Bedi, J. ( 1 ) THE facts are brief, B. R. Sawhney petitioner was running arestaurant at Ajmal Khan Road, Karol Bagh, Delhi. It is alleged the Food Inspector M. L. Zutshi went to the restaurant at about I p. m. on 22nd January 1962. and after disclosing his identity purchased 24 oz of milk from Prakash Chand manager of the restaurant on payment of 56 P. for analysis. He divided the milk in three equal parts and after adding some formaling in it poured the same in three bottles. One of the bottles was sent to the public analyst, the other was made over to the petitioner and the third was retained by the Food Inspector. The public analyst analysed the simple on 25th, January, 1962 and found -. FAT; 2-8% NON-FATTY solids : on 712%. And on the above basis reported that the sample was adulterated with 20-8% added water and 33 3% fat deficiency according to buffalo standard milk. On receipt of the report, the municipal prosecutor filed a complaint on 7th August, 1962 against the Petitioner and Prakash Chand. The latter could not be served inspite of efforts. The trial Magistrate, therefore, separated the case of Prakash Chand from that of the petitioner. He found the charge proved against the petitioner under section 7 of the Prevention of Food Adulteration Act, convicted him under section 16 of the Act, and sentenced him to fine of Rs. 700. 00 or in default of its payment to under go rigorous imprisonment for three months, vide his order dated 8th March, 1965. The petitioner preferred an appeal which was dismissed by Shri R N. Aggarwal, Additional Sessions Judge, Delhi, on 8th June, 1965. Hence this petition. ( 2 ) THE petitioner in his statement under section 342 of the Criminal Procedure Code admitted that he was owner of the restaurant in question. He, however, denied that Prakash Chand was his salesman or that the milk was purchased from him. ( 3 ) IN order to prove its case, the prosecution examined M. 1. Zutshi. Public Witness. 1, Inder Singh Public Witness. 2 (Assistant Municipal Prosecutor), K. B. Sachdeva Food Inspector Public Witness. 3 Om Parkash peon Public Witness. 4 and Radhey Sham license Clerk, Public Witness. 5. ( 3 ) IN order to prove its case, the prosecution examined M. 1. Zutshi. Public Witness. 1, Inder Singh Public Witness. 2 (Assistant Municipal Prosecutor), K. B. Sachdeva Food Inspector Public Witness. 3 Om Parkash peon Public Witness. 4 and Radhey Sham license Clerk, Public Witness. 5. ( 4 ) THE principal argument of the petitioner s counsel was that the food inspector while taking the sample, did not follow the provisions of sub-sectim (7) of section 10 of the Act, which says that "where the food inspector takes any action under clause (a) of Subsection (1), sub section (2), sub-section (4), or sub-section (6), he shall, as far as possible, call not less than two persons to be present at the time when such action is taken and take their signatures The counsel submitted that two independant persons, as required by the above provision, were not joined by the food inspect or and the only persons who witnessed the action were officials, who were naturally interested in the success of the case. Further, the sample was taken at I p. m. when a large number of persons could be found from the neighbourhood which was a crowded locality but the food inspector satisfird himself by co-opting only the official persons who were K. B. Sachdev food inspector and 0m Parkash peon. This omission, the counsel submitted vitiated the whole proceedings and on this score alone the petitioner was entitled to acquittal. In support of his contention the counsel cited State v. Sadha Singh which was followed by me in Ram Sarup v. The State and is on all fours with the present case. This omission, the counsel submitted vitiated the whole proceedings and on this score alone the petitioner was entitled to acquittal. In support of his contention the counsel cited State v. Sadha Singh which was followed by me in Ram Sarup v. The State and is on all fours with the present case. In that case it was held by me that where in a case in which the accused was tried under section 16 (l) (a) (i) of the Act it was clear from the evidence that there were number of shops in the close proximity of the accused s shop and there were other persons near about the spot at the time when the sample was taken by the food inspecter at about 3 p. m. , but the food inspector did not even care to ask any of those persons to witness the transaction and one of the two persons taken by the food inspector as witnesses was his peon who could not be said to be an independent person and the other person stated that he actually reached after the sample had been taken by the food inspector the provisions of subsection (7) of section 10 had not been complied with, which were mandatory and, therefore, the accused was entitled to acquittal. In this case, the food inspector desposed that he had sent his peon 0m Parkash to bring some independent persons but none was available. It is difficult to accept this statement in view of the fact that the sample was taken in the middle of the day and in a locality which was thickly populated. ( 5 ) IT was further contended that in order to have the report of the analyst superseded the petitioner, under section 13 (2) of the Act, had a right to get his part of the sample examined by the Director of the Central Food Laboratory. ( 5 ) IT was further contended that in order to have the report of the analyst superseded the petitioner, under section 13 (2) of the Act, had a right to get his part of the sample examined by the Director of the Central Food Laboratory. The relevant provisions, however, may fittingly be stated here- "13 Report of Public Analyst (i)****** - (2) After the institution of a prosecution under this Act the accused vendor or the complainant may, on payment of the prescribed fee, make an application to the court for sending the part of the sample mentioned in sub-clause (1) or sub-clause (iii)of clause (e) of sub-section (1) of section 11 to the Director of the Central Food Laboratory for a certificate ; and on receipt of the application the court shall first ascertain that the mark and seal or fastening as provided in clause (b) of sub-section (1) of section II are in tact and may then despatch the part of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within one month from the date oi receipt of the sample, specifying the result of this analysis. (3) The certificate issued by the Director of the Central Food Laboratory under sub-section (2) shall supersede the report given by the public analyst under sab-section (1 ). The counsel submitted that complaint against the petitioner was filed after about seven months from the date of taking the sample during which period his part of the simple had deteriorated and had become unfit for analysis. He therefore, could not exercise this statutory right and if he had been able to do so he might have been able to make the report of the analyst nugatory. I find force in this argument in view of a Division Bench Judgment of this Court in Cr A. No. 30-D/ 1964, Municipal Corporation of Delhi v. Ghisa Ran" decided on 9th November, 1964. ( 6 ) FOR the above reasons, I accept this petition and acquit the petitioner.