Judgment S.N.P.Singh, J. 1. This appeal under Sec. 417(3) of the Code of Criminal Procedure is directed against the judgment and order of acquittal dated the 20th of July. 1965, passed bv Mr. A Ahad, Judicial Magistrate, 1st Class, Patna, in case No. 628 D B./64./Tr 228/65 2. In the above mentioned case respondent Baiju Lal was prosecuted for having committed an offence under Sec.16(1) (a) of the Prevention of Food Adulteration Act, hereinafter referred to as "the Act" It was alleged by the prosecution that on the 14th of June, 1964. Ramji Prasad Sinha (P. W. 1), the Food Inspector, visited the shop of the respondent in village Manpura, police station Digha in the district of Patna and found him selling mustard oil. The Food Inspector took sample of the mustard oil, which was being sold by the respondent, and sent the same to the Public Analyst, Patna The Public Analyst on examination found the mustard oil adulterated with linseed oil and sent a report. Thereupon the Food Inspector submitted a report to the District Municipal Officer of Health and the latter sanctioned prosecution of the respondent. A prosecution report was ultimately filed by the District Medical Officer of Health in the court of the Subdivisional Magistrate, Sadar, Patna. The learned Subdivisional Magistrate took cognizance and thereafter the trial was held in the court of the judicial Magistrate. 3. The respondent denied the fact that he was selling mustard oil on the 14th of June, 1964, as alleged by the prosecution. He took the stand that he had actually no shop on the 14th of June, 1964. 4. In support of its case, the prosecution examined the Food Inspector (P. W. 1) and one Baijnath Prasad (P. W. 2), a vaccinator of the District Board. Some papers including the report of the Public Analyst (Exhibit 4) were also filed on behalf of the prosecution. The defence neither examined any witness nor filed any document 5. In the trial court a number of points were taken on behalf of the defence. Some papers including the report of the Public Analyst (Exhibit 4) were also filed on behalf of the prosecution. The defence neither examined any witness nor filed any document 5. In the trial court a number of points were taken on behalf of the defence. The learned magistrate acquitted the respondent on the following grounds, namely, (a) that the Inspector committed a great error in not taking the signature of the accused as well as the prosecution witnesses on the bottle (Exhibit 1), and (b) that the provisions of Sec.10(7) of the Act were not complied with inasmuch as two persons of the locality were not called to be present at the time when the sample was taken. Besides the aforesaid two grounds, the learned magistrate also pointed out certain discrepancy in paragraph 11 of his judgment about the date or dates of visit of the Inspector to the shop of the respondent. In view of the discrepancy the magistrate took the view that the prosecution case was suspicious. 6. In the Act itself or under the Rules framed thereunder there is no provision for taking the signature of the accused or the witnesses on the bottle in which the sample is kept. The failure of the Inspector, therefore to take the signature of the accused and the witnesses on the bottle cannot, therefore, be held to be a lacuna in the prosecution case justifying the acquittal of the respondent. A particular Inspector may, as a measure of caution, take the signature of the witnesses or the accused on the bottle in which the sample is kept but it will be going too far to hold that the Food Inspector must do it in every case. In my opinion, the first ground given by the learned magistrate for doubting the prosecution case is not at all relevant. 7. The next question which falls for consideration is whether there has been a non-compliance with the provisions of Sec.10(7) of the Act, and, if so whether such a non-compliance can be made a valid ground for throwing the prosecution case. 7. The next question which falls for consideration is whether there has been a non-compliance with the provisions of Sec.10(7) of the Act, and, if so whether such a non-compliance can be made a valid ground for throwing the prosecution case. Sub-section (7) of Sec.10 of the Act, as it stood before the amendment, read as follows: "Where the food inspector takes any action under Clause (a) of Sub-section (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 signature." By Act 49 of 1964, which came into force from the 1st of March, 1965, the words "as far as possible" were deleted. As the amendment came into force from the 1st of March, 1965, the provisions of Sub-section (7) of Sec.10, as it stood before the amendment, were applicable on the 14th June, 1964, when the sample of mustard oil was taken by the Food Inspector. According to the interpretation put forward by the magistrate, "as far as possible" occurring in Sub-section (7) of Sec.10 of the Act could be stretched to mean that the Inspector should make all efforts to call two persons of the locality. As the Inspector did not do so and did not ask even four or five customers, who were present in the shop, to witness the taking of the sample, the provisions of Sec.10(7) of the Act were not complied with. In the case of Patna Municipal Corporation V/s. Dularchand Sao, AIR 1964 Pat 565 a similar point arose for consideration. In that case also it had been contended that the sample had not been taken by the Food Inspector in presence of two independent persons of the locality. It was held in that case that the requirement of calling not less than two persons to be present at the time when such action is taken is not imperative in every case in view of the use of the expression "as far as possible" made therein. What is necessary is that wherever possible, the presence of at least two persons should be secured. What is necessary is that wherever possible, the presence of at least two persons should be secured. It was further held that the purchase of the sample cannot be held illegal simply because the witnesses in whose presence the purchase was made were not inhabitants of the locality in which the shop was situate. The only requirement is that the wit-nesses must be respectable witnesses. It appears that the attention of the magistrate was not drawn to the decision of our own Court. The decision, referred to above, fully meets the second ground given by the learned magistrate for rejecting the prosecution case. I do not consider it necessary to further go into the question I must state, however, that in the instant case also the sampla was taken in presence of two witnesses, namely, Baijnath Prasad (P. W. 2), a vaccinator of the District Board, and Rajendra Prasad (P. W. 3), a disinfector of the District Board. The responsibility of these two witnesses cannot be questioned and indeed has not been questioned. There was thus substantial compliance with Sec.10(7) of the Act. 8 The discrepancy pointed out by the learned magistrate in paragraph 11 of his judgment does not appear to be vital. In my opinion, the magistrate should not have used the record of the other case in finding out whether there was a discrepancy between the evidence of the witness in the present, case and the date given in that case about the visit or visits of the Food Inspector to the shop of the respondent. In all fairness, the attention of the Food Inspector should have been drawn by the defence or by the court to the particular document in the record of the other case which indicated that the Inspector had visited the shop of the respondent on a different date and had demanded licence from him. I am not convinced by the reasoning of the magistrate as given in paragraph 11 of his judgment. 9. In my opinion, the acquittal of the respondent is not justified on any of the three grounds given by the learned magistrate. 10. Mr. A. K. Dutta, learned counsel appearing for the respondent, took two more points while arguing the appeal. I am not convinced by the reasoning of the magistrate as given in paragraph 11 of his judgment. 9. In my opinion, the acquittal of the respondent is not justified on any of the three grounds given by the learned magistrate. 10. Mr. A. K. Dutta, learned counsel appearing for the respondent, took two more points while arguing the appeal. He contended, in the first place that then has been a non-compliance with Rules 7 and 18 of the Prevention of Food Adulteration Rules inasmuch as it was the duty of the Public Analyst to compare the seals on the phial with the specimen impression received separately and to note down the condition of the seals thereon According to Rule 18, a copy of the memorandum and a specimen impression of the seal used to seal the sample have to be sent to the Public Analyst separately by registered post or delivered to him. The report of the Public Analvst shows that he found the seal intact and unbroken. Exhibits 3 and 3/1 show that the sample of mustard oil duly packed and sealed together with memorandum and specimen of the seal were sent to the Public Analyst for examination and report The contention of learned counsel appearing for the respondent, therefore, that the provisions of Rules 7 and 18 were not complied with cannot be entertained. It was not argued in the trial court that there had been contravention of those rules. In my opinion, the materials on the record show that the provisions of Rules 7 and 18 were substantially complied with. 11. Mr. Dutta next contended that the report (Exhibit 41 of the Public Analyst show? that there was only a trace of linseed oil in the sample of the mustard oil which was sent for analysis According to learned counsel it is just possible that the mustard oil was kept in a container in which linseed oil used to be kept. This contention is also without any substance. The report of the Public Analyst shows "Hexabro-mide test for linseed oil-positive strongly". According to the opinion of the Public Analyst, the sample was adulterated with linseed oil. It is difficult to accept the contention of learned counsel that only a trace of linseed oil was found in the sample of mustard oil. 12. The report of the Public Analyst shows "Hexabro-mide test for linseed oil-positive strongly". According to the opinion of the Public Analyst, the sample was adulterated with linseed oil. It is difficult to accept the contention of learned counsel that only a trace of linseed oil was found in the sample of mustard oil. 12. In the end, learned counsel submitted that as the Food Inspector took the sample in Chataks and not in ounces, his evidence should be rejected I am not impressed by this argument. Simply because the Food Inspector took the sample in Chataks, the prosecution case cannot be thrown out. It is not the contention of the respondent that the requisite quantity of mustard oil for analysis was not sent to the Public Analyst. As long as the requisite quantity of the sample is taken, it is immaterial whether it is taken in Chataks or in ounces. I may mention here that under the old rules, which were applicable at the relevant time, four ounces of the sample of mustard oil had to be sent to the Public Analyst but in fact more than four ounces were sent to him, No other point is involved in this appeal. 13. The fact that the respondent was selling mustard oil on the 14th June, 1964, has been proved by P Ws. 1 and 2 and I find no adequate reason to disbelieve their evidence on that point. The defence of the respondent that he had closed his shop is not supported by any evidence on the record. I have no hesitation in arriving at the finding that Ramji Prasad Sinha (P W 1) took the sample of mustard oil which was being sold by the respondent on the 14th June, 1964, and that sample was found to be adulterated by the Public Analyst The irresistible conclusion, therefore, is that the respondent in contravention of Section 7(1) of the Act was selling the mustard oil which was adulterated. The respondent therefore, was liable to be convicted under Sec.16 (1) (a) of the Act Accordingly I hold the respondent guilty under Sec.16 (1) (a) of the Act and convict him thereunder 14. It appears that the respondent was convicted and sentenced to pay a fine of Rs. The respondent therefore, was liable to be convicted under Sec.16 (1) (a) of the Act Accordingly I hold the respondent guilty under Sec.16 (1) (a) of the Act and convict him thereunder 14. It appears that the respondent was convicted and sentenced to pay a fine of Rs. 20 on the allegation that he- was running the shop without a licence That conviction of the respondent cannot be taken into consideration for giving an enhanced punishment There is nothing on the record to show that the respondent was ever convicted for having contravened the provisions of Section 7(1) of the Act In that view of the matter, the contravention in the present case will be taken to be the first offence of the respondent In my opinion, on the facts and circumstances of the present case, the ends of justice will be met by sentencing the respondent to pay a fine of Rs. 250, in default, to undergo simple imprisonment for one month. 15. In the result, the appeal is allowed, the order of acquittal is set aside and the respondent is convicted under Sec.16(1) (a) of the Act and sentenced to pay a fine of Rs 250, in default, to undergo simple imprisonment for one month.