JUDGMENT 1. - This appeal has been filed by the Municipal Council, Jaipur, against the judgment of the learned Municipal Magistrate No. 2, Jaipur, dated January 19, 1972, by which he acquitted the accused-respondent Gopal of the offence under section 16 of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as "the aforesaid Act". 2. I have heard the learned counsel for the appellant, and perused the record of the case. No one appears on behalf of the accused-respondent. 3. The brief facts of the case are that on June 8, 1967, the accused was selling cow's milk near Ajmeri Gate in the city of Jaipur. The Food Inspector purchased a sample from him, divided the same into three parts and sealed the same in three separate clean bottles. One of the sample obtained was sent to the Public Analyst, who reported that the fat contents in the milk were 6 per cent while solid non fat contents were 7.44 per cent. The sample was found to contain 12 per cent added water, hence adulterated. 4. A complaint a as lodged against the accused-respondent under clause (a) of sub-section (I) of section 16 of the aforesaid Act. 5. The learned Magistrate however acquitted the accused on the ground that the sample was purchased on June 8, 1967. It was examined by the Public Analyst on June 9, 1967, yet the complaint was filed as late as July 26, 1969 i.e. after two years after the purchase of the sample. Such a sample must have deteriorated during this long interval and the accused was therefore deprived of his right to have it analysed again by the Central Food Laboratory, Calcutta. Another ground on which the order of acquittal was made was that only one "motbir", namely, Majid Khan was produced in support of the statement of the Food Inspector, but his testimony was discarded because he was a peon subordinate to the said Food Inspector. The learned Magistrate thought that Majid Khan was not an independent witness. 6. The learned counsel for the appellant submitted that according to Babulal Hargovindas v. State of Gujarat, 1972 F.A.C. 18 and Ajitprasad Ramkishan Singh v. State of Maharashtra 1972 F.A C. 545 , the right to have the sample analysed for the second time accrues only when the accused makes an application for the purpose. 6. The learned counsel for the appellant submitted that according to Babulal Hargovindas v. State of Gujarat, 1972 F.A.C. 18 and Ajitprasad Ramkishan Singh v. State of Maharashtra 1972 F.A C. 545 , the right to have the sample analysed for the second time accrues only when the accused makes an application for the purpose. No such right arises in the absence of such an application and it cannot be said until the Laboratory has examined the sample that the sample must have deteriorated. No such application was made in this case and therefore the learned Magistrate was clearly in error when he said that the respondent was deprived of his right under section 13(2) of the aforesaid Act. 7. It was further urged that the approach of the learned Magistrate was clearly erroneous when he discarded outright the evidence of Majid Khan simply on the ground that he was a subordinate of the Food Inspector. The law on the contrary is that conviction in such cases can be founded even upon the sole testimony of the Food Inspector. I have considered the aforesaid contentions and I uphold the same. The judgment of the learned lower court cannot be sustained. 8. I, therefore, accept this appeal, set aside the impugned judgment and order of acquittal and remand the case for retrial in accordance with the law by the Magistrate concerned. He need not record the evidence afresh. The learned Magistrate will be free to give his judgment on the appraisal of the evidence already on record.Appeal accepted. *******