Judgment J.M.L. Sinha, J. 1. THIS revision arises out of the Judgment dated 10th March, 19 8, passed by the IV Additional Sessions Judge, Agra, dismissing the appeal that was filed by the present applicant against his conviction and sentence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act. 2. ON 10th October, 1975, at about 9.30 a.m. the Food Inspector, Bah, found the applicant carrying about 35 liters of buffalo milk in a can. The Food Inspector collected milk out of that can. One part of the sample was sent to the Public Analyst, who reported it to be adulterated. A complaint was therefore, filed for the prosecution of applicant. During his examination in the trial court the applicant accepted that on the date and time alleged the Food Inspector collected sample out of the milk in his possession. He, however, pleaded that he did not receive any price for the same and further that the milk was not intended for sale but was being taken by him to his uncle Subedar in connection with Thirteenth Day ceremony of some deceased relation at his place. The trial court found the applicant guilty and convicted him. Since that part of the judgment of the trial court is a little involved, it would be expedient to quote the same. It is as follows : "Accused Puttu Lal is convicted of charge against him under Section 7 (1) and (iii) of the Prevention of Food Adulteration Act read with Rule. 50 of the Prevention of Food Adulteration Rules, 1955 and Rule 80 of the Pure Food Rules, 1952 read with Sec. 25 (2) of the Pure Food Act punishable under Section 16 (1) of the Pure Food Act and Section 6 of U. P. Act, 1975. The accused is to go under simple imprisonment for six months under Section 16 of the Prevention of Food Adulteration Act. He is awarded another six months' simple imprisonment under Section 6 of U. P. Act of 1975." Aggrieved against the conviction and sentence recorded by the trial court the applicant filed an appeal in the court of sessions. The learned Addl. Sessions Judge, however, maintained the conviction and sentence as recorded by the trial court and dismissed the appeal. Aggrieved against it, the applicant has preferred this revision. 3. The learned Addl. Sessions Judge, however, maintained the conviction and sentence as recorded by the trial court and dismissed the appeal. Aggrieved against it, the applicant has preferred this revision. 3. LEARNED counsel for the applicant, it appears, took pains in preparing this case and addressed very elaborate arguments covering almost every possible point in the case. It was first contended that the sanction in the instant case was invalid as it did not appear from it that the sanctioning authority applied its mind to the facts of the case before recording the sanction. A number of cases were cited by the learned counsel for the applicant in order to contend that an authority according sanction for prosecution of any offence should do so only after applying its mind to the relevant facts. It is needless to refer to all those decisions because so far as the legal proposition enunciated by the learned counsel is concerned, there can be no two opinions about it. The question, however, is whether it is open to the applicant to raise such a contention for the first time in revision and, if so, whether it can be held in the instant case that the sanction was accorded by the authority concerned without applying his mind to the facts of this case. 4. THE question as to whether the sanctioning authority accorded sanction in the present case after applying his mind to the facts of the case or he did so mechanically is a mixed question of law and fact. It is, therefore, necessary for a party, if he chooses to assail the validity of the sanction on the ground that it was accorded without application of mind, to do so during the trial of the case so that the prosecution may have an opportunity to adduce evidence to prove that the sanctioning authority did apply his mind to the facts of the case before according the sanction. It is not open to a party to keep quiet in the trial court, to keep quiet in the appellate court and then to take the prosecution by surprise by raising such a contention for the first time before a court of revision. It is not open to a party to keep quiet in the trial court, to keep quiet in the appellate court and then to take the prosecution by surprise by raising such a contention for the first time before a court of revision. Indeed, if there is no sanction at all in any case it may be open to a party to raise that question even in a court of revision, but where the sanction for the prosecution exists in a case and the only objection raised on behalf of the accused is that it was accorded without application of mind to the facts of the case, equity and fair play demand that such an objection should be raised in the trial court itself, so that the other party may have an opportunity to lead necessary evidence. Reference in this connection can be made to the case of Tulsi v. State of U.P., AIR 1963 S.C. 606. One of the offences charged against the accused in that case was under Section 120-B of the Indian Penal Code. According to Section 196-A of the Code of Criminal Procedure, cognizance of the offence under Section 120-B, where the object of conspiracy is to commit any non- cognizable offence or cognizable offence not punishable with death or imprisonment for life or rigorous imprisonment for a term of two years or upwards, cannot be taken, unless the State Government by an order in writing has consented to the initiation of the proceedings. THE original order passed by the Government sanctioning the prosecution was not placed on record. THE prosecution only filed a letter from the Under Secretary to the Government of U.P. addressed to the District Migistrate, Kanpur informing him that the Governor had been pleased to grant sanction to the initiation of the proceedings against the persons concerned. It was contended before the Supreme Court that the written order of sanction by the sanctioning authority had not been placed on record and that, in any case, the document on record did not show on its face that the facts of the case were considered by the Governor. THE Supreme Court refused to entertain that contention and observed : "We did not permit Mr. Mulla to raise this point because it is not a pure question of law but requires for its decision investigation of facts. THE Supreme Court refused to entertain that contention and observed : "We did not permit Mr. Mulla to raise this point because it is not a pure question of law but requires for its decision investigation of facts. It is not his contention that there was no sanction at all but the gravamen of his complaint is that there is no proper proof of the fact that sanction was given by the authority concerned after considering all the relevant facts and by following the procedure as laid down in Article 166 of the Constitution. Had the point been raised by the appellant in the trial court, the prosecution would have been able to lead evidence to establish that the Governor had in fact before him all the relevant material, that he considered the material, and after considering it he accorded the sanction and that that sanction was expressed in the manner in which an act of the Governor is required to be expressed. Mr. Mulla, however, says that section 196-A of the Code of Criminal Procedure is a sort of brake on the powers of the Criminal Court to enquire into the charge of conspiracy, that the court does not get jurisdiction to enquire "into that charge unless the brake is removed and that it is, therefore, essential for the prosecution to establish that the brake was removed by reason of the fact that the appropriate authority had accorded its sanction to the prosecution after complying with the provisions of law and that it was not obligatory on the defence to raise an objection that there was no proper sanction. There would have been good deal of force in the argument of learned counsel had Ex. P. 1560 not been placed on record. Though that document is not the original order made by the Governor or even its copy, it recites a fact and that fact is that the Governor has been pleased to grant sanction to the prosecution of the appellants for certain offences as required by Section 196-A of the Code of Criminal Procedure. THE document is an official communication emanating from the Home Department and addressed to the District Magistrate at Kanpur. A presumption would, therefore, arise that sanction to which reference has been made in the document, had in fact been accorded. THE document is an official communication emanating from the Home Department and addressed to the District Magistrate at Kanpur. A presumption would, therefore, arise that sanction to which reference has been made in the document, had in fact been accorded. Further, since the communication is an official one, a presumption would also arise that the official act to which reference has been made in the document was regularly performed. In our opinion, therefore, the document placed on record prima facie meets the requirements of Section 196-A, Cr. P.C. and therefore, it is not now open to the appellants to contend that there was no evidence of the grant of valid sanction." Confronted with this decisions learned counsel for the applicant urged that the provision contained in Section 196-A (2) is different from the provision contained in Section 20 of the Prevention of Food Adulteration Act. This argument, however, is devoid of substance. The rule incorporated in Section 196-A (2) is that no court shall take cognizance of an offence specified therein without consent in writing by the State Government, the Chief Presidency Magistrate or the District Magistrate empowered in that behalf by the State Government. The rule contained in Section 20 of the Prevention of Food Adulteration Act is that no prosecution for an offence under that Act can be initiated except by or with the consent in writing of the Central Government, the State Government or local authority or a person authorised in that behalf by the aforesaid authority. It will thus appear that Section 196-A (2) of the Code of Criminal Procedure and Section 20 of the Prevention of Food Adulteration Act are in effect analogous to each other. The mere fact that one creates a bar against taking cognizance of the case and the other bans the institution thereof is immaterial. The purpose of both the provisions is to prevent prosecution without consent of the relevant authority. What has, therefore, been said by the Supreme Court with regard to the consent under Section 196-A (2) of the Code of Criminal Procedure, should apply equally to the consent referred to in Section 20 of the Prevention of Food Adulteration Act, 5. NOW, coming to the facts of this case, a perusal of the judgment of the trial court shows that no objection whatsoever was taken by the applicant in that Court assailing the validity of the sanction. NOW, coming to the facts of this case, a perusal of the judgment of the trial court shows that no objection whatsoever was taken by the applicant in that Court assailing the validity of the sanction. A persual of the judgment of the lower appellate court shows that a contention was raised there to the effect that since the complaint was filed by the same person who had collected the sample, prejudice had been caused to the applicant. The validity of the sanction on the ground that it was accorded without any application of mind was not assailed even in the lower appellate court. It was for the first time in this revision that an objection regarding the validity of the sanction was raised. In view of the observations made by the Supreme Court in the aforementioned cases it is not open to the applicant to raise that contention now in revision and thereby take the prosecution by surprise. 6. THE next contention raised by the learned counsel for the applicant before me was that Rule 9 (j) of the Rules framed under the Act was not complied with. It reads as under : "It shall be the duty of the Food Inspector to send by registered post, a copy of the report received in Form III from the Public Analyst to the person from whom the sample was taken within ten days of the receipt of the said report. However, in case the sample conforms to the provisions of the Act or Rules made thereunder, then the person may be informed of the same and report need not be sent." Learned counsel urged that the aforesaid rule is of mandatory nature and non-compliance thereof vitiates conviction. Reliance for this argument was placed on the decisions of : (i) Public Prosecutor Hyderabad v. J. Murlidhar, 1977 Cr. L.J. 1934 (A. P. High Court) ; (ii) Bhola Nath Naik v. State, 1977 Cr. L.J. 154 (Calcutta High Court) ; (iii) State of Maharashtra v. Josti Dosa, 1978 Cr. L.J. 427 (Bombay High Court). It is true that Rule 9 (j) makes it obligatory on the part of the Food Inspector to send a copy of the report of the Public Analyst within ten days from the receipt thereof to the person proposed to be proceeded against. L.J. 427 (Bombay High Court). It is true that Rule 9 (j) makes it obligatory on the part of the Food Inspector to send a copy of the report of the Public Analyst within ten days from the receipt thereof to the person proposed to be proceeded against. THE purpose behind the enactment of this rule is that if the person from whom the sample was collected chooses to dispute the correctness of the report of the public analyst, he may send the sample phial in his possession to the Director of Central Food Laboratory for report before the sample gets deteriorated by lapse of unduly long time. It should also be accepted that non-compliance of Rule 9 (j) would deprive the accused of a valuable right. It should, therefore, be accepted that if it is shown in any case that Rule 9 (j) was not complied with no conviction can be recorded against the accused. However, it is necessary far an accused to raise the objection to that effect at some partinent stage. In the instant case, I find that no objection in: that regard was taken in the trial court, nor any such objection was taken before the lower appellate court. If an objection had been taken in the trial court, the prosecution could place the relevant document before the court to show that Rule 9 (j) had been complied with. If for any reason the applicant could not take that objection in the trial court, he could raise that objection in the lower appellate court which is a court of fact and law. There too it may have been possible for the Food Inspector to place the relevant material before the court to enable it to come to a conclusion whether or not Rule 9 (j) had been complied with. 1 do not think it is open to a party to keep quiet in the trial court and in the court of appeal and then take this objection all of a sudden before this Court in revision. This amounts to taking the prosecution by surprise which cannot be permitted. Since the applicant did not raise the objection regarding non-compliance of Sec. 9 (j) in the trial court and in the lower appellate court, I refuse to entertain that objection now in revision as it would not be fair to the other party. 7. This amounts to taking the prosecution by surprise which cannot be permitted. Since the applicant did not raise the objection regarding non-compliance of Sec. 9 (j) in the trial court and in the lower appellate court, I refuse to entertain that objection now in revision as it would not be fair to the other party. 7. LEARNED counsel then urged that the Food Inspector did not make compliance of sub-section (7) of Section 10 of the Act inasmuch as he did not pick any independent witness;. LEARNED counsel pointed out that the only witnesses examined in the case are the Food Inspector, and the Sanitation Supervisor. LEARNED counsel stressed that a sanitation supervisor is always: under the influence of the Sanitary Inspector, who is an ex-officio Food Inspector, and hence the Sanitary Supervisor could not be an independent witness. Referring to the statement on oath made by Sri S. C. Dixit, Food Inspector, that he had asked those present at the spot to be witness in the case but they refused to agree, learned counsel for the applicant urged that it is a wholly incredible statement and was made by the Food Inspector merely to circumvent the provision contained in sub-section (7) of Section 10 of the Act. I do find that in most of the cases under the Prevention of Food Adulteration Act the prosecution contents itself by examining the Food Inspector and the Sanitary Supervisor. No effort is made by the Food Inspector to pick any independent person. There is force in the contention that a Sanitary Supervisor being subordinate to the Sanitary Inspector (who is an ex-officio Food Inspector) is amenable to the latter's influence and cannot be said to be an independent witness. The offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act is now punishable with a substantive term of imprisonment and it is high time that the prosecution should give up contenting itself by examining only the Food Inspector and the Sanitary Supervisor. The prosecution must examine some independent person or must show that a serious effort was made to pick an independent witness but none was forthcoming. The prosecution must examine some independent person or must show that a serious effort was made to pick an independent witness but none was forthcoming. So far, however, as the present case is concerned, the fact that the Food Inspector did not pick up any independent witness cannot be of any significance because the applicant admitted during his examination in the trial court that the Food Inspector collected sample of milk from his possession on the date, time and place alleged. Further, it was stated by both the aforesaid prosecution witnesses that those present at the place of occurrence did not agree to be witness in the case and an endorsement to that effect was made by the Food Inspector on the notice (Ex. Ka-1) which also bears the signatures and thumb mark of the applicant. The contention raised by the learned counsel for the applicant is, accordingly, rejected. 8. LEARNED counsel then urged that the fat contents of the sample collected by the Food Inspector were higher than the prescribed standard. To my mind that could make no difference. According to the standard prescribed by Para A-11.01.01 of Appendix 'B' of the Rules framed under the Act, buffalo milk should contain 60 per cent milk fat and 90 per cent non-fatty solids in U. P. According to the report of the Public Analyst, milk fat in the sample was up to the prescribed standard but non-fatty solids were deficient by 2.5 per cent. It has been held in Rajan Lal v. State, 1975 AWC 660 and Kallu v. State, 1978 F. A. Journal 332 that if there is deficiency either in the fatty or non-fatty contents, the article of food would be deemed to be adulterated. The aforesaid two cases were again relied upon by a learned single Judge of this court in case of Megh Singh v. State, 1979 AWC 247 . Since the sample collected out of the possession of the applicant was deficient in non-fatty solids, it must be held that it was adulterated and the contention raised by the learned counsel to the contrary cannot be countenanced. 9. Since the sample collected out of the possession of the applicant was deficient in non-fatty solids, it must be held that it was adulterated and the contention raised by the learned counsel to the contrary cannot be countenanced. 9. LEARNED counsel then urged that, according to the statement made by the applicant, the milk was not meant for sale, but was being taken by him to the place of his uncle Subedar in connection with thirteenth day ceremony, that was scheduled to take place there LEARNED counsel pointed out that the applicant also examined Subedar in his defence to prove the same fact. LEARNED counsel urged that since the food was not meant for sale, even assuming that it was adulterated, no offence under Section 17 was made out against him. The trial court rejected this contention on the ground that sale to the Food Inspector was sale within the meaning of the Act and, once it is accepted that the Food Inspector collected the sample of milk from the possession of the applicant and the latter accepted its price, it amounted to sale. The lower appellate court has, however, rejected the plea that was set up by the applicant, as also the evidence of Subedar (DW 1) and has given good reasons for the same. Sitting as a court of revision I should not enter into re- appreciation of evidence. That apart, it has been held by the Supreme Court in the case of Mangaldass Raghoji v. State of Maharashtra, AIR 1966 SC 128 that sale of an article of food to the Food Inspector for analysis is also 'sale' within the meaning of the term as defined in Section 2 (xiii) of the Act. The contention raised by the, learned counsel is, accordingly, rejected. 10. LEARNED counsel lastly urged that the Food Inspector had been called upon to deposit the sample phial in court, but it was not done by him. LEARNED counsel stressed that the prosecution case should have been thrown out for the reason of that default by the Food Inspector. The argument appears to be based on the order dated 6-8-1976 contained in the order sheet of the trial court. It is stated therein that the accused was present but neither the prosecution witnesses were present nor the sample phial was received and hence the case was adjourned. The argument appears to be based on the order dated 6-8-1976 contained in the order sheet of the trial court. It is stated therein that the accused was present but neither the prosecution witnesses were present nor the sample phial was received and hence the case was adjourned. The case thereafter came up for hearing, on several dates till it was decided by the trial court on 3rd of September, 1977. It does not appear on a perusal of the subsequent order in the order-sheet that the sample phial was not produced even on any of the subsequent dates. Further, even assuming that the sample phial was not produced, there is nothing on record to show that either the applicant or the trial court insisted upon its being produced. One of the sample phials had been sent to the public analyst. His report had been received and filed in court. The applicant had also one sample phial in his possession which he could produce in court, if he wanted it to be sent to the Director (of Central Food Laboratories. The mere fact that the Food Inspector did not produce in court the third sample phial without any body insisting for its production, cannot vitiate the conviction recorded against the applicant. Learned counsel for the applicant then urged that the conviction and sentence recorded by the court below for contravention of the rules framed under the Pure Food Act was uncalled for and that the sentence recorded against the applicant under Section 7 read with Section 16 of the Act is excessive and may be reduced. The only allegation against the applicant was that he was found selling adulterated milk. This was squarely covered by Section 7 read with Section 16 of the Prevention of Food Adulteration Act. It could not be explained to me at the time of arguments as to how on the same facts the applicant could also be held guilty of contravening any rule framed under the Pure Food Act. The conviction and sentence recorded against the applicant far contravention of the rule framed under the Pure Food Act was, therefore, uncalled for and should be set aside. 11. AS for the sentence recorded against the applicant under Section 7 read with Section 16 of the Act, it does not appear from the record that the applicant is a regular shop-keeper. 11. AS for the sentence recorded against the applicant under Section 7 read with Section 16 of the Act, it does not appear from the record that the applicant is a regular shop-keeper. It also does not appear that he was prosecuted on any previous occasion for selling adulterated milk. According to the statement made by the applicant in the trial court, he was only 20 years old at that time. Further, his appeal was dismissed by the lower appellate court on 10-3-1978 and he was granted bail on. 23-5-197S, and he has thus already undergone imprisonment for about 2 1/2 months. The proviso appended to Section 16, as it existed on the date of the commission of the offence charged against the applicant, stated that, if the offence be under sub-clause (1) of clause (a) of Section 16 and be with respect to an article of food adulterated within the meaning of clause (1), the court can, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of less than six months' R I. or of a fine of less than Rs. 100/- or of both imprisonment for less than six months and a fine of less than Rs. 1,000/-. The adulteration in the instant case was of the nature referred to in clause (1) of Section 2 and the proviso was, therefore, applicable. Consequently, in view of the fact that the applicant is not a regular shop-keeper,, nor was he ever prosecuted in the past for selling adulterated article of food : that he is a young boy aged about 20 years ; and that he has already undergone sentence of imprisonment for about 24 months, the sentence awarded to him can be reduced to the sentence of imprisonment already undergone together with a fine of Rs. 500/-. 12. IN the result, this revision is allowed to this extent that the conviction and sentence recorded against the applicant for contravention of the rules framed under the Pure Food Act are set aside. The conviction recorded against the applicant under Section 7 read with Section 16 of the Prevention of Food Adulteration Act is maintained, but the sentence of six months' R. I. awarded to him by the trial court is reduced to the sentence of imprisonment already undergone together with a fine of Rs. 500/- only. The conviction recorded against the applicant under Section 7 read with Section 16 of the Prevention of Food Adulteration Act is maintained, but the sentence of six months' R. I. awarded to him by the trial court is reduced to the sentence of imprisonment already undergone together with a fine of Rs. 500/- only. IN default of payment of fine, the applicant shall undergo six weeks' R. I. The applicant is granted one month's time from the receipt of the record in the trial court to deposit the fine. The applicant is a bail. He need not surrender. The bonds furnished by him are discharged. The record of the case shall be sent back to the trial court without delay. Ordered accordingly.