JUDGMENT - H. SURESH, J.:---The respondent owns a shop in the name of M/s. Sunil Kirana Stores at Anjangaon Surji, district Amravati. On 5-7-1984, Food Inspector Anand Sadashivrao Tayde visited the said shop, disclosed his identity and informed him that he wants to take sample of Groundnut oil for analysis Accordingly, the sample was taken after following the proper procedure. Exh. 13 is the copy of Appendix 'D' from the Food Inspector and it contains an acknowledgement of the accused to the effect that the Food Inspector had purchased the said oil for the purpose of analysis. The accused had not disclosed any details of warranty and source of purchase. A panchanama (Exh. 16) was made, which sits out in detail how the sample was taken and divided into three equal parts and how they were sealed. Thereafter the sample was forwarded to the Public Analyst and finally a report from the Public Analyst was received by the Food Inspector. After obtaining due consent as required under the law, the accused was prosecuted on a charge under section 7 (i) r/w section 2 (ia)(a) and under section 7 r/w rule 44 (e) punishable under section 16 of the Prevention of Food Adulteration Act (for short referred to as the 'Act'. 2. The learned Chief Judicial Magistrate, Amravati acquitted the accused on 2 grounds : Firstly on the ground that the procedure relating to taking of the sample was not properly followed and secondly on the ground that the Public Analyst has not given any details of his qualifications and therefore, the report was not acceptable. 3. The panch, who was examined in support of the prosecution case turned hostile. He purported to say that nothing was done before him and no proper sample was taken and that he just affixed his signature on a paper and that he had not read the contents of panchanama. 4. Even though the Panch has turned hostile, there is no reason why we should not accept the evidence of Food Inspector. We have gone through his evidence. The evidence clearly shows that he had disclosed his identity and complied with all the requisite formalities. Thereafter he divided the said oil into three equal parts. It was poured in dry, clean and empty glass bottles. The bottles were corked tightly. The label bearing the number of sample was pasted by gum to each bottle. The evidence clearly shows that he had disclosed his identity and complied with all the requisite formalities. Thereafter he divided the said oil into three equal parts. It was poured in dry, clean and empty glass bottles. The bottles were corked tightly. The label bearing the number of sample was pasted by gum to each bottle. The said label bears the signature of Food Inspector, the accused and also of the panch witness. Each bottle was wrapped in thick brown paper, folding the ends of that brown paper neatly and pasted them by gum. The paper slip was affixed round each ample bottle, which contains serial number and signatures of the witnesses as also of the accused. The sample bottle was tied by twice horizontally and vertically, seals were affixed and again the signature of the accused and the witness were taken on the same. Thereafter it was sent to Public Analyst and the report has been received within 45 days as provided under the Act. The date of the report is 4th August ,1984. 5. The report clearly shows that the sample, which was forwarded, was not in accordance with the standard prescribed for groundnut oil under the Act read with rules. It further says that Helphen test was done, verifying the presence of cotton seed oil and the result was positive. We have seen the report (Exh. 26) and it is clear from the report that it was not in accordance with the standard of quality as prescribed in A-17.03 in Appendix 'B'. 6. It was argued on behalf of the accused that the sampling was not done in accordance with the rules prescribed. No such rule was cited. It was argued that the sampling instrument was not found with the Food Inspector but it was pointed out to us as to what instrument was required for the purpose of taking sample. The evidence of Food Inspector clearly shows that he had taken clean sample bottles with him for the purpose of taking samples. It is nobody's case that the Food Inspector had taken the sample of any other oil before the samples were taken. He has shown the identity first and thereafter he had taken the samples. Just because, the panch has turned hostile, it cannot be said that the samples have not been taken properly. 7. It is nobody's case that the Food Inspector had taken the sample of any other oil before the samples were taken. He has shown the identity first and thereafter he had taken the samples. Just because, the panch has turned hostile, it cannot be said that the samples have not been taken properly. 7. It was also argued that the Public Analyst was not examined in this case. It is true that the report was tendered when the Food Inspector was in the witness box and the same has been exhibited as Exh. 26. The record does not show that the accused had objected to the record being exhibited in that manner. There was hardly any challenge on the part of the accused with regard to the report. The only cross examination is that the Food Inspector did not make any enquiry with the Public Analyst regarding the percentage of cotton seed oil. 8. The report shows that the samples did not conform to the standard of groundnut oil as per the rules. The substance need not necessary be injurious to health. In our opinion, the charge against the accused stands proved. It is in this sense, the judgment of the learned Judge will have to be set aside. 9. The question is as to what should be the punishment. In our opinion, it is not necessary to impose the extreme penalty on the accused. It has been submitted that he had recently opened this shop and the prosecution is at the instance of a neigbhouring shop owner. In any case, there is no evidence that the substance that is sold is injurious to the health of any person. The respondent-accused is a small retailer. In all probability, he had purchased this oil from some body else but there is no warranty with him. In these circumstances, in our opinion, he should get the benefit of the second proviso provided under section 16(i) of the Act. Accordingly we pass the following order. ORDER We hold the respondent-accused guilty for the offence punishable under section 7(i) r/w section 2(ia)(a) and under section 7(v) r/w rule 44(e) punishable under section 16 of the Prevention of Food Adulteration Act and sentence him to suffer S.I. for three months and to pay a fine of Rs. 500/- i.d. he shall under go further S.I. for 15 days. 500/- i.d. he shall under go further S.I. for 15 days. The respondent-accused shall surrender to his bail within one month from today. Order accordingly. -----