JUDGMENT 1. FOR selling adulterated curd (dahi) the petitioner was convicted by the learned judicial Magistrate, Hooghly, under section 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 ('act' for short) and sentenced to rigorous imprisonment for 6 months and to a fine of rs. 1, 000/-, in default to simple imprisonment for a further period of two months. Aggrieved thereby, the petitioner preferred an appeal which was heard by the learned Additional Sessions Judge, Hooghly who, while dismissing the appeal and maintaining the conviction, reduced the substantive sentence of imprisonment to three months and the fine to Rs. 500/-, in default to rigorous imprisonment for 3 months more. Thereafter, the petitioner moved this court in revision by filing the present application and obtained this Rule. 2. THE case for the prosecution, in short, is that on 7.8.79, the Food inspector promode Kumar Chakraborty (P.W.1) of the Bansberia Municipality purchased, a sample of 600 gms. of curd (dahi from the sweetmeat shop of the petitioner. After following the procedure prescribed by the Act, he sent one part of the sample to the Public Analyst for analysis. The report of the Public Analyst showed that the sample was adulterated as it did not conform to the specification of curd prepared from buffalo milk. Thereafter, on the complaint of the District Health Officer, Hooghly, this proceeding was started against the petitioner. Mr. Guha, the learned Advocate for the petitioner, has made a three-fold submission before us in support of the rule. They are (i) the mandatory provisions of Section 10 (7) of the Act were not complied with by the Food Inspector; (ii) the requirement of, Rule 9a of the Prevention of Food Adulteration Rules, 1955 was not followed; and (iii) although the quality or purity of the sample curd fell below, the prescribed standard, in the absence of any opinion of the public Analyst that the sample was injurious to health, it could not be said to be adulterated and the petitioner could not be convicted for selling adulterated curd. We now propose to deal with the points raised by Mr. Guha ad seriatim. 3. We now propose to deal with the points raised by Mr. Guha ad seriatim. 3. SUB-SECTION (7) of Section l0 of the act provides that where the Food Inspector takes any action under clause (a)of sub-section (i), sub-section (2), sub-section (4), or sub-section (6), he shall call one or more persons to be present at the time when such action is taken and take his or their signatures. In the case of Ram Labhaya v. MCD reported in 1974 S.G.C. (Criminal) 527 the Supreme court has held that the above provisions are mandatory. We are, therefore, to see whether the provisions of sub-section (7) were duly complied with by the food Inspector. 4. THE Food inspector (P. W. 1) pledged his oath that he asked some neighbouring shop-keepers to be present as witnesses at the time of taking the sample but did not specifically state that they did not co-operate. From the above evidence, both the courts below drew the inference that they refused to co-operate and the provisions of sub-section (7)were, therefore, substantially complied with Mr. Guha strongly assails the above inference as wholly unjustified and unwarranted but we are unable to agree with him on this point. Since the Food inspector asked the neighbouring shopkeepers to be witnesses to the purchase. of the sample and since their signatures are not to be -found is the seizure list, the only logical inference that could be drawn is that they did not co-operate. In this context, we cannot also lose sight of the fact that the neighbouring shopkeepers who are bound by fraternalities, would be quite reluctant to witness the seizure and give evidence against a fellow shop-keepers. In the case of Babu Lal Hargovind das vs. State of Gujarat reported in 1971 S.C.C. (Criminal) 337 the Supreme Court has held that non-compliance with the provisions of sub-section (7) does not per se vitiate the trial and the evidence of the Food Inspector, if believed, can be relied upon for proving that the sample was taken as required by law. 5. IN the instant case the Food Inspector, in his evidence, gave an elaborate account of the manner in which the sample was taken, divided into three equal parts, put in three separate phials duly sterilized by him mixed with preservative and then labelled and sealed in presence of the petitioner. 5. IN the instant case the Food Inspector, in his evidence, gave an elaborate account of the manner in which the sample was taken, divided into three equal parts, put in three separate phials duly sterilized by him mixed with preservative and then labelled and sealed in presence of the petitioner. The above evidence could not be shaken by any effective cross-examination and the petitioner too, did not deny either the sale or the seizure. That apart, the receipt for the purchase of the sample curd (Ext. 2) was given by the petitioner himself under his own signature. In the above circumstance, there could be no reason to disbelieve the evidence of the Food Ins-pector which receives full corroboration from P.W.2, another employee of the bansberia Municipality who accompanied him to the petitioner's shop. We are, therefore, of the opinion that the courts below rightly held that there was substantial compliance with the provisions of sub-section (7) regardless of the fact that no independent person of the locality witnessed the seizure. 6. THE second submission of Mr. Guha appears to be of no substance at all S.R Bhattacharya (P.W.2), another sanitary cum Food Inspector referring to the report of the Public Analyst (Ext. 4) categorically stated in his evidence that a copy of the said report was sent to the petitioner on 8. 9. 78 that is, 8 days after receipt thereof, under registered post with A.D. He also proved the acknowledgement slip (Ext. 7) bearing the signature of the petitioner. The above evidence remained unchallenged and the petitioner also did not deny receipt of the copy of the Public Analyst's report through post. That being the position, the submission of Mr. Guha that rule 9a of the Prevention of Food Adulteration Rules was not complied with, must be dismissed. In support of his last submission mr. Guha has cited the decision of the supreme Court in the case of State (Delhi Admn.) Vs. Puran Mal reported in AIR 1985 S.C. 741 . That being the position, the submission of Mr. Guha that rule 9a of the Prevention of Food Adulteration Rules was not complied with, must be dismissed. In support of his last submission mr. Guha has cited the decision of the supreme Court in the case of State (Delhi Admn.) Vs. Puran Mal reported in AIR 1985 S.C. 741 . In that case, the sample of lal mirchi (red chilli) powder taken by the Food Inspector from the grocery shop of the accused was found on analysis by the Public analyst to contain 9 living meal worms but the Analyst neither stated that it was insect - infected nor that it was unfit for human consumption on account of the presence of the meal worms nor that it was otherwise unfit for human consumption. In the above circumstances, their Lordships held that the prosecution failed to establish the requirement of Section 2 (ia) (f) of the Act and dismissed the appeal by special leave by the Delhi Administration against the order of acquittal of the respondent. 7. RELYING upon the above decision, mr. Guha contends that since in the instant case the Public Analyst (D.W.a) expressly stated that the sample was not injurious to health, the courts below were not justified in arriving at the finding that the sample was adulterated. 8. IN our opinion, the above contention of Mr. Guha cannot be accepted as sound. In the case under reference, the question was whether the sample was adulterated within the meaning of Section 2 (ia) (f) of the Act. The definition of "adulterated" appearing in clause (f) is as follows : "(f) if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect - infested or is otherwise unfit for human consumption;" Since 'worm' and 'insect' were held not be synonymous terms, and there was no evidence that the sample was otherwise unfit for human consumption it was held to be not adulterated within the meaning of the above definition. 9. 9. IN the case before us, the quality and parity of the article were found to fall below the prescribed standard in that its contents of milk fat and milk solids not fat fell far short of the specification of curd prepared from buffalo milk as laid down by paragraph A, 11, 01, 11 of Appendix B of the Prevention of food Adulteration Rules. The sample, therefore, was adulterated as defined in clause (m) of section 2 (ia) of the Act. That being the position, the further question whether it was injurious to health does not arise at all because, according to the definition contained in clause (m), an article of food may be adulterated even though it may not be injurious to health. 10. LASTLY, Mr. Guha made an effort to bring the case within the explanation to the proviso to clause (m) which reads as under : "explanation - where two or more articles of primary food are mixed together and the resultant article of food - (a) is stored, sold or distributed under a name which denotes the ingredients thereof and (b) is not injurious to health; then, such resultant article shall not be deemed to be adulterated within the meaning of this clause. " Primary food means any article of food which is the produce of agriculture or horticulture in its natural form [vide Clause (xiia)], Since curd cannot be said to be a mixture of two or more articles of primary food in its natural form, the explanation is not attracted at all. As all the points raised by Mr. Guha fail, the Rule is discharged. The petitioner will now surrender to his bail bond to serve out the sentence.