JUDGMENT Mahavir Singh, J. 1. THIS is a revision by Shanti Prasad against the appellate order of the Sessions Judge, Gonda, dismissing his appeal against his conviction under Sections 7/16 of Prevention of Food Adulteration Act and sentence of six months* R. I. and a fine of Rs. 1000/- and in default to undergo six months' R. I. passed by Judicial Magistrate, Gonda. 2. THE relevant facts are that a complaint was filed by the Food Inspector Sri B. H. Saini against the applicant and one Rajit Ram. It was alleged that an 13-10-74 he found the applicant taking milk in a can for sale near the railway crossing of Subhapur, P. S. Intiafhok, Gonda. He took a sample from that milk. The applicant is said to be a man of Rajitram. The milk was found to be adulterated being 12 percent deficient in non-fatty solids according to the buffalow milk standard. The applicant had denied the taking of any sample from him and alleged his implication because of some inimical feelings. Rajit Ram had also denied the prosecution case. The learned Magistrate acquitted Rajit Ram but found that the case was proved against the applicant and so convicted and sentenced him as mentioned above. The appeal filed by the applicant was also dismissed. 3. IN revision it is contended that the Courts below have not properly taken note of the provisions of Section 10 (2) of the Prevention of Food Adulteration Act which made it obligatory upon a Food Inspector to call one or more independent person as called by the Food Inspector. 4. THE prosecution in this case had examined besides the Food Inspector, one Deo Datta PW 2 a public witness. The learned Sessions Judge was of the view that it was sufficient compliance of the provisions of Section 10 (7). But actually it is not so. It was admitted that a sample had also been taken by the Food Inspector from this person at that very time. He was thus clearly under the thumb of the Food Inspector. Such a person could hardly be called an independent witness. As held in AIR 1974 Supreme Court 789, Ram Labhaya v. State, the provisions of this subsection are mandatory and it is incumbent upon the Food Inspector to call one or more persons to be present when such action is taken. Such a person could hardly be called an independent witness. As held in AIR 1974 Supreme Court 789, Ram Labhaya v. State, the provisions of this subsection are mandatory and it is incumbent upon the Food Inspector to call one or more persons to be present when such action is taken. It was also clearly held that the words 'one or more persons' used in this sub-section means one or more independent persons. So merely making Deo Datta as a witness cannot be said to be a compliance of this mandatory provision of law. As a matter of fact this practice as adopted by the Food Inspector can hardly be supported. This is a wrong method to evade the salutary provisions of this sub-section. This is admitted by the Food Inspector that another person Shyam Sundar was also present at that time. He had initially stated that he (Shyam Sunder) was also made a witness but later admitted that he had not taken his thumb impression nor had he actually made him a witness. Thus when independent persons were available and no attempt was made to keep them as eye witnesses and instead kept only such a person as witness who was under his influence, it becomes clear that the Food Inspector had violated the mandatory provisions of law and, therefore, no reliance should have been placed upon such a recovery. 5. BESIDES that, another important question raised in this case was that even otherwise the sample in question could not be said to have been adulterated. The sample contained, according to the Public Analyst 6% fatty solids and 6.9% non fatty solids. It was found to be adulterated being deficient in non-fatty solids because it was treated as buffalo's milk. There is no evidence that the sample was given out by the applicant to be a buffalo's milk. 6. THE learned Sessions Judge has field that as in the papers prepared at that time namely, Ex. Ka 1, Ex. Ka 2 and Ka 3 the milk was described as cow's milk and since the Food Inspector stated that he filled the sample on making inquiries from the appellant, it must be held that this information must be given by the applicant that it was buffalo's milk. This view is also not legally acceptable. The entries in the papers are merely corroborative of the oral statement which is substantive. This view is also not legally acceptable. The entries in the papers are merely corroborative of the oral statement which is substantive. In his statement the Food Inspector had not sated that the applicant had told him that it was a buffalo's milk. So in these circumstances it could not be held that the recital in the memo was at the instance of the applicant. PW 2 Deo Datta had also not stated that the applicant had told them that it was a buffalo's milk. Under these circumstances the standard prescribed for the buffalo's milk could not be applied in this case. If there is no evidence as to what animal's milk had been taken, it has to be presumed that it was of the lower category that is cow's milk. The standard of cow's milk is 3.5% or 3% in Fatty solids and 8.5% in non fatty (total 12%). In the present case the contents are 6% fatty solids and 7.9% in non-fatty solids. Thus there is only deficiency of 6 or 12% in case of non-fatty solids whereas there is overdose of fatty solids. The total comes to 13.9% which is a little more than the total of the prescribed standard. So it is more than that of cow's milk and hence cannot be said to be adulterated. Same was the view taken in Rajan Lal v. State, 1976 Criminal Law Journal 516. So in any way of the case, the conviction of the applicant was not justified. In the result the conviction of the applicant is set-aside. Fine, if deposited, shall be refunded, to the applicant. Revision allowed.