JUDGMENT Onkar Singh, J. - This is an appeal by the Municipal Medical Officer of Health, Municipality of Faizabad, against the order of acquittal passed by the Sessions Judge, Faizabad, allowing the appeal of the respondent against his conviction under section 7 read with section 16 of the Prevention of Food Adulteration Act, 1954. 2. The facts giving rise to this appeal are as follows : on 27-9-1969 at about 9.00 A.M. in mohalla Sadatganj within the Faizabad Municipality the respondent, who' had buffalo milk for sale on Pheri at the rate of Re. 1 /-per liter in two cans on his cycle, was checked by P.W. 1 Sri Ravindra Kumar Gupta, Food Inspector, in the presence of two witnesses Sri Iqbal Mirza and Tara Chand. P.W. 1 Sri Ravindra Kumar Gupta purchased from the respondent a sample for analysis 750 cms. of that milk on payment of 75 paise after serving the required notice in form VI. Ext. Ka. 1 and Ext. Ka. 2 is its duplicate which bears the signature of the respondent. After adding the required quantity of preservative the said milk was divided into three bottles which were wrapped, labelled and sealed according to law. One of these bottles handed over to the respondent and Ext. Ka. 3 a receipt of having received the price and the sealed bottle was obtained from the respondent. This receipt also bears the signatures of the respondent and the witnesses. One of the sealed sample bottles was sent to the Public Analyst, U.P., who reported after analysis that the sample was deficient in fat by about 55% and was also deficient in not-fatty solid content by about 44% and hence it was adulterated. On receipt of the report of the Public Analyst, the prosecution of the respondent was launched vide Ext. Ka. 6. 3. The respondent pleaded innocence and denied the above allegations and stated that he did not sell milk. On the alleged date and place he was carrying milk to a sick man. He, however, admitted that the Food Inspector took the sample of milk from him and having complied with the formalities required under law he gave one bottle of the sample to him but added that he did not give any receipt in lieu of the money received to the Food Inspector. He, however, admitted that he has signed the said receipt without knowing its contents. He, however, admitted that he has signed the said receipt without knowing its contents. 4. The prosecution examined P.W. 1 Sri Ravindra Kumar Gupta, Food Inspector and P.W. 2 Taqi Mirza, Safai Naik who was also an employee of the Municipal Board, Faizabad. 5. The respondent examined D.W. 1 Tara Chand who was one of the witnesses of the receipt Ext. Ka. 3. 6. The learned City Magistrate, Faizabad, accepted the prosecution case and finding the respondent guilty under section 7 read with section 16 of the Prevention of Food Adulteration Act sentenced him to one year's rigorous imprisonment and a fine of Rs. 1000/- and in default of payment of fine to undergo three months' rigorous imprisonment. 7. On appeal the learned Sessions Judge allowed it and set aside the conviction and sentence of the respondent and acquitted him of the charge under section 7 read with section 16 of the Prevention of Food Adulteration Act. 8. We have heard the learned counsel for the appellant and the learned counsel for the respondent. In our opinion the appeal has to be allowed. The learned Sessions Judge has given very flimsy grounds for allowing the appeal and his findings appear to be unreasonable and perverse. The learned Sessions Judge has given three reasons for allowing the appeal. The first ground is that the respondent was alleged to be carrying milk in two cans but the Food Inspector took sample only from one can and did not take sample of the milk from the other can. In our opinion this will hardly be a ground for upsetting the finding of the trial court. It was not necessary for the Food Inspector to have taken sample from the other can as well. Having taken sample from one can the question of taking sample from the other can did not arise and the law does not require any such procedure. The finding is clearly unreasonable and perverse. The second ground given by the learned Sessions Judge was that the respondent was selling milk within the Municipal Board without a licence and no satisfactory explanation was given by the Food Inspector for not taking necessary steps for prosecution of the respondent for selling the milk without a licence. This too in our opinion was no ground for allowing the appeal of the accused. This too in our opinion was no ground for allowing the appeal of the accused. The learned Magistrate has rightly pointed out that the respondent was not challaned for selling milk without licence but it could not mean that he would not be prosecuted for offering for sale or to sell the adulterated milk. No doubt the respondent could also have been challaned for selling milk without a licence but the simple fact that he has not been challaned is immaterial for purposes of this case and has no bearing on the charge under section 7 read with section 16 of the Prevention of Food Adulteration Act. The last ground given by the learned Sessions Judge for allowing the appeal is that no independent witness has been examined by the department and both Sri Ravindra Kumar Gupta P.W. 1 and Taqi Mirza P.W. 2 were employees of the Municipal Board, Faizabad. It is in evidence that the Food Inspector called Tara Chand who has a shop of sweets in mohalla Sadatganj and he also signed the relevant papers but it appears that he has been won over by the respondent and was examined by him. Even Tara Chand stated that the Food Inspector took the sample from the respondent though he stated that the entire milk was taken by the Food Inspector. Since it was admitted by the respondent that the Food Inspector had taken sample of the milk from him, it was not necessary for the prosecution to have examined even P.W. Taqi Mirza. The object of enacting section 10(7) is really to ensure that the particular sample is taken from the accused. We are not inclined to hold that section 10(7) must be construed to mean that persons, who are called as witnesses, should never belong to the department. On the facts and circumstances of the present case we are satisfied that there was sufficient compliance of that section and the learned Sessions Judge was in error in rejecting their testimony on the sole.ground that they were employees of the department. The respondent having admitted that the Food Inspector took the sample from him, the transaction constituted sale under the Prevention of Food Adulteration Act. In our opinion the respondent was guilty of the offence under section 7 read with section 16 of the Prevention of Food Adulteration Act as the sample was found to be adulterated. 9. The respondent having admitted that the Food Inspector took the sample from him, the transaction constituted sale under the Prevention of Food Adulteration Act. In our opinion the respondent was guilty of the offence under section 7 read with section 16 of the Prevention of Food Adulteration Act as the sample was found to be adulterated. 9. Coming to the question of sentence, the learned counsel for the respondent has contended that the offence falls under sub-clause (i) of clause (a) of section 16(1) and is with respect of an article of food which is adulterated under sub-clause (1) of clause (i) of section 2 and it is not a fit case to award the minimum sentence under the' law for the reason that six years have elapsed the date of detection of the offence and it was first offence of the respondent who is a petty hawker and just started the business and, therefore, substantive sentence of imprisonment is not called for in his case. It is no doubt true that the respondent appears to be a petty hawker and had just started his business when he was checked by the Food Inspector and the sample was taken. Taking the above facts and circumstances into consideration, we are inclined to take a lenient view in the matter. 10. The result is that the appeal is allowed and the acquittal of the respondent is set aside. He is convicted under section 7 read with section 16 of the Prevention of Food Adulteration Act and sentenced to a fine of Rs. 500/-. In default of payment of the amount of fine, he shall undergo rigorous imprisonment for two months. The respondent is allowed one month's time to deposit the amount of fine"