Judgment :- This appeal is preferred by the State represented by the learned Public Prosecutor on being aggrieved against order of acquittal passed on the respondent by the learned Chief Judicial Magistrate, Krishnagiri, in C.C. 231 of 1983, on his file for offences under sections 7(1) and 16(1)(a)(i) read with S. 2(1-a)(a) and (m) of the Prevention of Food Adulteration Act, 1954. 2. The case of the prosecution is that on 30-12-1981 at about 7 a.m. P.W. 1, the Food Inspector attached to Krishnagiri Municipality, found the respondent in possession of 1 1/2 liters of buffalo's milk for sale, wherefrom he took a sample of 900 ml. in the presence of witness after paying Rs. 1.12 to the respondent, for which the respondent issued a receipt marked Ex. P-2. P.W. 3 after following the formalities enjoined by law sent one of the samples along with Form 7 to the Public Analyst, Guindy, on the same date. The remaining two samples were sent by P.W. 1 to the Local Health Authority, Krishnagiri. P.W. 1 also sent another copy of Form 7 along with the sample seal to the Public Analyst by registered post. 3. The report of the Public Analyst marked as Ex. P. 4 in this case was received on 29-1-1982. And it was opined by the analyst that the sample was deficient in solids-not-fat to the extent of at least 66% and was also deficient in fat to the extent of 76% P.W. 1 instituted the complaint in the Court below on 16-8-1982 and on 20-8-1982, the notice contemplated under S. 13(2) of the Act together with a copy of Ex. P. 4 was sent to the respondent by registered post. Ex. P. 5 is acknowledgment of the respondent for having received the aforementioned notice together with the report of the analyst on 22-8-1982. 4. The prosecution apart from examining the Food Inspector P.W. 1, examined P.W. 2, Syed Haneef who was present during the sampling. When the respondent was questioned by the trial Court under S. 313, Cr.P.C. on the evidence adduced by the prosecution, while admitting the receipt of the notice under S. 13(2) of the Act stated that he did not know anything else. When the respondent was questioned by the trial Court under S. 313, Cr.P.C. on the evidence adduced by the prosecution, while admitting the receipt of the notice under S. 13(2) of the Act stated that he did not know anything else. On his side, the respondent examined D.W. 1 to show that he had been requested by D.W. 1 to supply milk for the wedding of his daughter on the very date of sampling. It is the case of D.W. 1, that he had asked the respondent to get cow's milk for his daughter's wedding about 22 months prior to his deposition in Court and since there was a delay in the supply of milk by the respondent, he had made alternate arrangement. It is his further case that when the respondent ultimately arrived, he stated that the delay was due to the Food Inspector having taken the milk for filing a case against him. D.W. 1 would also depose that the respondent is not a seller of milk. 5. The learned trial Magistrate without going into the merits of the case projected by the prosecution, held that the non-compliance of the mandate of S. 11(4) of the Act, would entitle the respondent to an acquittal and in that view acquitted him. Hence, this appeal has been preferred by the State. 6. The learned Government Advocate appearing on behalf of the State would strenuously contend that the trial Court had committed a grave error in expecting compliance of the provisions of S. 11(4) of the Act which would apply only to articles of food seized under S. 10(4) of the Act. The learned Government Advocate would also contend that in the instant case sample had been taken under S. 10(2) and (3) of the Act after paying cash to the respondent vouchsafed by Ex. P. 2. Hence it is urged that in view of the illegality committed by the trial Court and the merits of the prosecution case not having been dealt with, the judgment of the trial Court was liable to be set aside. 7. I have heard Mr. Dhanasekharan, learned counsel appearing on behalf of Mr. P. 2. Hence it is urged that in view of the illegality committed by the trial Court and the merits of the prosecution case not having been dealt with, the judgment of the trial Court was liable to be set aside. 7. I have heard Mr. Dhanasekharan, learned counsel appearing on behalf of Mr. Sriramulu for respondent who initially attempted to support the view taken by the trial court but later realising the scope of S. 11(4), submitted that even otherwise, the order of acquittal may have to be sustained in view of the apparent discrepancy between the versions of P.Ws. 1 and 2 regarding the number of mud vessels with milk in the alleged possession of the respondent. The learned counsel would also seek support for his case relying on the version of D.W. 1. 8. Both the counsel have taken me through the relevant evidence relied on by either of them. At this stage it will be necessary to refer to S. 11 of the Act which runs as follows - "11. Procedure to be followed by food inspectors - (1) When a food inspector takes a sample of food for analysis, he shall -(a) give notice in writing then and there of his intention to have it so analysed to the person from whom he had taken the sample and to the person, if any, whose name, address and other particulars have been disclosed under S. 14-A (b) except in special cases provided by rules under this Act, divide the sample then and there into three parts and mark and seal or fasten up each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken in such place and in such manner may be prescribed Provided that, where such person refuses to sign or put his thumb-impression the food inspector shall call upon one or more witness and take his or their signatures or thumb impressions, as the case may be, in lieu of the signature or thumb-impression of such persons (c)(i) send one of the parts for analysis to the public analyst under intimation to the Local (Health) Authority; and (ii) send the remaining two parts to the Local (Health) Authority for the purpose of sub-sec. (2) of this section, and sub-secs. (2) of this section, and sub-secs. (2-A) and (2-E) of s. 13 (2) Where the part of the sample sent to the Public Analyst under sub-cl. (i) of Clause (c) of sub-sec. (1) is lost or damaged, the Local (Health) Authority shall, on a requisition made to it by the public analyst or the food inspector despatch one of the parts of the sample sent to it under sub-cl. (ii) of the said Cl. (c) to the public analyst for analysis (3) When a sample of any article of food or adulterant is taken under sub-sec. (1) or sub-sec. (2) of S. 10 the food inspector shall, by the immediately succeeding working day, send a sample of the article of food or adulterant or both, as the case may be, in accordance with the rules prescribed for sampling to the public analyst for the local area concerned(4) An article of food seized under sub-sec. (4) of S. 10, unless destroyed under sub-sec. (4-A) of that section, and any adulterant seized under sub-sec. (6) of that section shall be produced before a Magistrate as soon as possible and in any case not later than seven days after the receipt of the report of the public analyst. Provided that, if an application is made to the Magistrate in this behalf by the person from whom any article of food has been seized, the Magistrate shall by order in writing direct the food inspector to produce such article before him within such time as may be specified in the order. (5) If it appears to the Magistrate on taking such evidence as he may deem necessary - (a) that the article of food produced before him under sub-sec. (5) If it appears to the Magistrate on taking such evidence as he may deem necessary - (a) that the article of food produced before him under sub-sec. (4) is adulterated or misbranded, he may order it - (i) to be forfeited to the Central Government, the State Government or the local authority, as the case may be; or (ii) to be destroyed at the cost of the owner or the person from whom it was seized so as to prevent its being used as human food, or (iii) to be so disposed of as to prevent its being again exposed for sale or used for food under its deceptive name; or (iv) to be returned to the owner on his executing a bond with or without sureties, for being sold under its appropriate name, or, where the Magistrate is satisfied that the article of food is capable of being made to conform to be prescribed standards for human consumption after reprocessing under the supervision of such officer as may be specified in the order (b) that the adulterant seized under sub-sec. (6) of S. 10 and produced before him is apparently of a kind which may be employed for purpose of adulteration and for the possession of which the manufacturer, distributor or dealer, as the case may be, is unable to account satisfactorily, he may order it to be forfeited to the Central Government, the State Government or the local authority as the case may be(6) If it appears to the Magistrate that any such - (a) article of food is not adulterated; or (b) adulterant which is purported to be an adulterant is not an adulterant, the person from whose possession the article of food or adulterant was taken shall be entitled to have it restored to him and it shall be in the discretion of the Magistrate to award such person from such fine as the State Government may direct in this behalf, such compensation not exceeding the actual loss which he has sustained as the Magistrate may think proper." * 9. On a reading of s. 11(4) of the Act, I am of the view that this sub-section will not attract the seizure in this case and the trial Court had misconceived the scope of this part of the section 11(4) of the Act will apply only for a seizure of an article of food under s. 10(4) not destroyed under S. 10(4-A) or an adulterant under S. 10(6) and not for samples obtained under S. 10(2) and (3) of the Act. Such seizures will have to be produced before a Magistrate as soon as possible and not later than seven days after the receipt of the report of the public analyst. The proviso relates to the power of the Magistrate, in the event of an application being made on behalf of the person from whom the article of food had been seized, to direct in writing the food inspector to produce such article before him within such time as may be specified in the order. Section 11(5) provides for feature, destruction or disposal of the articles seized under S. 10(4) or (6) by the Magistrate after taking such evidences as deemed necessary. It is better to extract relevant portions of S. 10 of the Act, at this stage to indicate the different spheres in which the various provisions of S. 11 will get attracted. "10. Powers of Food Inspectors. - (1) A food inspector shall have power -(a) to take samples of any article of food from - (i) any person selling such articles (ii) any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee; (iii) a consignee after delivery of any such article to him; and (b) to send such sample for analysis to the public analyst for the local area within which such sample has been taken. (c) with the previous approval of the Local (Health) Authority having jurisdiction in the local area concerned, or with the previous approval of the Food (Health) authority to prohibit the sale of any article of food in the interest of public health. Explanation - for the purpose of sub Clause (iii) of Clause (a) 'consignee' does not include a person who purchases or receives any article of food for his own consumption. Explanation - for the purpose of sub Clause (iii) of Clause (a) 'consignee' does not include a person who purchases or receives any article of food for his own consumption. (2) Any food inspector may enter and inspect any place where any article of food is manufactured or stored for sale, or stored for the manufacture of any other article of food for sale, or exposed or exhibited for sale or exposed or exhibited for sale or where any adulterant is manufactured or kept, and take samples of such article of food or adulterant for analysis. Provided that, no sample of any article of food, being primary food, shall be taken under this sub-section if it is not intended for sale as such food. (3) where any sample is taken under Clause (a) of sub-sec. (1) or sub-sec. (2) its cost calculated at the rate at which the article is usually sold to the public shall be paid to the person from whom it is taken. (4) If any article intended for food appears to any Food Inspector to be adulterated or misbranded, he may seize and carry away or keep in the safe custody of the vendor such article in order that it may be dealt with as hereinafter provided and he shall in either case, take as sample of such article and submit the same for analysis to a public analystProvided that where the Food Inspector keeps such articles in the safe custody of the vendor he may require the vendor to execute a bond for a sum of money equal to the value of such article with one or more sureties as the food inspector deems fit and the vendor shall execute the bond accordingly. (4-A) Where any article of food seized under sub-sec. (4) is of a perishable nature and the Local (Health) authority is satisfied that such article of food is so deteriorated that it is unfit for human consumption the said Authority may, after giving notice in writing to the vendor, cause the same to be destroyed. (4-A) Where any article of food seized under sub-sec. (4) is of a perishable nature and the Local (Health) authority is satisfied that such article of food is so deteriorated that it is unfit for human consumption the said Authority may, after giving notice in writing to the vendor, cause the same to be destroyed. (5) The power conferred by this section includes power to break open any package in which any article of food may be contained or to break open the door of any premises where any article of food may be kept for sale; Provided that the power to break open the package or door shall be exercised only after the owner or any other person in charge of the package or, as the case may be, in occupation of the premises, if he is present therein, refuses to open the package or door on being calling upon to do so, and in either case, after recording the reasons for doing so; Provided, further that, the food inspector shall, in exercising the powers of entry upon, and inspection of any place under this section, follow, as far as may be, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to the search or inspection of a place by a police officer executing a search warrant issued under that Code. (6) Any adulterant found in the possession of a manufacturer or distributor of, or dealer in, any article of food or in any of the premises occupied by him as such and for the possession of which he is unable to account to the satisfaction of the food inspector and any books of account or other documents found in his possession or control and which would be useful for, or relevant to, any investigation or proceeding under this Act, may be seized by the food inspector and a sample of such adulterant submitted for analysis to a public analystProvided that no such books of account or other documents shall be seized by the food inspector except with the previous approval of the authority to which he is officially subordinate; (7) Where the food inspector takes any action under Clause (a) of sub-sec. (1), sub-sec. (2), sub-sec. (4) or sub-sec. (1), sub-sec. (2), sub-sec. (4) or sub-sec. (6), he shall call one or more persons to be present at the time when such action is taken and take his or their signatures." * It is thus clear that if any article intended for food appears to any food inspector to be adulterated or misbranded, he can act under S. 10(4). The power to destroy the article of food seized under sub-sec. (4-A) is given to the Local Health Authority, on his satisfaction of the article of food being so deteriorated making it unfit for one's consumption. The power conferred on the food inspector under S. 10(4) is discretionary to facilitate action in suitable cases where the article of food appears to be adulterated or misbranded. This power is different from the powers vested in the food inspector under S. 10(2) and (3) of the Act. 10. It is therefore apparent that the provisions contained in S. 10(4) and (6) and S. 11(4) and (5) are preventive in nature, distinguishable from S. 10(2) and (3) and S. 11(1), (2) and (3). While S. 10 deals with the powers of the food inspectors, S. 11 prescribes the duties or in other words the procedure to be followed by him. 11. From the evidence of the food inspector examined as P.W. 1 in this case, it is clear that he had taken sample from the milk kept for sale by the respondent after payment of the sale consideration. For this obtaining of sample under S. 10(2) and (3), S. 11(1) will directly fix the procedure by which one of the parts of the seizure has to be sent for analysis to the Public Analyst under intimation to the Local Health Authority while the remaining two parts may have to be sent to the latter for the purpose of sub-sec. (2) of S. 11 and sub-secs. (2-A) and (2-E) of S. 13. 12. Sub-section (2-A) of S. 13 operates in the event of an application made by the accused to get the sample of the article of food kept by the Local Health Authority analysed by the Central Food Laboratory under which the Court shall require the Local Health authority to forward the part of parts of the sample kept by him to the Court within a period of five days from the date of receipt of such requisition. Section 18(2-E) confers the power on the Local Health authority to forward one of the parts of the sample kept by him to any other public analyst for analysis and report if he was of the opinion that the report delivered by the public analyst under S. 13(1) was erroneous. 13. Thus, it will be seen that in respect of the sample obtained under S. 10(2) and (3) of the Act, the procedure to be followed is dealt with under S. 11(2) and (3) of the Act and they corelate to the right vested in the accused under S. 13(2) of the Act. 14. I am of the firm view that S. 11(4) cannot apply to the facts of this case which does not relate to a seizure under S. 10(4) of the Act. Thus, I am in entire agreement with the submissions of the learned Government Advocate, that the finding of the trial Court about noncompliance of the mandate of S. 11(4) will be unsustainable and will have to be set aside. 15. The trial Court had not otherwise dealt with the merits of the prosecution case. There can be no doubt that in an appeal against acquittal, the respondent-accused always have his acquittal sustained, if on the evidence available on record his acquittal could still be justified, I am unable to agree with the submissions made by the counsel for the respondent that the discrepancy in the versions of P.Ws. 1 and 2 concerning the number of mud vessels with milk in the possession of the respondent would go to the root of the matter, since Ext. P. 1 and P. 21 end assurance to the sampling of the milk as put forth by the prosecution. The evidence of D.W. 1 deserves rejection as a pure after thought. The sampling is of buffalo's milk, while according to D.W. 1 he had asked for supply of cow's milk by the respondent. 16. The learned counsel for the respondent is unable to point out any other legal or factual lacuna in the prosecution case except to contend that there had been a substantial delay in the institution of the prosecution which stand unexplained. According to him, though Ex. P. 4, the report of the analyst had been received on 29-1-1982, the prosecution had been instituted only on 16-8-1982, after a delay of seven months. According to him, though Ex. P. 4, the report of the analyst had been received on 29-1-1982, the prosecution had been instituted only on 16-8-1982, after a delay of seven months. Of course, no explanation had been given for this delay. However, this delay could be considered prejudicial only if an application had been made by the respondent under S. 13(2) of the Act for having another part of the sample analysed by the Central Food Laboratory which step had not been taken in this case. Hence, even that objection cannot help the respondent in this case. 17. Though the Prevention of Food Adulteration Act does not prescribe any time limit within which the prosecutions may have to be launched, it cannot be denied that the articles of food are liable to deteriorate and decay with lapse of time and it is a cardinal and fundamental principle of criminal jurisprudence that prosecutions must be instituted without delay. In a delayed prosecution under this Act, it will not be unreasonable to expect an explanation for the delay, though it may not be possible to hold that the prosecution is invalid only because of the delay in the institution of the prosecution. 18. Whatsoever, it might be, on the facts of this case, where the seizure had been made seven years ago from the respondent, who appears to be petty milk vendor, I do not think any useful purpose would be served by remitting the matter for a trial afresh at this distance of time. Hence while holding that the order of acquittal is wrong for the reasons mentioned above, the appeal shall stand dismissed.