JUDGMENT 1. - By this criminal misc. petition, a prayer is made for dropping of the proceedings in pursuance to the complaint case bearing No.2776/2000. 2. Learned counsel for the petitioner company submits that a sample of Ice-cream was taken on 05th April, 1999 followed by report on 19th April, 1999. The complaint thereupon was filed on 23rd November, 2000, i.e., with the delay of more than one and a half years. An application for sending another sample (second sample) for analysis was made by the co-accused in the year 2001 followed by a report. The sample was found to be deteriorated. The Public Prosecutor then made a further application to call for the third sample for sending it for another report. The application for it was made in the year 2004 could not get result till November, 2007, as is coming out from Annexure - 10. 3. It is stated that when the sample of Ice-cream was taken on 05th April, 1999 followed by report on 19th April, 1999, delay in filing complaint by more than one and a half years had taken away the valuable rights of the petitioner company under Section 13(2) of the Prevention of Food Adulteration Act, 1954 (for short "Act of 1954"). The fact aforesaid is established with the second report. Therein, sample was sent on the application moved by the co-accused with the report. The sample was found deteriorated, thus analysis could not be made. Now the complainants themselves made a request to call for third sample examined and was not given in the Court till the year 2007. No purpose remains for continuing the prosecution because valuable rights of accused under Section 13(2) of the Act of 1954 stand frustrated. The first sample may have adverse report of adulteration due to product not being as per specific standard but rights of the accused under Sections 13(2) of the Act of 1954 cannot be frustrated. It is due to delay in filing complaint and now the delay in sending third sample for examination after loss of shelf life. 4. Learned counsel has given reference of judgment of Allahabad High Court in the case of S.P.Agrawal v. State of U.P. & Anr. in Criminal Misc. Case Nos.1553 & 1554 of 1985 . Therein, based on the article, it was found that shelf life of ice creams is only of two months. 4. Learned counsel has given reference of judgment of Allahabad High Court in the case of S.P.Agrawal v. State of U.P. & Anr. in Criminal Misc. Case Nos.1553 & 1554 of 1985 . Therein, based on the article, it was found that shelf life of ice creams is only of two months. It is with the addition of 0.4 percent formalin as required under Rule 20 of Prevention of Food Adulteration Rules, 1955 (for short "Rules of 1955"). In the instant case, the complaint itself was filed after a period of one and half years, thus rights of accused to get sample examined has been frustrated. In view of the above, the complaint and the consequential proceedings deserve to be dropped. 5. A further reference of judgment in the case Girishbhai Dahyabhai Shah v. C.C. Jain & Anr. reported in JT 2009(12) 80 has been given. Therein, the report of second sample was received after 15 months and by the aforesaid time, sample had deteriorated rendering further examination meaningless. The right of accused under Section 13(2) of the Act of 1954 get frustrated, thus the proceedings in pursuance to the complaint was dropped. The case in hand is covered by the aforesaid. 6. I have considered the submissions made by learned counsel and perused the record. 7. It is, no doubt true that sample of ice cream was taken on 05th April, 1999 followed by report on 19th April, 1999, i.e., within 15 days. The report was adverse to the petitioner company. The complaint was filed on 23rd November, 2000, i.e., after lapse of one and a half years and more. It is, however, a fact that petitioner accused did not submit an application to send the second sample for analysis. The application for it was submitted by the co-accused and the sample was found deteriorated. Third sample has not come to the Court till the year 2007 and thereupon, record of the case was called by this Court, thus proceedings remained at halt. 8. It is invariably seen that record of the Court below is called by this Court even in the cases where it is not required. It not only delays the proceedings but keeps the matter at halt for years together, as is the present case. 8. It is invariably seen that record of the Court below is called by this Court even in the cases where it is not required. It not only delays the proceedings but keeps the matter at halt for years together, as is the present case. The record of the Court below was called in the year 2008 and for last seven years, further proceedings against any accused could not be taken. We need to consider whether record would be necessary while calling of record of the Court below. The record should be called in those cases where it is necessary and at the stage when the matter would be considered for final hearing and not otherwise. It is one aspect of the matter. 9. So far as the main issue in reference to Section 13(2) of the Act of 1954 and the Rules made thereunder is concerned, a reference of the judgment by the Allahabad High Court in the case of S.P.Agrawal (Supra) has been given. Therein, article was taken into consideration to determine shelf life of the ice cream. With due respect to the Allahabad High Court, general article published in a magazine cannot be taken as a rule. There is nothing available on record to show that after analysis, any order is passed by the Government to determine the shelf life of ice cream with the addition of 0.4 percent formalin. The article published in the magazine cannot be taken as final. Thus, I am unable to accept that for ice creams' shelf life would be of two months with addition of 0.4 percent formalin. If any judgment is given on the issue holding that shelf life of ice cream would be of two months, it would apply to all cases. It is without getting analysis either by the Government followed by an order or with the publication of authentic book. For the aforesaid reason and with due respect to the Allahabad High Court, I am unable to accept the judgment rendered in the case of S.P.Agrawal (Supra) to hold that shelf life of ice cream to be only of two months. 10. The other issue is regarding violation of Section 13(2) of the Act of 1954. 11. The issue aforesaid is quite relevant and material because the rights exist in favour of the accused cannot be frustrated, if there is delay in filing of complaint. 10. The other issue is regarding violation of Section 13(2) of the Act of 1954. 11. The issue aforesaid is quite relevant and material because the rights exist in favour of the accused cannot be frustrated, if there is delay in filing of complaint. In the instant case, the complaint was filed after more than one and a half years but then the rights so exist in favour of the accused under Section 13(2) of the Act of 1954 was not exercised by the petitioner. It may be by the co-accused. The petition has not been filed by the co-accused, who exercised his rights for sending second sample for analysis but is by the an accused, who did not exercised his rights under Section 13(2) of the Act of 1954. The argument has been raised that even if an application was not made to send second sample for analysis, the protection given under Section 13(2) of the Act of 1954 would not frustrate, if the complaint itself has been filed after delay. In my opinion, such an argument can be directed where the shelf life of product is provided. It cannot be taken merely for the reason that the complaint was filed after one and half years, however, if the delay in filing complaint is such and in ignorance of shelf life of product, then right under Section 13(2) of the Act of 1954 can be claimed by the accused, if an application for sending second sample for analysis is moved because rights, so accrued, are frustrated with the expiry of shelf life of the product. A reference of shelf life has been given by citing the judgment in the case of S.P.Agrawal (Supra) but I have taken my own view in that regard. It cannot be said that shelf life of product expired prior to filing of complaint. Such an analytic report can be given by the Public Analyst or it can be by the Government by providing shelf life of product. No such case is made out herein, though second sample sent for analysis was found to be deteriorated. The third sample was not sent to the Court till the year 2007. The complaint can be quashed on a legal ground and not on presumption. No such case is made out herein, though second sample sent for analysis was found to be deteriorated. The third sample was not sent to the Court till the year 2007. The complaint can be quashed on a legal ground and not on presumption. When the petitioner did not exercise his rights under Section 13(2) of the Act of 1954, a plea in reference of it cannot be excepted. The challenge to the complaint and further proceedings cannot be accepted for that reason.This criminal misc. petition is accordingly dismissed. Petition Dismissed. *******