Analyst, the prosecution of the Respondent was ordered. 2. The trial court convicted the Respondent and sentenced him to pay a fine of Rs. 1,000/- and in default, to undergo six month's R.I. The lower appellate Court had noticed several irregularities, including long delay in the institution of the prosecution, the taking of a smaller quantity of milk than was required by the rules to be taken for sample and the addition of 16 drops of formalin instead of 11 drops prescribed by the rules for preservation of the samples for proper analysis. 3. The report of the Public Analyst dated 26th November, 1965, shows that the sample was received by the Public Analyst on 29th September, 1965. The report contains a statement that no change had taken place in the constituents of milk which would have interfered with the analysis. The adulteration which was present, according to the report, was that the sample of milk was deficient in non-fatty solids by 7-0%. A complaint was filed against the Respondent on 5th of May, 1966 and the notice of the prosecution was sent to him on 30th May, 1966. Thus, we find that there was ah intermission of eight months before the Respondent could get the notice of the prosecution so as to be able to apply u/s 13(2) of the Act for sending the sample to the Director of the Central Food Laboratory. Thus, we find that there was ah intermission of eight months before the Respondent could get the notice of the prosecution so as to be able to apply u/s 13(2) of the Act for sending the sample to the Director of the Central Food Laboratory. The Court found that the sample of milk in the phial given to the Respondent had become sour, or, in other words, it was unfit for analysis. 4. The lower appellate court had acquitted the Respondent because an excessive quantity of formalin had been shown to have been mixed with the milk. It held that, although, other irregularities were immaterial, yet, an excessive mixture of formalin had itself resulted in an adulteration of milk before it was sent for analysis. It relied on the definition of the term "adulterated" given in Section 2, Sub-section (i)(k) of the Act which states: if the article contains any prohibited preservative or permitted preservative in excess of the prescribed limits. 5. Formalin is certainly a preservative and its effect is to destroy bacteria so as to prevent decomposition of milk. Rule 20 of the rules under the Act lays down: The preservative used; in the case of samples of any milk including toned, separated and skimmed milk, standardised milk, chhenna, shimmed milk chhenna, cream, ice-cream, mixed icecream, ice "candy, dahi and gur in liquid or semiliquid form shall bje the liquid commonly known as formalin that is to say, a liquid containing about 40 par cent of formaldehyde in aqueous solution in the proportion of (0.1 ml (two drops) for 25 ml or 25 grams.) Hence, the lower appellate court thought that the mixture of extra formalin itself resulted in the milk: having become adulterated and that, therefore, the Respondent was entitled to ah acquittal. We find it difficult to accept the correctness of this ground for acquittal as the Respondent was not prosecuted for an adulteration due to any excessive mixture of formalin. That addition was not proved to have caused the particular deficiency found in the constituents of milk. It is difficult for us to say what the effect of addition of merely 5 more drops of formalin could be on the non-fatty solids in the quantity of milk taken by the Food Inspector. That addition was not proved to have caused the particular deficiency found in the constituents of milk. It is difficult for us to say what the effect of addition of merely 5 more drops of formalin could be on the non-fatty solids in the quantity of milk taken by the Food Inspector. As the lower appellate court had itself observed, the Public Analyst was not called upon to make any report on the effect of sixteen drops of formalin on the quantity of milk taken by the Food Inspector. Without a finding that the particular addition of merely five drops more of formalin could produce the result given in the report of the Public Analyst, we cannot uphold this ground for the acquittal of the Respondent/given by the lower appellate court which assumed without any evidence, that the five extra drops of formalin reduced the non-fatty solid contents of milk. 6. There is, however, another ground for an acquittal of the Respondent which could be put forward and accepted on the strength of a decision by a Full Bench of this Court in Nagar Swasthya Adhikari, Nagar Mahapalika, Agra v. Mangalia 1970 AWR 1657. The Full Bench decision certainly supports the submission made on behalf of the State that the prescribed addition of formalin can preserve milk in a condition fit for analysis for nearly ten months although it held that no hard and fast rule could be laid down (in) this matter. This decision says nothing about the effect of excess formalin on the constituent's of milk and particularly, on the non-fatty solids in it. But, it was held by the Full Bench that a delay in launching the prosecution to such an extent that the accused is denied the benefit of Section 3(2) of the Act would entitle the accused to an acquittal. The Full Bench had upheld the correctness of the decision of the Division Bench of this Court in Nagar Swasthya Adhikari, Agra v. Ram Babu 1989 AWR 465, where reliance was placed upon a decision of the Supreme Court in Municipal Corporation of Delhi v. Ghisa Ram AIR 1967 SC 97. The Full Bench had upheld the correctness of the decision of the Division Bench of this Court in Nagar Swasthya Adhikari, Agra v. Ram Babu 1989 AWR 465, where reliance was placed upon a decision of the Supreme Court in Municipal Corporation of Delhi v. Ghisa Ram AIR 1967 SC 97. The Supreme Court had held that such delay, in the institution of prosecution that the sample of the substance to be analysed becomes decomposed must be presumed to prejudice an accused person even if he makes no application u/s 13(2) of the Act to send the sample to the Director of the Central Food Laboratory whose certificate supersedes the report of the Public Analyst and becomes conclusive evidence of facts stated therein. The Respondent in this case had also not applied u/s 13(2) of the Act. It is obvious that, as the right given to the accused to apply to the Court to have the sample sent to the Director accrues only after the institution of the prosecution, this right would not be available to him if the prosecution is started at a time when the phial in the possession of the accused has become unfit for analysis. The Supreme Court had held that if this right of the accused is frustrated due to the action or inaction of the prosecution, the accused becomes entitled to an acquittal. In the instant case, as is evident from facts stated above the phial given to the accused was found to contain milk which had become sour and therefore, unfit for analysis when produced at the trial. There is no evidence as to when it became unfit. The accused urged that he could not exercise the right given by Section 13(2) of the Act because of the delay in prosecution. It cannot be said that this contention is incorrect or not based on any evidence. It is difficult to understand the cause for such delay in prosecutions under the Act for which the prosecution agencies are responsible. 7. The result is that this appeal fails. It is hereby dismissed.