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2-3. The prosecution case as is revealed from the evidence of the Food Inspector Shantilal Vidyashankar Pandya P.W. 1 Ex. 2 is that on the morning of December 31, 1965 at about 9-30 a.m., while he was standing near Maninagar with his peon ahmad, he had seen the accused going with the milk pot containing about one maund of milk. He called one Bhagwandas to be present at the time of his taking the sample and then asked the accused to stop. He enquired of the accused the quality and usual rate of the milk. The accused told him that it was cow's milk and quoted the rate at 0.08 Paise per 100 ml. He then purchased 700 ml. Of milk from the accused on payment of 00.56 Paise as its cost and informed him that he was a food inspector and the purpose of his taking the milk was to get it analysed by the public analyst. He served upon the accused a notice in the prescribed Form VI under Rule 12 of the Prevention of Food Adulteration Rules, 1955, and he took the thumb impression at the accused on the original and gave him the carbon copy. He then separated the milk (sample) in three dry clean bottles and added formalin as a preservative and then got the bottles sealed and labelled. The labels were signed by him and the panchas. He then wrapped each bottle separately in a thick paper and secured the paper cover by means of a strong twine and sealed it. He and the panchas signed the wrappers. He then delivered one of the parts to the accused who gave the receipt Ex. 4. He then sent the sample to the public analyst along with the memo and a specimen impression of the seal. The report of the public analyst D.G. Vyas Ex. 5 dated January, 24, 1966, stating that the sample of milk which was caused to be analysed by him contained 3.5% of fat. 7.3% of solids other than milk fat and addition of 14% of water was received by the food inspector. He then obtained the necessary sanction to prosecute the accused on receipt of which he instituted the complaint against the accused on May 17, 1966.

19. In the block "Food Inspection and Analysis" by Leach and Winton, 4th Edition at pages 162 and 163 under the caption "preservatives" are to be found the following useful passages:-

"In most States and municipalities where pure food laws are in force preservatives in milk are regarded as adulterants. Their use, however, seems to be on the decrease of 6.186 samples of milk examined by the Massachusetts State Board of Health during one year (1898) 71 samples or 1.2% were found to contain a preservative. Of these 55 were found with formaldehyde, 13 containing boric acid, borax or a mixture of the two, and 3 contained carbonate of soda.

27. Mr. P. D. Desai had urged that the question a to whether Rule 20 is mandatory or not was concluded by the decision of a Division Bench of this High Court consisting of J. B. Mehta and A. D. Desai. JJ. In Criminal Appeal No. 752 of 1967 decided on February 17, 1969. The Division Bench was in the case dealing with an appeal against the order of acquittal of the accused for the offence under Section 7(i) read with Section 16(1)(a)(i) of the Act which was passed by the learned Sessions Judge. Bhavnagar, who had set aside the order of conviction and sentence passed against the accused by the learned Judicial Magistrate, First Class, Bhavnagar. The prosecution of the accused was for he having sold adultereated cow's milk to the Food Inspector of the Bhavnagar Borough Municiaplity, the sample having been taken in the presence of the panch witness and after complying with the relevant provisions of the Act and the Rules, the Food Inspector having then added 48 drops of formalin in the 700 ml of milk sample and divided it into three equal parts and filled the parts in three separate bottles and sent a part of the sample to the public analyst with a memorandum letter, which sample on analysis being made was found to contain total solids 9.7% of which fat contents were 3.6 % and solids other than milk fat were 6%. The opinion of the public analyst was that the sample labelled cow's milk did not conform to the prescribed standards laid down under rule No. A.11, 01.01 of the Prevention of Food Adulteration Rules, 1955 and thatit contained extraneous water 28.1%. the learned Sessions Judge had acquitted the accusd on the ground that the panch witness who was trested as a hostile witness did not support the prosecution case and in absence of any independent corroboration, the charge could not be brought home to the accused solely on the evidence of the complainant Food Inspector. The Division Bench disagreeing with this view of the learned Sessions Judge on merits was of the opinion, that the evidence of the Food Inspector was natural and as laid down by the Supreme Court in State of Bihar v. Basawan Singh , AIR 1958 SC 500 and Dalpatsing v. State of Rajasthan AIR 1969 SC 17, page 20, even without any corroboration from the evidence of the panch witness, the evidence of the food inspector can be safely acted upon. The Division Bench referred with approval the observations of Sarela J., in (1967) 8 Guj LR 588 = (AIR 1968 Guj 88) (supra) wherein the learned Judge has considered the scheme of Section 10(7) of the Act and observed that acceptance of the food inspector's story was not by the Act or the Rules made dependent on the person supporting the story in the Court of law that the Court must decide that point on the facts placed before it and if on those facts the Court ame to the conclusion that the food inspector did keep the panch present at the time action was taken as contemplated by Section 10(7) and did take his signature, that sub-section must be held to have been complied with that the proof of these facts or the discharge of that function is not dependent on the readiness and willingness of the panch concerned and cannot rest on his dictates and that having regard to the built-in-guarantee against tampering envisaged by law, the accused is by law furnished with the means of exposing any attempt at tampering. The Division Bench thus took the view that in the case before it they would not agree with the learned Sessions Judge in discarding the evidence of the food inspector on the ground that the panch witness did not support the food inspector. The Division Bench then considered the difficulties which arose in the way of the prosecution in the matter. To use the language employed by the Division Bench:

The observations fortify the view which I am inclined to take in the matter. In my opinion, in case of a milk sample, the non-mixing of sufficient quantity of preservative might make the sample unfit for analysis and examination in a given case, but that by itself cannot bring about a reduction in the fact or non-fat solid contents of the sample of milk.

29. This will take me to the question as to whether delay in the institution of the prosecution per se cause prejudice to the accused and vitiates the trial. It was urged by M/s. P. D. Desai and H. K. Thakor that delay in instituting the complaint causes failure of justice in so far as a valuable right which is conferred upon the accused-vendor under Section 13(2) to have the sample ssent to the Director of the Central Food Laboratory to be examined and certified is likely to be lost in the event the prosecution being launched after delay. Now, the question whether the delay in the institution of the complaint is reasonable and explainable and has any adverse effect on the right of the accused under sEction 13(2) of the Act is essentially a question of fact to be decided on the merits of each case. Delay per se is no ground to vitiate a trial, for delay may be occasioned because of a variety of explainable reasons. Some delay is inherent in the very nature of things, as the sample has to be sent to the public analyst, his report of the analysis is to be received, and the sanction of the competent authority is to be obtained before the complaint can be instituted. The same question appears to have been considered by Sarela, J. In (1967) 8 Guj LR 588 = (AIR 1968 Guj 88) (supra), where the learned Judge has taken the view that the question was one of fact, Mr. H. K. Thakore had contended therein that the delay in the institution of the prosecution must by itself be treated as fatal because the Act contemplates early prosecution. Mr. H. K. Thakor seems to have relied on Rule 7(3) and Rule 4(5) of the Rules and urged that what was required of the public analyst or the Director of Central Food Laboratory as the case may be was to supply the certificate forthwith and that indicated the anxiety on the part of the legislature to see that the prosecutions are instituted as early as possible. Sarela J., has observed that the point was not raised in the lower Court and no facts were sought to be brought on record which would go to show that the period taken in instituting the prosecution was unreasonable and that it was not possible to hold on the evidence that there has been such a delay in the case as to affect the weight to be attached to the report of the public analyst. Mr. P. D. Desai had here first invited my attention to the decision of the Supreme Court in Municipal Corporation of Delhi v. Ghisa Ram AIR 1967 SC 970, wherein it has been, inter alia, held that if because of any inordinate delay in launching the prosecution, a sample becomes decomposed and it is impossible to have it analysed by the Director of the Central Food Laboratory, the accused is deprived of a valuable right conferred by Section 13(2), the conviction of the accused cannot be sustained. Relevant observations to be found at page 971 of the report may with benefit be reproduced hereunder:-