JUDGMENT M.P. Saxena, J. - Babunandan appellant has filed this appeal against the judgment and order dated 28-9-1977 passed by the Vth Additional Sessions Judge, Azamgarh convicting him under section 7/16 of the Prevention of Food Adulteration Act and sentencing him to six months R.I. and to a fine of Rs. 1000/- and in default of its payment to two months further R.I. 2. The prosecution case in brief was that on 7-1-1976 at about 10-30 A.M. the appellant was found carrying buffalo milk for sale in mohalla Maraya in the town of Azamgarh. Narendra Singh, Food Inspector stopped him and after disclosing his identity purchased ''50 grams of buffalo milk on payment of Rs. 1.50 Paisa. It was done after serving requisite notices and in the presence of witnesses. The milk was divided in three equal parts and was placed in three phials with 18 drops of formalin in each phial. One phial of sample was sent to the Public Analyst for analysis. He reported that it contained 6.8% milk fat and 6% non fatty solids. In this manner in the opinion of the Public Analyst the sample lacked in non-fatty solids by 33%. After obtaining the requisite saction of the District Medical Officer of Health, the Food Inspector filed a complaint against the appellant. 3. The appellant denied the said charge and gave out that he was not selling any milk. According to him, his wife was ill and his son employed at the tea shop of Kansoor was bringing the residue milk of the shop for feeding his sons daughter as his wife was dead. The Food Inspector took sample from that milk. He also gave out that Munni Ram, a safai Jamadar, was inimically disposed towards him and got him implicated in this case. 4. After going through the evidence on the"record the learned trial court believed the prosecution story and convicted and sentenced the appellant as aforesaid. 5. The first question for consideration is whether the appellant was carrying buffalo milk for sale and its sample was taken by the Food Inspector. On this point the Food Inspector had examined himself and Munni Ram (P.W. 2). Both of them gave out that the sample of milk was taken from the appellant in mohalla Marhaya in the town of Azamgarh. Nothing useful could be elicited in their cross-examination to discredit their testimony. On this point the Food Inspector had examined himself and Munni Ram (P.W. 2). Both of them gave out that the sample of milk was taken from the appellant in mohalla Marhaya in the town of Azamgarh. Nothing useful could be elicited in their cross-examination to discredit their testimony. The learned counsel for the appellant has vehemently contended that in Ext. 1 and 2 the sample was alleged to have been taken from the shop of the appellant while in his statement the Food Inspector gave out that it was taken while he was carrying it for sale. The contradiction is not very material because the shop of the appellant also exists in the same mohalla. Be that as it may, the word shop was printed in the notice (Ex. 1) and was not scored out. There is, however, no reason to discredit the testimony of the Food Inspector and Munni Ram. It is, therefore, satisfactorily established that the Food Inspector had taken sample of buffalo milk from the possession of the appellant on that day. It is important to state that the receipt (Ext. 2) purports to bear thumb mark of the appellant. Both the prosecution witnesses had stated that the appellant had thumb marked it. There is no reason to discredit their testimony and it also goes a long way in proving that sample of buffalo milk which was meant for sale was taken from the possession of the appellant. 6. In the second place it is urged that the milk must have deteriorated as requisite quantity of preservative was not mixed in it. It has no force because the Public Analyst was the best person to say whether the sample of milk had deteriorated or was fit for analysis. He found it fit and after analysis gave his report. Therefore, there is no scope for argument that the sample had deteriorated as requisite quantity of preservative was not mixed with it. 7. In the third place it is urged that copy of the Public Analysts report was furnished to the appellant on 7-4-1976 i.e. after considerable delay when it was not possible for him to get sample examined by the Director of Central Laboratory. If the appellant had desired to do so he should not have waited for the receipt of Public Analysts report. If the appellant had desired to do so he should not have waited for the receipt of Public Analysts report. He could have moved the court earlier for sending one phial to the Director, Central Laboratory but it was not done. The sanction has also been attached on the ground that it appears to have been granted by the D.M.O.H. without applying his mind. The Food Inspector clearly gave out that all the papers were placed before the D.M.O.H. and after perusing these papers he accorded his sanction. In these circumstances there was no infirmity in the prosecution case. 8. The learned counsel for the appellant has also urged that the sample was more than the prescribed standard in fatty contents but was deficient only in non-fatty solids. In such a case the milk cannot be held to be adulterated. It carries no force because in the case of M.V. Joshi v. M U. Shimpi 1975 (1) FAC 214 it has been held that if the prescribed standard is not attained the statute treats the sample by fiction as adulterated food. It is needless to say that the rules prescribed standard both in respect of the fat contents and non-fatty solids. If the sample collected is deficient in respect of any of them it will be deemed to be adulterated. This contention is borne out from the case of Puttu Lal v. State 1980 (I) FAC 327 that where a sample is found to be deficient only in non-fatty solids it must be held to be adulterated. The aforesaid discussion makes it clear that the sample of milk was adulterated. 9. So far as the question of punishment is concerned, it is important that the sample was collected before the amendment in the Prevention of Food Adulteration Act was incorporated in 1976. In the opinion of the learned Sessions Judge himself the adulteration was only marginal inasmuch as instead of 9% non fatty solids there existed 6% only. In Ummedmal v. State of Maharashtra, 1979 (I) FAC 194, it has been held that if the adulteration found is of very marginal nature the sentence can be reduced to the period already undergone and fine. In Ummedmal v. State of Maharashtra, 1979 (I) FAC 194, it has been held that if the adulteration found is of very marginal nature the sentence can be reduced to the period already undergone and fine. In the instant case the appellant has already remained in jail for more than a month and the ends of justice would be amply met if his sentence is reduced to the period already undergone and to a fine of Rs. 500/-. 10. In the result, the appeal is dismissed subject to the modification that the appellants conviction under section 7/16 of the Prevention of Food Adulteration Act is maintained but the sentence is reduced to the period already undergone and to a fine of Rs. 500/-. In default of its payment he will undergo two months further R.I. The fine will be deposited within two months from the date of receipt of the record by the trial court failing which he will surrender himself in court or be taken into custody to serve out sentence.