Manisana, J.@mdashState has filed this appeal against an order of acquittal dated 30.4.1979 patted by the learned Chief Judicial Magistrate, Cachar, Silcher. The charge against the Respondent is that on or about 21.9.77 at Sichar Town, the Respondent sold adulterated milk and thereby committed an offence punishable u/s 7/16 of the Prevention of Food Adulteration Act, 1954. The accused pleaded not guilty. After the trial the learned Magistrate bat acquitted the Respondent of the charge on the grounds that (1) there has been a delay of one and half months in making the analysis of the milk, and (2) Rule 21 of the Prevention of Food Adulteration Rules, 1955, for short ''''Rules" has been violated.
2. Ext 1 is the notice to the Respondent intimating that the purpose of taking sample was for analysis. In the, notice it is mentioned: "40% Formalin 2 drops per each 25 Ml. added as preservative''''. Ext 3 is the memorandum dated 21.9.1977 respecting the sending of the temple for analysis by the P.W. 1 to Public Analyst, Government of Assam. In that memorandum also, the preservative used it mentioned as "40% Formalin 2 drops per each 25 M". P.W. 1, Food inspector who signed the Exts 1 and 3, stated In the examination-in-chief:" Then every 25 Ml of milk was mixed with two drops of Formalin (40%'')" In view of the discussion above, the preservative used in the present cats was "40% Fomalin" But, under Rule 20 of the "Rules" the preservative to be used In (he cute of temple or any milk is "Formalin" which It a liquid containing about 40% of fomaldehyde in aqueous solution in the proportion mentioned in tbe Rule 20.
3. The Public Analyst received the sample on 23.9.1977. Ext 4 shows that the Public Analyst analysed the milk sample on ''4.11.1977 after about 1 1/2 months from the date of the receipt of the sample. The Public Analyst must examine the temple with due promtitude. However, in some cases delay In the analysis is bound to accur. Therefore, precaution of adding preservative to the sample has to be taken by the Food Inspector. The Public Analyst bat also to take all the necessary precaution for keeping the sample so that the composition of the milk may be maintained, There it no evidence on record that the sample was kept under refrigeration or ice, There is also no certificate of the Public Analyst that the constituents of milk had not changed. Composition of milk undergoes rapid change. In the present case, even the required ''''nature and quantity" of the preservative was also not added, In Dattappa AIR 1951 Nag 191, it was held:
for, it is clear from the opinion of Harvey and Hill, that the composition of milk undergoes a rapid, change unless the milk is either pasteurised or unless it seat under refrigeration. Therefore, it had to be established. that the simples in question were sent under refrigeration. They have lei no evidence to that effect." It was further held:
Boring in mind that the milk was analysed by the Analyat almost a week altar the samples were taken, the absence of the proof of the manner in which the samples were sent and the condition in which the milk was when the samples were received by him detracts in my judgment, from the value of his clarificater.
(emphasis added )
The decision in Dattappa (supra) was followed in Municipal Committee 1952 Cri.L.J. 150 and Jagneswar Sengupta AIR 1964 Tri 48 , In
...the Analyst must also examine the samples with due promtitude ; delays and lapses in this respect are likely to adversely affect the, prosecution case and Indead we have recently come across quite a few cases under this Act which have falled on account of unexplained and unjustified delay in the examination of the samples by the Analysis.
(emphasis added)
4. In view of the discussions above, there was. delay it analysing the sample. As stated above, there is on record to show the precaution taken in sending and keeping the mill.: sample. Over and above the preservative used was "40% Formalin'''' against the provisions in the Rule, 20, which shows that the quality and the quantity of the preservative required under Rule 20 was not added in the milk-sample.
5. In view of the discussion above it will be difficult, in the instant case, to rely on the report of the Analyst for basing conviction. On this ground alone the appeal must fail. Since we are going to dismiss the appeal on this ground, we reserve our views of the effect of violation of the Rule 21 of the "Rules" for some other occassion.
6. In the result, the appeal is dismissed.
