ORDER H.N. Kapoor, J. - The applicant has been convicted by Shri K.L. Dhore Magistrate by his order dated 4-9-1970 u/S. 7/16(1)(a)(i) of the Prevention of Food Adulteration Act and sentenced to six months' R. I. together with a fine of Rs. 1,000/-. In default of payment of fine he has been ordered to undergo two months' further R.I. ; that order has been confirmed in appeal. 2. The prosecution case is that on 26-12-1968 at 11 a.m. at premises no. 74/12 situate in Mohalla Collectorganj P.S. Collectorganj, the applicant was selling and exposing for sale ghee. A sample was taken by the Food Inspector Shri R. A. Sharma. He sealed it into three bottles and obtained receipt after payment of the price of the ghee (Ext. Ka-1). He also served a notice on the applicant (Ext. Ka-2) and obtained signature of the applicant. He also prepared spot note (Ext. Ka-3). The sample was then sent to the Public Analyst. The report of the Public Analyst dated 27-1-1969 was received to the effect that 6.9% of free fatty acidity above the maximum limit of 3% was there and as such the ghee was found to be adulterated. The applicant was then duly prosecuted on the basis of the complaint filed on 27-1-1970. He was (summoned) for 20-2-1970. He did not dispute that fact of the sample being taken and the price being paid to him. His only defence was that the ghee was not adulterated and its acidity increased automatically by lapse of time. The learned Magistrate, however, found him guilty and convicted and sentenced as stated above. 3. Learned counsel for the applicant has argued that the complaint was filed after an inordinate delay and that the applicant had no opportunity of sending his sealed phial for examination by the Director within a reasonable time. It appears that no application had been moved by the applicant for sending his sample to the Director nor any report of the Director could be received showing that the constituents had changed due to lapse of time. In the case of Ajit Pd. Ram Kishan Singh v. State of Maharashtra F.A.C. 1972 545 the Supreme Court held that an accused cannot take such a plea if he had not made an application. In the case of Ajit Pd. Ram Kishan Singh v. State of Maharashtra F.A.C. 1972 545 the Supreme Court held that an accused cannot take such a plea if he had not made an application. The same view was taken by the Supreme Court in an earlier case of Babulal Hargovind v. State of Gujarat 1972 F.A.C. 18. Such a plea, therefore, is not open to the applicant any more. 4. Learned counsel for the applicant has next argued that it has not been proved by the prosecution that air had been removed from the bottle while sealing the sample and as such oxidation was possible. An employee of the Pure Ghee Association, Kanpur, Shyam Gopal was examined as a defence witness on the basis of certain commentaries. He stated on the basis of his experience that in case air and moisture was present the value of acidity increased in 90 days zero to 15.1. Learned counsel for the applicant has placed reliance on the case of Radhey Lal v. State 1970 ACR 563. In that case, a learned Single Judge took the view that when it was admitted that the bottle had not been filled and not made air-tight and when it had not been found wrapped with black paper, it was possible to draw an inference that moisture was present and there was some chemical deterioration in ghee due to oxidation specially when there was no certificate of the Public Analyst to the effect that there was no deterioration or change in the constituents of the sample taken after a lapse of time. A similar view was taken by the Calcutta High Court in the case of M/s. Poison Ltd. v. Corporation of Calcutta AIR 1969 Cal. 247 . But in both these cases moisture too was found in excess of the prescribed limit besides free fatty acidity. In the present case moisture was only 13% when the prescribed limit is 3%. It cannot thus be said that the change in constituents has occurred due to the presence of moisture resulting in oxidation. It was also proved in the present case that the bottles had been wrapped with thick brown paper. The authorities cited above are thus distinguishable. In the case of Nagarmahapalika v. Afaq Husain 1962 AWR 261. It was held that air and light had no effect on acid contents of the ghee. It was also proved in the present case that the bottles had been wrapped with thick brown paper. The authorities cited above are thus distinguishable. In the case of Nagarmahapalika v. Afaq Husain 1962 AWR 261. It was held that air and light had no effect on acid contents of the ghee. It was only moisture which could have any effect. 5. The ghee was, therefore, rightly found to be adulterated and the applicant was rightly convicted. The extent of adulteration does not appear to be much. Under the circumstances of this case, it is possible to take a lenient view. 6. In the result the revision is allowed to this extent that the conviction of the applicant u/S. 7/16 (1) (a) (i) of the Prevention of Food Adulteration Act is maintained but his sentence of six months' R.I. is set aside. The fine of Rs. 1,000/- is maintained. In default of payment of fine, the applicant will undergo two months' R.I. Two months' time from the date of receipt of the record in the lower court is allowed to the applicant to pay fine imposed on him.