JUDGMENT H.L. Capoor, J. - Lallu Singh has preferred this application in revision against the order, dated 9th May, 1972, of the Sessions Judge, Bareilly, dismissing the appeal, and upholding the conviction of the applicant under section 7 read with section 16 of the Prevention of Pood Adulteration Act (hereinafter called the Act) and a sentence of three months' rigorous imprisonment awarded to him. 2. The prosecution case, in brief, is that the applicant was found selling milk and he had also in his possession milk for sale at mohalla Beharipur, Bareilly, on 30th December, 1970, at about 2 o'clock in the afternoon. The Food Inspector asked for a sample of milk to be given to him on payment of price for the purpose of analysis. The applicant refused to sell the milk, and, having thrown all the milk on the feet of the Food Inspector, in the presence of the witnesses, tried to leave that place. The matter was reported by the Food Inspector to the Medical Officer of Health, and sanction for the prosecution of the applicant was obtained. He was accordingly charged and tried, as above. 3. The applicant pleaded not guilty and denied to have either been selling the milk, or that any sample of milk, which he could be said to have been selling, was demanded from him. His main defence was that he was falsely implicated in the case due to wrong address and name being given by some other person than the applicant himself. No evidence in support of the defence was adduced. 4. In order to establish its case, the prosecution relied upon the statements of Sri Akhalanand Misra, Food Inspector (P.W. 1), Nawab Singh (P.W. 2). Laxmi Narain (P.W. 3) and Gulzari Lal (P.W. 4), as the witnesses of fact. 5. Both the courts below, after considering the evidence on record, and placing reliance upon the statements of the said witnesses of fact, and disbelieving the defence version, arrived at the finding that the prosecution succeeded in proving, beyond any reasonable doubt that the applicant refused to sell the sample of milk on payment of price and made it impossible for the Food Inspector to take a sample from him by having thrown the milk with him at the feet of the Food Inspector. They accordingly convicted and sentenced the applicant, as aforesaid. 6. They accordingly convicted and sentenced the applicant, as aforesaid. 6. The learned counsel appearing on behalf of the applicant, has urged two points before me, firstly, that the Food Inspector having stated that the applicant did not give out his name when asked from him and that his name was known to the Food Inspector from the other witnesses at the time of the sample being asked for, identification proceedings in respect of the applicant should have been held, and, secondly, that in the circumstances of the case, if the milk was not given by the applicant on demand of it being made by the Food Inspector after disclosing his identity, it could not be said that the Food Inspector was prevented from taking the sample as authorised under the Act. 7. So far as the first contention of the learned counsel is concerned, the statement of the accused recorded under section 342, Code of Criminal Procedure, has been perused by me, and there is nothing in the said statements to show that the Food Inspector did not know the applicant from before by face also. On the other hand, the Food Inspector has merely stated that he did not know the name of the applicant from before. The applicant did not at all make it clear in his statement under section 342, Code of Criminal Procedure, that the Food Inspector did not know him from before, or that he was not the person from whom a demand of the sample was made by the Food Inspector. In these circumstances, when the Food Inspector and the other witnesses produced in the case recognised the applicant, while in deck, to the person from whom the sample of milk was demanded, it could not be inferred by any stretch of imagination that there was any necessity for identification proceedings being held, or that the applicant was not known to the witnesses from before at least by face. A part from the Food Inspector, the other witnesses of fact examined in the case know the name of the applicant also and they gave it out to the Food Inspector. A part from the Food Inspector, the other witnesses of fact examined in the case know the name of the applicant also and they gave it out to the Food Inspector. Thus, the first contention of the learned counsel that identification proceedings in respect of the accused should have been held must be rejected, being without any substance, particularly when no demand was at all made by the applicant for identification proceedings in respect of him being held. 8. With regard to the second contention of the learned counsel, reliance has been placed by him upon a case, 'Municipal Board v. Maluk Das Gupta' 1973 FAC 116 , in which it was held by a Division Bench of this Court that where a dealer does no positive act but merely refuses to give the sample voluntarily on demand, he cannot be deemed to have prevented the Food Inspector from taking sample within the meaning of Section 16 (1) (b) of the Act. The facts of the said reported case are, however, distinguishable from the facts of the instant case before me, because in the said reported case, the dealer of milk had done no positive act but had merely refused to give the sample voluntarily on demand, whereas in the instant case, on a demand being made from the applicant to give a sample, he threw the milk with him upon the feet of the Food Inspector. This act on his part clearly amounted to preventing the Food Inspector from taking a sample within the meaning of section 16 of the Act. This act on his part clearly amounted to preventing the Food Inspector from taking a sample within the meaning of section 16 of the Act. This view of mine finds full support from a case District Board, Patna v. Jado Sao, 1976 (2) FAC 35, where it was made clear by a Division Bench of the Patna High Court that a Food Inspector can be prevented from obtaining a sample, which he is authorised to take in exercise of his powers under the Act, within the meaning of Section 16(1) (b) of the Act, not only by some overt act, but also by an omission which has the consequence of preventing the Food Inspector from obtaining the sample from a person selling the article of food concerned ; that it cannot be the intention of the Legislature that the Food Inspector must be compelled by some reason of some act or omission of the person selling an article of food to resort to his powers under sub-sections (2) and (5) in every case ; that to impose such a limitation upon the powers of the Food Inspector would amount to rendering his powers under sub-section (1) nugatory ; and that if, therefore, a person selling an article of food refuses to comply with the demand of the Food Inspector to give a sample of it to him on tender of the requisite price, then the refusal has the consequence of preventing the Food Inspector from taking the sample which he is authorised to take by t he Act, and the person, who thus prevents the Food Inspector from taking the s ample, commits an offence punishable under section 16 (1) (b) read with section 10 (1) (a) (i) of the Act. The view taken by me finds support from a Division Bench case of our own Court `Municipal Board, Sambhal v. Jhamman Lal' 1978 (2) FAC 269 , where it was held that if a person selling the article leaves the shop he prevents the Food Inspector from taking sample as authorised by the Act ; that Section 10 (4) does not deal with taking of sample at all and the fact that the Food Inspector could have taken away the entire stock under Section 10 (4) would not amount to taking of sample, and further supposing that there were two methods of detaining sample, one under Section 10 (1) and the other Section 10 (4), it is not necessary that the prevention to be `prevention' under Section 16 (b) should have been prevention in both the methods before action could be taken against the accused ; that in cases of prevention, an overt act on the part of the accused is not necessary ; and that, even if considered necessary if a person disappears from the shop, he has done an overt act by means of which he has made it impossible for the Food Inspector to detain a sample from him. 9. Pursuant to what has been stated above, it is obvious from the established facts and circumstances of the case that the act of the applicant amounted to having prevented the Food Inspector from taking a sample, when he had thrown the entire milk with him on the feet of the Food Inspector, who asked from him a sample on payment of the requisite price. In this view of the matter, the applicant was rightly convicted by the two courts below, and no interference on this score is called for. 10. The learned counsel, appearing on behalf of the applicant has next urged that the applicant has been in jail for about ten days and that if his sentence of three months' rigorous imprisonment is reduced to the period already undergone and he is further sentenced to pay some fine, it would not be considered to be an enhancement of sentence. The learned counsel, appearing on behalf of the applicant has next urged that the applicant has been in jail for about ten days and that if his sentence of three months' rigorous imprisonment is reduced to the period already undergone and he is further sentenced to pay some fine, it would not be considered to be an enhancement of sentence. Taking this fact into consideration, no useful purpose would be served in sending back the applicant to jail for a short period, and it would meet the ends of justice if his sentence is reduced to the period already undergone and he is further sentenced to pay a fine of Rs. 500. 11. In the result, the application in revision is allowed only to this extent that the conviction of the applicant under section 7 read with section 16 of the Act is upheld, but his substantive sentence of imprisonment is reduced to the period already undergone and he is further sentenced to pay a fine of Rs. 500 within three months of the receipt of the record in the court below, failing which he would undergo three months' rigorous imprisonment. The record of the case be sent back immediately to the court concerned.