JUDGMENT - B.M. SAPRE, J.:---This is an appeal by the State against an order of acquittal passed in favour of respondents Nos. 1 and (original accused Nos. 1 and 2) by the Presidency Magistrate, 35th Court, V.T. Bombay, acquitting them of the charge under section 16(1)(a) (i) read with section 2(i)(l) of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as "the Act", read with Rule, 5-A-21 of the Prevention of Food Adulteration Rules, 1955, hereinafter referred to as "the Rules". Briefly stated, the case for the prosecution was as follows : Accused No. 1 is the owner of a panmasala shop known as Messrs. A.M. Supariwala, situate at Fort, Bombay. Accused No. 2 is the servant of accused No. 1 running the said shop. On 24th October, 1972, the Food Inspector Rane (P.W. 1), visited the shop in the presence of two panchas, one of whom was Yeshwant (P.W. 2). Accused No. 2 alone was present in the shop. Rene demanded and purchased 600 gms. of catechu (edible) form accused No. 2 for a price of Rs. 6.75 p. After going through the necessary formalities, a sample of the stuff was sent by Rane to the Public Analyst, who analysed the stuff and submitted his report (EX. G). The public Analyst Chhatim (P.W. 3), also gave evidence in Court. According to him, the sample of catechu (edible) examined by him was adulterated. The sample contained moisture to the extent of 75.8% as against the standard of 12%. The total ash contact was 8.3% as against the standard of 8% as the maximum. The ash insoluble was 6.4% as against the standard of 5% as the maximum. The sample also contained foreign matter of tapioce starch. For all these reasons, the stuff was sub-standard and adulterated within Rule 5-A-21 of Rules. Before the learned trial Magistrate, it was not disputed and it is also his finding that the sample analysed by the Public Analyse it was sub-standard and hence adulterated. The defence of accused No. 1 was that although he is the owner of the shop in question, he was not present when Rane visited it and obtained sample of catechu from the shop. He denied all responsibility for storing or selling an adulterated article of food, stating that in his shop he does not sell any adulterated stuff. The defence of accused No. 1 was that although he is the owner of the shop in question, he was not present when Rane visited it and obtained sample of catechu from the shop. He denied all responsibility for storing or selling an adulterated article of food, stating that in his shop he does not sell any adulterated stuff. The defence of accused No. 2 was that all that he had sold to Rane was amiri panmasala and he had not sold catechu (edible). The stuff analysed by the Public Analyst and found to be sub-standard and adulterated was not from the shop of accused No. 2 and he had not sold it to Rane. The material evidence in the case consisted that of Rane and Yeshwant. Yeshwant however, turned hostile . There was thus only the evidence of Rane. The learned Presidency Magistrate conceded that it was possible in a case to act on the sole evidence of the Food Inspector and base the conviction of the accused on his evidence alone. In the instant case, however, there were reasons why the solitary evidence of the Food Inspector could not be accepted. As there was no other evidence to show that the sample analysed by the Public Analyst was from the stuff which was stored by accused No. 2 in the shop for sale and which he had sold to Rane, the learned Presidency Magistrate acquitted the accused. Feeling aggrieved, the State has come up in appeal. On behalf of the respondents, there was no appearance. Although Mr. A.S. Zariwala has failed his Vakalatnama for the respondents accused, he has not appeared. The case was called out yesterday (10th March, 1976) at about 11-45 a.m. Mr. Zariwala was not present. After hearing Mr. Wale, the learned Public Prosecutor for the State, I adjourned the case till 2-45 p.m. in the expectation that Mr. Zariwala would appear that time and I would have the benefit of hearing him. At 2.45 p.m. also, Mr. Zariwala did not appear. I, therefore, adjourned the Case to 11 a.m. to-day (11th March, 1976). Mr. Zariwala, however, has not appeared and I am obliged to deliver my judgement in his absence and without the benefit of any arguments on behalf of the respondents. At 2.45 p.m. also, Mr. Zariwala did not appear. I, therefore, adjourned the Case to 11 a.m. to-day (11th March, 1976). Mr. Zariwala, however, has not appeared and I am obliged to deliver my judgement in his absence and without the benefit of any arguments on behalf of the respondents. The only point requiring decision in this appeal is whether the sample analysed by the Public Analyst and found to be adulterated was out of the 600 gms. of catechu (edible) which Rane had purchased from the shop of accused No. 2 on 24th October, 1972 which, in its turn, was from the material which had been stored in the shop for sale. There is no doubt that the only panch examined has turned hostile and his evidence is not of any assistance to the prosecution. But there is also no doubt that if the evidence of Rane is accepted, it will clearly prove that the sample which he had sent to the Public Analyst was from the stuff which he had purchased from the shop of accused No. 2 which, in its turn, was out of the material stored by accused No. 2 in the shop for sale. The learned Presidency Magistrate has correctly stated the proposition of law that under section 10(7) of the Act, all that the Food Inspector is required to do is to call at least one independent person to be present at the time when he takes action under the section, namely, taking of sample for analysis, and it is not further necessary that the independent person must support the Food Inspector at the time his evidence is recorded at the trial. The learned presidency Magistrate has also conceded that for providing the presence of an independent witness at the time when the Food Inspector takes the sample and goes through the other formalities, as well as the event itself, even the evidence of the Food Inspector alone can be accepted if circumstance so justify. The learned presidency Magistrate has also conceded that for providing the presence of an independent witness at the time when the Food Inspector takes the sample and goes through the other formalities, as well as the event itself, even the evidence of the Food Inspector alone can be accepted if circumstance so justify. But, according to the learned Presidency Magistrate, in the instant case, the evidence of the Food Inspector does not inspire confidence and, therefore, from his evidence alone it cannot be said that what was analysed by the Public Analyst was from the stuff which Rane had secured from the shop of accused No. 2 and which in its turn, was from the stuff which was stored in the shop for sale. I have carefully considered the reasons given by the learned Presidency Magistrate for not finding it safe to rely on the solitary evidence of the Food Inspector Rane. But I find that those reasons are not valid and some of them are even based on a misreading of the evidence of Rane. The learned Presidency Magistrate has observed that the evidence of Rane is that when he took the sample and prepared the documents, he was not inside the shop but was on a bench in front of the shop which was part of the road side. What Rane, however, has stated in his evidence is that the counter of the shop about on the road and customs stand on the road and make purchases from the shop. He was in front of the shop on a bench when he took the sample. Reading all this together, there is no manner of doubt that Rane was at the shop. It is common knowledge that a panmasala shop is a small comportment and customers stand outside and even a bench may be kept outside for the customers to sit. If, therefore, Rane was in front of the shop on a bench when he took the sample, it could not be said that he was somewhere away from the shop and not in the shop. If, therefore, Rane was in front of the shop on a bench when he took the sample, it could not be said that he was somewhere away from the shop and not in the shop. Another reason given by the learned Presidency Magistrate is that the possibility could not be ruled out that the Food Inspector Rane was already having some packets which may be containing adulterated stuff which was not from the shop of accused No. 2 and these packets might have been labelled and sealed in the presence of the panch and one of these might have been sent to the Public Analyst for analysis. But this was not a suggestion either to Rane or to Yeshwant on behalf of the accused. The suggestion to the panch was that when he arrived at the shop, three packets were already ready which suggestion he accepted. But much cannot be made of that suggestion, because the panch had earlier stated in answer to questions by the prosecution in the nature of cross-examination after he was declared hostile that the sample was given by accused No. 2 in his presence to Rane and the sample was divided into three parts and kept in separate packets in his presence which packets were also labelled, marked and sealed. There is also no reason why Rane should concoct a false case against the accused by taking some packets with him to the shop containing adulterated stuff and making a show that he had taken sample of the stuff from the shop. The learned Presidency Magistrate has also observed that the panch Yeshwant was a mere servant of a Cold Drink House which was situated by the side of the shop of accused No. 2 . But it was possible for Rane to select the Proprietor of the Cold Drink House himself to act as panch instead of a mere servant from the shop. One, however, does not know whether the proprietor of the Cold Drink House was present and available to act as panch. No fault could also be found in choosing a mere servant instead of the proprietor, assuming that the proprietor was present in his shop. The learned Presidency Magistrate has also made much of the fact that Rane was unable to say whose signature was there on the bill (Ex. B) which was issued to him by accused No. 2. No fault could also be found in choosing a mere servant instead of the proprietor, assuming that the proprietor was present in his shop. The learned Presidency Magistrate has also made much of the fact that Rane was unable to say whose signature was there on the bill (Ex. B) which was issued to him by accused No. 2. But accused No. 2 in his own statement has not denied his signature on (Ex. B) and all that he has stated is that he was asked to sign certain papers and accordingly he had signed them without knowing their contents. At the time when he gave evidence in Court Rane might not have been able to state whose signature was on the bill (Ex. B), but that is no ground for discarding his evidence as to the events on the date on which he had taken the sample. The learned Presidency Magistrate has thus given no valid or cogent reasons why the solitary evidence of the Food Inspector Rane was not such as could inspire confidence. Rane had taken an independent persons to act as panch. But, unfortunately, he had turned hostile. The reason for this is not far to seek. The panch Yeshwant is a servant in a neigbouring shop and he may be having second thoughts, when he was called to give evidence against accused No. 2, whether to state the truth or coveniently deny knowledge of the events on the date of the incident in order to help accused No. 2 I, therefore, find the evidence of Rane acceptable and if that evidence is accepted, there is no manner of doubt that the sample of catechu (edible) analysed by the public Analyst was from the quantity of 600 gms. of catechu (edible) which Rane had purchased from accused No. 2 on 24th October, 1972 and which, in its turn, was from the material stored in the shop for sale. On the basis of the evidence of Rane, therefore, accused No. 2 is clearly guilty of the offence with which he was charged. The question is about the complicity of accused No. 1. On the basis of the evidence of Rane, therefore, accused No. 2 is clearly guilty of the offence with which he was charged. The question is about the complicity of accused No. 1. Except that he is the owner of the shop, there is no material from which it could be said that he had knowledge that some adulterated stuff was kept in the shop by accused No. 2 for sale, nor are any circumstances present from which it could be said that accused No. 1 was conniving at the illegal activities of accused No. 2. Accused No. 1 was admittedly not present in the shop when Rane visited it. From the mere fact that accused No. 1 is the owner of the shop, he cannot be held vicariously liable for the illegal acts of his servant accused No. 2. The acquittal of accused No. 1 is, therefore, correct and will have to be upheld, though for reasons different from those given by the learned Presidency Magistrate. In the result, the appeal filed by the State is partly allowed. The acquittal of accused No. 1, who is the proprietor of the shop, is upheld. The acquittal of accused No. 2, who was present in the shop and had sold the adulterated stuff, is set aside and he is convicted for the offence punishable under section 16(1)(a)(i) read with section 2(i)(l) of the Act and Rule 5-A-21 of the Rules. He is sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1,000/- in default, to undergo rigorous imprisonment for a further period of two months. The bail bound of accused No. 1 is cancelled. Accused No. 2 to surrender to his bail. Advocates appeared : S.A. Wale, P.P., for State. J.A. Bardey, A.S. Zariwala, for respondent-accused Nos. 1 2. SAPRE, J.:---In view of the order passed on Criminal Application No. 602 of 1976 to-day, this criminal appeal is restored to file. Mr. Barday on behalf of accused No. 2 is unable to challenge the order of conviction of accused No. 2. That could not also be done for the reasons I have already stated. Mr. Barday, however, submits that the sentence proposed by me would be rather severe and should be reduced. Mr. Barday on behalf of accused No. 2 is unable to challenge the order of conviction of accused No. 2. That could not also be done for the reasons I have already stated. Mr. Barday, however, submits that the sentence proposed by me would be rather severe and should be reduced. Then adulteration proved in this case would fall under section 2(i)(l) of the Act, because the article has been found by the Public Analyst to be sub-standard. Under proviso (i) to Clause (a) of sub-section (1) of section 16 of the Act, if the charge is of selling an article of food which is adulterated under sub-clause (1) of Clause (i) of section 2 of the Act, the Court may, for any adequate or special reasons, impose a sentence of imprisonment less than the minimum prescribed which is imprisonment for a term not less than six months and a fine not less than Rs. 1,000/-. There is, therefore, a discretion in the Court in the present case to award a sentence less than the minimum prescribed. Mr. Barday has pointed out that accused No. 2 is a young man of 23 years and he submits that he was married only last year. Accused No. 2 is the only person who can look after the shop because accused No. 1, who has been acquitted and who is the owner of the shop, is in hospital for treatment of a compound fracture and will not be available to look after the shop for quite some time. Mr. Barday submits that these could be adequate and special reasons to award a sentence less than the minimum prescribed. I find that accused No. 2 is a very young person. The adulteration found is that the article was sub-standard and there is no evidence that the substance was harmful or injurious to health. It will, therefore, be a proper and fit case to exercise discretion in favour of accused No. 2 in not awarding the minimum sentence. The ends of justice, in my view, would be sufficiently met if accused No. 2 is sentence to undergo rigorous imprisonment for three months and to pay a fine of Rs. 500/-., in default, to undergo rigorous imprisonment for a further period of one month. I order accordingly. Accused No. 2 to surrender to his bail. The ends of justice, in my view, would be sufficiently met if accused No. 2 is sentence to undergo rigorous imprisonment for three months and to pay a fine of Rs. 500/-., in default, to undergo rigorous imprisonment for a further period of one month. I order accordingly. Accused No. 2 to surrender to his bail. Subject to the above modification, the last paragraph of the judgment dated 11th March, 1976 will stand. -----