JUDGMENT - M.D. KAMBLI, J.:---The State has preferred this appeal against an order of acquittal. 2. The Food Inspector Shri Lilhare, on 14-8-74, found the respondent No. 1 Prakash at Arvi Bus Stand at Wardha with a milk can. The Food Inspector took 660 ml of milk from him as a sample for analysis. The prosecution case is that respondent No. 1 was the servant of respondent No. 2 and as such servant he was carrying the milk for the purpose of sale. When the sample was sent to the Public Analyst, he reported that it was adulterated by his report Exhibit 2. It appears that after the complaint was filed by the Food Inspector on 20-1-1975 the respondent requested for summoning the Public Analyst for cross-examination and accordingly he was examined by the Court. Similarly in March 1976 the respondent made an application to send the sample to the Central Food Laboratory, Calcutta (hereinafter refer to as CFL). The report received from the CFL is at Exhibit 40. Even according to that report, the sample was adulterated. 3. The learned Magistrate, however, acquitted the accused for the following reasons : I. There was delay in launching the prosecution. That affected the valuable right of the accused under section 13(2) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) and the trial was vitiated and the accused was entitled to be acquitted. II. There was no proper sampling of the milk and that, therefore, correct determination on as regards adulteration was not possible. III. The reports of the Public Analyst and the Director of CFL were contradictory. The benefit thereof must go to the accused and the trial was vitiated. IV. The sanction given by Joint Commissioner Food and Drug Administration was bad in law. For the above reasons the learned Chief Judicial Magistrate, Wardha, held that it was not proved that the accused had sold adulterated milk to the Food Inspector. 4. On going through the judgment of the learned Magistrate, I am inclined to think that the learned Magistrate has not given proper attention to the material on record and to the ratio in some of the cases referred to by him in the judgment. Coming to the question of delay on the part of the prosecution certain dates may be stated. 14-8-74. Sample was taken. Coming to the question of delay on the part of the prosecution certain dates may be stated. 14-8-74. Sample was taken. 22-8-74 Sample was sent to the Public Analyst. 30-8-74 Sample was received by the Public Analyst. 10-9-74. Report of the Public Analyst was prepared. 16-9-74 The Public Analyst issued the report. 20-1-75 Complaint filed. 10-2-75 The accused appeared before the Court. 02-3-75 The accused applied for sending the sample to CFL. 27-4-75 Report received from the Director of CFL. After giving some of the above dates, the learned Magistrate simply referred to section 13(2) of the Act a decision of the Madhya Pradesh High Court in the (State of Madhya Pradesh v. Tulsiram)1, reported in 1973 Prevention of Food Adulteration Cases at page 245 and observed that the delay in launching the prosecution had resulted in prejudice to the accused of his right guaranteed to him under section 13(2) of the Act. Hence the trial was vitiated and the accused was entitled to be acquitted. 5. Now, in the decision of the Madhya Pradesh High Court in Tulsirams case (supra) reference had been made to the decision of the Supreme Court in (Municipal Corporation Delhi v. Ghasiram)2, A.I.R. 1967 S.C. 970, at more than one place. It is not clear whether the learned Magistrates took pains to go through the decision of the Supreme Court. What the Supreme Court has observed in that case is : "When valuable right is conferred by section 13(2) of the Act on the Vendor to have the sample given to him analysed by the Director of the Central Food Laboratory, it is to be expected that the prosecution will proceed in such a manner that the right will not be denied to him. The right is a valuable one, because the certificate of the Director supercedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously the right is given to the Vendor in order that, for his satisfaction, and proper defence, he should be able to have the sample kept in his charge analysed by greater expert whose certificate is to be accepted by the Court as conclusive evidence. Obviously the right is given to the Vendor in order that, for his satisfaction, and proper defence, he should be able to have the sample kept in his charge analysed by greater expert whose certificate is to be accepted by the Court as conclusive evidence. In a case where there is denial of this right on account of the deliberate conduct of the prosecution, i.e. delay in prosecution as a result of which the sample is highly decomposed and could not be analysed, the vendor, in his trial, is so seriously prejudiced that it would not be proper to uphold his conviction on the basis of the report of the Public Analyst, even though that report continues to be evidence in the case of the facts contained therein". 6. After taking the above observations, their Lordships of the Supreme Court observed : "The principle must, however, be applied to cases where the conduct of the prosecution has resulted in the denial to the vendor of any opportunity to exercise this right. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible." It will appear from the observations of the Supreme Court that from mere delay in filling the prosecution, the accused will not straightway be entitled to acquittal. Different considerations may arise if the right gets frustrated for reasons for which the prosecution is not responsible." It will appear from the observations of the Supreme Court that from mere delay in filling the prosecution, the accused will not straightway be entitled to acquittal. A reference may be made to the decision of the Supreme Court in (Babulal v. State of Gujarat)3, A.I.R. 1977 S.C. 1277 where it is observed : "Defence that the accused has been deprived of his right under section 13(2) to send the sample in his custody to the Director, Central Food Laboratory due to delay in launching the prosecution is not open when the accused has not filed an application under section 13(2) during the trial and there is no evidence to show that no preservative was added to the sample." Now, even in the case decided by Madhya Pradesh High Court (Tulsirams case), it is observed : "Where, however, the analysis by the Public Analyst is not inordinately delayed and the preservatives are added in the prescribed quantity, the mere fact of some delay in launching the prosecution will not entitle the accused to claim an acquittal on the report of the Public Analyst can form the basis of conviction." Without adverting to what the courts have held the learned Magistrate went on to conclude that delay in launching the prosecution affects the valuable rights of the accused and hence the trial is vitiated. It has to be noted in this case that not only the sample was fit for analysis when the Public Analyst examined it on 10-9-74 but the Director of CFL also found it to be fit for analysis when he examined some time prior to 27-4-76. It is, therefore obvious that the delay in launching the prosecution has not prejudiced the accused in this case. It must be stated that the delay in launching the prosecution may prejudice the accused in a case of the type referred to in the case decided by the Supreme Court in (Municipal Corporation, Delhi v. Ghasiram)2, A.I.R. 1967 S.C. 970 (supra), where as a result of failure on the part of the Food Inspector to take proper precaution for preserving the sample, gets decomposed. I am, therefore, not impressed by this ground given by the learned Magistrate for acquittal of the accused. 7. I am, therefore, not impressed by this ground given by the learned Magistrate for acquittal of the accused. 7. The learned Magistrate then referring to the report of the Public Analyst, Exhibit 21, and the report of the Director CFL Exhibit 40, stated that the two reports were contradictory. According to him, the Public Analyst had detected 22.2 per cent added water while the Director did not make a mention of any added water in the sample. This according to the learned Magistrate was a very glaring contradiction between the two reports. This reasoning is superficial and would not stand deep scrutiny. It is true that the Public Analyst found in his analysis that the sample contained 22.2% added water. The Director CFL however did not state anything in his certificate regarding added water. 8. Now, we have at Item A. 11.01.11. the standards prescribed for different classes of Milk in Appendix B of the Act. For Buffalo Milk in Maharashtra minimum percent of Milk fat is prescribed at 6.0. The minimum percent of Milk solids-non-fat is prescribed as 9.0. The Public Analyst found percentage of Fat at 5.7 and percentage of S.N.F. at 7.00. It will thus be seen that the percentage were found less than those prescribed under the rule. Now, this Item A. 11.01.11 does not say anything about the added water. Even so, the Public Analyst proceeded to find out what was the quantity of added water. It appears that the Director of C.F.L. did not find it necessary to proceed to find out what was the quantity of the added water. He too found that percentage of milk fat was 5.2. percent and percentage of milk solid-non-fat was 5.6 per cent. In addition, he mentioned "Cane Sugar absent", "Starch absent". He opined that the sample did not confirm to the standard prescribed. It will thus be seen that both the reports show that the percentage of fat and milk solids non fat was less than what was prescribed. Of course the Public Analyst found the percentage of fat 5.7% whereas the director found the percentage of fat to be 5.2%. The Public Analyst found solid-non-fat at 7 percent, whereas the Director found the same at 5.6 percent. As stated above, the Director did not find it necessary to ascertain the added water contents. Of course the Public Analyst found the percentage of fat 5.7% whereas the director found the percentage of fat to be 5.2%. The Public Analyst found solid-non-fat at 7 percent, whereas the Director found the same at 5.6 percent. As stated above, the Director did not find it necessary to ascertain the added water contents. It is difficult to see how the two reports can be said to be contradictory. It is no doubt true that if the reports of the Public Analyst and the Director of C.F.L. are found to be contradictory the accused will be entitled to the benefit thereof. However, I find it difficult to hold that the two reports are contradictory. The approach of the learned Magistrate on this point also seems to be superficial. 9. Coming to the point of sanction, the learned Magistrate held that the sanction in the instant case by the Joint Commissioner of Food and Drug Administration was bad in law. The learned Magistrate in a short para recorded his finding as under : "The sanction in the instant case given by the Joint Commissioner Food and Drug Administration is bad in law. The Joint Commissioner giving the sanction was examined. I have carefully gone through his evidence. I am constrained to say that there is no proper application of mind and consideration of facts by him. There is only mechanical action by the Joint Commissioner. It is needless to discuss his evidence in detail. He acted mechanically and signed blindly. There is no legal and valid sanction and so the prosecution is vitiated". 10. It appears that the sanction Exhibit 23, did not contain sufficient material to indicate that the sanctioning authority had necessary material before it granted the sanction. However, it appears that at the fag end of the trial this defect was sought to be remedied by examining the sanctioning authority. From that deposition, it is possible to take a view that there was material before the sanctioning authority. Of course there was some confusion regarding the date put below the sanction. However, in the cross-examination of the witness some explanation for that mistake was brought on record. From that deposition, it is possible to take a view that there was material before the sanctioning authority. Of course there was some confusion regarding the date put below the sanction. However, in the cross-examination of the witness some explanation for that mistake was brought on record. What I want to emphasis that without adverting to the evidence of the sanctioning authority, the learned Magistrate in the brief para extracted above went on to observe that the sanctioning authority acted mechanically and signed blindly and that there was no proper application of mind and consideration of facts by him. One could have appreciated these observations if they were supported by some discussion of the evidence on the point. 11. One more ground on which the learned Magistrate acquitted the accused was that there was no proper sampling. In that respect the learned Magistrate relied upon certain observations in the book on "Milk and Milk Products" by Combs and Macy. It is on this ground the learned Counsel for the respondent has heavily relied and I think he must succeed. The learned Magistrate has referred to pages Nos. 50, 69110 and 111 of the said book. However the pertinent chapter in that book is Chapter XV which begins from page 368. The learned Author has begun the discussion by observing that the Milk and its products are subject to Chemical Analysis probably more frequently than any Food Product. He has further pointed out that "Of the analysis conducted on Milk and Cream, the Milk fat determination is the most common." It is emphasised that "for each test the milk is subjected a small representative sample must be secured." Under the heading, "how to secure a sample", it is observed," due to the difference in specific gravity between the Milk serum and the fat of Milk, the fat globules are continuously rising towards the surface of Milk or Cream, and these products must be thoroughly mixed before a sample is taken for analysis." The learned Author has proceeded to point out how the sample of Milk should be taken in order that it would be a representative one. The learned Counsel for the respondent Mr. Kanhe invited my attention to certain passages from" the Chemical Analysis of Food and Food Products" by Jacobs, Third edition on pages 6 and 10. The learned Counsel for the respondent Mr. Kanhe invited my attention to certain passages from" the Chemical Analysis of Food and Food Products" by Jacobs, Third edition on pages 6 and 10. Under the heading sampling it has been observed : "A most important matter to be considered by the Food Analyst, although not directly his province, is the proper sampling of the food or food products to be analysed. There are probably as many incorrect determinations made because the sample was improperly taken as because of the combine errors of preparation of samples manipulation, calculation of results etc. The failure to obtain a proper sample makes a subsequent analysis worthless." 12. Yet another book was relied upon, "The Chemical Analysis of Foods" by Person, 5th edition, where, among other things it is observed at page 342 under the heading "Sampling" : "The milk shall be thoroughly stirred before sampling and the sample shall be taken from well below the surface of the Milk. The instruments used for stirring and sampling shall be sterile and the sample shall be poured into a sterile bottle which shall thereupon be immediately stoppered." 13. Reliance was also placed upon Bhatnagars "Commentaries on the Prevention of Food Adulteration Act, 1954" whereon page 311 the subject of mode of taking sample or milk has been described. It has been stated there : "Where sample of single of single cows milk is taken it should be drawn from the middle of the vessel i.e. the whole body of the milk should be uniform in its composition and sample must represent the whole milk in order." It has also been stated there : "Careful and accurate analysis is the foundation of prosecution and all possible errors in taking sample must be eliminated to ensure that factors disturbing the uniformities of composition do not come in to play either by partial churning or separation of fat. Thoroughly mixing be done by gently shaking the vessel and where the vessel is big enough by stirring with a long handled dipper." 14. The learned Counsel for the respondent invited my attention to Rule 8, under the Prevention of Food Adulteration Rules which prescribe qualifications of Food Inspector. That rule reads as under : "8. Thoroughly mixing be done by gently shaking the vessel and where the vessel is big enough by stirring with a long handled dipper." 14. The learned Counsel for the respondent invited my attention to Rule 8, under the Prevention of Food Adulteration Rules which prescribe qualifications of Food Inspector. That rule reads as under : "8. Qualifications of Food Inspector.:---A person shall not be qualified for appointment as Food Inspector unless he : (i) is a Medical Officer in charge of the health administration of a local area; or (ii) is a graduate or licentiate in medicine, and has received at least one months training in food inspection and sampling work approved for the purpose by the Central or the State Government; (iii) is a qualified Sanitary Inspector having an experience as such for a minimum period of one year and has received at least three months training in food inspection and sampling work in any of the laboratories referred to in Clause (i) of the Rule 6; or (iv) is a graduate in science with Chemistry as one of the subject, of a graduate in Agriculture, Food Technology, or Dairy Technology, and has received at least three months training in food inspection and sampling work in any of the laboratories referred to in Clause (i) of Rule 6 ;" It will appear from the provisions in this rule that a person before he is qualified for appointment as Food Inspector, has to undergo prescribed training in food inspection and sampling. This emphasis the point that sampling has to be properly done. 15. Now coming to the evidence on record, the Public Analyst who was examined in this case admitted in his cross-examination : "Water is lighter than milk per ML. In my opinion it is not correct to say that the upper layer of the liquid will contain more percentage of water. It is necessary to stir the milk, before taking the sample not because water is to be found in the upper layer. It is because of the tendency of the fat to come to surface." Now coming to the evidence of the Food Inspector in this case, he has plainly admitted that he himself did not take the sample. It is necessary to stir the milk, before taking the sample not because water is to be found in the upper layer. It is because of the tendency of the fat to come to surface." Now coming to the evidence of the Food Inspector in this case, he has plainly admitted that he himself did not take the sample. He stated in his cross-examination on behalf of the accused No.1 that the measure with which the sample was taken was in the hand of the accused ; that he did not touch the measure, that it was dropped in the milk by the accused himself to take out the milk. If we pursue the Marathi record of his deposition he has stated : ^^eh vkjksihP;k ,dk fyVjP;k ekikuas 660 fe- fy- nq/k] vkjksihus eyk fnys rs eki gkrkar gksrs- R;kp ekikus rs nq/k rhus fkkke/;s Hkjys- eh ek>s gkrkus nq/k ?ksrys ukgh- vkjksihusa rs eki nq/kkr cqMfoys o 660 fe- fyVj nq/k ekikr ?ksrys-** It is thus clear that no sample was taken by the Food Inspector himself. To add to this infirmity, the Food Inspector though he stated that he received the training at Poona Laboratory in respect of the sampling of milk, he admitted that he did not know any specific precaution to be taken while taking the sample. His Marathi record show : ^^nq/kkps lWEiy ?ks.;kcíyps Vªsfuax ns.;kar vkys- nq/kkps lWaEiy ?ksrsosGh foks"k vkk dks.kR;k dkGT;k ?;kO;k gs eyk ekfgr ukgh-** It would thus be seen that not only this Food Inspector was ignorant about the precautions to be taken while taking the sample of the Milk but he did not himself take the sample of the milk. It is clear that it is very important that an accurate and representative sample of milk has been obtained for analysis. Unless that is done, the further analysis by the Public Analyst or the Director would not represent the correct state of affairs. To put it in the words of Jacobs, on page 6 of his Book "Chemical Analysis of Foods and Food Products", "Failure to obtain a proper sample makes subsequent analysis worthless". 16. It may be noted that when the Food Inspector admitted that the vendor himself took out the milk which has been taken as sample, the Food Inspector does not say that the vendor did so under his guidance and supervision. 16. It may be noted that when the Food Inspector admitted that the vendor himself took out the milk which has been taken as sample, the Food Inspector does not say that the vendor did so under his guidance and supervision. He does not say that he has given certain instructions to the vendor at the time of taking out the milk, in which case one could have proceeded to consider whether the Food Inspectors personally not taking out the milk could be condoned. That however, is not the case here. Even though, therefore, the report of the Director of C.F.L. can be used as evidence of the facts stated therein any proceedings under the Act, in view of the fact that the sample of Milk taken in this case is not shown to be a representative sample no conviction could be based on the basis of the report of the Director of C.F.L In that view of the matter the order of the acquittal based against the respondent need not be interfered with. 17. Mr. Kanhe the learned Counsel for the respondents raised some other points. He contended inter alia : I. That there was no compliance of Rule 9(j) in as much as the copy of the report of the P.A. was not sent to the accused within 10 days from the receipt of the report of the P.A. II. That there is no compliance of Rule 17 of the Rules. III. That there is no proper compliance by the Magistrate of the provisions of section 13(2) of the Act and the provisions in Rule 4 of the Prevention of Food Adulteration Rules, at the time he sent the sample to C.F.L. for analysis. He also complained about the delay in sending the sample to the Public Analyst and submitted that on account of this delay, tampering with the sample and consequent prejudice to the accused was possible. I need not advert to these contentions as in my view the acquittal of the respondents need not be interfered with in as much as it has not been shown by the prosecution that the representative sample of the milk was taken. 18. In the result, this appeal filed by the State fails. The bail bonds executed by the respondents stand cancelled. -----