JUDGMENT Murlidhar, J. - The applicant Kalwa has been convicted under section 7/16 of the Prevention of Food Adulteration Act and sentenced to six months' R.I. and a fine of Rs. 1,000/-. In default further R.I. for three months. 2. According to the prosecution case a buffalo milk sample taken from the applicant on 25-7-1977 at about 10 A.M. in Seohara Bazar was found to be deficient by 22% in fatty contents and 23% in non-fatty contents. The notice of intention to take sample Ex. Ka. 1 and the receipt about payment of price thereof on record purport to bear the thumb impression of the applicant and signature of Subhash Chandra and Flashmat Ali as witnesses. The prosecution examined the Food Inspector and Subhash Chandra. The latter was hostile and denied sample taking in his presence asserting that his signatures had been obtained by the Inspector on threat of prosecution. The defence of the accused was of denial. The courts below have believed the prosecution version. 3. The only point pressed in revision is that the prosecution is illegal on account of the failure of the Food Inspector to comply with the provisions of Section 10(7) of the Act. The foundation for this argument is that during his evidence the Inspector did not specifically state that he had either called any witnesses or had taken the sample in the presence of the witnesses, It was only at the stage of the part relating to the filling of the samples in phials that he stated that he filled the samples in three phials in the presence of the witnesses and the accused. The Sessions Judge who decided the appeal appears to have been inclined to treat it as a case of non-compliance with Section 10(7) and has observed that absence of evidence that the witnesses were called by the Inspector makes it impossible to accept that the witnesses were present when the sample was taken, that the evidence no doubt fails to prove that the requirement of calling of witnesses at the lime of taking the sample was fulfilled by the Inspector in this case, and that the Inspector failed to carry out the provisions of law but this does not vitiate the trial. He relied upon Babu Lal v. State of Gujarat, 1972 FAC 18 to hold that the non-compliance with the provisions of Section 10(7) can only result in some cases to the testimony being rejected. Holding that in the present case the testimony was reliable, the Sessions Judge upheld the conviction. 4. Learned counsel stressed that a breach of the provisions of Section 10(7) must as a matter of law be fatal to the conviction. I do not think it is necessary to go into this question because to my mind the necessary foundation for the argument is the proof that no witnesses were taken at the time of sample taking and not merely absence of affirmative proof that the witnesses were there. In the present case the lacuna appears to be merely the result of inept questioning by whosoever was conducting the prosecution because Exts. Ka-1 and Ka-2 as well as the suggestion to Subhash Chandra during cross-examination indicate that the sample was taken in the presence of the witnesses. Learned counsel himself conceded that the other witness Hasmat Ali shown in Exts. Ka-1 and Ka-2 was a peon of the Department. I do not, therefore, think that it can be said in the present case that no witnesses were called by the Food Inspector or that the sample was not taken in the presence of any witnesses. Nor I am prepared to hold 011 evidence that such was the case. Subhash Chandra appears to be a lier. This being the case the omission to consider the effect of the sample taking without witnesses does not arise in the present case. 5. No other point was argued before me. 6. In the result, the revision fails and is hereby dismissed. The applicant is 011 bail. He shall surrender forthwith to serve out the sentence. The stay order dated 3-10-1980 staying realisation of fine is also vacated.