JUDGMENT - N.D. Kamat, J.:---This criminal revision application arises out of a prosecution for an offence under section 7(i) read with section 16(1)(a) of the Prevention of Food Adulteration Act, 1954. 2. In the trial Court, there were, in all, three accused. Accused No. 1 Karsandas Govardhandas is the proprietor of "National Hing Supplying Company", Bombay. Accused No. 2 Narsinglal Dungarsi was a commission agent doing commission agency business under the name "Dungarsi Premji and Company" at Bombay and he died during the pendency of the trial. Accused No. 3 Chillu Kashiram Wani is a trader dealing in grocery articles at Malegaon, District Nasik. On April 19, 1967 accused No. 1 supplied 100 Kgs. of "Bandhana Khada Kala" in a gunny bag through accused No. 2 to accused No. 3 Chillu Wani. In that gunny bag, there were as many as five plastic bags, each containing "Bandhana Khada Kala". An invoice or bill as per Ex. 16 evidencing the said transaction was also sent by accused No. 1 through accused No. 2 to accused No. 3 Chillu Wani. According to the prosecution, the article supplied by accused No. 1 to accused No. 3 under the bill, Ex. 16, was Bandhani Hing or compounded asafoetida, though described as "Bandhana Khada Kala". It is further the case of the prosecution that from the gunny bag supplied by accused No. 1, accused No. 3 Chillu Wani took out a small quantity of the Bandhana Khada and kept it in a tin on a shelf in his grocery shop for sale. 3. On August 23, 1967, Food-Inspector Motiram Kapde visited the grocery shop of accused No. 3 Chillu Wani at Malegaon, accompanied by a panch named Shaligram Borse. Food Inspector Motiram Kapde purchased 600 gms. of Bandhani Hing from accused No. 3 for analysis. The usual procedure of dividing the purchased article into three parts, putting each part into a separate, clean and dry bottle, corking and sealing it in the presence of the pancha and handing over one of the sealed bottles to the vendor was followed. Out of the remaining two bottles, one was sent to the public Analyst, who reported that the food article in the sample bottle sent to him contained less than five per cent alcoholic extract and it did not confirm to the standards of compounded asafoetida as per the Prevention of Food Adulteration Rules, 1955. Out of the remaining two bottles, one was sent to the public Analyst, who reported that the food article in the sample bottle sent to him contained less than five per cent alcoholic extract and it did not confirm to the standards of compounded asafoetida as per the Prevention of Food Adulteration Rules, 1955. On receipt of this report from the Public Analyst and after obtaining the necessary sanction from the Municipal Council of Malegaon, Food Inspector Kapde prosecuted all the three accused for an offence under section 7(i) read with section 16(1)(a) of the Prevention of Food Adulteration Act, 1954. 4. As stated earlier, accused No. 2 Narsinglal Dungarsi died during the pendency of the trial, but after the charge was framed. Accused Nos. 1 and 3 denied the charge and pleaded not guilty. Accused No. 3 Chillu put forth a plea that the article sold by him to the Food Inspector was Bandhana Khada Kala and not Bandhani Hing or compounded asafoetida. He further contended that he has purchased that article from accused No. 1 on the strength of a written warranty issued by him and consequently, he was protected under section 19(2) of the prevention of Food Adulteration Act, 1954. Accused No. 1 Karsandas Govardhandas contended that he was supplied Bandhana Khada Kala and not Bandhani Hing or compounded asafoetida to accused No. 3. He further contended that what was sold by accused No. 3 to the Food Inspector was not the same article which was purchased by accused No. 3 from him. 5. On a consideration of the oral and documentary evidence adduced by the prosecution and after taking into consideration the statements of accused Nos. 1 and 3 under section 342 of the Code of Criminal Procedure, the learned trial Magistrate came to the conclusion that both accused Nos. 1 and 3 were guilty of the offence with which they were charged. He, therefore, convicted both these accused under section 7(i) read with section 16(1)(a) of the Prevention of Food Adulteration Act, 1954 and sentenced each of them to suffer R.I. for six months and to pay a fine of Rs. 1000/- or in default to suffer R.I. for three months. Being aggrieved by the decision of the learned trial Magistrate and the sentences of imprisonment and fine imposed by him, accused Nos. 1 and 3 preferred to appeal to the Sessions Court at Nasik. 1000/- or in default to suffer R.I. for three months. Being aggrieved by the decision of the learned trial Magistrate and the sentences of imprisonment and fine imposed by him, accused Nos. 1 and 3 preferred to appeal to the Sessions Court at Nasik. The learned sessions Judge came to the conclusion that accused No. 3 Chillu Wani was protected under section 19(2) of the Prevention of Food Adulteration Act, 1954, inasmuch as he had purchased that Bandhana Khada from accused No. 1 on the strength of a written warranty issued by him. He, therefore, acquitted accused No. 3 of the offence with which he was charged. The learned Sessions Judge, however, confirmed the conviction recorded against and the sentences of imprisonment and fine imposed upon accused No. 1 and dismissed his appeal. Accused No. 1 Karsandas Govardhandas has thereupon come up in revision to this Court. 6. Mr. Jethmalani, learned Counsel for the petitioner accused, urged that both the courts below were wrong in accepting and relying upon the report of the Public Analyst produced at Ex. 14. He pointed out that Rule A. 04 of the Prevention of Food Adulteration Rules, 1955, provides that compounded asafoetida or Bandhani Hing shall not contain, among other things, less than five per cent alcoholic extract (with 90 per cent of alcohol) as estimated by the U.S.P.---1936 method, but the report of the Public Analyst does not at all show that the article which was sent to him for analysis was examined with 90 per cent of alcohol as estimated by the U.S.P. 1936 method. It merely states that the alcoholic extract was found to be 3.52 per cent and consequently it did not confirm to the standards of compounded asafoetida. Mr. Jethamalani is, in my opinion, right in making this submission. The report of the Public Analyst, no doubt, shows that in the article which was sent to him for analysis, percentage of alcoholic extract was found to be 3.52. This, by itself, would not be sufficient to show that the article which was sent to the Public Analyst did not confirm to the standards prescribed under the Prevention of Food Adulteration Rules, 1955. What is prescribed under the Rules is that the article shall not contain less than five per cent of alcoholic extract (with 90 per cent of alcohol) as estimated by the U.S.P. 1936 method. What is prescribed under the Rules is that the article shall not contain less than five per cent of alcoholic extract (with 90 per cent of alcohol) as estimated by the U.S.P. 1936 method. It cannot be assumed that in coming to the conclusion that the food article, which was sent to him for analysis, contained 3.52 per cent of alcoholic extract, the Public Analyst had necessarily adopted the mode or test prescribed under the Rules. It appears that there was amendment of this important rule several times during the period from 1963 to 1967. Absence of a statement in the report of the Public Analyst that his finding that the article in question contained 3.52 per cent of alcoholic extract was arrived on the application of the test prescribed under the Rules, i.e. with 90 per cent of alcohol as prescribed by the U.S.P. 1936 method is, in my opinion, a serious lacuna in this case, and in this connection, the prosecution would have done well if they had examined the Public analyst to tell the Court what particular test was applied by him and what particular mode was applied by him in arriving at the above finding. What is rather surprising is that when accused No. 3 made an application requesting the Court to call the public Analyst for cross-examination, that application was rejected on the ground of delay. In the absence of anything on record to show that arriving at this findings the Public Analyst had applied the Prescribed test and he had followed the prescribed mode, the weight to be attached to his report will be considerably reduced. 7. Apart from this, there is a further and more serious lacuna in the case of the prosecution. The record of the case shows that even before the prosecution closed its case, accused No. 1 had made an application on September 24, 1973 requesting the Court to sent one of the two sealed sample bottles to the Director of the Central Food Laboratory, Calcutta, for analysis. It appears that the Food Inspector had not produced the third sealed sample bottle before the learned trial Magistrate along with his complaint, or soon thereafter, though it was necessary for him to do so by virtue of the provisions contained in section 11 (4) of the Prevention of Food Adulteration Act, 1954. It appears that the Food Inspector had not produced the third sealed sample bottle before the learned trial Magistrate along with his complaint, or soon thereafter, though it was necessary for him to do so by virtue of the provisions contained in section 11 (4) of the Prevention of Food Adulteration Act, 1954. When accused No. 1 made such an application, the Food Inspector filed a Purshis stating that the two samples bottles which had remained with him had been destroyed in the floods on September 9, 1969. In view of that Purshis filed by the Food Inspector, the application filed by accused No. 1 was rejected. Mr. Jethmalani learned Counsel for the petitioner-accused urged that for no fault of his client, he had lost such a valuable statutory right and consequently, he was entitled to an acquittal. Mr. Jethmalani is again right in making this submission. In (Municipal Corporation of Delhi v Ghis Ram)1, A.I.R. 1967 S.C. 970 their Lordships of the Supreme Court have appointed out that in a case where there is denial of this right on account of the deliberate conduct of the prosecution e.g. delay in prosecution as a result of which the sample is highly decomposed and could not be analysed, 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. In the presence case, the report of the public Analyst was received on December 11, 1967 and the prosecution was launched more than 18 months thereafter and there is no reasonable explanation for this inordinate delay. Under section 11(4) of the Prevention of Food Adulteration Act, 1954, one of the two sealed sample bottles with the Food Inspector should have been produced before the Court, but that was not done. If those two sealed sample bottles were subsequently destroyed in floods, accused No. 1 cannot be made to suffer or his case he allowed to be prejudiced on that account. For no fault of his, those sample bottles cam to be destroyed and were not available for being sent to the Director of the Central Food Laboratory, Calcutta. If those two sealed sample bottles were subsequently destroyed in floods, accused No. 1 cannot be made to suffer or his case he allowed to be prejudiced on that account. For no fault of his, those sample bottles cam to be destroyed and were not available for being sent to the Director of the Central Food Laboratory, Calcutta. Under section 13(2) of the Prevention of Food Adulteration Act, 1954, accused No. 1 had a statutory right to request the Court to sent one of the two remaining sealed sample bottles to the Director of the Central Food Laboratory. Calcutta, for analysis. If this statutory right is denied to him for no fault of his, his case would be obviously materially prejudiced thereby and consequently he would be entitled to claim an acquittal. In (V. Jayvelu v. Food Inspector, Corporation of Madras)2, 1971 Cri.L.J. 122 the Madras High Court has held that no time limit is prescribed for the accused to exercise his right under section 13(2) of the Prevention of Food Adulteration Act, 1954, save that he should exercise such a right before the close of the trial. In the present case, accused No. 1 did exercise that right even before the prosecution had not closed its case. This circumstances alone would, in my opinion, vitiated the conviction recorded against him. 8. Lastly, Mr. Jethmalani seriously urged that what was sold by accused No. 1 to accused No. 3 was merely Bandhana Khada Kala and not "Bandhani Hing" or compounded asafoetida and that the evidence on record was also not sufficient to show that the article sold by accused No. 3 to the Food Inspector on August 23, 1967 was from the very article which he had purchased from accused No. 1 and which had been kept in the same condition in which it had been purchased. This submission made by Mr. Jethmalani is also not without any basis. However, in view of the above conclusions arrived at by me that in this case the report of the Public Analyst cannot be implicitly relied upon and accused No. 1 having been denied his statutory right, his conviction is vitiated and he is entitled to an acquittal, it is, in my opinion, unnecessary to consider this part of the argument advanced by Mr. Jethmalani. 9. Jethmalani. 9. In the result, the conviction recorded against the petitioner-accused is quite unsustainable and it will have to be set aside. The revision application is therefore, allowed. The conviction recorded against and the sentences of imprisonment and fine imposed upon the petitioner-accused by the courts below are set aside and he is hereby acquitted of the offence with which he was charged. The amount of fine, if paid, shall be refunded to him. His bail bond shall stand cancelled. The Rule is made absolute. ------