G. D. DUBEY, J. ( 1 ) THIS appeal has been preferred against the judgment and order of the Additional Chief Judicial Magistrate, Agra, acquitting the appellant of the charge under S. 7/16 of Prevention of Food Adulteration Act (hereinafter referred to as the Act ). ( 2 ) THE list has been revised. None has appeared for the respondent. ( 3 ) SAMPLE of Linseed Oil was allegedly taken from the respondents possession. The evidence of the Food Inspector was that one container for measurement was dipped thrice in the can containing the oil and the sample phials were filled. The learned Magistrate came to the conclusion that this was not a proper compliance of S. 11 of the Act. Consequently, he acquitted the appellant of the aforesaid charge. ( 4 ) LEARNED counsel for Nagar Swastha Adhikari (appellant) has cited a case in Bankey v. State, 1979 Prevention of Food Adulteration cases 319. It was urged that as long as the sample is taken by taking out the sample three times from the same container, then it amounts to substantial compliance of S. 11 of the Act. In this the above case law Babu Lal v. State, 1976 All India Prevention of Food Adulteration cases 69 relied upon by the lower Court was discussed. The Honble single Judge of this Court did not agree with the observation of the Madhya Pradesh High Court in Babu Lals case Honble P. N. Buxi, J. had discussed several case laws of various High Courts and had come to the conclusion that the sample is taken out by taking the sample each time from the same container, then that does not make any difference. ( 5 ) LEARNED counsel for the appellant has also cited a case in Nagar Swastha Adhikari, Nagar Mahapalika v. Sri Nath, 1985 (1) Prevention of Food Adulteration cases 36. In this case, the Food Inspector had taken the sample in three instalments in three different phials. In this case, there was a single can of milk from which all the three samples were taken in three installments. Honble V. P. Mathur, 3 had observed that this does not affect the sample representing the whole lot. The procedure adopted by the Food Inspector was held to be a sufficient compliance of S. 11 of the Act. In this case, there was a single can of milk from which all the three samples were taken in three installments. Honble V. P. Mathur, 3 had observed that this does not affect the sample representing the whole lot. The procedure adopted by the Food Inspector was held to be a sufficient compliance of S. 11 of the Act. ( 6 ) IN view of what has been said above, I find that the view of this Court is contrary to the view of Babu Lals case. The procedure adopted by the Food Inspector did not affect the sample representing the whole lot of oil. The ground, on which the acquittal was recorded, was not sound. ( 7 ) NO other point has been pressed. ( 8 ) THE appeal is allowed. The judgment of the lower Court is set aside. The case is sent back to the lower Court for redetermination of entire matter afresh. However, the learned Magistrate shall not allow fresh evidence. The case shall be disposed of after hearing both the parries. The learned Magistrate may take steps for securing attendance of the accused respondent. Appeal allowed. .