PABITRA KUMAR BANERJE, J. ( 1 ) ON 10-12-70 Dr. S. N. Mitra, Food Inspector, Corporation of Calcutta visited the grocery shop of accused Ramgopal Agarwal at 8/1, Balmukund Makkar Road, Calcutta and suspecting the stock of Haldi Powder kept and exposed for sale in the said hop to be adulterated he after service of the requisite notice, purchased 450 grams of Haldi Powder from the accused-shopkeeper on cash payment. Dr. Mitra divided the sample powder into three equal part, put each part into empty glass phial and sealed all the phials in presence of witness C. W. 3, One such phial was handed over to the accused, the other was kept by the Food Inspector himself and the last one was sent to the Public Analyst for testing whether there was any adulteration. The Public Analyst carried out the analysis and sent the certificate Ext. 5 in due course which was followed by launching of prosecution on 5-471 at the instance of the Food Inspector against the accused. The sample containing the Haldi Powder was found to be adulterated. The learned Metropolitan Magistrate by his order dated 6-3-78 convicted and sentenced the accused under S. 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act ). It is this order of conviction and sentence which is under challenge in this appeal. ( 2 ) THE impugned order of conviction and sentence has been assailed on three grounds, namely, (1) that the Haldi Powder collected from the shop of the accused was not stored for or exposed to sale, (2) that the accused has been seriously prejudiced for the inordinate delay in launching the prosecution as a result of which the valuable right of the accused conferred by S. 13 (2) of the Act has been defeated and (3) that the prosecution at the instance of the Food Inspector is bad in law. In this connection reliance was placed upon three decisions reported in AIR 1967 SC 970 (Municipal Corpn. of Delhi v. Ghisa Ram), AIR 1966 SC 128 (Mangaldas v. State of Maharashtra) and 1977 Cri LJ 154 (Cal) (Bhola Nath Nayak v. State) respectively. ( 3 ) MR. In this connection reliance was placed upon three decisions reported in AIR 1967 SC 970 (Municipal Corpn. of Delhi v. Ghisa Ram), AIR 1966 SC 128 (Mangaldas v. State of Maharashtra) and 1977 Cri LJ 154 (Cal) (Bhola Nath Nayak v. State) respectively. ( 3 ) MR. Balai Chandra Roy, the learned counsel for the accused-appellant, had no grievance about the observance of the statutory formalities by the Food Inspector during the inspection of the shop and at the time of the seizure of the Haldi Powder. His only objection is directed against the manner of collection of the sample from the corner of the shop and the food Inspector's refusal to consider the plea of the accused shopkeeper that the said sample had already been rejected by him and the same was never exposed to sale to the public. It is true that the Haldi Powder from which the sample was taken was contained in a loose paper pack and was kept behind the baskets 3/4 cubits off from the corner of the shop room. But that by itself is no proof for the defence contention that the accused had already rejected that stock and so it was set apart at the corner. Admittedly the Haldi powder was stored inside the grocery shop. The Food Inspector who is a public servant, had no enmity with the accused. There is neither any evidence nor even any suggestion that the accused has been harassed by the same Food Inspector on previous occasion. If P. W. 1 had any ill-motive he would not have certainly collected edible oil from the sale-counter and Haldi Powder from another place of the shop. Again how could P. W. 1 guess that only Haldi Powder kept in the loose packet was adulterated ? The astrologer Sitaram Sharma (DW 1), is a chance witness. DW 2 Bansidhar who claims to be the employee of the accused in the shop is untruthful. This witness as also the court witness Nirmal Roychowdhury desperately tried to help the accused when they said that the haldi Powder was left at the shop by some hawker during the absence and without the knowledge of the shop-keeper. Surprisingly enough, the accused himself did not make out any such case in his statement under S. 313 Cr. This witness as also the court witness Nirmal Roychowdhury desperately tried to help the accused when they said that the haldi Powder was left at the shop by some hawker during the absence and without the knowledge of the shop-keeper. Surprisingly enough, the accused himself did not make out any such case in his statement under S. 313 Cr. P. C. on 9-9-77 and the new case which was an afterthought was sought to be proved by the court witness who was examined on 7-10-77. Court witness Nirmal did not attend the Court in spite of service of notice on 25-5-73 and 11-8-73. The conduct of the accused is not also consistent with his plea of innocence. Although the complaint was filed on 5-4-71 the warrant of arrest could not be executed and eventually the accused surrendered on 19-2-73. There is no cogent reason to disbelieve the evidence of the Food Inspector who carried out his duties entrusted to him under the statute. The first ground accordingly fails. ( 4 ) MR. Roy next contended that although the sample was taken on 10-12-70 and the certificate from the Public Analyst was obtained by PW 1 within a month or so, the prosecution was not launched earlier than 5-4-71 and the copy of the report was sent to the accused not before Sept. 1971. The learned counsel took us through the lines of S. 13 (2) of the Act and incidentally referred to R. 9 (J) of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules ). It was argued that in the process described above the accused could not avail himself of the opportunity afforded to him under S. 13 (2) of the Act for getting the report of the Public Analyst tested and verified by the Director of the Central Food Laboratory. In order to appreciate the contention put forth by Mr. Roy it would be appropriate to look into the provisions of S. 13 (2) of the Act and R. 9 (J) of the Rules which read as follows -section 13 (2) - After the institution of a prosecution under this Act the accused vendor or the complainant may, on payment of the prescribed fee, make an application to the court for sending the part of the sample mentioned in sub-cl. (i) to the Director of the Central Food Laboratory for a certificate; and on receipt of the application the court shall first ascertain that the mark and seal or fastening as provided in cl. (b) Sub-S. (1) of S. 11 are intact and may then despatch the part of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the court in the prescribed form within one month from the date of receipt of the sample, specifying the result of his analysis. Rule 9 (j) - It shall be the duty of the Food Inspector to send by hand or registered post, a copy of the report received in form III, from the Public analyst to the person from whom the sample was taken, in case it is found to be not conforming to the Act or rules made thereunder, as soon as the case is filed in the Court. ( 5 ) THE legal principle enunciated in Ghisaram's case (1967 Cri LJ 939) (SC) (supra) cannot be questioned because if due to the fault on the part of the prosecution, the valuable right conferred by S. 13 (2) of the Act on the vendor to have the sample given to him analysed by Director of the Central Food Laboratory is defeated or frustrated, in that event the vendor is entitled to an order of acquittal. But while propounding the above legal proposition their Lordships also added that, "we are not to be understood as laying down that, in every case where the right of the vendor to have his sample tested by the Director of the Central Food Laboratory is frustrated, the vendor cannot be convicted an the basis of the report of the Public analyst". The learned Judges further said that "the principle must, however, be applied to cases where the conduct of the prosecution has resulted in he denial to the vendor of any opportunity to exercise his right. Different considerations may arise it the right gets frustrated for reasons for which the prosecution is not responsible. " ( 6 ) IN the case at hand, the facts are completely different from those in Ghisaram's case. In Ghisaram's case the Food Inspector took a sample of curd of cow's milk which was a perishable commodity. Different considerations may arise it the right gets frustrated for reasons for which the prosecution is not responsible. " ( 6 ) IN the case at hand, the facts are completely different from those in Ghisaram's case. In Ghisaram's case the Food Inspector took a sample of curd of cow's milk which was a perishable commodity. The decomposition of the curd started soon and the food article had so deteriorated that analysis of the same was not possible by the Director and consequently no certificate in that regard could be issued. In the present case what was collected by the Food Inspector is Haldi Powder which cannot be said to be a perishable commodity and there is no evidence that no analysis was possible by the Director if the same was sent to him for the purpose of testing. Section 13 (2) of the Act specifically provides that after the institution of a prosecution under the Act the accused-vendor or the complainant may, on payment of the prescribed fee, make an application to the Court for sending the part of the sample to the Director of the Central Food Laboratory for a certificate. In the instant case, the accused who surrendered before the Court about two years after the filing of the complaint made no such application to the Court for sending the sample to the Director. In this way he forfeited the right under S. 13 (2) of the Act. Then there is this in his examination under S. 313 Cr. P. C. Code the accused has categorically mentioned not only once but on two occasions that the Haldi Powder the sample of which had been collected by the Food inspector, was not fit for human consumption. It does not, therefore lie in the mouth of the accused to urge at this stage that had the sample of the Haldi Powder been tested by the Director a different result might have been obtained. The accused himself admitted that the food article was not fit for human consumption and therefore no useful propose could have been served by sending the sample again to the Director for a second opinion. The purport of S. 13 (2) of the Act is to give the accused-vendor an opportunity to have a better opinion by another expert about the quality of the product in question. The purport of S. 13 (2) of the Act is to give the accused-vendor an opportunity to have a better opinion by another expert about the quality of the product in question. In this case there had been no occasion to afford such opportunity to the accused-vendor who made no such prayer to the court in that regard and who from the very beginning admitted that the Haldi Powder was not fit for human consumption. The argument of Mr. Roy on this point is not tenable and the same is left out of consideration. ( 7 ) WITH regard to the non-compliance with the provisions of R. 9 (j) at the relevant period, when the offence is said to have been committed, no specific period was fixed by which the Food Inspector was under obligation to send a copy of the report of the Public Analyst to the accused-vendor from whom the sample was taken. The case reported in 1977 Cri LJ 154 (Cal) has no manner of application to the facts of the instant case because in that case the offence was committed after the amendment of R. 9 (J) by which the copy of the report was required to be sent to the accused-vendor within 10 days of the receipt of the said report. It may be recalled that prior to the amendment of R. 9 (j) there was no time limit within which the report was to be sent to the accused-vendor. ( 8 ) FROM the report of the Public Analyst Exbt. 5 it appears that the sample of the Haldi Powder sent to the Public Analyst for analysis was highly adulterated and unfit for human consumption. This part of the prosecution case could not be disproved or effectively challenged by the accused-appellant and there is no reason to discard the report of the Public Analyst. With regard to Mr. Ray's objection that the complaint with the consent of the acting Health Officer was bad in law, it may be mentioned that in Exbt. 7 Dr. Bagchi himself consented to the launching of the prosecution against the accused-vendor and this is not a case of further delegation of the delegated authority. With regard to Mr. Ray's objection that the complaint with the consent of the acting Health Officer was bad in law, it may be mentioned that in Exbt. 7 Dr. Bagchi himself consented to the launching of the prosecution against the accused-vendor and this is not a case of further delegation of the delegated authority. Upon consideration of all these facts and circumstances discussed above, our considered view is that this is a fit case where the learned Metropolitan Magistrate passed the order of conviction rightly and in this appeal we find no reason for interfering with the aforesaid order. ( 9 ) THE offence has been committed in 1970 and the agony of the accused-appellant has been prolonged for last 18 years. In these circumstances our considered view is that justice can be met if the sentence is reduced to R. I. for six months only and to a fine of Rs. 5000/- (five thousand) in default RI for a further period of four months. Accordingly we allow the appeal in part. The impugned order of conviction is upheld, but the sentence is modified to the extent indicated above. The accused-appellant do surrender to the bail bond to serve out the sentence after setting off the period already spent behind the bar in connection with this case. ( 10 ) SHAMSUDDIN AHMED, J. :- I agree. Appeal partly allowed.