JUDGMENT D.S. Mathur, J. - This is an appeal by the Nagar Swasthya Adhikari of the Nagar Mahapalika of Agra against the order dated 28-2-1966 of the Magistrate First Class, Agra, acquitting the respondent, Jawahar Singh, of the offence punishable under Section 16 of the Prevention of Food Adulteration Act for contravention of Section 7 thereof. 2. The material facts of the case are that on 30-3-1965, at about 10.30 a.m., Kunwar Singh (P. W. 1) , Food Inspector, was out on checking duty in Mohalla Motibagh Jamuna Bridge within the limits of the Nagar Mahapalika Agra. He found the respondent, Jawahar Singh, selling milk from his Tanki. On inquiry he told the Food Inspector that it was goat's milk. After serving notice under Rule 12 of the Prevention of Food Adulteration Rules on the respondent, he obtained a receipt Ex. Ka. 1, bearing the left thumb mark of the respondent. The Food Inspector purchased 24 ounces of milk for the purpose of sample, after paying .45 Paise for the same and obtained the receipt Ex. Ka. 2. He then divided the purchased milk in three parts, kept each part in a bottle and mixed 16 drops of 40% strength of formalin to each. Thereafter, he sealed the bottles and placed the prescribed labels. The bottles were then resealed and one of them was given to the respondent and the other two were deposited with the Nagar Swasthya Adhikari. One of these two bottles was sent to the Punblic Analyst, Lucknow, for analysis and report. 3. The Public Ananlyst reported that the sample contained 4.8% fat and 6.3% non-fatty solids. As the non-fatty solids were deficient by about 30%, he expressed the opinion that the milk (goat) was an adulterated one. On receipt of the re-, port the Nagar Swasthya Adhikari moved the complaint before the Magistrate which was taken cognizance of on 17-7-1965. The respondent put in appearance on 11-8-1965. 4. Jawahar Singh pleaded not guilty. He admits the taking of the sample but says that the milk was not meant for sale: it was being taken to his son-in-law, Ranpal (D. W. 2) . He further stated that his thumb mark was obtained on the documents under compulsion. Two witnesses namely Sunabri Lal (D. W. 1) and Ranpal (D. W. 2) were examined in defence. 5. He further stated that his thumb mark was obtained on the documents under compulsion. Two witnesses namely Sunabri Lal (D. W. 1) and Ranpal (D. W. 2) were examined in defence. 5. The learned Magistrate did not express any opinion on the merits but acquitted the respondent on two grounds: firstly, that the Food Inspector had not complied with the provisions of Section 10 (7) of the Prevention of Food Adulteration Act and seconly, that there was a delay of 48 days in sending the sample to the Public Analyst. On the first point, it was also observed that no explanation had been furnished why the witnesses to the taking of the sample had not been examined. 6. Both the points which appealed to the learned Magistrate, have no substance. Section 10 (7) of the Prevention of Food Adulteration Act was amended under the Amending Act 49 of 1964 though the amendments came into force from 1-3-1965. Section 10 (7) as it existed prior to the amendment was as below :- "Where the Food Inspector takes any action under clause (a) of sub-sec. (1) ,sub-sec. (2) , sub-sec. (4) or sub-sec. (6) , he shall, as far as possible, call not less than two persons to be present at the time when such action is taken." 7. The amended Section 10 (7) is as below :- "Where the Food Inspector takes any action under clause (a) of sub-sec. (1) , sub-sec. (2) , sub-sec. (4) or sub-sec. (6) , he shall call one or more persons to be present at the time when such action is taken and take his or their signatures." 8. A comparison of the two provisions shall make it clear that the Parliament made major changes therein. The words 'as far as possible' used in the un-amended provision were deleted and at the same time the minimum number of persons to be present at the time action is taken by the Food Inspector, was reduced from 2 to 1. The law with regard to un-amended Section 10 (7) can be said to be beyond controversy. It was generally held that the provision was directory and not mandatory. In case it was not considered necessary to make the provisions of Section 10 (7) obligatory, amendment of the sub-section was not at all necessary, all the more, when this provision had been considered to be merely directory. 9. It was generally held that the provision was directory and not mandatory. In case it was not considered necessary to make the provisions of Section 10 (7) obligatory, amendment of the sub-section was not at all necessary, all the more, when this provision had been considered to be merely directory. 9. Even if we assume that the words 'as far as possible' were deleted on the ground of their being a surplusage there could be no occasion to reduce from 2 to 1 the minimum number of persons to be present at the time the sample was taken. It is one of the rules of Interpretation of Statutes that for giving a proper meaning to an amended provision one must see what the law originally was, what mischief was sought to be remedied and also how the mischief was so remedied. Amendment of Section 10 (7) would have been necessary only if the Parliament wanted to make the provisions of the sub-section mandatory, and not merely directory. It must, therefore, be held that the provisions of Section 10 (7) as they now stand after its amendment under Act 49 of 1964, are mandatory. It has, however, to be seen to what extent can the provision be said to be mandatory: does the non-compliance automatically vitiate the proceeding based on the sample so taken in disregard of the provisions of Section 10 (7) of the Prevention of Food Adulteration Act. 10. There is no Supreme Court decision directly applicable on this point, Section 10 (7) of the Prevention of Food Adulteration Act is akin to, though not identically the same as, Section 103 (1) of the Code of Criminal Procedure which lays down that before making a search under Chapter VII of the Code, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality, in which, the place to be searched is situate, to attend and witness the search. 11. The scope of Section 103 of the Code of Criminal Procedure came up for consideration before the Supreme Court in Sunder Singh v. State of Uttar Pradesh, A.I.R. 1956 SC 411 and Radha Kishan v. State of Uttar Pradesh, A.I.R. 1963 SC 822. 12. 11. The scope of Section 103 of the Code of Criminal Procedure came up for consideration before the Supreme Court in Sunder Singh v. State of Uttar Pradesh, A.I.R. 1956 SC 411 and Radha Kishan v. State of Uttar Pradesh, A.I.R. 1963 SC 822. 12. In the first case it was observed as below :- "Assuming that the two rickshaw-wallahs who actually witnessed the search as found by the Courts.below were not respectable inhabitants of the locality, that circumstance would not invalidate the search." 13. It would only affect the weight of the evidence in support of the search and the recovery. Hence at the highest the irregularity in the search and the recovery in so far as the terms of Section 103 had not been fully complied with would not affect the legality of the proceedings. It only affected the weight of evidence which is a matter for Courts of fact ..............." 14. Similarly, it was laid down in the other case :- "It may be that where the provisions of Section 103, Code of Criminal Procedure are contravened the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues." 15. In the circumstances, the provisions of Section 10 (7) of the Prevention of Food Adulteration Act can be said to be mandatory for a limited purpose and not mandatory in the sense that non-Compliance thereof shall invalidate the proceeding right from the stage of the taking of the sample. 16. Where the Food Inspector does not call upon at least one person to be present at the time action is taken under sub-secs. (1) (a) , (2) , (4) and (6) of Section 10 of the Prevention of Food Adulteration Act, the person concerned can resist the taking of the sample, or the Food Inspector entering the premises and his carrying away the adulterated articles; but if no resistance is shown and the Food Inspector takes the necessary action, the action so taken shall not be ab initio invalid though because of the illegality the Court may be inclined to examine carefully the evidence regarding the taking of the sample etc. 17. 17. However, Section 10 (7) does not lay down that the witnesses to the taking of the sample must be respectable persons of the locality. The taking of the sample can thus be witnessed by a person not residing. in the locality; he need not be an independent person. Consequently, an officer of the Department is not debarred from being a witness to the action taken by the Food Inspector. Section 10(7) of the Prevention of Food Adulteration Act was not amended on the lines of Section 103 (1) of the Code of Criminal Procedure. Thereunder it is necessary for a police officer to call upon two or more respectable inhabitants of the locality to witness the search. The Parliament can be deemed to be aware of the provisions of Section 103 and when similar words were not intentionally incorporated in Section 10 (7) of the Prevention of Food Adulteration Act while amending it under Act 49 of 1964, it must be held that the witnesses contemplated by Section 10 (7) need not necessarily be respectable inhabitants of the locality: they can be persons belonging to the same Department, that is, the Department to which the Food Inspector himself belongs. However, the weight to be attached to the taking of the sample shall depend upon the facts and circumstances of an individual case. Where action taken by the Food Inspector is witnessed by respectable persons of the locality, the taking of the sample or seizure of the articles can be easily accepted, but where the action taken by the Food Inspector is not witnessed by any person or is witnessed by persons belonging to his Department, the Court must adopt the rule of caution and prudence. The evidence must be scrutinised carefully along with the statement made by the accused or the evidence adduced in defence and if after careful consideration of the total evidence on record and the circumstances of the case the Courts of law are satisfied as to the genuineness of the action taken by the Food Inspector, such evidence can be acted upon. But where there exists a reasonable doubt in the mind of the Court, its benefit shall go to the accused. 18. Section 10 (7) nowhere lays down that not only the action taken be witnessed by at least one person but that person be examined during the trial. But where there exists a reasonable doubt in the mind of the Court, its benefit shall go to the accused. 18. Section 10 (7) nowhere lays down that not only the action taken be witnessed by at least one person but that person be examined during the trial. What the effect of the non-examination of that witness is shall depend upon the facts and circumstances of an individual case. From the non-examination of the witness the Court can assume that if the witness had appeared in Court he would not have supported the prosecution. But in the conditions prevalent in the country such a presumption is of a weak nature. Where there exists no enmity with the Food Inspector, nor has any ill-will been pleaded, the prosecution may not consider it necessary to examine unnecessary witnesses. It is not unknown in our country that witnesses are won over by the defence. Sometimes witnesses do not want to give evidence against their neighbours: they always hesitate to give evidence against desperate persons. Broadly speaking, therefore, it can be laid down that it shall depend upon the facts and circumstances of the individual case what weight to attach to the non-examination of the witnesses to the action taken by the Food Inspector. 19. The Magistrate has thus clearly taken a wrong view of the law that from mere non-examination of the witnesses to the taking of the sample, the accused becomes entitled to the benefit of doubt. 20. The sample of milk to which two drops of formalin had been added does not deteriorate within 48 hours and hence this delay, even if not explained, will not invalidate the proceeding, nor can on this ground alone the accused be acquitted of the offence. 21. As the Magistrate has not recorded any finding on merits and the present appears to be a case in which this Court should not directly record a finding on facts, remand of the case appears necessary in the interest of justice. In order that the case may be decided without any delay I shall merely make two observations on facts which appear to me to be very material: the respondent was handed over a copy of the notice under Rule 12 of the Prevention of Food Adulteration Rules. Even though the respondent is illiterate, his son-in-law whom he was visiting that day was an educated person. Even though the respondent is illiterate, his son-in-law whom he was visiting that day was an educated person. The notice could have been seen by him and thereafter a complaint made against the Food Inspector. The subsequent conduct of the respondent is a factor against him which he can explain during the retrial. 22. The other material factor is whether 30-3-1965 was, in fact, the birth day of one of the sons of Ranpal Singh, son-in-law of the respondent, and whether any birth-day function was being held. It may also be necessary to know the members of the family of Ranpal Singh to understand whether seven or eight seers of milk was needed or could be consumed by the family. 23. For reasons given above, the appeal is hereby allowed and the order of acquittal is set aside. At the same time the case is remanded for a fresh trial in accordance with law.