Delay in analysis and filing of charge-sheet, and technical flaws in sample collection and preservation, do not necessarily render the Public Analyst's opinion unreliable, unless there is evidence to suggest that these factors have affected the analysis.

SHARFUDDING AHMED, J.

( 1 ) THIS appeal is directed against the order of the Judicial First Class Magistrate, Kurnool dated 20/09/1960 in C. C. No. 73 of 1960, acquitting the respondent herein of a charge under Section 7 and 16 (1) read with Section 2 (1) (a) and rule 44 (B) of the Prevention of Food Adulteration Act (Act 37 of 1954), hereinafter called the Act.

( 2 ) THE respondent was charge-sheeted by the Municipal Health Officer, Kurnool, under the provisions of the Act alleging that on 15-10-1959 at about 6-30 a. m. he was found in possession of adultered cow milk, which he was carrying for the purpose of sale. It is stated that three-fourth seer of milk was taken from the respondent with the usual formalities and sent to the Public Analyst on 20-10-1959. The Public Analyst gave the opinion (Ex. P-4) that the milk was adultered containing 11% of added water. The opinion was given on 14/05/1960 and subsequently a charge-sheet was laid against the respon1960. The respondent pleaded not guilty.

( 3 ) THE learned Magistrate examined the Sanitary Inspector and one more witness and found the accused not guilty mainly on the ground that there was inordinate delay in the analysis of the sample sent and also in filing of the charge-sheet. It is against this order that the appeal has been filed.

( 4 ) THE facts beyond controversy are that on 15-10-1959 a sample of cow milk was purchased from the respondent and according to the opinion of the Public Analyst it was found to be adultered within the meaning of the word used in the Act. The only contention put forth was that as the opinion was received on 14-5-1960 there was inordinate delay in the conduct of the analysis and, therefore, no weight could be attached to the opinion of the Public Analyst. The next contention has been that according to the rules eight ounces of milk had to be sent to the Public Analyst whereas the quantity of milk that seems to have been sent is only four ounces. Lastly it is urged that the necessary quantity of preservative has not been added. The learned Magistrate with reference to these technical flaws relying on the decision in Dattappa v. Secy. Buldana Municipality, AIR 1951 Nag 191, has come to the conclusion that the prosecution is untenable.

( 5 ) IT is to be noted with reference to the last two objections that the Public Analyst has not complained in his report, Ex. P-4 that sufficient quantity of the sample was not supplied nor that it did not contain the required amount of preservatives. Secondly there is nothing on record to show that the analysis was completed on 14/05/1960 i. e. , the date on which the report was compiled. No doubt if as is apparent from Ex. P-4, the report was completed on the date on which the analysis has taken place, it could be urged that there was inordinate delay, which might have resulted in the deterioration of the sample and consequently the result was not to be relied upon. But, as stated above, there is nothing to warrant the conclusion lysis was conducted on 14/05/1960, the date on which the report was prepared. The rules do not contain any direction to the Public Analyst to analyse a sample with a particular period, but the presumption is that in view of the fact that the samples that are sent to him are of a perishable nature, the analysis would be normally conducted as expeditiously as possible. The idea of adding preservatives is not to prolong the life of the sample indefinitely but to keep it in its original state, for a limited period. It would therefore, be presumed that the analysis had been conducted soon after the sample was received. The delay in compiling the report does not necessarily mean that the analysis was also delayed. The learned Magistrate, I think, was not justified in concluding that the analysis of the sample was conducted on the date on which the report was drafted. If he had any doubt in regard to that aspect he could have examined the Public Analyst or got a clarification from him. So

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