JUDGMENT 1. - The Nagarpalika Baran has preferred this appeal against the acquittal of the respondent for the offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act. The respondent is a milk-vendor and cows milk was purchased from him on 19th June, 1975. As usual the sample was divided in three bottles and sealed. One bottles was given to the accused. Another was retained by the complainant and the third one was sent for analysis to the Public Analyst and on examination it was found to contain 32% of added water. Copy of this report was sent to the accused. Thereafter a complaint was filed in the court. 2. The accused appeared before the Court of the Judicial Magistrate Baran on 1-12-1975. Thereafter on 31st May, 1976 he moved an application that he wants to get another sample of milk examined, but his own sample was in a bottle, which did not have the capacity to contain 220 ml. of milk, hence the sample kept by the complainant may be called for. Upon this on the same day the complainant was directed to produce his sample. This sample was produced in the Court after nearly 5 years on 6th March 1981. Then there was some delay in depositing the expenses by the accused and ultimately this sample was sent to CFL for examination on 3rd October, 1981. The letter of the MJM Baran contains a note that at the time of packing, the bottle slipped and there was a crack in the bottle and this was pasted with cello tape so that the milk would not leak. The CFL sent a report saying that there was evidence of leakage on the outer paper cover and he lower portion of the bottle was covered with cello tape, hence the sample could not be tested. He asked for the third sample for examination. However, this third sample was not available as the accused submitted on 19th June, 1981 by means of an application that no sample was given to him. 3. The learned Magistrate held that the accused was deprived of his right under section 13 (2) of the Prevention of Food Adulteration Act and as such he was entitled to acquittal. 4. However, this third sample was not available as the accused submitted on 19th June, 1981 by means of an application that no sample was given to him. 3. The learned Magistrate held that the accused was deprived of his right under section 13 (2) of the Prevention of Food Adulteration Act and as such he was entitled to acquittal. 4. It may be stated here that the milk was purchased from the accused prior to coming into force of the amendment of 1976 and the provisions of the Prevention of Food Adulteration Act as stood in 1975 are relevant in this case. Section 13(1) and (2) as stood then read as under : "13 Report of public analyst.-(l) The public analyst shall deliver, in such form as may he prescribed, a report to the food inspector of the result of the analysis of any article of food submitted to him for analysis. (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-clause (i) or sub-clause (iii) of clause (c) of sub section (1) of section 11 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 clause (b) of sub-section (1) of section 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 there upon 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. 5. The main question which rises is whether section 13 (2) confers a right on the accused to get the sample issued to him examined or he has a right to get the sample retained by the complainant to be examined. If his right is restricted to get his own sample tested then it can be said that he has no care. If his right is restricted to get his own sample tested then it can be said that he has no care. On the contrary if it is open to him to get the sample of the complainant examined then he exercised that right and because the bottles cracked and the sample had leaked and could not be tested, he has been deprived of the statutory right. 6. Sub-section (2) of Section 13 provides that the accused vendor or the complainant may make an application to the court for sending the sample to the Director of the Central Food Laboratory for a certificate. This application can be moved in respect of the sample which has been delivered to the person from whom the sample was taken or for sending the sample retained by the Food Inspector at the time of purchase. There is no classification so as to say that the accused can get his sample examined and the complainant may get the sample examined which has been retained by him. Had this been the intention of the Legislature the word respectively would have been used or it would have been specified that the complainant may get his own sample examined and the accused may get his own sample examined. 7. The learned counsel for the appellant has placed reliance on the State v. Biharilal, 1971 ILR 739 wherein it has been held that the accused has a right to get the sample given to him examined and when he does not exercise this right the case is to be decided on the report of the Public Analyst. In this case the accused pleaded guilty and the question whether he could get the other sample examined or not did not arise. Another case relied upon is Municipal Corporation of Delhi v. Ghisa Ram, AIR 1967 SC 970 In this case the sample given to the accused had become decomposed when sent for analysis to the Central Food Laboratory and it was held that the accused was deprived of his valuable right. 8. The learned counsel for the respondent has placed reliance on Hazara Singh v. The State of Punjab, 1976 (1) FAC 155 wherein the sample bottle sent to the Director, Central Food Laboratory was found broken and the bottle sent by the accused also found to be broken. 8. The learned counsel for the respondent has placed reliance on Hazara Singh v. The State of Punjab, 1976 (1) FAC 155 wherein the sample bottle sent to the Director, Central Food Laboratory was found broken and the bottle sent by the accused also found to be broken. It was held that the accused was deprived of right under Section 13(2) of the Act. 9. In the present case the accused respondent as early as on 31-5-76 asked the complainant to produce his sample and at that time he gave out that this sample did not contain 220 ml. milk as the capacity of the bottle was less than this. This fact was not contested by the complainant and the matter continued to remain pending for 5 years after which the complainant produced his simple. Then again the bottle got cracked and this sample of the complainant could not be examined as some of it had leaked out. The accused had a right to get a second sample examined by the Director, Central Food Laboratory whether the sample was his own or that of the complainant. When the Court accepted that either he had no sample or it was not enough for examination and directed the complainant to produce the sample retained by it and this sample ultimately could not be tested for no fault of the accused, then the conclusion is that the accused has been deprived of his right under Section 13(2) of the Act and in such circumstances he convicted for offence under Section 7/16 of the Act. 10. This appeal has no force and is dismissed.Appeal Dismissed. *******