Delay in sending the report of the Public Analyst to the accused under Section 13(2) of the Prevention of Food Adulteration Act, 1954, prejudices the accused's right to apply for analysis by the Central Food Laboratory, and the report of the Public Analyst may be unreliable if there is a variation in the milk fat and non-fatty solids due to factors such as the health of the cow and the quality of its food.

B.L. Yadav, J.

1. The present revision under section 397/401 of the Code of Criminal Procedure, 1973 is directed against the order dated 11-5-1982 passed by the Distt. Judge, Agra, dismissing the appeal and maintaining the conviction of the applicant under section 7/16 of the Prevention of Food Adulteration Act, 1954, (for short the Act), and sentenced him for six months and awarded a fine of Rs. 1,000/- and confirmed the order dated 1-9-81 passed by the Munsif Magistrate, I Class convicting the applicant under the aforesaid Sections and awarding the aforesaid sentences.

2. The prosecution case was that on 30-9-1977 the applicant was found selling cow milk. In view of the provisions of Section 10 (Ten) of the Act, the Inspector having reason to suspect the milk an article of food to be adulterated procured the sample according to rule and sent it for analysis. One of the sealed samples was sent to the Public Analyst for analysis vide memo Ext. Ka-5. The Public Analyst sent his report Ext. Ka-6 on 16-11-1977. The fat contents of the milk were found to be 4.3%, non fatty solids were found to be 7.8%. Whereas the standard for cow milk as given in Appendix-B as applicable to this State was milk fat 35% and milk solid non fatty 8.5%. In this way although the fatty solids were found to be more than the prescribed limit and the non-fatty solids were found to be a bit deficient. The sanction for prosecution was granted on 17-1- and the complaint was filed on 5-4-1978. A copy of the report of the Public Analyst was sent to the applicant on 27-7-1978. The prosecution examined PW 1 Sri B. N. Singhal, Food Inspector, PW 2 Mahendra Singh, Sanitary Supervisor and PW 3 Bangali Mal, Food Clerk in the Nagar Mahapalika. Relying upon the prosecution case the applicant was convicted under Section 7/16 of the Act and was sentenced as aforesaid. The applicant has challenged the aforesaid order relating to his conviction and sentence.

Sri Satish Trivedi, learned counsel for the applicant urged that the provisions of Section 13 (2) of the Act read with Rule 9-A of the Rules were violated, inasmuch as the complaint was filed on 5-4-1978 and the report was sent to the applicant after much delay, whereas Section 13 (2) of the Act provides that on receipt of the report and the result of Public Analyst under sub-section (1) to the effect that the article of food was adulterated, the local health authority, after start of prosecution against the person from whom the sample was taken, shall forward a copy of the report of the result of analysis to such person and inform him that if it is so desired, he may make an application to the Court within a period of ten days from the date of receipt of a copy of the report to get the sample of food kept by the local health authority analysed by the Central Food Laboratory. In the instant case the result of the Public Analyst is alleged to have been sent by registered post on 4-5-78 which was denied by the applicant. In this way the applicant was prejudiced. Reliance was placed on Desraj v. State of U. P., 1985 ACrR 161, Puran Singh v. State of U. P., 1978 All India Prevention of Food Adulteration Journal 168, Shatrughan Behra v. Puri Municipality, 1968 CrLJ 123. It was further urged that the report of the Public Analyst indicated that fat contents of the cow milk were found to be 4.8% Whereas in U. P. the milk fat must have been containing minimum percentage of 3.5% whereas non fatty solids were found to be 7.8% and the prescribed standard was 8.5%. In this way the non fatty solids were found deficient.

3. Learned counsel for the State on the other hand 'urged that the conviction and sentence has correctly been recorded. The applicant was not prejudiced and there are no merits in the revision and the same deserves to be dismissed.

4. Having heard the learned counsel for the parties, the principal question for determination is as to whether the applicant was prejudiced on account of delay in sending the report