K. N. OJHA, J. Instant revisions has been preferred against judgment and order dated 17-11-1987 passed in Criminal Appeal No. 45 of 1987, Chandrika Prasad v. State, by which the learned IXth Addl. Sessions Judge, Varanasi has confirmed the order of conviction and sentence awarded in Criminal Case No. 280 of 1984, State v. Chandrika Prasad, by Addl. Chief Judicial Magistrate, Varanasi under Section 7/16 of Prevention of Food Adulteration Act and directed to undergo six months R. I. and also a fine of Rs. 1000 was imposed. It was also directed that in case of non deposit of fine the revisionist had to undergo three months further R. I. 2. Heard Sri C. K. Parikh, learned Counsel for the revisionist and Sri Anoop Ghosh, learned AGA and have gone through the record. 3. The prosecution case is that revisionist Chandrika Prasad was selling burfi at his shop of village Chahania market, police station Balua district Varanasi on 29-7-1982 at 2. 00 p. m. when the shop was inspected by Sri C. P. Srivastava, Food Inspector who took sample of 1-1/2 kg. burfi for Rs. 21 and kept it in three different bottles in equal quantity. Signature of the accused was obtained and one sample was sent to public analyst wherefrom report dated 17-12-1982 was received containing the fact that burfi was adulterated. 4. Later on, one sample was sent to Central Food Laboratory wherefrom report was received that the burfi was adulterated. After recording the statement of PW 1 Sri C. P. Srivastava, Food Inspector, PW 2 Rajendra Prasad, Food Clerk and DW 1 Shyam Sunder Singh, the Additional Chief Judicial Magistrate, Varanasi passed order of conviction and sentence. Aggrieved therefrom, Criminal Appeal No. 45 of 1987 was preferred by Sri Chandrika Prasad which was dismissed on 17-11-1987. Hence this revision has been preferred. 5. Learned counsel for the revisionist submits that Section 10 (7) and Section 13 (2) of Prevention of Food Adulteration Act has not been complied with and, therefore, the accused revisionist is entitled for acquittal. 6. Section 10 (7) of Prevention of Food Adulteration Act contemplates that "where the food inspector takes any action under clause (a) of sub-section (1), sub-section (2), sub-section (4) or sub-section (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. " 7. 6. Section 10 (7) of Prevention of Food Adulteration Act contemplates that "where the food inspector takes any action under clause (a) of sub-section (1), sub-section (2), sub-section (4) or sub-section (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. " 7. Sub-sections (1), (2), (4) and (6) contemplates taking of sample of any article of food from any person selling such article making inspection of the shop by the Food Inspector, seizure of food and carrying away of the food article and sending a sample of such adulterant to a public analyst for analysis. The revisionist has cited 1998 (2) JIC 346 ( P & H) (FB) : 1998 (1) Excise and Food Adulteration Reports page 1, State of Punjab v. Raman Kumar, in which Full Bench of High Court of Punjab and Haryana has held that Section 10 (7) of the Act requires taking sample in presence of two witnesses and this requirement is mandatory, but if the Food Inspector in spite of his best efforts fails to secure presence of two witnesses, such a factor minimises the requirement, therefore, the prosecution would not be vitiated for absence of two witnesses. However, there should be corroborative evidence in support of statement of Food Inspector that he made efforts for securing presence of two witnesses. 8. In instant case, PW 1 Sri C. P. Srivastava, Food Inspector stated that having doubt that burfi was adulterated, he purchased 1-1/2 kg. burfi and obtained signature of the revisionist on notice in Form No. 6. The sample was taken in village Chahania and two witnesses were Bismillah of village Sarai Rasoolpur and Shyam Sunder Singh of village Lachmangarh. Exhibit Ka-2 is recovery memo which contains the signatures of witnesses Bismillah and Shyam Sunder Singh on back of the recovery memo. Besides it, the prosecution did not examine any of these two witnesses that recovery of sample of burfi was made from the possession of the revisionist. Contrary to it, the accused revisionist himself examined DW 1 Shyam Sunder Singh who stated that he knows Chandrika Prasad revisionist who has shop of sweets in Chahania market. He also knows C. P. Srivastava, Food Inspector. Sample of burfi was never taken in his presence by the Food Inspector Sri C. P. Srivastava from the shop of Chandrika Prasad. Contrary to it, the accused revisionist himself examined DW 1 Shyam Sunder Singh who stated that he knows Chandrika Prasad revisionist who has shop of sweets in Chahania market. He also knows C. P. Srivastava, Food Inspector. Sample of burfi was never taken in his presence by the Food Inspector Sri C. P. Srivastava from the shop of Chandrika Prasad. In cross- examination, he deposed that his house is situated at a distance of about three kilometers from the shop of the accused. He has stated that on Exhibit Ka-2 he put his signature but signature was taken on the back of the recovery memo which was plain paper and he did not see as to what was written on the said paper which was typed. Thus, the statement of Shyam Singh shows that recovery memo was prepared on front page and the signature of the witness was taken on the opposite side of the paper which was blank and this fact is confirmed by the recovery memo Exhibit Ka-2 and this is the position stated by one of the witnesses. The examination of another witness Bismillah by prosecution was necessary to prove the fact of sample of Burfi being taken by the Food Inspector Sri C. P. Srivastava. Therefore, the statement of DW 1 Shyam Sunder Singh and non-examination of witness Bismillah by the prosecution creates doubt as to whether both these witnesses were present at the time of recovery of Burfi was made by the Food Inspector from the shop of the revisionist on 29-7-1982. Section 10 (7) of Prevention of Food Adulteration Act makes it mandatory to call one or more witness to be present at the time when recovery of sample is made if in spite of best efforts of the Food Inspector, the attendance of such witness could not be procured. The statement of Food Inspector is to be considered and it should not be disbelieved merely because that no public witness has been examined, but when it is said that recovery was made in presence of two public witnesses, atleast examination of one public witness is necessary to corroborate the statement of Food Inspector and to prove the recovery memo. The statement of Food Inspector is to be considered and it should not be disbelieved merely because that no public witness has been examined, but when it is said that recovery was made in presence of two public witnesses, atleast examination of one public witness is necessary to corroborate the statement of Food Inspector and to prove the recovery memo. But in instant case, the prosecution did not examine any of these two witnesses and one of the witnesses was examined by the revisionist accused whose statement shows that it is not proved that Shyam Sunder Singh one of the witnesses of recovery was really present at the time of recovery or his signature was obtained later on, on the back of recovery memo Exhibit Ka-2. Therefore, in this case, compliance of mandatory provision of Section 10 (7) of the Act is not proved. 9. Learned counsel for the revisionist has further submitted that Section 13 (2) of Prevention of Food Adulteration Act has not been complied with. Section 13 (2) of the Act contemplates that "on receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under Section 14-A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the Court within a period of ten days from the date of receipt of the copy of the report of get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. " 10. Learned defence counsel has cited 2003 (46) ACC 826, State of Orissa v. Gouranga Sahu, in which the Honble the Apex Court has held that mere despatch of the report is not enough, the prosecution has to prove that it reached the addressee, the accused. 11. " 10. Learned defence counsel has cited 2003 (46) ACC 826, State of Orissa v. Gouranga Sahu, in which the Honble the Apex Court has held that mere despatch of the report is not enough, the prosecution has to prove that it reached the addressee, the accused. 11. AIR 1981 Supreme Court 611, Nebh Raj v. The State (Delhi Administration) has been cited in which it was held by Honble the Apex Court that sample of Dal Biji was analysed by Central Food Laboratory three years after the sample was taken, even though the sample was prima facie adulterated, conviction was set aside on the ground that there could be change in ingredients due to long delay in examination of the sample by Central Food Laboratory. 12. Learned Defence counsel has also cited, 1989 EFR 660, Lallu v. State in which it was held by this Court that sample of milk being not kept in refrigerator, there was delay of 18 months in analysis of sample of Director of Central Food Laboratory, serious prejudice was caused to accused vendor because sample becomes unfit for analysis due to lapse of time. 1997 JIC 343 (All) : 1997 (1) EFR 466, J. P. Chaturvedi v. State of U. P. was also cited in which it was held by this Court that sample of Vanaspati was taken on 20-2-1976. Report of analysis was obtained on 5-4- 1976 showing it to be adulterated. Another sample for analysis by Central Food Laboratory was obtained on 23-9-1980. Report of the Central Food Laboratory was obtained on 18-4-1981 in which contents of oleic acid increased due to long passage of time and oxidation. It was held that the accused cannot be held guilty for the offence because on account of delay no useful purpose would be served. 13. In the case of Dinesh Chandra Pathak v. State of U. P. , 2000 (2) EFR 516, it was held by this Court that sample was analysed by the Central Food Laboratory after two years. Constituent and ingredients had changed. There was contradiction in the report of public analyst as well as Director, Central Food Laboratory, which creates prima facie doubt about the alleged adulteration. The benefit of doubt was given to the accused. 14. Constituent and ingredients had changed. There was contradiction in the report of public analyst as well as Director, Central Food Laboratory, which creates prima facie doubt about the alleged adulteration. The benefit of doubt was given to the accused. 14. In Nagar Swasthya Adhikari, Allahabad v. Raghuraj Singh, 2001 (1) EFR 395, it was held by this Court that sample of buffalo milk was collected on 19-12-1974. Report of the public analyst was obtained on 7- 2-1975. Prosecution was sanctioned on 19-4-1975. Complaint was filed on 17-12-1975. It was held by this Court that long delay in launching the prosecution caused prejudice to the accused because by lapse of time there would be qualitative change in articles of food and further analysis would not be of any worth. 15. The defence has also relied on 2001 (2) EFR 36, Ram Sajiwan Singh v. State of U. P. , in which it was held by this Court that sample of milk was taken on 10-10-1979. Public Analyst report was received on 13-11-1979. Complaint was filed on 26-8-1981. Notice to accused was sent on 24-12-1981. The accused was given option to get the report of Central Food Laboratory. It was held that milk becomes decomposed after a period of 5-1/2 months. Period of more than two years have passed and during this period sample could not have retained in qualities and must have become unfit for chemical examination. It was observed that the accused was clearly denied the opportunity conferred upon him under Section 401 (2) Cr. P. C. for getting the sample examined under Section 13 (2) of the Act. The conviction was set aside. 16. Learned Counsel for the revisionist has relied on the decision reported in 2001 (1) EFR 487, Gyan Chandra v. Nagar Swasthya Adhikari, Kanpur in which it was held by this Court that Court is not bound to accept the opinion of Director of Central Food Laboratory because the report is final and conclusive evidence of the fact, but it can record a finding of their own. 17. In instant case, sample was taken on 29-7-1982. The report of Public Analyst was received on 17-9- 1982 which is Exhibit Ka-4 in which it is reported that fat was not present in milk. Starch and some other foreign material was found in Khowa. Sanction for prosecution was granted on 29-11-1983 which is Exhibit Ka-6. 17. In instant case, sample was taken on 29-7-1982. The report of Public Analyst was received on 17-9- 1982 which is Exhibit Ka-4 in which it is reported that fat was not present in milk. Starch and some other foreign material was found in Khowa. Sanction for prosecution was granted on 29-11-1983 which is Exhibit Ka-6. The prosecution was started on 23-1-1984 by filing complaint by the Food Inspector in the Court of Addl. Chief Judicial Magistrate vide Exhibit Ka-7. On 25-4-1984 it is said that information was sent to the accused revisionist about the report of Public Analyst which was received back containing the endorsement that information could not be given to the accused. Later on, the revisionist accused moved application for getting the sample examined by Central Food Laboratory wherefrom report dated 18-6-1986 was received vide Paper No. 10-A/2 containing the fact that sample of burfi (khowa plus sugar) was adulterated. Thus, the report of Public Analyst was received about four years after the sample was taken by which time the constituent of the sample could change. Thus, the revisionist was denied the right conferred under Section 13 (2) of the Prevention of Food Adulteration Act for getting the sample analysed by the Central Food Laboratory as delay of four years in examination of sample by Central Food Laboratory was significant in view of the law laid down in the above cited rulings. 18. In view of the above discussion, this Court is of the opinion that the order of conviction and sentence passed by both the Courts below is in violation of Section 10 (7) and Section 13 (2) of Prevention of Food Adulteration Act. Therefore, the finding made by both the Courts below deserve to be set aside and the accused is entitled for the acquittal from the charge under Section 7/16 of Prevention of Food Adulteration Act. 19. The revision is allowed. The order of conviction and sentence passed by both the Courts below are set aside. Revisionist Chandrika Prasad is acquitted from the charge under Section 7/16 of Prevention of Food Adulteration Act. He is on bail. He need not surrender. His sureties are discharged. Revision allowed. .