JUDGMENT 1. - The State of Rajasthan has preferred this appeal against the accused-respondent Umashankar resident or Bhilwara, who was acquitted by the First Class Magistrate, Bhilwara in Case No. 197/1970 by his order dated September 15, 1970 for the offence under Section 7 read with 16 of the Prevention of Food Adulteration Act (hereinafter referred to as 'the Act'). 2. The facts of the case according to the prosecution in brief are that on March 1, 1969 at about 7.15 a.m. Food Inspector Sardar Singh went to the shop of the accused Umashankar, who is a milk-vendor. A prescribed notice was given to the accused respondent and 666 ml. of milk was purchased from him, for which its price was paid to him. The purchased milk was divided into three equal portions and was filled in the bottles and 16 drops of formalin was added. The bottles were sealed and a Panchnama Ex. 2 to the same effect was prepared. One sealed bottle was sent to the Public Analyst at Jaipur for analysis along with the form No. 7 with the specimen seal impression, was also sent by the registered post to the Public Analyst. The Public Analyst examined and analysed the aforesaid sample sent to him and he found that this sample of milk was adulterated by the reason of its containing 27% of added water. This report is Ex. p/5. Sanction for prosecution was obtained and the accused was challenged to the Court of City Magistrate, Bhilwara and the case was later on transferred to the Court of First Class, Magistrate, Bhilwara. 3. Prosecution examined the Food Inspector, Sardar Singh P.W. I, Laxmi Chand P.W. 2 and Mohanlal P.W. 3 in support of its case. The respondent pleaded not guilty to the charge and examined the witnesses in his defence. The learned Magistrate held that the offence was not proved beyond reasonable doubt and acquitted the accused by his judgment dated September 15, 1970. 4. I have heard the learned Public Prosecutor and the learned counsel for the accused-respondent and have also gone through the record of the case. 5. It has been contended by the learned Public Prosecutor that the trial court has failed to appreciate the facts of the case and law. 4. I have heard the learned Public Prosecutor and the learned counsel for the accused-respondent and have also gone through the record of the case. 5. It has been contended by the learned Public Prosecutor that the trial court has failed to appreciate the facts of the case and law. He contended that the conclusion arrived at by the trial court is not based on facts proved by the prosecution and so it has resulted in grave injustice. The learned Magistrate has given two reasons for giving the benefit of doubt to the accused-respondent. Firstly that the milk from which the sample was taken by the Food Inspector did not belong to the accused and secondly he has not considered the evidence of Laxmichand to be reliable as he was said to be not good terms with the accused respondent. The learned Magistrate has held that Laxmi Chand was not present at the spot when the sample of the milk was taken. The learned Public Prosecutor has contended that it was clearly proved by prosecution that the milk belonged to the respondent and was purchased by the Food Inspector. If the milk did not belong to the accused it was open for him not to have accepted its price from the Food Inspector. In law there was no obligation on him to have accepted such a price and the Food Inspector could not have forced. The witness produced on behalf of the defence attributed such occurrence to have taken place on March 3, 1969, but it has been evidently proved by the prosecution (hat the occurrence took place on March 1, 1969. In the statement of the accused, he has not said anything but hat the sample did not belong to him and, therefore, the defence evidence produced by the accused respondent is wholly unreliable. This did not cost any doubt on the prosecution story and therefore the learned Magistrate was not justified to hold that the milk in question do not belong to the accused. Secondly, the alleged ill will of the accused against Laxmi Chand has not been established and the learned Magistrate was not within his right to hold that Laxmi Chand was not present at the spot when the sample was taken by the Food Inspector. From statements of the Food Inspector and Laxmi Chand and the various documents Ex. Secondly, the alleged ill will of the accused against Laxmi Chand has not been established and the learned Magistrate was not within his right to hold that Laxmi Chand was not present at the spot when the sample was taken by the Food Inspector. From statements of the Food Inspector and Laxmi Chand and the various documents Ex. P/1, P/2 and P/3 on which the signatures of Laxmi Chand appear and which were prepared at the spot on March I, 1969 clearly establish the presence of Laxmi Chand when the sample was taken by the Food Inspector and other formalities were observed I have examined the evidence on record and the reasoning's given by the learned Magistrate and I am of the Firm view that both the reasoning's are unsustainable. The direct evidence of the eye-witnesses received assurance from the documents Ex. P/1, P/2 and P/3 which were prepared at the spot. I am constrained to hold that the accused-respondent sold the milk to the Food Inspector on accepting the price as his own property. The contention of the learned counsel for the respondent that the milk belong to another person who ran away seeing the Food Inspector is not tenable. Thus the learned Magistrate was not within his right to hold the prosecution as doubtful. 6. The points urged by the learned counsel for the respondent before me are that ; the provisions of Rule 22 of the Food Adulteration Rules have not been complied with. It has not been proved by the prosecution that each bottle contained 220 ml. of milk, as according to the prosecution evidence the approximately 660 ml. was taken and that the witnesses have deposed the word 'approximately', it may mean that less than 220 ml. milk was in each bottle. The learned public Prosecutor has urged that in the very rule 22 the approximate quantity has been mentioned and that there is no evidence that this quantity of milk in the sample, sent to the Public Analyst, was not sufficient for the purposes of analysis. The analysis was done and it was found adulterated. There is no report of the Public Analyst that he cannot analyse the sample because of insufficiency of the quantity. The analysis was done and it was found adulterated. There is no report of the Public Analyst that he cannot analyse the sample because of insufficiency of the quantity. Under these circumstances, the compliance of the Rule 22 has been made and no prejudices has been caused to the accused on this count, and I agree with the contention of the learned Public Prosecutor on this score. 7. Another point urged by the learned counsel for the respondent is that the drops of formalin were not added in adequate i.e. 16 drops in each bottle. Thus the compliance of Rule 20 has not been made. The contention of the learned Public Prosecutor is that this Rule is not mandatory. Adding of the preservative is meant to keep the article in a fit condition for the purposes of analysis and if due to adding less preservation in the article, the article, is decomposed or becomes unfit for analysis, then certainly the accused is prejudiced otherwise less quantity of preservation which does not effect the fitness of the article is of no avail to the accused, as he is not prejudiced. Ex. P/5, the report of the Public Analyst at portion 'A' to 'B' clearly mentioned that sample was found in a condition fit for analysis. Therefore, in these circumstances, I hold that the accused was not prejudiced and this does not help him. 8. The third point which was pressed by the learned counsel for the respondent is that there was delay in prosecution with the result with the right of the accused to get the sample examined by the Central Laboratory is defeated and as such its benefit should go to the accused. It may be said that the report given by the Public Analyst continues to be in evidence of the fact as stated therein and the report does not become ineffective merely there was inordinate delay in filing the complaint by the prosecution. It may be said that the report given by the Public Analyst continues to be in evidence of the fact as stated therein and the report does not become ineffective merely there was inordinate delay in filing the complaint by the prosecution. In Municipal Corporation of Delhi v. Ghisa Ram, AIR 1967 SC 970 it has been observed by their lordship of the Supreme Court that the report of the Public Analyst continues to be in evidence, and the prejudice in respect of delay would sot be material and it is for the accused to satisfy the court that his valuable right conferred by Section 13(2) of the Act to have the sample given analysed by the Director of Central Food Laboratory has been taken away. It can be done in two ways, firstly, he may request the court to get the sample analysed from the Director, Central Food Laboratory and if he gives the opinion that the sample has become decomposed and is unfit for analysis then he cannot be convicted on the basis of the report of the Public Analyst then alone, if there is delay is launching the prosecution so that the right of the accused conferred by S. 13(2) of the Act is nugatory. In second circumstance, that his right has been frustrated can also be proved by proving from other evidence that the sample has become decomposed owing to the delay in prosecution to such extent as to become incapable to analysis and it would not have proved any purpose to send that to the Director, Central Food Laboratory. In that case also the accused must be deemed to have been prejudiced and deprived of the valuable right despite the fact that he has not made the application challenging the report of the Public Analyst or tested by the Director Central Food Laboratory. In the present case the respondent neither requested the court that the sample retained by him may be sent to the Director, Central Food Laboratory nor the sample retained by him was sent to the Director, Central Food Laboratory and there was no report to the effect that because of delay the sample was decomposed. In the present case the respondent neither requested the court that the sample retained by him may be sent to the Director, Central Food Laboratory nor the sample retained by him was sent to the Director, Central Food Laboratory and there was no report to the effect that because of delay the sample was decomposed. There is also no evidence on record to show that during what period it should be deemed to have been decomposed and therefore it was futile for the respondent to have requested the court for sending it to the Director, Central Food Laboratory. In the present case, the sample was taken on March I, 1969 and was analysed on March 9, 1969. In the report of the Public Analyst Ex. P/5 it has mentioned that the sample was in a condition fit for analysis. The complaint was filed in the court on 15-4-1969. Therefore, in these circumstances, it cannot be said that there was inordinate delay in filing the complaint by the prosecution. The accused appeared on June 19, 1969 and it was open for him to have requested the court to send the sample retained by him to be tested by the Director, Central Food Laboratory. No such request has been made. No other evidence has been lodged that it would have been meaningless to send the sample to the Director, Central Food Laboratory as be then it must have been decomposed. In such circumstances, I am unable to hold that the accused was prejudiced due to any dealy in launching the prosecution. As 1 have held above that there was dealy in launching the prosecution is not perse ground to vitiate the prosecution case unless such dealy has caused prejudiced to the accused. The failure of justice owing to the loss of valuable right of the accused for getting the sample analysed is a question of fact and in each case it is to be decided on merits of its own case. I am unable to agree with the learned counsel for the respondent that there has been any delay in launching the prosecution and that such dealy has caused failure of justice and prejudiced the accused adversely. This contention of the learned counsel for the respondent cannot be sustained. 9. The next contention of the learned counsel for the respondent is that the appeal filed by the State is beyond limitation. This contention of the learned counsel for the respondent cannot be sustained. 9. The next contention of the learned counsel for the respondent is that the appeal filed by the State is beyond limitation. According to him originally the appeal was filed on behalf of the Food Inspector at the feg-end of the period of limitation and thereafter it was amended in the name of State of Rajasthan on 25.8.71 and by the time the period of limitation had expired. The contention of the learned Public Prosecutor is that even initially the appeal was filed not by or on behalf of the food Inspector but by the State of Rajasthan through the Dy. Government Advocate as is clear from the fact mentioned at the bottom of appeal 'for the State of Rajasthan (sd/-) Rajanarain Dy. Government Advocate, Jodhpur'. However, in the heading inadvertently the Food Inspector, Municipal Corporation Bhilwate was written and the office report not pointed out this defect. The defect was cured and the nomenclature in the title was changed. This does nor in any way mean that the appeal was filed by or on behalf of the Food Inspector but it was filed by the State initially and therefore no question of the appeal being time barred arises. I agree with the learned Public Prosecutor in this respect that the appeal was initially filed by the State of Rajasthan and as such the question of the appeal being time barred does not arise.The result is that the offences under section 7 read with 16 of the Prevention of Food Adulteration Act has been well proved against the respondent. The appeal filed by the State is allowed. The order of the learned Magistrate, Bhilwara dated 15.9.1970, acquitting the respondent is set aside. The respondent is convicted for an offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act. 10. As regards the sentence, I have heard the learned counsel for the respondent and the learned Public Prosecutor. The contention of the learned counsel for the respondent is that the case is covered by the proviso to section 16 of the Prevention of Food adulteration Act and as such lenient view may be taken in the matter of sentence. Moreover it is a case of adding water in the milk which cannot be said to be harmful adulteration. The contention of the learned counsel for the respondent is that the case is covered by the proviso to section 16 of the Prevention of Food adulteration Act and as such lenient view may be taken in the matter of sentence. Moreover it is a case of adding water in the milk which cannot be said to be harmful adulteration. Besides this the alleged occurrence is of 1.3.1969 i.e. more than 7 years old and in these circumstances it would not be proper now to send the accused to jail and therefore he should be given benefit of the provisions of the Offenders Act. In this connection he has relied upon Ghanshyam Das v. Municipal Corporation of Delhi, AIR 1975 SC 245 . In that case it was held that since the accused has to face protracted criminal proceedings for a long time it would not deem proper to send the appellant to jail. In the opinion of their Lordships of the Supreme Court it was a fit case for giving the benefit of Section 4 of the Probation of Offenders Act. In the present case also in view of the aforesaid ruling the learned Public Prosecutor has no serious objections if the lenient view is taken in the matter of sentences. 11. Looking of the facts and circumstances of the case I feel inclined that the respondent has faced criminal proceedings for more than 7 years and it would meet the ends of justice, if he is given the benefit of Section 4 of the Probation of Offenders Act. The respondent Umashanker is therefore ordered to be bound down under Section 4 of the Probation of Offenders Act on his executing a personal bond in the sum of Rs. 2000/- with one surety in the like amount to the satisfaction of the Chief Judicial Magistrate, Bhilware to keep peace and be of good behaviour for a period of two years and to appear and receive sentence whenever and wherever he is called upon to do so. Two months' time is given to him to furnish the bonds. *******