R. K. DASH, J. ( 1 ) THE judgment of conviction and sentence passed by the learned Sub divisional Judicial Magistrate, Balangir, under section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 (in short, 'the Act') and affirmed by the learned Additional Sessions Judge, Balangir, is under challenge in the present revision. ( 2 ) THE prosecution case, briefly stated, is that on 19-5-1989 the Food Inspector, P. W. 1 purchased 750 ml. of milk from the accused, a hawker and after properly stirring to make it homogeneous divided into three equal parts, put each part in clean and dry bottle after adding 20 drops of formal in as preservative to each bottle and sent one bottle to the Public Analyst for examination and deposited the remaining two with Local Health Authority. On receipt of the report from the Analyst that the milk was adulterated, P. W. 1 submitted all the relevant papers to the Chief District Medical Officer, who on being satisfied accorded sanction, whereupon the accused was prosecuted. In compliance with the requirement of law, a copy of Analysts report was sent to the accused to enable him to exercise his right under section 13 (2) of the Act. ( 3 ) SINCE accused denied the accusation, the learned Magistrate proceeded with the trial in course of which prosecution examined witnesses and brought relevant documents, viz. , notice to the accused for purchase of sample, memorandum of impression of seal, postal receipt, Analysts report, etc. into evidence. The defence also examined some witnesses in order to prove that the pot of milk which the accused was carrying on the date of incident belonged to one Prabhas Sai and that the same was not meant for sale for human consumption. The learned Magistrate on assessment of evidence believed the prosecution version and consequently convicted the accused and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of. Rs. 1,000/-, in default to undergo further imprisonment for one month. In appeal, trial courts judgment was affirmed. The learned Magistrate on assessment of evidence believed the prosecution version and consequently convicted the accused and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of. Rs. 1,000/-, in default to undergo further imprisonment for one month. In appeal, trial courts judgment was affirmed. ( 4 ) LEARNED counsel appearing for the accused challenging the correctness of findings of both the courts below raised two fold contentions: firstly, that since the milk which the accused was carrying in a pot was not meant for sale for human consumption, the provisions of the Act were not attracted; and secondly, delayed intimation of the Analysts report more than three months after collection of sample seriously affected the valuable right of the accused to challenge the same as envisaged in section 13 (2) of the Act. ( 5 ) THE plea of the accused was that he was not a milk hawker an6l that on the date of incident he was bringing cow milk of Prabhas Sai to his house and in support of his such plea he examined himself as D. W. 1 and also Prabhas Sai as D. W. 3. By leading such evidence it was contended in both the courts below that since milk in question was not meant for sale for human consumption, initiation of the proceeding against him under the Act was illegal and without jurisdiction. The same plea has also been reiterated in the present revision. ( 6 ) THE word sale defined in section 2 (xiii) of the Act reads as under: sale with its grammatical variations and cognate expressions, means the sale of any article of food whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article and includes also an attempt to sell any such article. A plain reading of the aforesaid definition leaves no room for doubt that sale of any article of food to Food Inspector for analysis is also sale. Added to it, Honble Supreme Court in the case of Food Inspector, Calicut Corporation v. C. Gopalan and another, has held that sample of food purchased by the Food Inspector satisfies the definition of sale. Added to it, Honble Supreme Court in the case of Food Inspector, Calicut Corporation v. C. Gopalan and another, has held that sample of food purchased by the Food Inspector satisfies the definition of sale. In the aforesaid case, reference was made to an earlier decision in the case of Mangaldas Raghavji v. State of Maharashtra. It was held therein that there is a special definition of sale in section 2 (xiii) of the Act which specifically includes within its ambit the sale for analysis. So keeping in view the definition of Tsale coupled with the judicial pronouncements of the Apex Court referred to above, I would unhesitatingly hold that sale of milk by the accused to the Food Inspector on payment of price amounts to sale so as to bring the case within the fold of the Act. ( 7 ) COMING to the next submission of the learned counsel for the accused about the delayed intimation of the Analysts report which according to him has affected the accuseds right to challenge the said report, as envisaged under section 13 (2) of the Act, a thorough scrutiny of the law involved and the decisions of the Apex Court as also this Court is necessary to arrive at a right conclusion. Section 13 (2) casts a duty on the Local Health Authority that on receipt of the Analysts report that article of food is adulterated, he shall forward a copy thereof to the person from whom the sample of article of food was taken informing him that if he so desires he 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 Laboratory. Sub-section 2 (a) and 2 (b) of Section 13 of the Act would reveal that if such an application is made, the Court shall get the sample from the Local Health Authority and send the same to the Director, Central Food Laboratory for examination who within one month of the date of receipt of the sample shall send the certificate to the court in the prescribed form and that certificate of the Central Food Laboratory shall be treated to be final and conclusive. ( 8 ) IN the case in hand, admittedly the accused did not avail of the right under Section 13 (2) to have the sample tested by the Director, Central Food Laboratory. The reason for not exercising such right, according to the learned counsel was that there was delay for more than three months from the date of taking sample till the date of receipt of the Analyst's report by the accused and because of this delay the article of food, viz. , milk could not retain its quality for examination and even if the accused would have taken resort to Section 13 (2) it would have been an exercise in futile. In support of his such submission, he placed reliance on the decisions of the Apex Court in the case of Municipal Corporation, Delhi v. Ghisa Ram, and series of decisions of this Court, namely, Satrughna Behera v. Pun Municipality. Ram Chandra Sahu v. State of Orissa, and one unreported decision in Criminal Revision No. 517 of 1989, Charan Behera v. State, decided on 18-5-1990. ( 9 ) IN Satrughana Beheras case (supra), the accused was prosecuted for selling of adulterated milk and upon trial was found guilty and convicted under Section 16 (1) (a) of the Act by the trial Court, which on being confirmed by the Sessions Judge was assailed in this Court. Amongst others, contention was raised that since there was delay in filing prosecution, accused was deprived of the opportunity to challenge the Public Analysts report by getting the sample analysed by the Director of Central Food Laboratory. Relying upon the decision of the Apex Court in Ghisa Ramts case (supra), it was observed in paragraph 9 of the judgment as under: The next point argued is that though the report of the Public Analyst was sent on 29-8-1963, soon after the analysis of the sample, prosecution was launched on 5-12-1963 about more than three months after. As a result of delayed prosecution, the petitioner was deprived of the opportunity of sending or challenging the report of the Public Analyst by asking for further analysis by the Director of the Central Food Laboratory whose certificate would statutorily supersede the report of the Public Analyst. This contention is supported by Municipal Corporation of Delhi v. Ghisa Ram: AIR 1967 S. C. 970. This contention is supported by Municipal Corporation of Delhi v. Ghisa Ram: AIR 1967 S. C. 970. It is to be noted that the petitioner did not exercise his right in asking the Court to send a part of the sample to the Director of the Central Laboratory. But as has been discussed in Paragraph 7 of the Supreme Court decision, prosecution must be launched with promptitude so that the right given to the accused would not be illusory. Their Lordships observed that: In a case where there is denial of this right on account of the deliberate conduct of the prosecution we think that 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 the case of the facts contained therein. The case related to Tcurd. In paragraph 6 of the judgment, their lordships referred to the period after which it gets decomposed. Taking the observations in paragraph 6 into consideration, I am clearly of opinion that the milk would get decomposed after a period of five and half months, even if the petitioner did not exercise his right under Section 13 (2), no useful purpose would have been served by doing it after such a long time The aforesaid decision was followed in the case of Rama Chandra Sahu v. State of Orissa (supra) and unreported decision in the case of Charan Behera v. State: Criminal Revision No. 517 of 1989, decided on 18-5-1990. In both these decisions it was held that right of the accused to get the sample analysed by the Central Food Laboratory becomes illusory if on account of long inaction the purpose of analysis is lost. ( 10 ) IN view of the above, it is to be seen as to what the Apex Court has ruled in Ghisa Rams case (supra ). To appreciate the law propounded therein, it is necessary to have a cursory view on the fact involved. The accused was dealing in milk and milk products from whose shop the Food Inspector took sample of curd of cowts milk for the purpose of testing whether there was any adulteration. The sample was taken on 20-9-1961. To appreciate the law propounded therein, it is necessary to have a cursory view on the fact involved. The accused was dealing in milk and milk products from whose shop the Food Inspector took sample of curd of cowts milk for the purpose of testing whether there was any adulteration. The sample was taken on 20-9-1961. It was analysed by the Public Analyst on 3-10-1961 He then gave his certificate on 23-10-1961 indicating that the curd was adulterated. Complaint was filed before Magistrate on 23-5-1962. The accused then applied to the Court on 4-10-1963 to send the sample which had been given to him by the Food Inspector to the Director, Central Food Laboratory for examination. The Director on receiving the sample reported that the curd had become highly decomposed for which it would not be possible for analysis. Since the accused availed of his right under Section 13 (2) and because of such inordinate delay the sample of curd could not be examined being highly decomposed, their Lordships were not inclined to accept the Public Analysts report and to use the same against the accused. Consequently, the acquittal of the accused recorded by the trial court and affirmed by the High Court was upheld. The aforesaid decision was referred to and distinguished in Babulal Hargovindas v. State of Gujarat6. In that case the accused was a dealer in milk in the city of Ahmedabad. From him the Food Inspector purchased milk for analysis and the Public Analyst on examination opined that it was adulterated whereupon the Food Inspector launched prosecution against the accused. A contention was raised by the accused that since complaint was lodged after lapse of more than four months from the date of taking sample, he could not utilise his right to send the sample left with him to the Director, Central Laboratory for a certificate. In support of his such contention reliance was placed on the decision in Ghisa Ramts case (supra ). Repelling such contention, their Lordships in paragraph 6 of the judgment observed thus: There is also in our view no justification for holding that the accused had no opportunity for sending the sample in his custody to the Director, Central Food Laboratory under Section 13 (2) because he made no application to the Court for sending it. Repelling such contention, their Lordships in paragraph 6 of the judgment observed thus: There is also in our view no justification for holding that the accused had no opportunity for sending the sample in his custody to the Director, Central Food Laboratory under Section 13 (2) because he made no application to the Court for sending it. It does not avail him at this stage to say that over four months had elapsed from the time the samples were taken to the time when the complaint was filed and consequently the sample had deteriorated and could not be analysed. The decision of this Court in Municipal Corporation of Delhi v. Ghisa Ram, (1967) 2 S. C. R. 116= (AI. R. 1967 S. C. 970), has no application to the facts of this case. In that case the sample of the vendor had in fact been sent to the Director of the Central Food Laboratory on his application but the Director had reported that the sample had become highly decomposed and could not be analysed. It is also evident from the case that the Food Inspector had not taken the precaution of adding the preservative. It appears from page 120 of the report that the elementary precaution of adding preservative to the sample which was given to the respondent should necessarily have been taken by the Food Inspector, that if such precaution had been taken, the sample with the respondent would have been available for analysis by the Director of the Central Food Laboratory and since the valuable right given to the vendor by Section 13 (2) could not be availed of, the conviction was bad. No such defence is available to the Appellant in this case because not only is there evidence that the preservative formalin was added but the Appellant had not even made an application to send the sample to the Director of Central Food Laboratory. (Emphasis supplied) ( 11 ) THE same view has been reiterated in Ajit Prasad Ramkishan Singh v. State of Maharashtra: A. I. R. 1972 Supremecourt 1631, deriving support from Ghisa Ram, argument was advanced on behalf of the accused that as there was inordinate delay from the date of taking sample till appearance of the accused, the accused was deprived of his right to have the sample analysed by the Director, Central Food Laboratory. Negativing such argument their Lordships held as under: appellant should have made an application after paying the prescribed fee if he wanted the part of the sample available with him to be sent to the Director for analysis. If he had made the application after paying the prescribed fee, the Magistrate would have had no option but to send the part of the sample for analysis by the Director. If in pursuance of the application the part of the sample was sent to the Director and he had reported that the part of the sample was incapable of analysis for the reason that it was decomposed the appellant could perhaps, have contended that he was deprived of his right to have the sample analysed by the Director on account of the laches of the complainant and that he should be acquitted. But, since the appellant never applied under Section 13 (2) of the Act, he cannot complain that he has been deprived of any right. In Babulal Hargovindas v. The State of Gujarat, 1971 - 1 S. C. C. 767= (AI. R. 1971 S. C. 1277) Jaganmohan Reddy, J. speaking for the Court, said that unless an application to send the sample to the Director is made, the vendor cannot complain that he was deprived of his right to have sample analysed by the Director. Their Lordships also referred to an unreported decision in the case of Sukhmal Gupta v. The Corporation of Calcutta, Criminal Appeal No. 161 of 1966, decided on 3-5-1968, where Sikri, J. (as he then was), speaking for the Court, said: i was held by this Court in Municipal Corporation of Delhi v. Ghisa Ram, (1967) 2 S. C. R. 116 (A. I. R. 1967 S. C. 970) that Section 13 (2) of the Act confers a valuable right to have the sample given to him analysed by the Director of the Central Food Laboratory but the reason why the conviction cannot be sustained is that the accused is prejudiced in his defence and is denied a valuable right of defending himself solely due to the deliberate acts of the prosecution. In this case no prejudice of the defence has been shown. It has not been established on the record that the sample of tea which was available with the appellant had deteriorated by the time the summon was received. In this case no prejudice of the defence has been shown. It has not been established on the record that the sample of tea which was available with the appellant had deteriorated by the time the summon was received. He never utilised the right under Section 13 (2) of the Act of sending the sample to the Director of Central Food Laboratory. (Emphasis supplied) ( 12 ) A conspectus of the dictums of the Honble Supreme Court referred to above would clearly indicate that if the accused desires to challenge the Public Analyst's report, he may exercise his right under Section 13 (2) and pray to the Court to send the sample for analysis by the Central Food Laboratory, notwithstanding whether there is any delay by the Local Health Authority to make the report of the Public Analyst available to him. The Director, Central Food Laboratory on examination, if reports that the sample could not be analysed since it has deteriorated, in that case the accused may urge upon the Court not to treat Public Analysts report as final and conclusive. But without exhausting such right he cannot complain that since there has been delay in supplying him a copy of the said report he is deprived of the opportunity to challenge the same by asking the Court for further analysis of the sample as envisaged in the Act. The decisions of this Court reported in 34 (1968) C. L. T 236 and 70 (1990) C. L. T. 123= 1990 (II) O. L. R 461 and unreported decision in Criminal Revision No. 517 of 1989 should be understood in the light of the facts involved and no more should be read into them. In the case at hand, the grievance of the accused that due to passage of time he could not utilise the right to challenge the Analyst's report by getting the sample analysed by the Central Laboratory cannot be accepted since he did not choose to do so. ( 13 ) NO other contention having been raised by the learned counsel for the accused, I have no other option but to put my seal of approval to the findings recorded by both the courts below. ( 14 ) QUESTION then arises as to whether in the facts and circumstances, the sentence imposed by the trial court needs any modification. ( 14 ) QUESTION then arises as to whether in the facts and circumstances, the sentence imposed by the trial court needs any modification. It was strenuously urged by the learned counsel that the accused is a poor milkman who hails from interior part of a hilly district and has become financially cripple by running to the court for more than six years and therefore, a lenient view be taken on the question of Punishment. The Act on this aspect is very clear and specific which needs no interpretation by the court. Proviso to subsection (1) of Section 16 of the Act speaks that the Court may for any adequate and special reason impose a sentence of imprisonment which shall riot be less than three months and with fine which shall not be less than Rs. 500/ -. This being the statutory provision, no discretion is left with the Court to impose sentence less than the minimum. So considering the submissions of the learned counsel, I am of the opinion that ends of justice would be better served if the sentence imposed upon the accused is reduced to the minimum as prescribed. ( 15 ) IN the result, while maintaining the conviction of the accused, the sentence of six months rigorous imprisonment and fine of Rs. 1,000/- imposed on the accused is set aside and in lieu thereof he is sentenced to undergo rigorous imprisonment for three months and to pay fine of Rs. 500/-, in default to rigorous imprisonment for a further period of fifteen days. With modification of sentence the revision is dismissed. Petition dismissed. .