JUDGMENT 1. - The accused-petitioner was convicted by the learned Chief Judicial Magistrate, Jhunjhunu in criminal case No. 240/1978 under its judgment dated 31st December, 1981 for an offence Under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (for short the Act) and was sentenced to under go six months simple imprisonment and to pay a fine of Rs. 1,000/- and in default of payment of fine to further suffer three months simple imprisonment. The accused petitioner filed and appeal against the aforesaid judgment before the learned Sessions Judge, Jhunjhunu, who under his judgment dated 19th September, 1986 dismissed the appeal both in respect of conviction as well as sentence. 2. In assailing the judgment of the learned section Judge, the learned Counsel for the petitioner has inter alia contended (i) that the milk was not stirred when the sample was taken; (ii) that there is serious delay in filing the complaint as a result of which the case of the accused is prejudiced; (iii) that it is a case where there is no indication as to what kind of milk was there, whether it was a buffalo milk cow milk and the milk fat was found mote than the prescribed standard of purety, but milk solids non fat was 7.98 i.e. less than the prescribed standard and, therefore, it cannot be said that the sample was adulterated as possibility of the solid non fat being less than the prescribed standard of purety as a result of not stirred the milk cannot be excluded and (iv) that the sanction is defective and (v) that the milk was not for sale as the accused petitioner was having a tea-stall. 3. First the facts and they are these: Shri Hari Shanker Gaur was posted as Food Inspector, Municipal Board Area, Chirawa on 28th January 1977 and on that day in the morning he reached Dalmia Park, Chirawa in the presence of motbirs and come employees of the Municipal Board checked the tea stall of the accused petitioner and noticed that the accused-petitioner was having milk for sale some in 'Tapela' and some in a bucket in all he was having 17 kg. of milk. Hari Shanker Gaur purchased 660 ml. of milk after paying its, price from 'tapela' which was having 11kg. of milk. of milk. Hari Shanker Gaur purchased 660 ml. of milk after paying its, price from 'tapela' which was having 11kg. of milk. It was divided into three equal parts and each part was filled in clear phials and 18 drops of formalin was added in each phial Each sample was duly wrapped and seal died and one duly sealed was sent along with form No. VII to the public analyst who found it to be adulterated. After obtaining the consent of the local authority, a complaint was filed against the accused petitioner and the accused petitioner took a plea that he was only having a tea stall and the milk was not meant for sale and it was only mant for use. The accused-petitioner did not dispute that the Food Inspector had purchased milk from him. According to him the milk was not adulterated. He also admitted that milk was held in three phials. He also stated that had a licence but the accused petitioner did not examine any witness in defence and the learned Chief Judicial Magistrate, found the accused petitioner guilty as aforesaid and convicted and sentenced and his appeal was also dismissed. 4. So far as the first contention of the learned Counsel for the petitioner that the milk was not stirred and there was a possibility that the milk was not made homogeneous and that is why one constituent was less than the prescribed standard of purety, cannot be excluded has no force. A bare reading of the statement of Mr. Hari Shanker Gaur PW1 will show that he has clearly stated in his cross examination that, there was one litre measure with the accused petitioner and he had stirred the milk in a 'Tapela' and then purchased about 560 ml. of milk, It can therefore, said that the finding of the learned courts that the milk was stirred is beyond challenge, 5. of milk, It can therefore, said that the finding of the learned courts that the milk was stirred is beyond challenge, 5. Coming to the second contention of the learned Counsel that there was delay in filing the complaint, the learned Counsel contends that the sample of milk was taken from the possession of the accused on 28th January, 1977 and the sample was analysed on 29th January, 1977 and the complaint was filed on 4th August, 1978, the complaint was, therefore, filed almost after more than one year and six months after taking the sample and, therefore, the case of the accused is prejudiced, it may be stated that the public analyst in his report Ex. P. 7 has found that the milk fat was 6.4% and the milk solids non fat was 7.98%. There was no indication either in the Tapela or in the bucket when the milk was kept in respect of type of milk and it was presumed that the milk was buffalo milk and. therefore, the standard of buffalo milk was taken into account and this position cannot be disputed A look at the provisions of the Prevention of Food Adulteration Rules, 1955 will show that so far as Rajasthan is concerned, the milk should contain the minimum fat as 5.0% and of milk solids non fat 9.00%. Thus, so for as milk fat concerned, they were found more than the prescribed standard of purity and the solids non fat were short by 1.02% Mere delay in filing the complaint is not sufficient and trial cannot be said to be vitiated unless some prejudice has been caused to the accused. It cannot be disputed that the complaint was filed within the stipulated time and the cognizance was also taken within the prescribed time. That apart in the instant case when the case was pending in the court of learned Chief Judicial Magistrate on the request of the accused, the sample was sent to the Director, Central Food Laboratory and the Director, Central Food Laboratory in his report dated 12th January, 1979 found that the milk fat was 6.3% and milk solids non fat was 8.1% It furthers opined that the solids non fat was below the prescribed limit and thus, the sample was adulterated. 6. 6. The contention of learned Counsel for the petitioner is that the milk fat was more than the prescribed standard i.e. 6.3 per cent, more than 5 per cent and as such the sample cannot be said to be adulterated. I may refer to the definition of 'adulterated' as given in Sub Section 1 (a) of Section 2 of the Act and more so its clause (m) and under the aforesaid clause, if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health an article of food is adulterated. A bare reading of the aforesaid definition will leave no manner of doubt that even if one of the constituents of the food article is present in quantities not within the prescribed limits of variability, the article of food will be adulterated not with standing if some of the other constituents are within the prescribed limits of variability. The learned Counsel for the petitioner has referred to the case of H. V. Bevenne v. State of Kerala, 1985 FAR 458 . It was a case of buffalo milk and it was found containing 7.1% milk fat & 6.6% milk solid non fat where as prescribed standard is milk fat 5% and 9 per cent solid non fat. The court said that in primary food, when the quality purity falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability solely due to natural Causes beyond the control of human agency, it cannot be considered adulterated. The court further said that in the instant case the adulteration is mainly due to milk solid nonfat being below prescribed minimum, and the opinion of the court was that it is due to natural causes beyond the control of human agency. With due respect to the learned Judge, who decided the case merely because one of the constituents was not more than the prescribed standard of minimum prescribed standard and the other was less, it cannot be held that the adulteration is as a result of natural causes beyond the control of human agency. With due respect to the learned Judge, who decided the case merely because one of the constituents was not more than the prescribed standard of minimum prescribed standard and the other was less, it cannot be held that the adulteration is as a result of natural causes beyond the control of human agency. A reference to the definition of adulteration has already been made in the earlier part of this order, it can be said that if one constituent is below the minimum prescribed standard of purity, the article of food is adulterated within the meaning of cl. (m) of Section 2(i)(a) of the Act. I am of the considered opinion that if any of the constituent present in quantity not with the prescribed limits of variability but which does not render it injurious to health, the article of food shall be adulterated within the meaning of Section 2(a)(1) (m) of the Act and the milk in this case was, therefore, adulterated and the courts have rightly held so. 7. So far as the contention of learned Counsel for the petitioner that the accused petitioner was having a tea stall and milk was not meant for sale is concerned a reference may be made to the statement of Hari Shanker Gaur PW 1, Food Inspector who has made a categorical statement that the accused has his tea stall near the bus-stand, It may be stated that 17 kg. of milk was poured in a bucket and in a Tapela. The accused petitioner himself in his statement has said that he is having a licence to run the tea-stall but the same was not produced Section 2(xiii) defines 'sale' and under which 'sale' and its grammatical variations and cognate expressions means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article and includes also an attempt to sell any such articles. Thus, the accused petitioner did sell the milk to the Food Inspector for the purpose of analysis and this contention too has no force. 8. Thus, the accused petitioner did sell the milk to the Food Inspector for the purpose of analysis and this contention too has no force. 8. The last contention of the learned Counsel for the petitioner is for sanction and it does not appear that any such point was taken before the learned Appellate Court or before learned trial court. Be that as it may, the contention of learned Counsel for the petitioner is that the form for sanction Ex. P. 8 which has been issued by the Collector and District Magistrate is a cyclostyled form and only blanks have been filled in, and this shows that there is no application of mind I am unable to agree with the learned Counsel because there is printed form in which blanks have been filled in and it is not a cast of non-application of mind. Learned Counsel has placed reliance on R.N. Gujral and Anr. v. Priti Gupta 1988(1) Delhi Lawyers 395 . The above cited case has no relevance to the instant case because there was material on record on the basis of which it could have been said that there is no application of mind because the sanctioning authority has appeared in the witness box and gave out that he does not remember as to whether that paper alone was put before him or some file was also put up before him along with that paper. In the absence of material any cross-examination it cannot be said that it is a case of non-application of mind by the sanctioning authority. Thus, I find no merit in this revision petition and now the question is as to whether this court can award a sentence already undergone. 9. The learned Counsel has referred to a case of Brahmdass v. State of Himachal Pradesh AIR 1984 SC 1989 . In that case Under Section 7/16 of the Prevention of Food Adulteration Act, the court reduced the sentence of six months to sentence already undergone. 9. The learned Counsel has referred to a case of Brahmdass v. State of Himachal Pradesh AIR 1984 SC 1989 . In that case Under Section 7/16 of the Prevention of Food Adulteration Act, the court reduced the sentence of six months to sentence already undergone. A look at Section 16 of the Act will show that the only discretion vests in case the offence is under sub clause (i)(a) and is with respect to an article of food being primary food, which is adulterated due to human agency or is with respect to an article of food which is misbranded within the meaning of Sub-clause (k) of clause (ix) of Section 2, or if the offence is Under Sub-clause (ii) of clause (a)but not being an offence with respect to the contravention of any rule made under clause (a) or clause (g) of Sub-section (1A) of Section 23 or Under Clause (b) of Sub-section (2) of Section 24 in that case the court may, for any adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term which shall not be less than three months but which may extend to two years, and with fine which shall be not less than five hundred rupees. It is therefore, clear that the milk is an article of food which was found adulterated under any clause and if the case falls under the aforesaid Proviso to Section 16 of the Act, the court cannot award a sentence of less than three months and a fine of Rs. 500/-. The court has no powers to award sentence less than three months. 10. Consequently, I hereby partly allow this revision petition. While maintaining the conviction of the accused petitioner Under Section 7/16 of the PF Act, the sentence is reduced to three months simple imprisonment and a fine of of Rs. 500/- and in default of payment of fine to further suffer 15 days imprisonment. The trial court is directed to issue the amended warrant to secure the presence of the accused petitioner and the accused-petitioner is also directed to surrender to his bail bonds to the trial court to undergo the remaining part of sentence.Revision partly allowed. *******