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6.It was further pointed out that the Public Analyst has submitted its report on 26.6.1993 and the application under Section 13 (2) of the Act was filed by the applicant within the specified time, i.e., on 18.5.1994 but the sample in question had not reached the Court till 17.4.2013, hence the valuable right of the applicant provided under Section 13 (2) of the Act for getting the sample retested by the CFL has been infringed, hence no fruitful purpose will be served out for continuing the prosecution of the applicant, He submitted that the trial court without getting the second sample retested by CFL has fixed the cases for evidence u/s 244 Cr.P.C which is absolutely illegal, hence the same be quashed.

10.The applicant has moved an application under Section 13 (2) of the PFA Act on 18.5.1994 for getting the sample retested by the CFL which was rejected by the trial court on 18.2.2010 and the case was fixed for evidence u/s 244 Cr.P.C. and second sample summoned from the Local Health Authority had not reached the court till date. The order dated 18.2.2010 passed by the trial court rejecting the application u/s 13(2) of the PFA Act for none prosecution without taking into account that the second sample which has been summoned by it on the application dated 18.5.1994 u/s 13(2) of the Act of the applicant has not reached the Court till 18.2.2010 and the court fixed the case for prosecution evidence u/s 244 Cr.P.C. and further the Court was ordering for depositing of the prescribed fee by the applicant which was not at all justified. There also appears to be a gross negligence on the part of the Local Health Authority for not sending the second sample to the court in spite of it's repeated orders and the trial court was also fixing dates calling for the second sample and giving easy adjournments on the said ground and in this process 16 years have elapsed. This shows the callousness on the part of the Local Health Authority for not sending the second sample to the court.

12.The explanation was submitted by the Presiding Officer to the Court vide letter dated 27.5.2013 which is on record it has been submitted by the trial court that the accused applicant was required to submit a draft of Rs. 1,000/- as a prescribed fee for getting the sample retested by the CFL but he did not deposit the said draft and further the second sample which was summoned by the trial court from the Local Health Authority was not made available, hence last opportunity was provided to the prosecuting agency to make available the second sample. The Presiding Officer also submits in his explanation that the funds were also not made available by the State Government for which a letter was also written to the Food Commissioner U.P. Lucknow and several letter to the Local Health Authority for making available the second sample but in spite of the said fact neither the sample in question was made available nor the requisite fee was deposit either by the State Government or by the applicant.

13.After perusing the explanation furnished by the Presiding Officer of the case, the Court also summon the Chief Medical Officer, Agra, City Magistrate, Agra as well as Food Commissioner U.P. Lucknow vide order dated 30.5.2013.

14.Affidavits of compliance have been filed by Dr. Nirmala Yadav, Chief Medical Officer, Agra as well as City Magistrate, Agra, who has stated that the Chief Medical Officer has joined the said post on 31.12.2012 and the present matter relates to the year 1999, as such, at that point of time she was not posted in district Agra. He further pointed out that since the year 2010 after the creation of Food and Drug Administration Department, the entire sample as well as staff of the concerned department has been transferred under the supervision of concerned district authorities. Now the matter is not concerned with the Office of Chief Medical Officer, Agra. Similarly the City Magistrate, Agra has stated that he took over the charge as City Magistrate, Agra on 16.4.2013 and the charge of Local Heath Authority was on orders of the Government with him from 19.1.2010 till 4.8.2011. Now the same is with the designated officer under the Food Safety and Standards Act, 2006. Sri Hemant Rao, Commissioner, Food Safety and Drug Administration, U.P. Lucknow who was also summoned by the Court has also similarly stated that he also joined on the said post on 16.4.2013. He submitted before the Court that so far as funds for getting the second sample retested in such cases is not a major problem. There is no scarcity of funds for getting the second sample retested. The State Government from time to time released the funds for the same and recently Rs. 2 lacs have been released to the District Authorities of Agra for office expenses etc. on 3.8.2013, a copy of the said letter has also been annexed with the affidavit of compliance. He has also annexed a copy of the list showing amounts which have been released by the Government to various districts for the said purpose. He further pointed out that now the District Magistrate of the districts have been authorised for releasing the funds for such purposes. The situation which has arisen in the present case was pointed to him he has expressed his distress. He submitted that he has been recently posted on the said post and cannot give any reply with respect to the present situation arisen in the case as it relates to the year 1999. The Food Commissioner has submitted to this Court that the funds which were required by the Presiding Officer of the case as has been mentioned in his explanation dated 27.5.2013 has already been released and the sample in question, if sent to the Court can be sent for re-analysis and the trial court may proceed accordingly to which learned counsel for the applicant submits that after a lapse of 16 years, no fruitful purpose will be solved in getting the second sample of Mustered Oil retested as the the sample has lost its significance, hence the proceedings against the applicant should be quashed. In support of his submissions, he has placed reliance on the judgment of the Apex Court in the case of Girishbhai Dahyabhai Shah vs. C.C. Jani & another reported in (2009) 15 SCC 64 and has submitted that the present case is clearly a case where the applicant was deprived of opportunity of exercising his right to have second sample examined by the CFL by the conduct of the prosecution. The contention of learned counsel for the applicant appears to have force as the matter is of the year 1993 and after a lapse of more than 16 years, if the second sample is now allowed to be sent for re-analysis , no fruitful purpose will be solved. The sample "Mustard Oil" has lost its significance after so many years, hence the proceedings of the present case be quashed.