N. H. BHATT, J. ( 1 ) * * * * ( 2 ) THE next contention of Mr. Patel was that though the bottles were allegedly sealed on 18th September 1969 they were allowed to lie at the police station for inordinately long period. It cannot be gainsaid that the first attempt to deliver the bottles was made on 29th November 1969 followed by a second attempt on 15th December 1969 followed by the de facto delivery on 12th January 1970. As stated above Mr. Vaswani has shown that on 11th September 1969 violent communal riots had broken out in the city of Ahmedabad. Being a matter of common knowledge of local history a judicial notice can be taken of the widespread riots on that day. Mr. Vaswani had come to be transferred from that police stat- ion in the later part of October 1969 and the matter came to be handled by one P. T. T. A. Desai for a very short duration and then the case came to be handled by P. I. Mr. Megha P. W. 12 Ex 170. The delay in the initial stage was on account of the riots and it seems that because of the short period of being in the office Mr. Desai also did not take active and prompt steps as he should have done. Mr. Patel however urged that this High Court has consistently taken the view that in such cases of belated delivery of samples to the chemical analyser the prosecution gets a fatal blow. He invited my attention to the case of JETHAJI SUVAJI V. STATE OF GUJARAT 7 G. L. R. 927 where Justice N. G. Shelat of this court held that unexplained delay threw doors open for a reasonable inference about the possibility of the samples being tampered with when they were lying at the police station. ( 3 ) THIS judgment had come to be followed by my esteemed brother B. K. Mehta J. in Criminal Appeal No. 686 of 1970 (CHANDUJI V. STATE) decided on 2nd February 1972. The learned Judge referred to the above reported case of Jethaji (supra) and also another judgment of P. N. Bhagwati J. (as he then was) in Criminal Appeal No. 166 of 1962 (STATE V. SOMAJI) decided on 2nd August 1962. The learned Judge ultimately concluded as follows:. . IT was admitted by the police officer Mr. The learned Judge referred to the above reported case of Jethaji (supra) and also another judgment of P. N. Bhagwati J. (as he then was) in Criminal Appeal No. 166 of 1962 (STATE V. SOMAJI) decided on 2nd August 1962. The learned Judge ultimately concluded as follows:. . IT was admitted by the police officer Mr. Patel that the articles were entrusted in the custody of Navrangpura police station and where the articles were lying for a period of more than 3 months it was necessary for the prosecution to lead the evidence of the person in whose custody these articles were lying and who was incharge of these articles to establish beyond reasonable doubt that there was no possibility of tampering. If such evidence is not led and no explanation is given which is admittedly a case here then it cannot be said that the prosecution has established its case beyond doubt the prosecution has to establish that the sample bottles were properly taken in presence of panchas and that they were the same bottles which had come to be sent to the Chemical analyser for examination and if in that respect the evidence is sufficient and acceptable no such advantage can be claimed by reason of mere fact of delay In view of this particular fact I am of opinion that the appellant-accused is entitled benefit of doubt as the pro secution has not been able to clearly dispel the possibility of tampering or suspicion arising as a result of the delay in forwarding the articles seized to the chemical analyser. The above two authorities are not authorities on the point of law. They deal with factual inferences that ordinarily would be drawn from a given set of facts. I say that these authorities lay down a principle of good guidance while dealing with the evidence in a given case. But they cannot be stretched as Mr. Patel did to mean that wherever there is delay inevitable presumption is of samples being tampered with and the prosecu- tion case being set at naught. With respect I reiterate that no such principle of law is laid down in either of the two authorities or in the authority of P. N. Bhagwati J. (as was then) referred to by B. K. Mehta J. in the above quoted judgment. With respect I reiterate that no such principle of law is laid down in either of the two authorities or in the authority of P. N. Bhagwati J. (as was then) referred to by B. K. Mehta J. in the above quoted judgment. What in sum and substance the ratio on the point of law is that the prosecution has to establish that the bottles as they were taken charge of and sealed were carried to the chemical analyser and if there is inordinate delay intervening it may lead to an inference of the muddamal being tampered with the inference which is one of fact and not of law. If 1 may say so this is an inference that may arise in a given case and it may not arise in another given case. In the facts and circumstances of the case on hand I am amply satisfied that though there was delay in respect of delivery of the bottles to the analyser in the month of November and December 1969 and though I am of the view that had the concerned responsible officer not spoiled 3 months time for this case the bottles could have been sent to the chemical analyser expeditiously despite all that is said in this connection. I am not prepared to believe that as many as 70 bottles which were duly sealed and had their seals in tact till they reached their destination must be held to be necessarily or in all probability tampered with. Despite indifference or lethargy or callousness of police officers whatever it is the fact stares in the fact that the bottles in question were carried by the head constable Abdulkhalik Ex. 168 successfully to the analyser after they were tossed back by the clerk there without any appreciable reason. When I call there is no appreciable reason I have in mind the report Ex. 162 which was earlier tossed down by the clerk in that behalf and which ultimately itself was accepted by the very clerk for the purpose of comparison of the seals on the specimen and on the sample bottles. It appears that because of the number of bottles and for want of any categorision that clerk tinkered with the job. Even that clerk Mr. Bhatt and analyser Mr. Ambalal respectively Exs. It appears that because of the number of bottles and for want of any categorision that clerk tinkered with the job. Even that clerk Mr. Bhatt and analyser Mr. Ambalal respectively Exs. 166 and 89 very clearly in unmistakable terms deposed that all the bottles that were ultimately taken custody of by them had their seals in tact as was found by them on comparison of those seals both affixed seal and the seal on the slip bearing the panchas and officers signatures with the specimen sent as per Ex. 162. I am not prepared therefore to believe that the police officers and particularly Mr. Vaswani had any earthly reason to tamper with the muddamal bottles. To none of the customs officers nor to the panchas was it even suggested that any fresh slips bearing their signatures were requisitioned by the police authorities subsequent to the date of search and seizure. ( 4 ) MR. Patel in this connection urged that delay in the analysis of the contents would result into imperfect and at times wrong conclusion regarding the contents and tried to seek support for this submission of his from the judgment of B. K. Mehta J. referred to earlier in which he has cursorily observed that the intervening delay might result into degen- eration or decomposition of the contents. It is possible that the muddamal that was before His Lordship in that case might be such as would undergo transformation with the passage of of lime. The liquor as it is before us in various bottles is not shown to be of that type. The expert who examined all those samples was very much before the trial court and this factual opinion could have been elicited through that expert- witness. I am not in know of any such degeneration of the Liquor with the passage of time and therefore I may not adopt it as a matter of general proposition that chemical examination of spiritous substance after a lapse of considerable time must invariable result into wrong analysis and incorrect conclusion. ( 5 ) MR. Patel in this connection urged that I should not depart from hitherto followed rule of logic that has ruled the courts all these years. For claritys sake I emphasise that I do not depart from the general principle laid down in the two cases referred to by me above. ( 5 ) MR. Patel in this connection urged that I should not depart from hitherto followed rule of logic that has ruled the courts all these years. For claritys sake I emphasise that I do not depart from the general principle laid down in the two cases referred to by me above. What I have emphasised is that whether the seals were tampered with or not or in the circumstances of a given case there was a possibility for the same or not is essentially a question of fact to be resolved in the light and circumstance of each individual case. Where there is a case of a bottle or two or where it appears to the court that tamp ring is well nigh possi- ble the guidance given in those authorities would hold good. Therefore Mr. Patels apprehension that I am striking in any way departure from the position expressed in the earlier judgments is not well founded. ( 6 ) MR. Patel in this connection had however urged that unlike the taking of samples under the provisions of the Prevention of Food Adulteration Act no corresponding sample is entrusted to the accused and thus safeguarding him against the probable mischief or mistake is lacking in such cases. Mr. Patel therefore urged that in cases of this type the court should be more vigilent to arrest such mischievous tendencies and there- fore should apply law with all vigours and rigours. It is for the legisla- ture to see whether salutary safeguard of the nature to be found under the Prevention of Food Adulteration Act should be provided for in the cases arising under the Bombay Prohibition Act or not. I say that the Court in all case must be circumstances and arrive at its conclusion one way or the other on appreciation of the circumstances of that individual case and must always guard against an innocent man being punished. Appeal partly allowed. .