Judgment

MATHEW, J.:- This appeal, by special leave, is from the judgment of the High Court of Bombay, convicting the appellant under section 16 (1) (a) (I) read with Section 7 (I) of the Prevention of Food Adulteration Act (Act 37 of 1954), hereinafter called the Act , and sentencing him to undergo R. I. for 6 months and pay a fine of Rs.1,000/- and, in default of payment of fine, to undergo R. I. for a further period of two months.

2. The appellant was the owner of a sweet meat shop on Kurla-Andheri Road, Bombay, On July 1, 1965, the Food Inspector of the Bombay Municipal Corporation visited his shop at 9.55 A.M. and took a sample of unboiled buffalo milk after conforming to the formalities enjoined by the Act. The Food Inspector divided the sample into three parts, retained two parts with him and delivered the other part to accused No. 2, who alone was in the shop at the time. The Food Inspector sent one part for analysis by the Public Analyst. Exhibit B is the report of the Analyst. That showed the fat content of milk as only 2.7 per cent instead of 6 per cent as required by the rules framed under the Act. On the basis of the report the accused were prosecuted.

3. Accused No. 1, the appellant, admitted that he was the owner of the shop and that accused No. 2 who actually sold the milk to the Food Inspector was his nephew. As the whereabouts of accused No. 2 could not be traced, the case as against him was dropped.

4. The Magistrate acquitted the appellant. His reasoning was as follows: the sample was taken on July 1, 1965; the complaint was filed on August 13, 1965, summons was served on the appellant on November 13, 1965; the date for appearance of the accused was on November 26, 1965; the right to apply to the Court to have the part of the sample delivered to the Vendor sent for analysis by the Director, Central Food Laboratory, Calcutta, hereinafter referred to as the "Director", accrued to the appellant only when the summons was served on him; since by that time the sample would have become decomposed, he lost the valuable right to have the part of the sample delivered to the vendor analysed by the Director and so, the appellant should be acquitted.

5. The High Court, on appeal by the Food Inspector reversed the order of acquittal. The High Court held that the appellant was bound to make an application under Section 13 (2) of the Act after paying the prescribed fee and as no such application was filed by the appellant, it could not be said that the appellant had been deprived of any valuable right. And as the fat content of milk was deficient by 55 per cent, the food was adulterated and so, the appellant was guilty of the offence.

6. In this appeal, counsel for the appellant contended that the appellant was deprived of his right to have the sample analysed by the Director on account of the delay in the service of summons. He said that the appellant was acquitted by the Magistrate because the Magistrate found that on account of the delay it would be a futile exercise to have sent the sample for analysis to the Director and as the laches of the complainant was the reason for the delay in the service of summons and the proximate cause of the appellant losing his right to get the part of the sample delivered to the vendor analysed by the Director, the appellant was entitled to be acquitted. He relied on the decision of this Court in Municipal Corporation of Delhi v. Ghisa Ram, (1967) 2 SCR 116 to support his contention. We do not think that the case would in any way assist the appellant In that case, the part of the sample delivered to the vendor had been sent to the Director on the application of the vendor but, the Director reported that the sample the become highly decomposed and could not be analysed. It was not disputed in that case that the Food Inspector had not taken the precaution of adding the necessary preservative to the sample. So the Court held that the valuable right given to the vendor under section 13 (2) of