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6. We may at once refer to a decision of the Allahabad High Court in Baboo v. State, AIR 1970 All. 122, where reference is made to an unreported decision of the Court in Cr. Revision No. 1612/62 where the Court held after thorough investigation into the question that the sample of milk taken in that case remained fit for analysis even after lapse of 10 months from the date of taking sample.

7. There are three decisions of the Supreme Court having a bearing on the question. The earliest is the one in Municipal Corporation of Delhi v. Ghisaram, AIR 1967 SC 970. In that case complaint was filed 8 months after the sample of curd was taken and 11 days later, the accused applied to send sample given to him (under the Act as it stood before the amendment), to the Central Food Laboratory which reported that the sample had become highly decomposed and unfit for analysis. The Court held that though the report of the Public Analyst did not cease to be good evidence, the accused was prejudiced in his defence as he was denied the valuable right of obtaining the opinion of the Director based on fresh analysis and, therefore, the acquittal was justified. The significance of this decision lies in the fact that the accused actually moved an application under Section 13 of the Act and a part of the sample was sent to the Central Food Laboratory and it was actually found unfit for analysis. The Court, after referring to the right of the accused under Section 13 of the Act, indicated that it is only when the accused exercises the right that the Director has to issue a certificate and that certificate supersedes the report given by the Public Analyst and observed :

10. The above decision of a Bench of two Judges was distinguished by a larger Bench of Three Judges in Babulal Hargovindas v. State of Gujarat, AIR 1971 SC 1277. In this case, under the unamended Act, complaint was filed more than 4 months after the taking of the sample of milk and it was contended that right of the accused under Section 13 of the Act was denied and he was prejudiced. In that case, the accused did not move the Court for sending another part of the sample to the Central Food Laboratory for analysis. The Court rejected this argument in the following words :

14. In the present case, there is no evidence that after a lapse of 8 or 9 months, the sample of milk would necessarily have become decomposed, nor did the revision petitioner apply to the Court under Section 13(2) of the Act to have another part of the sample sent to the Director, Central Food Laboratory, for analysis and there was no report of the Director that the sample had become unfit for analysis. The fact that in certain other cases either on the basis of evidence adduced in such cases or on the basis of other material. Courts have arrived at findings of fact that the sample had become decomposed by the time prosecution was launched or accused was served in the case is no ground to hold that in every case, the same result would follow. The doctrine of precedent applies to principles of law laid down by Courts and not to findings of fact arrived at by Courts. Findings of fact become conclusive on principles of res judicata or the doctrine of issue estoppel. Such principle or doctrine is inapplicable in this case. The finding of fact arrived at by the Supreme Court in Ghisaram's case, (supra) is not applicable to other cases which are not inter parties. Article 141 of the Constitution renders the law declared by the Supreme Court to be binding on Court in India. The principle of law declared in Ghisaram's case (supra) has been explained by Larger Benches of the Supreme Court in latter cases and we are bound to follow the law declared in the latter cases. Since the revision petitioner did not invoke his right under Section 13(2) of the Act and did not examine the Public Analyst to show that part of the sample of milk in the case would necessarily have become unfit for analysis by the time summons was served on him and did not adduce other evidence to that effect, it cannot be said that the part of the sample would have become decomposed and that it was futile for him to invoke his right under Section 13(2) or that it could be presumed or assumed under these circumstances that he has been prejudiced in his defence.

The Court did not have occasion to consider about the effect of delay of more than 3 or 4 months. This decision supports the view we have taken.

17. Learned counsel referred to two decisions of learned Single Judges reported in 1977 MPLJ. One is in case of Shivdayal Saligram Tiwari v. State of M. P., 1977 MPLJ 169 and the other is in case of Jairam Bhaosingh v. State of M. P., 1977 MPLJ 608. In the former case, prosecution was launched more than 9 months after the sample of milk was taken and the accused appeared nearly three months later. The third sample with the Local Authority was found damaged. Learned Single Judge, on the basis of a passage from the book Milk Production and Control by Harvey and Hill and a passage in Encyclopaedia Britannica, held that the sample would have become deteriorated by the time prosecution was launched and it did not matter that the accused did not make an application under Section 13(2) of the Act, relying on the decision in Ghisaram 's case (supra) and distinguished the latter decisions of the Supreme Court. This decision, in our respectful opinion, goes against the dictum in Babulal Hargovindas's case, (supra) and Ajitprasad Ramkishan's case (supra) since no application was made under Section 13(2) of the Act and no evidence was before the Court. Opinion expressed in books cannot be a substitute for the evidence of expert in Court which is subject to cross examination. A contrary view was taken by another Single Judge in Jairam Bhaosingh's case (supra). The view taken in this case is in accordance with the decisions of the Supreme Court referred to earlier.