JUDGMENT 1. - This appeal is directed against the judgement of the learned Municipal Magistrate, First Class, Jaipur City (West) dated August 23,1971, by which he has acquitted the respondent of the offence under Section 16 of the Prevention of Food Adulteration Act .1954. No one appears on behalf of the respondent. I have heard the arguments of Mr. Keshote, the learned advocate of the Municipal Council, Jaipur and seen the record of the case. 2. The facts of the case are that on November 4, 1967 at 10.00 a.m., Food Inspector Prem Chand PW. 1 checked the container of milk of respondent Ghasilal who was taking it for sale. He was checked on the Mirza Ismail Road near the shop of Liberty Sports, Jaipur, The container did not bear any indication of the animal of which the milk was he purchased a sample of milk from him and sent the same in proper manner for chemical examination. The said examination disclosed the following analysis Fat contents 5.2 per cent Solid non-fat 8.05 per cent. The sample was found to be adulterated because it contained 10 per cent of added water. 3. The learned Magistrate found that the Food Inspector had taken the sample strictly in accordance with the rules, and did not contravene any of the Food Adulteration Act 1954, and in view of the opinion of the Public Analyst, he held that the milk which was purchased by the Food Inspector was adulterated one, but he acquitted the accused on the ground that he was deprived of his right under sub-section (2) of Section 12 of the said Act. The sample was purchased on November 4, 1967 and the complaint was lodged on March 27, 1968. The summons of the accused were given to the Food Inspector for service but failed to have them served till December 23, 1968. Thus, the accused was able to appear before the Court only 121/2 months after the sample from him was taken. It was not possible for the accused to know before he was summoned, that he was being prosecuted under the aforesaid Act and that he should have availed of his right under sub-Section (2) of Section 13 of the Act. Even though formaline was added to the milk, yet it was likely to have become unfit for analysis after the lapse of 10 months. Even though formaline was added to the milk, yet it was likely to have become unfit for analysis after the lapse of 10 months. Therefore, even if the accused had made an application for second analysis of the sample by the Central Food Laboratory, it would have been a fruitless action. Arguing thus, the learned Magistrate acquitted the accused of the offence of which he has charged with. 4. The learned counsel appearing for the Municipal Council, Jaipur submits that according to sub-section (2) of Section 13 of the Act, after the institution of the prosecution, the accused vendor may make an application to the Court for sending the part of the sample, which was delivered to him or which was retained by the Food inspection , to the Director of Central Food Laboratory for a certificate. But such a right can arise to the accused person only if he makes an application. If he dots not do so, no right of second analysis arises to the accused person, even though he was prosecuted late or appeared late before the Magistrate, it may be that even after a lapse of time the Central Food Laboratory may find a sample fit for analysis. If its report comes in favour of the accused or the sample is found unfit for analysis then the accused will get benefit which is due to him, but he cannot be acquitted on the ground that he did not make any such application for to make such an application would have been of no consequence or advantage. In his support, the learned counsel cued Ajitprasad Ranikishan Singh v. State of Maharashtra and Municipal Council, Jaipur v. Bhanwarlal in which the position has been correctly explained. 5. I am in entire agreement with the arguments advanced by Mr. Keshote. The learned Magistrate relied upon Babulal Hargovinddas v. State of Gujrat for the order he made but his deduction from that ruling was not all correct. As a matter of fact, in that ruling in the passage quoted by him, it has been stated that there is no jurisdiction for holding that the accused h id no opportunity of sending the sample in his custody to the Director of Central Food Laboratory because he made no application to the Court for sending it. As a matter of fact, in that ruling in the passage quoted by him, it has been stated that there is no jurisdiction for holding that the accused h id no opportunity of sending the sample in his custody to the Director of Central Food Laboratory because he made no application to the Court for sending it. It does not avail him to say that for 4 months had lapsed from the time when the sample was taken to the time when the complaint was filed and consequently the sample had deteriorated and could not be analysed. This simply means that there is no right of further analysis and consequently no deprivation thereof unless the respondent makes an application in this be half after the institution of the case. No right of the accused was defeated of the case so as to entitle hum to an acquittal. 6. The learned Magistrate was in error in the view taken by him and his Judgment cannot be supported or sustained. 7. I, therefore, accept this appeal, set aside the impugned Judgment and the order of acquittal convict the accused for an offence under clause (a) of sub-rule (1) of Section 16 of he Prevention of Food Adulteration Act, 1954. It will be seen that the fat contents of the sample were higher than the prescribed om, but the solid non fat contents fed below by 0.95 per cent. An offence had been made out against the respondent but since the matter arose in 1967 and we are now in the year 1975, I consider that impositions of fine shall the it the ends of justice. I, therefore, sentence the respondent to pay a fine of Rs. 500/- and in default of payment thereof, to undergo simple imprisonment for two months. *******