Aniruddha Bose JUDGMENT
Deepak Gupta, J.
1. Leave granted.
2. On 30.10.1995 a sample of milk was collected from the Appellant by the Food Inspector. The same was sent to the Public Analyst who received the same on 02.11.1995. The sample was analysed and Milk Fat (MF for short) was found to be 4.6% and Milk Solid Non-Fat (MSNF for short) was 7.7%, against the prescribed standard of 8.5%. The Appellant was prosecuted after obtaining consent of the Chief Medical Officer, and was convicted by trial court, which conviction was upheld by the Sessions Court and the High Court.
3. Learned Counsel for the Appellant raised number of issues. The first was that there was delay in analysing the sample and, therefore, marginal shortfall in MSNF should be overlooked, since it would have been caused by the delay in testing the sample. We cannot accept this contention because there is no material on record to support this assertion. The Appellant did not even deem it fit to summon the Public Analyst for cross-examination for this purpose. In similar circumstances where the delay in testing the samples was of 44 days, this Court in Shambhu Dayal v. State of U.P. 
MANU/SC/0164/1978 : (1979) 1 SCC 202 held that since the sample had been preserved by using formalin, as in the present case, the Accused cannot get any benefit.
4. The second contention raised was that the provisions of Section 13(2)1 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) were not complied with in as much as the Appellant was not given an opportunity to send his second sample to the Central Food Laboratory (CFL for short) for analysis. This argument is also without any merit. All the courts have given a finding of fact that notice Under Section 13(2) of the Act was sent to the Appellant on 18.02.1996. The Appellant did not choose to exercise his option to get his sample analysed by the CFL. Learned Counsel for the Appellant urges that this option was given to him three months after the sample had been taken and the second sample would have obviously become unfit for analysis. It is also contended that the complaint filed on 15.02.1996 was defective and the defects were removed only on 27.06.1996 and, thereafter, no option Under Section 13(2) of the Act was given. This argument is totally without any merit. The Appellant was given an option to have the second sample sent to the CFL when the Magistrate took cognizance of the complaint. The complaint may not have been complete in the sense that the list of witnesses was not filed but this, in any way, did not impact the right given to the Appellant to get the second sample analysed from CFL. If the Appellant had exercised his option and the Magistrate had not sent the second sample to the CFL, or if the CFL had reported that the sample is not fit for analysis, then alone the Appellant could have got some benefit. The Appellant waived his right by not applying to the Magistrate for sending the second sample for analysis to the CFL, and........