JUDGMENT 1. - The facts of this appeal are that food inspector Municipal Council, Jaipur, checked the milk of the respondent Mangal Ram at 10-00 a.m. on 14-6-68 outside the chandpol gate at the bus stand. The food inspector purchased a sample out of the drum which contained one maund of milk. The sample was divided into three parts and put into three separate bottles. Requisite quantity of formalin was added. The name of the animal was not written on the drum. One of the sample bottles was sent for chemical examiner, who reported that the milk was adulterated because it contained 17 per cent of added water. 2. After obtaining requisite authority a complaint was lodged against the respondent under section 16 of the Prevention of Food Adulteration Act. The learned Magistrate acquitted the accused on the following grounds:- (1) the prosecution has failed to prove beyond doubt that the milk belonged to accused Mangal Ram and he brought it there for the purpose of sale. It was not proved further that the accused had any licence for selling milk. On the contrary, it is proved that the accused was not engaged in the business of selling milk.; (2) the sample was purchased on 14-6-68. The complaint was filed on 24-9-68 but the process could not be served on him before 20-6-69. This delay of a year has seriously affected the right of the respondent to have the sample analysed by the Central Food Laboratory because by then the article must have deteriorated. 3. The Municipal Council Jaipur has filed this appeal against the order of acquittal. I have heard the learned council and perused the record. I will dispose of the second objection first. It is now well settled by the authorities of the Supreme Court that a person cannot be said to have been deprived of his right under section 13 of the Prevention of Food Adulteration Act to have the sample analysed by the Central Food Laboratory until he makes an application in that behalf and further more until, the Central Food Laboratory reported that the sample was unfit for analysis. Until then, no right arises in favour of the accused respondent. Until then, no right arises in favour of the accused respondent. He can not be said to have been deprived of the benefit of an examination by the Central Food Laboratory until the Laboratory had a chance to see the sample and say that it has ceased to be incapable of analysis. Since, the respondent made no such application the argument founded upon sub-section (2) of section 13 of the Prevention of Food Adulteration Act cannot be upheld. Some decisions of the Allahabad High Court were cited before me in which it was held that the sample becomes unfit for analysis after ten months. May be so, but then it is not a case of non-analysis of the food. Here the question is whether the report of the Public Analyst should be believed or not. It provides good evidence until superseded by the report of the Central Food Laboratory. If he was not satisfied with the report of the public analyst, he should have made an application and if the respondent has not exercised his right to make an application and has waited until the food has become deteriorated, he himself has to blame. If any authority is needed, then one may refer to Ajit Prasad v. State of Maharashtra, AIR 1972 SC 1631 . It was submitted by the learned counsel for the respondent that he could exercise his right only when he could appear before the court and he could not do so until the process was served upon him. The delay in the service of process was not on account of him. but the failure was on the part of the prosecution. The learned counsel for the appellant has submitted that the prosecution has been rending the process on the address of the accused but each time it was reported that the accused had left the known place of abode. I have verified this from the record and the contention of the learned counsel for the appellant seems to be correct. There is no deliberate attempt on the part of the prosecution to cause delay in the service of the process. The second ground given by the learned trial court for acquittal is therefore not correct. 4. I have verified this from the record and the contention of the learned counsel for the appellant seems to be correct. There is no deliberate attempt on the part of the prosecution to cause delay in the service of the process. The second ground given by the learned trial court for acquittal is therefore not correct. 4. As regards the first ground, my attention was drawn to Food Inspectors Calicut v. Gopalan, AIR 1971 SC 1725 wherein it was held that when there is a sale to the Food Inspector of an article of food which is found to be adulterated, the accused will be guilty of an offence under section 16 (i) (a) (i) read with section 7 of the Act. The article of food which has been purchased by the Food Inspector need not have been taken out from a larger quantity intended for sale. The person from whom the article of food has been purchased by the Food Inspector, need not be a dealer as such in that article. On the Other hand, the learned counsel for the respondent referred me to Municipal Corporation of Delhi v. Laxmi Narain Tandon etc., AIR 1976 SC 621 . In this latter case the Supreme Court has observed that according to section 10 of the Prevention of Food Adulteration Act, the food inspector has power to take sample of any article of food only from : (i) any person selling such article ; (ii) any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee ; (iii) a consignee after delivery of any such article to him. The last two categories do not apply to the case in hand. It is therefore, incumbent upon the prosecution to prove that the sample was purchased from a person who was selling milk. The prosecution has not proved that when the sample was purchased, the accused was selling milk. The learned counsel for the respondent also urged that the licence of the accused was not produced in order to prove that he was a milk vendor. The Food Inspector has not deposed that the accused was selling milk. The finding of the learned lower court is that the accused had no licence for selling milk. He was employed in a factory and he could not indulge in milk selling. The Food Inspector has not deposed that the accused was selling milk. The finding of the learned lower court is that the accused had no licence for selling milk. He was employed in a factory and he could not indulge in milk selling. The learned trial court who had the advantage of watching the demeanour of the witnesses has held that the prosecution has failed to establish that the accused had brought the milk for sale. This finding cannot be lightly brushed aside because the presumption of innocence of the respondent is certainly not weakened if not strengthened, by the order of acquittal, and appellate courts are required to be slow in setting aside an acquittal. 5. I have considered over this objection and I am of the view that the act of sample being allowed to be taken for money, even if in voluntary, is no doubt a sale, but such sample can be purchased only from a person selling milk etc. and whether a person can be considered to be selling milk or not at the time of checking is a question of fact. According to Delhi Municipality v. L.N. Tandon a Food Inspector is authorised to take samples of an article of food only from particular persons indulging in a specified course of business activity. The immediate or ultimate end of such activity is the sale of an article of food. If an article of food is not intended for sale and is in the possession of a person who does not fulfil the character of a seller, conveyor, deliverer, consignee, manufacturer or storer for sale such as is referred to in sub-sections (1) (a) and (2) of section 10, the Food Inspector will not be competent to take a sample and to validly launch prosecution thereon. 6. Out of the three witnesses produced by the prosecution, Gopal Lal S/o Chhajulal turned hostile to the prosecution. No doubt production of the record relating to issue of licence could provide evidence that the accused should be deemed to be selling milk but that record was not produced. The Food Inspector Ram Gopal has deposed that the accused was in possession of a drum full of milk about one maund. Gopal Lal S/o Pemaji has stated the accused gave milk from his pot to the Food Inspector. There is no evidence that the accused brought the milk for sale. The Food Inspector Ram Gopal has deposed that the accused was in possession of a drum full of milk about one maund. Gopal Lal S/o Pemaji has stated the accused gave milk from his pot to the Food Inspector. There is no evidence that the accused brought the milk for sale. Mere possession of a large quantity of milk in a container, without anything more, cannot lead to an inference that he was a seller actual or potential. The learned lower court's findings in this respect are in favour of the accused and against the prosecution and I do not find any good reason to reverse those findings. The appellants therefore fail on the first ground.This appeal is consequently dismissed. *******