JUDGMENT Murlidhar, J. - The revisionist Sita Ram has been convicted under section 7/16 Prevention of Food Adulteration Act and sentenced to six months rigorous imprisonment and a line of Rs. 1,000/-. The Magistrate has not mentioned any term of imprisonment to be served in case the fine is not paid. This should have been done and the Magistrate will do well to familiarise himself with the provision regarding sentencing of accused persons. 2. The milk in question was goat's milk and the Analyst report showed that there is fat contents of 6% and non-fatty solid 8.4% as against the prescribed standard of fat content 3% and non fatty solids content of 9%. 3. It was urged that the excess fat contents leads to the inference that there was no adulteration or in any case that the Public Analyst's report was not dependable. I am unable to agree with this contention but it is not necessary to go into this question in any detail because another contention urged on behalf of the applicant, should in my view succeed. 4. The contention is that the prosecution should fail because the prosecution has deprived the accused of his valuable right under section 13(2) Prevention of Food Adulteration Act to have the sample analysed by the Central Food Laboratory. The brief facts are that the sample was taken on 26-12-1976. The Public Analyst's report was received on 28-2-1977. A prosecution appears to have been launched some time in 1977 but the certified copy on record shows that on 9-11-1977 the Magistrate discharged the accused because the sanction for prosecution was not dated by the Chief Medical Officer, It appears, that after securing a fresh sanction the present prosecution was launched on 21-1-1978. The accused appeared in the case on 27-6-1978. Quite later during the trial on 6-6-1979 he applied for having the second phial of the sample with the department sent to the Central Food Laboratory. This was done and the report of the Central Food Laboratory dated 17-7-1979 was that the sample had decomposed. 5. The accused appeared in the case on 27-6-1978. Quite later during the trial on 6-6-1979 he applied for having the second phial of the sample with the department sent to the Central Food Laboratory. This was done and the report of the Central Food Laboratory dated 17-7-1979 was that the sample had decomposed. 5. Under Section 13(2) of the Act as amended by Act No. 34 of 1976 the health authority has to, after the institution of the prosecution forward a copy of the analyst's report to the accused person or persons with information that if they desire, within a period of ten days of the receipt of the report, they can make an application to the court to have the sample analysed by the Central Food Laboratory. It is also conceded by the learned Government Advocate that usual milk samples are liable to detoriate after a period of ten months. It was Laid down in Municipal Corporation of Delhi v. Ghisa Ram 1975 (I) FAC 75 that the prosecution should proceed in a manner that the right under section 1.3(2) of getting the food analysed by the Central Food Laboratory does not get denied to the accused. That case was under section 13(2) as it stood before the amendment of Act No. 34 of 1976 but the principle is equally applicable to the amended section. This would mean that where the prosecution is launched after the decomposition of the sample in normal course making analysis by Central Food Laboratory impracticable the accused will be given the benefit of this lapse. Now in the present case as seen there were prosecutions launched twice but the Inspector's evidence as to when he sent the copy of the Public Analyst report and information to get the sample analysed by the Central Food Laboratory within 10 days is not at all clear. He has merely stated that a copy of the Public Analyst report was sent to the accused by registered post The date of despatch was not mentioned nor was it clarified whether the accused received the copy. At any rate no acknowledgement was produced. Moreover, it was not stated whether the information required under section 13 (2) was also sent alongwith the report. At any rate no acknowledgement was produced. Moreover, it was not stated whether the information required under section 13 (2) was also sent alongwith the report. There is no doubt that the defence did not cross-examine the Inspector on this point and nowhere suggested either during the cross-examination or later on during the trial that either the information had not reached them or that they were misled by it not being accompanied by the required notice under section 13(2). If the matter rested on this it would hardly be possible to entertain the plea of breach of the mandatory provision of section 13 (2) for the first time in appeal or revision but there is the additional fact of the accused having applied for sending the sample on 6-6-1979, and a report of decomposition having been received from the Central Food Laboratory. The prosecution could and should have got the protest recorded on this application that not having availed of the right within 10 days of their notice under section 13(2) the accused has forfeited the right to drive any advantage from the decomposition report of the Central Food Laboratory. This was -not done. In view of this additional feature the contention about non-compliance of the provisions of section 13(2) becomes arguable and in my opinion benefit should go to the accused specially when the prosecution was launched more than a year after the taking of sample. It is conceded by the learned Government Advocate that about 10 months is the optimum period during which the milk sample to which prescribed preservation has been added can be expected to yield correct result on the analysis. This being the position where the second prosecution is launched with unusual delay of beyond 10 months the date of sending the copy of analyst's report under section 13(2) is not proved and the result of the analysis albeit at a late stage of the trial is that the sample has decomposed, the accused is in my opinion entitled to claim that he has been deprived of his right as held in Ghisa Ram's case (supra). In the circumstances of this case I think the benefit of doubt on this score should go to the accused and therefore the revision succeeds. 6. In the result the revision is allowed. The conviction and sentence of the accused are set aside. In the circumstances of this case I think the benefit of doubt on this score should go to the accused and therefore the revision succeeds. 6. In the result the revision is allowed. The conviction and sentence of the accused are set aside. The accused is on bail and need not surrender. His bail bonds are cancelled. Fine, if paid, shall be refunded.