JUDGMENT R.K. Shukla, J. 1. This revision is directed against the judgment and order dated 24-4-1982, passed by the Sessions Judge, Etah, whereby he has upheld the conviction of the applicant under section 16 read with section 7 of the Prevention of Food Adulteration Act and confirmed his sentence of two years' R. I. and a fine of Rs. 2,000/-. In default of payment of fine, he has to further undergo simple imprisonment for 6 months, 2. The relevant facts of the case are that on 22-12-1978, at about 930 a.m., Food Inspector Sri D. L. Yadav (PW 1) purchased 6.60 grams of buffalo milk from the applicant on payment of Rs. 1.32. After completing the formalities, the sample was sent for chemical analysis. On analysis, the Public Analyst found that the milk was deficient about 7% in non-fatty solid contents. After obtaining sanction, Ex. Ka. 6 from the local health authorities, a complaint was filed on 6-10-1979. The report of the Public Analyst along with a letter of the local health authority was sent on 26-9-1979 about 13 days before filing of the complaint. It is not disputed that the report was not received. The prosecution has examined two witnesses, namely, Dulare Lal Yadav, Food Inspector (PW 1) and Mauji Singh (PW 2). 3. The case of the defence is that the milk was not for sale. Notice was sent to him before filing of the complaint. The strength of formaline has not been disclosed. There is no evidence of churning. No independent witness of recovery has been produced therefore, the conviction is not justified. 4. The trial Court has rejected all the objections raised on behalf of Rajan Lal, applicant, convicted him under section 7/16 of the Prevention of Food Adulteration Act and sentenced him to 2 year's R. I. and a fine of Rs. 2,000/- in default, 6 month's S. I. which has been affirmed in the appeal as aforesaid. The first point urged by the learned counsel for the applicant is that the milk was not for sale. In support of his contention, he placed reliance on the case of Nazir v. State of U. P., 1983 ACrR 302. After going through the judgments of both the subordinate Court's it cannot be said that the milk taken for sample was; not for sals. In support of his contention, he placed reliance on the case of Nazir v. State of U. P., 1983 ACrR 302. After going through the judgments of both the subordinate Court's it cannot be said that the milk taken for sample was; not for sals. Dulare Lal Yadav, PW 1 has clearly stated that he caught the applicant with buffalo milk in a can on his bicycle, which was for sale and after giving his introduction, he purchased the milk for test. There is no cross-examination of this witness on the point that milk was not for sale. No argument was advanced before the trial Court that the milk was not for sale. In the appellate Court, however this argument was advanced but the same was rejected. I find no reason to disbelieve title statement of the Food Inspector that the milk was for sale. The case of Nazir v. State of U. P. (supra) is distinguishable on facts. In that case Hon. Mr. Justice R. C. Deo Sharma of this Court was satisfied that there was no reliable evidence 10 indicate that Nazir was either carrying on business of sale of milk or at the particular moment he was carrying, conveying or storing milk for sale. But in the instant case, the Food Inspector has clearly stated as aforesaid that the milk was for sale and there is no cross-examination on this point. Therefore, in the circumstances of the present case, it cannot be said that the milk was not for sale and in this view of the matter, I reject this argument. 5. The second point urged on behalf of the learned counsel for the applicant is that no independent witnesss of sample taking has been produced. Only person examined was Megh Singh (PW 2) who is a peon of the same Department. According to the statement of Dulare Lal Yadav, PW 1 no one was present on the read at the time of taking sample. Suraj Prasad arrived after the sample had been taken. Thus it was useless either to examine him or to take his; signatures on the relevant papers. It is very well settled law by various decisions of High Courts as well as of the Supreme Court that prosecution will not fail if independent witness was not available at the time of tatting sample and witnesses produced are reliable. Thus it was useless either to examine him or to take his; signatures on the relevant papers. It is very well settled law by various decisions of High Courts as well as of the Supreme Court that prosecution will not fail if independent witness was not available at the time of tatting sample and witnesses produced are reliable. PWs 1 and 2 are reliable witnesses. Prosecution is not expected to do the impossible but an honest effort must be made to procure independent person to witness the act. Therefore, I find no force in this argument also. 6. The third point urged by the learned counsel for the applicant is that there was marginal deficit of 7% in non-fatty solid contents in the milk taken for test which is excusable. So far as the milk fat is concerned, it was 6% and it was exactly the same as required by prescribed standard of buffalo milk. In support of his contention, the learned counsel for the applicant placed reliance on the case of Food Inspector Municipal Corpn. Baroda v. Modan. Lal Ram Lal Sharma, 1983 ACrR 76 and Ram Prasad v. State of U. P., 1981 ACC 87. In the case of Ram Prasad v. State of V. P. (supra), Hon. Mr. Justice S. Malik of this Court has held as under :- "It was argued that there is no known method by which non-fatty milk solids could be taken out of milk without disturbing the contents of milk fat and the nature of the milk. In a case of this nature the Public Analyst should have explained how this could have been done or if he found any extraneous substance like water etc., in the milk. Under the circumstances, the report of the Public Analyst; could not be said to be reliable. It is therefore, held that the prosecution failed to prove that the milk was adulterated." 7. In Dhyan Singh v. Saharanpur Municipality, AIR 1970 SC 318 , the Supreme Court has approved the following observations of this Court in Nagar Mahapalika Kanpur v. Sri Ram, AIR 1964 All. It is therefore, held that the prosecution failed to prove that the milk was adulterated." 7. In Dhyan Singh v. Saharanpur Municipality, AIR 1970 SC 318 , the Supreme Court has approved the following observations of this Court in Nagar Mahapalika Kanpur v. Sri Ram, AIR 1964 All. 270 :- "The well settled view of this Court is that the report of the Public Analyst under section 13 of the Act need not contain the mode or particulars of analysis, nor the tests applied, but should contain the result of analysis, namely, data from which it can be inferred whether the article of food was or was not adulterated as defined under section 2 (1) of the Act." 8. In the present case, there is no deficit in the milk fat. There is deficit of 7% in non-fatty milk solids. According to the observations of Hon. Mr. Malik, J. in Ram Prasad's case (supra), there is no known method by which non-fatty milk solids could be taken out of milk without disturbing the contents of milk fat and the nature of the milk. Therefore, this case is distinguishable on facts from Ram Prasad's case (supra). Not only this, the Public Analyst has opined that "Is Namuna Me Non-fatty Solids Lagbhag 7% Kam Hai. Is Namuna ki Janch Bhaish Ka Dudh Ke Vidhibadh Manak Ka Anusar Ki Gai Hai.," No argument has been advanced that in taking out milk fat, non fatty milk solids are disturbed. Therefore, in my opinion, the aforesaid observations of Hon. Malik, J. in Ram Prasad's case (supra) are not applicable to the present case. Is Namuna ki Janch Bhaish Ka Dudh Ke Vidhibadh Manak Ka Anusar Ki Gai Hai.," No argument has been advanced that in taking out milk fat, non fatty milk solids are disturbed. Therefore, in my opinion, the aforesaid observations of Hon. Malik, J. in Ram Prasad's case (supra) are not applicable to the present case. The last point urged by the learned counsel for the applicant is that the report of the Public Analyst was sent to the applicant 12 days prior to the institution of the complaint, which is contrary to the mandatory provisions of Rule 9 (A), which reads as under :- "The Local (Health) Authority shall immediately after the institution of prosecution forward any of the report of the result of analysis in Form III delivered to him under sub-rule (3) of Rule 7, by registered post or by hand as may be appropriate, to the person from whom the sample of the article was taken by the Food Inspector, and simultaneously also to the person, if any, whose name, address and other particulars have been disclosed under section 14-A of the Act; Provided that where the sample conforms to the provisions of the Act or the rules made thereunder, and no prosecution is intended under sub-section (2), or no action is intended under sub-section (2-E) of section 13 of the Act, the Local (Health) Authority shall intimate the result to the vendor from whom the sample has been taken and also to the person, whose name, address and other particulars have been disclosed under section 14-A of the Act, within 10 days from the receipt of the report from the Public Analyst." 9. In support of his contention, the learned counsel also relied on a case of Food Inspector Chalakodi v. Prabakaran, 1983 Excise and Food Aduteration Report page 258. 10. In the instant case, it is not disputed that the complaint was filed on 6-10-1979 and the report of the Public Analyst was despatched to the applicant 12 days prior to that on 26-9-1979. The applicant appeared before the Court for the first time on 18-4-1980. 10. In the instant case, it is not disputed that the complaint was filed on 6-10-1979 and the report of the Public Analyst was despatched to the applicant 12 days prior to that on 26-9-1979. The applicant appeared before the Court for the first time on 18-4-1980. Rule 9 (A) is framed in the context of the amended section 13 (2) of the Act which provides for the forwarding of the Public Analyst's report to the person from whom the sample was taken immediately after the institution of prosecution and to enable that person to apply to the Court to have analysed by the Central Food Laboratory the sample kept with Local (Health) Authority. Section 13 (2) of the Act requires that the person against whom complaint has been instituted, after the receipt of the report sent to him, may make an application to the court within a period of 10 days from the date of receipt of the copy of the report to get the sample of article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. Sub-section (2-a) of section 13 of the Act requires that when an application is made to the Court under sub-section (2) the Court shall require the Local (Health) Authority to forward the part or parts of the sample kept by the said authority and upon such requisition being made, the said authority shall forward part or parts of the article within 5 days of receipt of such requisition. According to the sub-section (2-b) of section 13 the Court has to despatch the sample under its own seal to the Director of Central Food Laboratory who shall thereupon send the certificate to the Court in prescribed form within 1 month from the date of receipt of the sample specifying the result of the sample. This certificate of the Director supersedes all the report of the Public Analyst and is treated as conclusive evidence of its contents. In a case where there is denial of this right on account of deliberate conduct of the prosecution, 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 case of the facts contained therein. In the instant case, it is not known as to when the copy of the report of the result of the analysis in Form III sent by the prosecution 12 days prior to the institution of prosecution was delivered to the applicant. Rule 9 (A) requires that the Local (Health) Authority shall immediately after the institution of prosecution forward copy of the report of the result of analysis in Form III delivered to him under sub-rule (3) of Rule 7, by registered post or by hand as may be appropriate, to the person from whom the sample of the article was taken. There is no doubt that the word 'immediately' has been interpreted by the Supreme Court in the case of Tulsi Ram v. State of M. P., 1985 ACrR 28 in the following manner :- ".........the expression 'immediately' is only meant to convey 'reasonable despatch and promptitude' and no more." "Non-compliance with Rule 9A is not fatal. It is a question of prejudice." 11. There is no doubt that both the subordinate Courts have held that no prejudice has been caused to the applicant but none of them have cared to ascertain as to when the copy of the report of the result of analysis in Form III sent by the prosecution 12 days prior to the institution of the complaint was delivered to the applicant and on which date JO days expired within which the applicant has to move an application to the Court for examination of the sample by the Central Food Laboratory. Under these circumstances, in absence, it cannot be said that no prejudice has been caused to the applicant by adopting this unusual method. 12. In Municipal Corporation of Delhi v. Ghisa Ram, AIR 1967 SC 970 , interpreting the scope of section 13 (2) of the Act, the Supreme Court has held that the prosecution should proceed in such a manner that right will not be denied to him. The right is a valuable one, because certificate of the Director superseds the report of the Public Analyst and is treated as conclusive evidence of its contents. In the instant case, the prosecution agency has not adopted the method given in Rule 9 (A) for sending the report of the Public Analyst to the applicant immediately after institution of the prosecution. But it was sent 12 days prior to the institution of the complaint. In the instant case, the prosecution agency has not adopted the method given in Rule 9 (A) for sending the report of the Public Analyst to the applicant immediately after institution of the prosecution. But it was sent 12 days prior to the institution of the complaint. This has certainly caused prejudice to the applicant, which vitiates the trial. 13. In view of the above circumstances, the conviction of the applicant cannot be upheld and the applicant is entitled to benefit of doubt. 14. In the result, the revision is allowed. The conviction and sentence of the applicant are set aside. He is acquitted of the charge levelled against him. He is on bail. His bail bonds are discharged and he need not sureender in this case. Fine, it already paid shall be refunded to him. Revision allowed.