JUDGMENT 1. This appeal is directed against the judgment of the learned Municipal Magistrate, Jaipur dated 29.12.1971. I have heard arguments and perused the record. 2. The brief facts of the case are that Food Inspector Ram Gopal Sharma P.W. 1 checked accused respondent Bhura Mai at 10 a.m. on 19.4.1968, while he was selling milk on his shop situated at Lalji Sandh-ka-Rasta, Jaipur. The said inspector purchased the sample of milk, 750 gms. He divided the sample into three equal parts and filled the same in three separate bottles, added formalin 16 drops in each bottle and then sealed them. One of the sample bottle was sent to the Public Analyst whose report was that its fat contents were 5.4%, solids non-fat contents 7.33% and the sample was adulterated by reason of its containing about 18% of added water. Upon a complaint being filed and the respondent'being tried under clause (a) (i) of sub-section (1) of Section 16 of the Prevention of Food Adulteration Act, 1954, he was acquitted by the said Magistrate. Hence, this appeal by the Municipal Council, Jaipur. 3. The grounds on which the learned Magistrate acquitted the respondent were two, namely ; (1) The sample was purchased on 19.4.68. The complaint was lodged on 10.9.68. The process for the first time was served upon the Court on 15.1.69. In these circumstances, it was held that the respondent was deprived of his valuable right under subsection (2) of Section 13 of the aforesaid Act to have the sample analysed by the Central Food Laboratory, Calcutta because by that time the sample should have deteriorated. Further-more, because the preservative added to the sample was below the prescribed quantity ; (2) The prosecution have produced four witnesses in support of its case. The learned Magistrate rejected their evidence on the ground that the Food Inspector Ram Gopal Sharma was not supported by independent witnesses. The so called independent witnesses comprised of one Goverdhan Singh who was a servant of the Municipality and was only expected to give evidence in favour of the prosecution. The other witness Ram Chandra has not fully supported the prosecution case. Moreover, he was of the caste of Ratn Gopal Food Inspector and was also of his acquaintance. The so called independent witnesses comprised of one Goverdhan Singh who was a servant of the Municipality and was only expected to give evidence in favour of the prosecution. The other witness Ram Chandra has not fully supported the prosecution case. Moreover, he was of the caste of Ratn Gopal Food Inspector and was also of his acquaintance. This witness Ram Chandra went even to the extent of saying that he did not know whether the Food Inspector had actually purchased the sample from respondent Bhura Mai. Dr. Moti Lal P.W. 4 was considered only a formal witness. 4. The learned .counsel appearing on behalf of the Municipal Council, Jaipur has attacked the judgment of the learned lower Court firstly on the ground that the learned Magistrate fell into error as far as his view regarding the deprivation of the light of respondent under sub-section (2) of Section 13 of the aforesaid Act was concerned. Secondly the learned Magistrate has rejected the evidence of the prosecution witnesses almost on no basis. The reasons advanced by the learned Magistrate for disbelieving the prosecution witnesses were not sound. 5. I have considered over the objections .raised by the learned counsel for the appellant. It has now well settled by the decisions of the Supreme Court in Babu Lal v. Slate of Gujarat that the question of deprivation of the right given to the accused under sub-section (2) of Section 83 of the aforesaid Act, does not arise until the accused makes an application to the Court for having the sample analysed by the Central Food Laboratory,Calcutta. Until such an application is made no right can be said to have accrued to the accused. In this case also no such application was made. Until there is evidence on record to show that the article of food had deteriorated by lapse of time or by addition of preservative in quantity of less than the one prescribed, it is very difficult for the court to say that the sample must have decomposed and become unfit for analysis. The learned Magistrate therefore, was clearly in the wrong when he observed that even if the accused had made an application as aforesaid it would only be a fruitless venture. So far as the legal position is concerned the learned counsel for the appellant is correct. The learned Magistrate therefore, was clearly in the wrong when he observed that even if the accused had made an application as aforesaid it would only be a fruitless venture. So far as the legal position is concerned the learned counsel for the appellant is correct. But on examination of the order sheet of the learned lower Court, it transpired that after the evidence of Goverdhan Singh on 15-9-70 was recorded the accused made an application and also filed requisite fee for sending the sample for by the. Central analysis Food Laboratory, Calcutta. At first it appears that the office of the learned Magistrate sent the sample of wheat flour which had nothing to do with this case. It further appears that the sample of the milk was then sent to the aforesaid Laboratory on 7-11-1970. The Laboratory reported that the milk sample was received by them in smashed condition and the entire contents were leaked out. The sample was rejected and Municipal Magistrate was requested to send the counter part sample for analysis at an early date. But the learned Magistrate did not thereafter care to send another bottle of sample for analysis. It is so surprising indeed that the counsel appearing on behalf of the accused in the lower Court was also not aware of these facts, because the learned Magistrate order does not mention anything about all what had happened to the sample. In these circumstances, I am constrained to hold that the right of the respondent under subsection (2) of Section 13 of the Act was defeated on account of the latches on the part of the Court. The argument therefore, is not available to the prosecution any more and I reject this contention. Such a case will be governed by Municipal Corporation, Delhi v. Ghisaram . 6. As regards the evidence I do not find possible how the Magistrate could reject the evidence of the Food Inspector in this matter. Shri Ram Gopal PW. 1 deposed that he had purchased the sample, paid the price and prepared the memos. He forwarded one of the sample bottles to the Public Analyst in accordance with rules. He was supported in all his proceedings by Jamadar Goverdhan Singh and his testimony could not be rejected simply because he was an employee of the Municipal Council. 1 deposed that he had purchased the sample, paid the price and prepared the memos. He forwarded one of the sample bottles to the Public Analyst in accordance with rules. He was supported in all his proceedings by Jamadar Goverdhan Singh and his testimony could not be rejected simply because he was an employee of the Municipal Council. I have gone through this evidence and I do not find anything which makes him unbelievable.. He completely supports the Food Inspector. Ram Chandra P.W 3 admitted that he had signed the memo of purchase of sample but then he denied the contents as they were not read over to him and also stated that he simply signed the memos because he happened to know the Food Inspector who belonged to his caste as well. No doubt Ram Chandra is not wholly reliable witness and appears to have crosse to the sided of the defence but he had to admit this much that he put his signatures upon the memo prepared by the Food Inspector. He does not appear such a simple that he would sign the documents without caring to know its contents simply because he happened to be an acquaintance of the Food Inspector. Dr. Motilal has proved the written consent Ex. P. 8 given by him to the prosecution. 7. The respondent in his statement denied that he was checked by the Food Inspector and stated that the milk was not purchased from him but was purchased by the Food Inspector from some boy who was standing there. The respondent also produced one witness in defence named Prabhu Narain who deposed that he is an adjacent shop-keeper and on the day of the occurrence the Food Inspector purchased sample not from the shop of the accused but from the boy who was having some milk in a container and was sitting on a platform situated between his shop and that of the accused. 8. Considering the entire evidence discussed about i have no hesitation in holding that the Food Inspector purchased the sample as deposed to by him. The sample was found adulterated by the public analyst but since the accused was deprived of his right under sub-section (2) of Section 13 of the said Act, in the circumstances which I have stated above the appeal of the Municipal Council cannot be accepted and it is hereby dismissed. *******