ORDER P.N. Bakshi, J. - The applicant has been convicted under sections 7/16 of the Prevention of Food Adulteration Act and sentenced to 6 months R.I. and a fine of Rs. 1000/-. In default of payment of fine, he is to undergo rigorous imprisonment for a further period of 3 months. His conviction and sentence has been confirmed in appeal by the Sessions Judge, hence this revision. 2. I have heard the learned Counsel for the applicant and have also perused the impugned orders. According to the prosecution case a sample of buffalo milk was purchased by the Food Inspector from the applicant at 9.30 a.m. on 21st February, 1974. After complying with the due formalities of law, two sample phials were retained by the Food Inspector and one phial was given to the accused applicant. One of the sample phials in possession of the Food Inspector was sent for analysis. The report of the Public Analyst disclosed that the sample of buffalo milk was deficient in fat contents to the extent of 33 per cent and also non-fatty solids to the extent of 33 per cent. After obtaining requisite sanction, the applicant has been prosecuted and convicted as above. 3. Both the courts below on a consideration of the evidence on the record have come to the concurrent conclusions that the buffalo milk of which sample was taken was adulterated. I do not find any illegality or perversity in their findings to warrant interference in revision. 4. The sole argument addressed by the learned Counsel for the applicant was that his invaluable right under section 13(2) of the Prevention of Food Adulteration Act for having the sample sent to the Director Central Food Laboratory, Calcutta has been infringed. 5. It appears from the record that the plea taken up by the accused was that he was not delivered a sample phial by the Food Inspector. This has been found to be incorrect. The finding of fact, therefore, must be accepted that out of the three sample phials, one was given to the accused by the Food Inspector at the time his sample of milk was purchased is accordance with law. 6. This has been found to be incorrect. The finding of fact, therefore, must be accepted that out of the three sample phials, one was given to the accused by the Food Inspector at the time his sample of milk was purchased is accordance with law. 6. It further appears that an application was filed on behalf of the accused applicant to the effect that he desired to cross-examine the Food Inspector with regard to the third phial in his possession concerning the preservative, the label and other matters connected therewith and therefore, the wrapper and the seal of the second phial in possession of the Food Inspector be opened. The court allowed this application and directed the accused to give an undertaking that if the seal and the wrapper were opened, the accused would not ask for sending the same bottle for examination to the Director, Central Food Laboratory, Calcutta. No such undertaking was given by the accused. He, however, consisted that the seal must be opened. The seal was thus broken open and the wrapper separated from the phial. Subsequently this sample phial and the wrapper were kept enclosed under registered cover by the orders of the court. It appears that the accused then applied to the court for sending this very sample which had been opened for analysis to the Director. The court refused this request on the ground that under section 13(2) of the Prevention of Food Adulteration Act, when an application was filed by the accused, the court had to ascertain that the marks, seal and fastening made by the Food Inspector under section 11(a)(b) were intact. Thereafter, the sample was to be dispatched under the seal of the court to the Director, Central Food Laboratory, Calcutta. Since in the present case, the seal and the wrapper had already been broken open on the insistence of the accused, the Magistrate refused to send the same to the Director, but he also ordered that if the accused so desired, he could have the sample phial which was delivered to him by the Food Inspector, sent for analysis to the Director. The accused did not send his own sample. The accused did not send his own sample. Obviously for the reasons that he had taken up a false plea that no sample was given to him and perhaps he did not desire this falsehood to become so obvious as to produce the sample phial from his possession. The applicant was blowing hot and cold in the breath. He has himself created a situation whereby the seals of the sample phial and the wrapper were broken open. He was rightly disallowed to take advantage of his own manipulations by the Magistrate. 7. This court has held in a decision reported in 1976 (1) F.A.C. 209 Shabbir Ahmad v. State that "The right of the accused is to get the sample with him sent for test, and the right of the complainant is to get the third simple with him sent for test in case he wants to challenge the finding of the Public Analyst." However, even if it is conceded for the purpose of argument that the accused had the choice under section 13(2) of the Prevention of Food Adulteration Act, as it stood prior to its amendment to have third sample phial in the possession of the Food Inspector, or the second sample phial in his own possession to be sent to the Director, but in the instant case, when he was himself responsible for getting the seal and the wrapper of the third sample in the possession of the Food Inspector broken open, in all fairness, he should have agreed to send second sample phial in his possession for analysis as permitted by the court. In my opinion no illegality has been committed by the Magistrate in refusing the prayer of the accused for sending the third sample phial for analysis by the Director Central Food Laboratory, Calcutta, in the circumstances of the instant case. 8. Learned Counsel has lastly argued on the question of sentence. The sentence awarded to the applicant by the courts below is 6 months R.I. and a fine of Rs. 1000/-. To my mind, there are no extenuating circumstances for reducing the sentence any further, more so, in view of the dishonest attitude of the accused, referred to above, which he adopted during the trial. 9. There is no merit in this revision, which is hereby dismissed. 1000/-. To my mind, there are no extenuating circumstances for reducing the sentence any further, more so, in view of the dishonest attitude of the accused, referred to above, which he adopted during the trial. 9. There is no merit in this revision, which is hereby dismissed. The applicant shall be taken into custody forthwith to serve out the unexpired portion of his sentence.