JUDGMENT V.N. Varma, J. (For self and for G.D. Srivastava, J.) 1. This revision has arisen out of a case u/s 7/16 of the Prevention of Food Adulteration Act. 2. On 21-12-70, at about 7.15 A.M., Sri P. P. Tewari Food Inspector Municipal Board, Mathura, found the applicant selling and exposing for sale milk of she-buffalo near General Ganj, Mathura. The Food Inspector asked the applicant to produce the licence for selling milk. The applicant, however, could not produce the same. The applicant was thus found selling milk without a licence. The Food Inspector expressed his desire to take sample of the milk for getting it analysed. The applicant refused to sell any milk to the Food Inspector. The Food Inspector then wanted to take a sample by himself. The applicant would not allow him to do this also and pushed the Food Inspector. Thereafter, he threw the entire milk of the bucket on the ground. At that time the applicant had a measure with him also. The Food Inspector inquired the name and address of the applicant which he gave. The Food Inspector was, however, doubtful about the correctness of the name & address given by the applicant and he, therefore, took him to P. S. Kotwali, Mathura. He had also carried with the empty bucket and the measure of the applicant, and he deposited the same at the Kotwali. The applicant was released after he furnished sureties. His bucket and measure were also given back to him after taking necessary writings from him. 3. The Food Inspector then made a report to the Medical Officer of Health, Mathura, for taking his permission to prosecute the applicant. The necessary permission was given and thereafter the applicant was prosecuted. After trial he was convicted for offences u/s 6(1)(b) of the Prevention of Food Adulteration Act and also u/s 7(iii) of the said Act read with Rule 50(1) of the Rules framed under the Act. Under the first count he was sentenced to an imprisonment for six months' R. I. and fine of Rs. 1,000/- and under the second count to an imprisonment of one month R.I. 4. Feeling aggrieved with the order of the trial Court, the applicant went up in appeal to the Court of Session. Under the first count he was sentenced to an imprisonment for six months' R. I. and fine of Rs. 1,000/- and under the second count to an imprisonment of one month R.I. 4. Feeling aggrieved with the order of the trial Court, the applicant went up in appeal to the Court of Session. The Sessions Judge dismissed his appeal, but u/s 16(1)(b) of the Act, he reduced the sentence to the period already undergone, but maintained the fine of Rs. 1,000/-. u/s 7(iii) of the Act read with Rule 50(1), he set aside the sentence of one month R.I. and imposed a fine of Rs. 50/-. 5. The applicant felt aggrieved with the order passed by the Sessions Judge also and came up in revision to this Court. His revision was heard by Hon. Hari Swarup, J. After hearing the revision, the learned Judge was of the view that the sentence which had been awarded to the applicant u/s 16(1)(b) of the Prevention of Food Adulteration Act, was illegal inasmuch as the minimum sentence prescribed by law under the aforesaid section is a sentence of six months' R. I. and a fine of Rs. 1,000/-. He, therefore, issued a notice to the, applicant to show cause why the sentence awarded to him u/s 16(1)(b) of the Prevention of Food Adulteration Act be not enhanced and the sentence awarded to him by the trial Court be not be restored. It is in this way that we arc seized of this case. 6. In this case the applicant was convicted on the testimony of the Food Inspector, Sri P.P. Tewari and Safai Naik Yad Ram. Both are employees of the Health Department, Mathura. The contention of the learned Counsel for the applicant is that the conviction of the applicant on the evidence of the aforesaid two witnesses only is bad in law as it has been done in breach of the provisions of section 10(7) of the Prevention of Food Adulteration Act. This section, as it stood at the material time, reads thus: 10(7)-Where the Food Inspector takes any action under clause (a) of sub section (1), sub-section (2), sub-Section (4) cr sub-section (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. 7. This section, as it stood at the material time, reads thus: 10(7)-Where the Food Inspector takes any action under clause (a) of sub section (1), sub-section (2), sub-Section (4) cr sub-section (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. 7. A reading of the above sub section will show that it is only when the Food Inspector takes any sample under clause (a) of sub-section (1), sub section (2), sub-section (4) or sub-section (6) that he has to ensure the presence of one or more persons to act as witnesses. This provision has been made by way of guarantee that the Food Inspector has taken the particular sample from the accused. But when no sample is taken, this sub-section cannot come into play at all. In the instant case, no sample of milk was admittedly taken by the Food Inspector because the applicant did not allow him to take it. He frustrated his attempt in that regard by throwing away the entire milk of the bucket on the ground. Such being the position, the provisions of section 10(7) of the Act do not apply to this case and, therefore, merely because the Food Inspector did not call any man from the public to act as a witness in this case, the conviction of the applicant cannot stand vitiated. 8. Even if one took it for a moment that while taking action under clause (a) of sub-section (1), sub-section (2), sub section (4) or sub-section (6) of section 10, it was incumbent on the part of the Food Inspector to call some persons to act as witnesses, the question is whether his failure to do so, would vitiate the conviction of the applicant. We do not think that his conviction would stand vitiated. Not calling witnesses of public was just an irregularity and an irregularity in the taking of the sample cannot vitiate the trial or conviction of the accused. The only consequence of non-compliance with the provisions of section 10(7) is that it may affect the probative value of the evidence of the person taking the sample. Therefore, all that we have to see is whether the probative value of the evidence of the Food Inspector in this case has been affected or not. The only consequence of non-compliance with the provisions of section 10(7) is that it may affect the probative value of the evidence of the person taking the sample. Therefore, all that we have to see is whether the probative value of the evidence of the Food Inspector in this case has been affected or not. We have gone through his evidence carefully and after doing so, we do not think that his evidence suffers from any flaw or infirmity. He has given a very consistent and for all practical purposes a blotless story of the whole incident. His statement finds full corroboration from the statement of Yad Ram Safai Naik who also appears to us to be a good and reliable witness. 9. The learned Counsel for the applicant next contended that the Courts below were not justified in rejecting the evidence of the defence witnesses and as such the conviction of the applicant stood vitiated. This contention of the learned Counsel also appears to be without substance. Both the Courts below have given good reasons for not acting upon the testimony of the defence witnesses. We agree with those reasons and we also think that those witnesses were no better than got up witnesses and should not have been believed. 10. Thus, from the above it is clear that the prosecution had succeeded in proving its case against the applicant beyond all reasonable doubt. On 21-12-1970 the applicant was found selling and exposing for sale milk of she-buffalo in Mathura town, and when the Food Inspector asked him to produce his licence for selling milk, he could not produce it. Thereupon the Food Inspector asked him to sell him some milk by way of sample, but he did not do that also. Instead he threw away the entire milk on the ground. The applicant was, therefore, very rightly convicted for offences under Sections 16(1)(b) & 7(iii) of the Prevention of Food Adulteration Act read with Rule 50(1) of the Rules framed thereunder. 11. Now the next question that falls for consideration is whether the sentence that has been awarded to the applicant u/s 16(1)(b) of the Prevention of Food Adulteration Act is in accordance with law or not. Under this section the trial Court had awarded to the applicant a sentence of 6 months' R.I. and a fine of Rs. 1,000/-. 11. Now the next question that falls for consideration is whether the sentence that has been awarded to the applicant u/s 16(1)(b) of the Prevention of Food Adulteration Act is in accordance with law or not. Under this section the trial Court had awarded to the applicant a sentence of 6 months' R.I. and a fine of Rs. 1,000/-. The appellate Court while maintaining the fine of Rs. 1000/- reduced the sentence of six months 'R. I. to the period already undergone. We find that the applicant had undergone a sentence of 10 days only. This means that u/s 16(1)(b) the appellate Court awarded to him a sentence of 10 days' R. I. and a fine of Rs. 1000/- . The minimum sentence prescribed by law for committing an offence u/s 16(1)(b) is six months' R. L and a fine of Rs. 1,000/- . That being so, there can be no doubt about the fact that the sentence of 10 days' R.I. awarded to the applicant for committing an offence u/s 16(1)(b) was wholly erroneous and against the mandatory provision of law. The appellate Court had no discretion to give a sentence of imprisonment for a term less than six months' R.I. 12. In the result, we find no force in this revision and dismiss it accordingly. The notice for enhancement of sentence is confirmed and in addition to the fine of Rs. 1,000/-already awarded to the applicant u/s 16(1)(b) of the Prevention of Food Adulteration Act, he is also sentenced to an imprisonment of six months' R. I. So far as the sentence awarded to the applicant u/s 7(iii) of the Act read with R1ule 50(1) of the Rules is concerned, it calls for no interference and is confirmed. 13. The applicant should be taken in custody to serve out the sentence of imprisonment that has been imposed by this Court.