( 1 ) THE applicant State of Gujarat has preferred this application under Section 5 of the Limitation Act seeking condonation of delay of 25 days caused in preferring the Criminal Appeal No. 217 of 2005 filed under Section 378 (1) (B) of the Code of Criminal Procedure, 1973 (herein after referred to as the Code for short) challenging the judgment and order of acquittal dated 5. 10. 2004, passed by the learned JMFC, Vijapur in Criminal Case No. 1551 of 1994 acquitting the respondent of the charges of commission of offence under Section 2 (1) (a), 7 (1), 7 (5) and 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 (herein after referred to as the Act for short ). ( 2 ) HEARD learned APP Shri Patel for the applicant " State of Gujarat. The reasons mentioned for delay of 25 days appear to be genuine and the delay, ordinarily would have been condoned. However, looking to the decision impugned in Criminal Appeal No. 217 of 2005 and the records and papers pertaining to Criminal Case No. 1551 of 1994 produced by Shri Patel, learned Addl. P. P. , this Court is not inclined to condone the delay as the decision of acquittal impugned in the appeal appears to be just and proper and no useful purpose would be served by calling upon the respondent to answer the delay condonation application and Criminal Appeal. ( 3 ) SHRI Patel, learned APP has taken this Court through the record and the papers of Criminal Case No. 1551 of 1994, copy of the complaint filed on 15. 12. 1994, the testimony of complainant Food Inspector at Ex. 66, the sanction for lodging the complaint issued on 3. 12. 1994, the report of Director, Central Food Laboratory and other relevant papers. Learned Addl. P. P. Shri Patel has addressed this Court on the merits of the Criminal Appeal No. 217 of 2005 at length. ( 4 ) SHRI Patel has submitted that the trial Court has erred in acquitting the accused respondent and therefore, the order of acquittal impugned in the present appeal deserves to be quashed and set aside. Shri Patel has submitted that the report of the Central Food Laboratory unequivocally declared the sample of curd to be adulterated. ( 5 ) AS the same being conclusive proof of adulteration, the acquittal was erroneous. Shri Patel has submitted that the report of the Central Food Laboratory unequivocally declared the sample of curd to be adulterated. ( 5 ) AS the same being conclusive proof of adulteration, the acquittal was erroneous. Shri Patel has submitted that deposition of the Food Inspector go to show that there was a complete compliance with mandatory provisions of the Act and Rules in collecting the sample of curd, issuing notices, sealing the samples and sending it to the concerned authorities as there was no procedural lapse as could be seen and as sample in question is unequivocally declared to be adulterate, the trial Court ought to have convicted the accused respondent and imposed appropriate punishment for the charges levelled against him. Shri Patel has submitted that sample of curd was not in a conformity with the standards and parameters laid down under the Prevention of Food Adulteration Rules, 1955 (herein after referred to as the Rules for short) and the Act and therefore, this being an offence against the Society, serious view deserves to be taken. ( 6 ) THE complainant Food Inspector on 15. 10. 1994 visited the shop of the accused respondent falling within his jurisdiction, wherein, it was found that respondent accused was selling milk, curd, ghee and other dairy products. In presence of panch witness and after informing his intention to collect the sample of curd and after issuing notice for analysis in Form No. 6 under Rule 12, the Food Inspector purchased 600 grams of curd on payment of Rs. 4=20ps. and obtained receipt thereof. The curd was collected at the first instance in the vessel and thereafter, it was transferred into three glass bottles in equal proportion and glass bottles were sealed and the seal of authority was also affixed thereon in accordance with law. Before sealing the bottle, the requisite amount of preservative formalin was added by complainant in the glass bottles. One out of three sample bottles was sent to the Public Analyst, Vadodara for the purpose of analysis and the remaining two bottles of samples were sent to the Local Health Authority, Mehsana. The Public Analyst in his report at Ex. 82 opined that the sample food article curd was not in conformity with the standards laid down in the Rules and declared it to be adulterated. The Public Analyst in his report at Ex. 82 opined that the sample food article curd was not in conformity with the standards laid down in the Rules and declared it to be adulterated. Necessary permission for lodging the complaint against the accused for commission of offnece under the Act was obtained and the complaint came to be lodged. The notice under Section 13 (2) of the Act came to be issued to the accused. The accused respondent appeared to have availed the opportunity of requesting the Court for sending the sample to the Central Food Laboratory. The Director of Central Food Laboratory also opined that the sample food article was not in conformity with the standards laid down under the Rules. The accused pleaded not guilty. The trial Court after recording the evidence of the prosecution, recorded further statement of the accused under Section 313 of the Code. Accused denied the case of the prosecution. The trial Court has analyzed the evidence on record and after hearing counsel, came to the conclusion that the prosecution has failed in proving the charge against the accused and hence acquitted the accused. The trial Court vide judgment and order dated 5. 10. 2004 passed in Criminal Case No. 1551 of 1994 acquitted the accused. The same is impugned in this Criminal Appeal No. 217 of 2005. Along with the Criminal Appeal, a prayer is also made for seeking leave to Appeal as the Appeal under Section 378 of the Code is filed and Criminal Misc. Application No. 14185 of 2005 is filed for condonation of delay. ( 7 ) AS it is stated herein above, Shri Patel has made submissions on merits of the Appeal at length and produce the relevant papers of Criminal Case No. 1551 of 1994. ( 8 ) FROM the close perusal of the papers and submissions of Shri Patel, following emerge. (1)The sample food article i. e. Curd was collected on 15. 10. 1994 at 13. 30 hrs. (2) The sample Food article was collected in the first instance in a steel vessel. Thereafter, it was transferred into glass bottle. (3)The sample food article was thereafter sent for analysis and the public analyst appears to have examined it on 24. 10. 1994. The report of public analyst appears to have been signed on 15. 11. 1994. 30 hrs. (2) The sample Food article was collected in the first instance in a steel vessel. Thereafter, it was transferred into glass bottle. (3)The sample food article was thereafter sent for analysis and the public analyst appears to have examined it on 24. 10. 1994. The report of public analyst appears to have been signed on 15. 11. 1994. (4) The sanction for lodging the prosecution appears to have been issued on 3. 12. 1994 permitting the Food Inspector to lodge complaint against the respondent accused. (5) The complaint appears to have been lodged on 15. 12. 1994. Obviously, the notice under Section 13 (2) of the Act is issued only thereafter. (6) The accused appeared to have applied to the Court for sending the sample to the Central Food Laboratory vide his application dated 2. 11. 1995. (7) The Court made necessary orders for sending sample to Central Food Laboratory on the same day i. e. on 2. 1. 1995 and the accused appeared to have deposited the requisite fees for analysis on that very day i. e. On 2. 1. 1995. (8) As it appears from the Report of the Central Food Laboratory dated 21. 8. 1995, they received the sample on 1. 8. 1995. The memorandum bearing C. C. No. 1551 of 1994 dated 26. 7. 1995 was also received along with the sample. (9) The Director of Central Food Laboratory has stated in the report that the sample was fit for analysis. (10) The Director of Central Food Laboratory has in his report dated 21. 8. 1995 opined that the sample was not in conformity with the standards laid down in the PFA Rules, and hence the same was adulterated. The fat content of the sample curd was found to be 0. 54% and milk solid not fat was found to be 7. 160%. It appears that on this count, the sample was declared to be not in conformity with the standard laid down under the Rules. (11) The trial Court has relied upon the decision of the Apex Court and of this Court for recording the finding that the sample of curd was examined by the Central Food Laboratory after a lapse of about 10 months and therefore, it cannot be said that the report reflected the correct position of sample when it was collected in the first instance. ( 9 ) AGAINST the aforesaid factual backdrop, the order impugned deserves to be examined. This Court is mindful that the Criminal Misc. Application made for condoning the delay in preferring the Appeal contains challenge to the acquittal order and it seek leave to Appeal to maintain the Appeal. Unless and until, it is established by the appellant that the findings and reasoning of the trial Court are so perverse as to result into miscarriage of justice, ordinarily in acquittal appeal, the same cannot be disturbed. It is also established position of law that even if another view appeared to be possible, then also, the Appellate Court has to desist from altering the finding and/or order of acquittal under Section 378 of the Code. ( 10 ) THE sample food article of curd was collected on 15. 10. 1994 and it was ultimately examined and analyzed by the Central Food Laboratory only on or after 1. 8. 1995 i. e. after a gap of about nine and half months. The Apex Court in case of Municipal Corporation of Delhi Vs. Ghisa Ram, reported in 1975 (1) FAC 186, has observed as under : "para 6:the opinion of one of the experts, Dr. Sat Prakash, given in this case shows that in the case of a food article, like curd, it starts undergoing changes after a week, it kept at room temperature, without a preservative, but remains fit for analysis for another 10 days thereafter. On the other hand, if the sample is kept in a refrigerator, it will preserve its fat and non-fatty solid contents for purpose of analysis for a total period of four weeks. If a preservative is added and the sample is kept at room temperature, the percentage of fat and non-fatty solids contents for purpose of analysis will be retained for about four months and in case it is kept in a refrigerator after adding the preservative, the total period which may be available for making analysis, without decomposition, will be six months. In this case, when the Food Inspector handed over the sample to the respondent, the respondent was not expected to keep it in refrigerator. Consequently, without any preservative, the sample kept with him could have been analyzed successfully during the next 17 days whereas, if a preservative had been added, it could have been analyzed successfully during the next four months. Consequently, without any preservative, the sample kept with him could have been analyzed successfully during the next 17 days whereas, if a preservative had been added, it could have been analyzed successfully during the next four months. Para 7 : It appears to us that when a valuable right is conferred by s. 13 (2) of the Act on the vendor to have the sample given to him analyzed by the Director of the Central Food Laboratory it is to be expected that the prosecution will proceed in such a manner that that right will not be denied to him. The right is a valuable one, because the certificate of the Director supersedes the report of the Public Analyst and is treated as conclusive evidence of its contents. Obviously, the right has been given to the vendor in order that, for his satisfaction and proper defence, he should be able to have the sample kept in his charge analyzed by a greater expert whose certificate is to be accepted by Court as conclusive evidence. 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 h is 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. " ( 11 ) IN the aforesaid case, the Apex Court has dismissed the Appeal of the Corporation and held that the acquittal was justified only on account that the vendor therein did not get opportunity to have the sample examined under Section 13 (2) of the PFA Act. In the instance case, the vendor has in fact availed an opportunity of having the sample examined Section 13 (2) of the PFA Act by Central Food Laboratory but fact remains that the sample came to be analyzed by the Central Food Laboratory after a gap of about nine and half months and as per the ruling in case of Municipal Corporation (Supra) the same sample of curd could not have retained its strength after a lapse of about nine and a half month. ( 12 ) THE Apex Court observed in para-6 that in a given case, a food article, like curd start undergoing changes after a week if it is keep at room temperature, without a preservative, but remains fit for analysis for another 10 days thereafter. If the sample is kept in a refrigerator, it will preserve its fat and non-fatty solid contents for purpose of analysis for a total period of four weeks. If a preservative is added and the sample is kept at room temperature, the percentage of fat and non-fatty solids contents for purpose of analysis will be retained for about four months and in case, it is kept in a refrigerator after adding the preservative, the total period which may be available for making analysis, without decomposition, will be six months. In the case, before the Apex Court, when the Food Inspector handed over the sample to the respondent, the respondent was not expected to keep it in refrigerator. Consequently, without any preservative, the sample kept with him could have been analyzed successfully during the next 17 days only. Adding preservative in curd and keeping it in refrigerator would not help conserve the quality of curd after the period of six months. In the instant case, it is examined by the Central Food Laboratory only after the period of nine and half months. The report of the Central Food Laboratory is to be treated as conclusive proof and it is supersedes the report of the Public Analyst. ( 13 ) THE trial Court has not much dwelt upon the report of the Central Food Laboratory. However, the trial Court has recorded a finding at many places that the prosecution has failed in adducing any evidence to show that the sample food article was ever preserved in a refrigerator. This finding in light of the Apex Court observation in Para-6 would caste serious doubt about the food article retaining its original strength. ( 14 ) THE trial Court has also referred to the decision of this Court in case of State of Gujarat Vs. Ganeshbhai Chamnaji Raval, reported in 1997 (2) FAC p. 29. This Court (Coram: A. N. Divecha, J.) has observed as under: "para 6 : in its ruling in the case of Tulsiram Vs. State of Madhya Pradesh, reported in 1984 (2) FAC 146. Ganeshbhai Chamnaji Raval, reported in 1997 (2) FAC p. 29. This Court (Coram: A. N. Divecha, J.) has observed as under: "para 6 : in its ruling in the case of Tulsiram Vs. State of Madhya Pradesh, reported in 1984 (2) FAC 146. Rule 9-A, prior to its amendment, was held to be directory and not mandatory. In that case, it was held that non-compliance thereof would not vitiate the prosecution unless prejudice was caused to the accused thereby. Para 7 : Even at the cost of repetition, it may be reiterated that the article of food purchased form the restaurant of respondent " accused No. 2 was curd. In its aforesaid binding ruling of the Supreme Court in the case of Ghisa Ram (supra), the Apex Court has taken into consideration the expert s evidence for coming to the conclusive that the sample of curd, without addition of any preservative would remain fit for analysis for some ten days, if kept in a room temperature and for four weeks if kept in a refrigerator and, if a preservative kept is added to such sample, it would remain fit for analysis for four months if kept in a room temperature and for six months if kept in a refrigerator. Even at the cost of repetition, it may be reiterated that there is nothing on the record to show or to suggest that the two sample containers handed over in the office of the local health authority by the complainant Food Inspector were kept in a refrigerator by or in the office of that authority. In absence of any such evidence, an inference will have to be drawn to the effect that the sample containers in the office of the local health authority were kept in a room temperature and not in a refrigerator. In that view of the matter, the sample would no longer remain fit for analysis after four months in view of the aforesaid binding ruling of the Supreme Court in the case of Ghisa Ram (Supra ). Para 8 : As rightly submitted by learned Additional Public Prosecutor Shri Divetia for the appellant " State, the Central Food Laboratory in its certificate at Exh. 31 has clearly indicated that the sample was in a condition fit for analysis. It transpires therefrom that the sample was received by the Central Food Laboratory on 9th June, 1988. Para 8 : As rightly submitted by learned Additional Public Prosecutor Shri Divetia for the appellant " State, the Central Food Laboratory in its certificate at Exh. 31 has clearly indicated that the sample was in a condition fit for analysis. It transpires therefrom that the sample was received by the Central Food Laboratory on 9th June, 1988. It was taken by the Food Inspector on 18th January, 1988. It thus becomes clear that it was received in the Central Food Laboratory more than four months after its purchase by the Food Inspector from respondent -accused No. 1 from the restaurant belonging to respondent accused No. 2. In view of the aforesaid binding ruling of the Supreme Court in the case of Ghisa Ram (supra), that sample would not have remained fir for analysis. If in the report at Exh. 31, the sample was found to be in a condition fit for analysis, it was an extraordinary circumstances, and as such it was necessary for the prosecution to have examined the Analyst from the Central Food Laboratory to prove that it remained in a condition fit for analysis even after expiry of four months from the date of its purchase by the Food Inspector on 18th January, 1988. No Analyst from the Central Food Laboratory at Ghaziabad has been examined in this case to prove that the sample received by it was in a condition fit for analysis though more than four months had elapsed from the date of its collection on 18th January, 1988. In that view of the matter, an inference will have to be drawn to the effect that the sample received in the Central Food Laboratory on 19th June, 1988 was not in a condition fit for analysis in view of the aforesaid binding ruling of the Supreme Court in the case of Ghisa Ram (Supra. ). " ( 15 ) THE trial Court has recorded finding that the prosecution has not proved beyond doubt due compliance with mandatory provisions with Rule 14 of the Rules. Time and again, this Court has held that merely stating that bottles were cleaned before collecting the sample in itself is not sufficient to establish due compliance with mandatory provisions of Rule 14. In fact, it is the duty cast upon the prosecution to prove by leading cogent and positive evidences to show that Rule 14 was duly complied with. Time and again, this Court has held that merely stating that bottles were cleaned before collecting the sample in itself is not sufficient to establish due compliance with mandatory provisions of Rule 14. In fact, it is the duty cast upon the prosecution to prove by leading cogent and positive evidences to show that Rule 14 was duly complied with. From record, it becomes clear that the prosecution has failed in proving due compliance with provisions of Rule 14 by not leading any cogent evidences. In case of State of Gujarat Vs. Bhupendra M. Mehta, reported in 1999 (1) GLH p. 227, this Court has clearly observed that duty is cast upon the prosecution to prove compliance with Rule 14. In the instant case, as it is stated herein above, prosecution has not proved beyond doubt by leading any evidence, the due compliance of Rule 14. ( 16 ) IN view of the aforesaid discussion, this Court is of the considered view that no useful purpose is going to be served by granting the Leave to Appeal and by condoning delay. Though, this Court has specifically observed that delay otherwise deserves to be condoned. Delay cannot be attributed to any overt motive what so ever and therefore, ordinarily, the same would have been condoned by this Court looking to the averments made in the application for delay condonation. However, it is not condoned as it is stated herein above, no useful purpose is going to be served. As the appeal itself has no merit, the order of trial Court does not call for any interference and accordingly, this Court is not inclined to condone the delay. In the result, the delay condonation application is dismissed. As the delay is not condoned, the application seeking Leave to Appeal and the Criminal Appeal also would stand rejected and they are dismissed accordingly.