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BRIEF FACTS The prosecution case in brief is that on 30.11.92 at about 10.30 am Food Inspector Sh Prem Nath Khatri purchased a sample of full cream milk for analysis from appellant Rajkumar at Royal Bakers, 32­A Ramesh Nagar, New Delhi where the said food article was found stored for sale for human consumption. The appellant was also found conducting the business in the said shop. Out of the sample milk taken after alleged proper homogenization by cutting open poly packs, Food inspector divided the sample into three equal parts and put it in three bottles and 20 drops of formalin were also added in each bottle. One of the counter part of the sample was sent to the Public Analyst who gave his report stating that the milk was adulterated. Thereafter one of the accused persons exercised the right under section 13(2) of PFA Act and the second counter part of the sample was sent to Director CFL Mysore for analysis who also found it to be adulterated. After obtaining the sanction for prosecution from competent authority the complaint was filed against both the appellants as well as against M/s Nagar Milk Products.

In Gopi Ram v. The State of Haryana 1987 (I) FAC 153 (P & H), it was observed as follows:

"4. The petitioner was served on March 21, 1979 for, appearance in Court i e. exactly four months after the date on which, the sample was taken In the wake of, the above finding, it is only after March 21, 1979 that the, Petitioner could be expected to apply to the Court for sending the second sample for re­analysis. A period of four months having already elapsed, the sample of milk could not have remained fit for analysis. The learned counsel has placed reliance upon the observation of Their . Lordship of the Supreme Court in Municipal Corporation of Delhi v, Ghisa Ram, 1975 (I) FAG 186 as followed by this Court in Resham Singh v. The State of PunJab, 1972 FAC 732 that even if a preservative is added in the sample of milk at room .temperature, the percentage of fat and ­non­fatty, solids contents for purposes of analysis will be retained only for about four months. This period having already elapsed, it has been rightly argued that petitioner was deprived of his valuable right causing him serious, prejudice. "

In Sheikh Abdul v. State of Maharashtra 1986 (III) FAC 122 (Bom), it was observed as follows:

"2. ............The usual procedure was followed. One of the samples of the milk was sent to the Public Analyst and his Report was received by the Local Health Authority on 5­2­1980. The Authority, however, dragged its feet for the full period of 4 months further and did not institute prosecution before 7­6­1980 and thereafter on 9­6­1980 a notice was given by the local authority to the petitioner under section 13 of, the Food Adulteration Act informing him that he was at liberty to send to the Director of Central Food Laboratory another sample of milk. There is a dispute as to whether such a notice was received by the petitioner or not. But the lower Court has recorded a finding in that behalf and I find no reason to disagree with the same. The fact, however, remains that at the most the petitioner would have asked for the 2nd sample to be sent to the Director, by making an application in that behalf on or before 19­6­1980. The sample would have been thereafter sent to the Director. This means that the sample of the milk would be reaching the Director long after the expiry of the period of 6 months. From the very nature of things, the milk could not remain undecomposed for that much of period, exceeding even 6 months. There is no evidence in this case that the milk was kept in the cold storage. The only contention is that preservative was added. It has been held by our Court in 1982, Maharashtra Law Journal p.181 that even assuming that the preservative was added, the normal course is that the milk would get decomposed and it is futile to send the sample for analysis after that period. In these circumstances, the normal presumption would be that the milk must have been decomposed. If the Department wanted to prove that the milk had remained in tact even after such a longer period, it was for the prosecution to prove that fact by examining proper experts in that behalf."

It is not disputed that the milk or milk sample is perishable item and by the addition of Formaline the milk sample can be preserved for a limited period. When the milk sample is analysed by Director CFL after more than 7 1/2 months when the sample has lost utility for analysis and was not fit for analysis the valuable right given by the legislature to the appellants under section 13 (2) of the PFA Act is lost and hence denied to them. The sending of sample for analysis to Director CFL after such a long period was a useless exercise with no evidentiary value attached to the Certificate issued by Director CFL. Therefore, in the light of the above case law the appellants are entitled to benefit of the fact that on account of denial of the said right to them for challenging the report of the Public Analyst by exercising the right under section 13 (2) Of the PFA Act the prejudice was caused to them.