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9. I have heard the Ld. Counsel for the parties and perused the record carefully.

10. Ld. Counsel for accused no. 1 has argued that accused no. 1 has nothing to do with the sample commodity and the Pasteurized Toned Milk, sample of which was lifted belongs to M/s Parag Dairy of which accused no. 4 is the nominee. He further argued that accused no. 1 was not authorized to sell the milk and he was working as a transporter under accused no. 2 and used to transport the milk manufactured by M/s Parag Dairy on behalf of accused no.

12. Ld. Counsel for accused no. 4 argued that there is no evidence to connect the sample commodity with accused no. 4 and it shows that sample packets of milk were spurious. He further argued that complaint has been filed after a long gap of 19 months from the date of lifting the sample and by that time shelf life of the sample commodity which was of milk product had expired and thus the accused could not get reliable analysis from Director, CFL. He further argued that milk was not properly homogenized before lifting the sample and that is why there are variations in the report of Public Analyst and Director, CFL, benefit of which is liable to be given to the accused persons. Ld. Counsel for accused no. 4 further argued that Food Inspector was not empowered to lift the sample by intercepting the milk van and, therefore, prosecution of the accused is bad and accused are entitled for acquittal.

22. The present case has been launched against the accused persons on the basis of report of Public Analyst dated 25.07.2000, which has been proved on record as Ex. PW1/G. The Public Analyst vide her report Ex. PW1/G found the sample lifted from the accused no. 1 not conforming to the standards as milk fat and milk solids not fat were found less than the minimum prescribed limit of 3.0% & 8.5% respectively. The accused no. 1 has been impleaded in the present case being vendor­cum­driver of the milk van from which the sample of 'Pasteurized Toned Milk' was lifted for analysis. On the disclosure of accused no. 1 at the spot, accused no. 2 has been impleaded as Distributor of manufacturing firm of sample commodity i.e. M/s Parag Dairy and accused no. 4 has been impleaded being Nominee of M/s Parag Dairy. On appearing, the accused no. 4 exercised his right U/s 13 (2) of PFA Act and accordingly second counterpart of the sample was sent to the Director, CFL, Calcutta who also vide his certificate dated 01.04.2002 found the 'milk fat' and 'milk solids not fat' less than the prescribed minimum limit and opined that sample is adulterated.

41. Admittedly, the Pasteurized Toned Milk, sample of which was lifted in the present case is a perishable item and cannot remained fit for analysis after six months in case if it is refrigerated. Therefore, the complainant should have taken immediate steps to file the complaint within 6 months from lifting the sample after receiving the report of Public Analyst in order to enable the accused to exercise their right U/s 13 (2) of PFA Act to get the second counterpart of the sample analyzed by the Director, CFL within time. But, the present complaint has been filed on 04.02.2002 i.e. after about 19 months from lifting the sample on 08.07.2000 even the first counterpart of the sample was analyzed by the Public Analyst on 25.07.2000.