S.C.Mittal, J. - (1.) On 28th June, 1961, Food Inspector Devi Dass took sample of cow's milk from Behari Lal in accordance with the procedure provided by the Prevention of Food Adulteration Act. The sample was divided into three bottles which were duly stoppered and sealed. One of the bottles was given to Behari Lal. The second was sent to the Public Analyst and the third was kept by the Food Inspector. Upon analysis, the Public Analyst sent his report Exhibit P.F. dated 4th July, 1969, to the effect that the sample was of adulterated milk, for the milk fat therein was 3.4 per cent instead of 4 per cent. Upon conclusion of the trial of the complaint filed by the Food Inspector, the Magistrate convicted Behari Lal under section 16(1)(a)(i) of the Act aforesaid and imposed the minimum punishment prescribed by the Act. The appeal filed by Behari Lal was accepted by the Additional Sessions Judge, Amritsar, and his conviction and sentence were set aside. Against the order of acquitial, the Municipal Committee, Amritsar has preferred the present appeal.
(2.) The finding of the Additional Sessions Judge that formalin was not added to the sample of milk has been assailed before us. Lakhmi Dass who attested the memo as to the taking of sample let down the complainant by deposing that the sample had been taken before his arrival on the scene. Hence, he was got declared hostile and cross-examined on behalf of the complainant. The remaining two witnesses, the Food Inspector, above-named, and Jagan Nath, Sanitary Inspector, deposed to the putting in of 18 drops of formalin in the sample. The view of the Additional Sessions Judge that because these witnesses were interested in the success of the complaint, they could not be safely relied on is untenable. Interested-ness by itself cannot be a ground to reject the evidence of a witness, but what is required is careful scrutiny. If the evidence is found infirm, the Court may, as a matter of caution, look for corroboration. In Babulal Hargovindas Vs. State of Gujarat, 1972 F.A.C. 18, their Lordships laid down that it is not a rule of law that the evidence of the Food Inspector cannot be accepted without corroboration. Their Lordships further observed that the evidence of the Food Inspector, if believed, can be relied on. Devi Dass, Food Inspector as P.W. 1 deposed that he added 18 drops of formalin preservative to each sample bottle. On this crucial fact, the Food Inspector was not at all cross-examined. However, learned counsel for Behari Lal pointed out that according to Sanitary Inspector Jagan Nath (P.W. 3) it was the Jamadar of the Food Inspector who added formalin to the sample. This discrepancy, in no way, demolished the material fact that formalin was added to the sample. It will not be out of place to mention here that in his statement under section 342, Criminal Procedure Code, Behari Lal, who was admittedly present at the relevant time, did not deny this fact. He tried to wriggle out by stating that he remained busy attending to his customers. It does not seem plausible that Behari Lal would be so unconcerned when sample was being taken at his shop. The Additional Sessions Judge did not at all take into account the circumstances discussed above. His finding based on the solitary reason that the two witnesses, being interested, were unworthy of credence cannot be sustained. As regards, the contention of learned counsel for Behari Lal that the record did not show that formalin of prescribed standard was added to the sample suffice it to say that in memo Exhibit P.C., prepared by the Food Inspector, it is stated that formalin of prescribed standard was used as a preservative.
(3.) The next reason on which the impugned order of acquittal stands is that the delay in the institution of the complaint deprived Behari Lal of his right under section 13(2) of the Act to get either of the other two samples tested by Director of the Central Food Laboratory. Reliance was placed on Single Bench decision of this Court in Mehar Chand Vs. The State, 1970 P.L.R. 1009, in which the bare delay of two months and two days in launching the prosecution resulted in acquittal. Mehar Chand's case (supra) was considered at length by a Division Bench of this Court in Municipal Committee, Amritsar Vs. Karam Singh, 1972 F.A.C. 309. The learned Judges disagreed with the view expressed in Mehar Chand's case and held:- "The delay in instituting the prosecution is per se not a ground that will vitiate the trial. No hard and fast rule can be laid down that after the expiry of a certain period, a certain foodstuff, even after the addition of formalin or other preservative, becomes decomposed and unfit for analysis, with consequent frustration of the right of the accused to get the sample with him, tested by the Director, Whether delay has resulted in failure of justice, depriving the accused of his aforesaid right under section 13(2) is basically a question of fact turning on the circumstances and merits of each particular case." We are in respectful agreement with the decision of the Division Bench. We would like to add that in Babulal's case (supra), their Lordships of the Supreme Court observed that the defence that the accused had been deprived of his right under section 13(2) due to delay in launching the prosecution was not open when the accused did not file the application under section 13(2) during the trial and there was no evidence to show that no preservative was added to the sample. Babulal's case was followed in Ajitprasad Ramkishan Singh Vs. State of Maharashtra, 1972 F.A.C. 545.;