JUDGMENT : A. Pasayat, J. - Petitioner assails the judgment of conviction and order of sentences passed by the learned Sub-Divisional Judicial Magistrate, Rairakhol and upheld in appeal by the learned Additional Sessions Judge, Sambalpur. The conviction was u/s 16(1)(a)(i) and 16(1)(a)(ii) of the Prevention of Food Adulteration Act, 1954 (in short the 'Act'). 2. Prosecution case in its essentials is that on 15.3.1986 the Petitioner was found selling lozenges to different shopkeepers at Rairakhol in Sambalpur district for human consumption, the Food Inspector, Sambalpur suspected that the articles sold were adulterated, he inspected the articles and asked the Petitioner to produce licence which he was required to take under the provisions of the Prevention of Food Adulteration Rules, 1955 (in short 'the Rules') which the latter could not produce, he served a notice on the Petitioner expressing his intention to purchase the lozenges for analysis, three packets of lozenges each containing 500 grams were sold by the Petitioner to the Food Inspector the purchased articles were labelled and sealed in three packets on which specimen signatures of the Petitioner were taken, one sealed sample packet was sent to the public Analyst. Orissa for analysis after observing requisite formalities, the report of the Public Analyst was received by the Chief District Medical Officer (C.D.M.O.) on 1.5.1986 indicating that the sample was adulterated, prosecution report along with relevant documents were placed before the C.D.M.O., for consent to launch prosecution, on receipt of which prosecution report was submitted in Court along with all relevant documents, copy of the Public Analyst's report was sent to the Petitioner by registered post which was returned without delivery and subsequently served by special massenger. 3. The defence plea is one of complete denial of the Occurrence. According to the Petitioner, he was taking the lozenges as a gift for his sister who was staying at Boudh and on the way when he was taking betel at Rairakhol, the Food, Inspector forcibly took three packets of lozenges from him on payment of Rs. 13.50 and forcibly took his signatures on the sealed packets. 4. Before the trial Court -four witnesses were examined in support of the prosecution case while the Petitioner examined none. Several documents were exhibited on behalf of the prosecution. 13.50 and forcibly took his signatures on the sealed packets. 4. Before the trial Court -four witnesses were examined in support of the prosecution case while the Petitioner examined none. Several documents were exhibited on behalf of the prosecution. The Sanitary Inspector attached to the C.D.M.O's office was examined as P.W. 1 to prove certain documents, while the complainant Food Inspector was examined as P.W. 2, the peon attached to the C.D.M.O's office was examined as P.W. 3, who stated to have witnessed the seizure while P.W. 4 is an independent' witness who was stated to have witnessed the seizure, and the procedure adopted for effecting seizure of food articles. 5. The main plank of challenge as to the non-sustainability of the prosecution case before the trial court was absence of independent witness allegedly contravening the requirements of Section 10(7) of the Act, non-acceptability of the Public Analyst's report, vitiation of the proceeding on, account of non-support by the independent witness in material particulars, and absence of a lawful order of sanction for prosecution. The trial court negatived all the contentions by holding that the prosecution has established its case beyond reasonable doubt and that the so called legal infirmities were non-existent. The trial court found the Petitioner guilty of the offence u/s 16(1)(a)(i) and 16(1)(a)(ii) of the Act for selling adulterated food articles, without requisite licence. After hearing on the question of sentence, the Petitioner was sentenced to five months' rigorous imprisonment and fine of Rs. 500/-, in default rigorous imprisonment for one month more. The reasonings of the trial court were upheld by the appellate court which found no merit in the appeal and was of the view that the sentence as imposed was rather liberal. 6. The Petitioner's challenge before me to the sustainability of conviction and sentence pivots on four submissions i.e., (a) the public analyst's report does not show that the so called non-permitted ingredients in the lozenges were injurious to health and therefore conviction is unwarranted; (b) the written consent order (marked as Ext. 6. The Petitioner's challenge before me to the sustainability of conviction and sentence pivots on four submissions i.e., (a) the public analyst's report does not show that the so called non-permitted ingredients in the lozenges were injurious to health and therefore conviction is unwarranted; (b) the written consent order (marked as Ext. 13) does not authorise launching of prosecution of the Petitioner; (c) there has been non-compliance of the statutory requirements of Section 10(7) of the Act as no independent witness was examined in support of the prosecution case and the only independent Witness examined having not supported the prosecution story the conviction was unwarranted; and (d) the sentence as imposed was extremely harsh end rigorous as the Petitioner was a small hawker, who did not have a regular place of business even according to the prosecution. On the other hand, it has been urged on behalf of the State that the submissions carry no weight and two courts of fact having found that there was no vitiation, and that the prosecution has been able to establish its case beyond reasonable doubt, no interference is called for. 7. Coming to the first plea that the report does not indicate the articles to be injurious to health and therefore the conviction is untenable it is seen that the report of the public Analyst marked as Ext. 12 clearly indicates that the articles (collected samples of lozenges) were adulterated as non-permitted coal tar due has been used in the preparation, and its (samples) quality falls below the prescribed standard in respect of sucrose content. At this stage it may be relevant to refer to the entry providing for requisite standards for lozenges. Appendix B to the Rules at serial 25.03 deals with lozenges. The entry so far as it is relevant reads as follows: A. 25.03 Lozenges. Lozenges shall be made of the following materials, namely, (a) Pulverized sugar obtained by powdering vacuum pan sugar, or refined sugar, or icing sugar. (b) Binding meterials, such as edible gelatine, edible gums, liquid glucose, dextrins. (c) Permitted colours. (d) Permitted flavouring agents. In addition to the above ingredients, the following ingredients may also be added to the mixture namely. Ginger, cinnamon, aniseed, cera way, cardamom, end other spices in powder form or extracts vitamins, edible common salt citric acid and sodium bicarbonate, lubricants such as stearic acid, talc (not exceeding 0.1 per cent). (c) Permitted colours. (d) Permitted flavouring agents. In addition to the above ingredients, the following ingredients may also be added to the mixture namely. Ginger, cinnamon, aniseed, cera way, cardamom, end other spices in powder form or extracts vitamins, edible common salt citric acid and sodium bicarbonate, lubricants such as stearic acid, talc (not exceeding 0.1 per cent). It shall also comply with the following requirements, namely: (i) and (ii) xxx (iii) Sucrose per cent by weight-Not less than 85.0. Rule 28 deals with coal tar dyes which may be used in food articles. No coal tar dyes or a mixture thereof except those mentioned in the aforesaid rule can be used in food articles. Rule 29 prohibits use of permitted coal tar food colours dyes in or upon any food other than those, enumerated in the said rule. Confectionery which includes lozerges is serialized at Clause (e) of the enumeration. The Public Analyst found that non-permitted coal tar dye (Rhodamine B) was present. In addition to was found that sucrose was 73.5% against requisite requirement of 85. 0%. and above. The latter by itself was sufficient to indicate that the food article was adulterated and did not conform to the requisite standards. Therefore, mere non mention that non-permitted coal tar was injurious to health, does not further the case of the Petitioner. I express- no opinion on the question whether the non-mention was material or not. 8. Coming to the second point of argument that the written consent authorizing prosecution was not in accordance with law, I find that though the order in question does not in so many words show that the prosecution was being sanctioned, yet the subject is to be indicated to be the order of sanction. The C.D.M.O. has categorically indicated about his satisfaction that there was prima facie case against the Petitioner, and offence was committed by selling adulterated lozenges for human consumption in contravention of Section 7, punishable u/s 16 of the Act. Much stress has been laid on the absence of specific indication in the order that prosecution was being sanctioned. However, there is no substance in this contention as the subject is clearly mentioned to be the sanction for prosecution. What is material is substance and not the form, Therefore, the contention is not tenable. 9. Much stress has been laid on the absence of specific indication in the order that prosecution was being sanctioned. However, there is no substance in this contention as the subject is clearly mentioned to be the sanction for prosecution. What is material is substance and not the form, Therefore, the contention is not tenable. 9. Alleging non-compliance of requirements of Section 10(7), reliance was placed by the learned Counsel for the Petitioner on two decisions of this Court in the cases of Md. Abdul Wahab v. State of Orissa 1988 (II) OLR 599 and Gourahari Panda v. Sri Paramananda Agarwalla and Anr. 1989 (I) OLR 545, In the first case it was observed that the Food Inspector taking action u/s 10(1)(a) had an obligation to call one or mere persons to be present at the time when the action is taken, and also to take his or their signatures and in the absence of any such effort to secure the presence or any such persons the duty cast on the Food Inspector was net discharged and where there is non compliance of this nature, the prosecution shall be held to have not established its case beyond reasonable doubt. In the second case, it was observed that Section 10(7) provides for safeguard against false accusation. Though in the judgment itself there was no mention about the provision being mandatory in nature, in the head-note 2 of the report, it has been stated that the provisions are mandatory and non-compliance therewith is fatal. Such an observation has not been made in the judgment, and the reference to the headnote by the learned Counsel for the Petitioner does not in any way assist him. 10. Coming to the facts on the present case, it cannot be said that no attempt was made by the prosecution to have the assistance of independent witnesses P.W. 4 admittedly was one such witness. He has accepted that he has put his signature in several documents. The evidence of P.W. 2 indicates that he called some witnesses it has been submitted that there being no mention about the -reason for which they have not been examined, it must be assumed that no sincere effort was made to establish the case through reliable and independent witness. The very fact that P.W. 4 has been examined, is sufficient for repelling this contention. The very fact that P.W. 4 has been examined, is sufficient for repelling this contention. As held by the Supreme Court in the case of Shri Ram Labhaya Vs. Municipal Corporation of Delhi and Another there should be attempt to secure presence of one or more independent persons if they are present. In that case it was observed that if there was attempt by the concerned official to secure presence of one or more such persons who were not willing to co. operate it can be said that there has been compliance of Section 10(7). Further, as held in Babu Lal Hargovindas Vs. The State of Gujarat, conviction can be made solely on the basis of the evidence of the food Inspector, if the same is found reliable. This view was reiterated in Ram Labhaya's case (supra). In the said case it was held that non-compliance with the provisions of Section 10(7) of the Act does not vitiate the trial. I find the evidence of the Food Inspector to be credible and therefore there is no violation of the requirements of Section 10(7) as alleged. In any event, collection of sample has not been disputed. Plea taken was that the articles were not meant for sale. In that back ground, attempt to secure one or more persons as independent witnesses is immaterial. See 1988 (II) FAC 27: Food Inspector, Berhampur Municipality v. Kouchada Balasankar Narayana Subudhi and Anr. 11. Before dealing with the last question relating to adequacy or harshness of sentence, I may indicate that the courts below have erred in convicting the Petitioner both u/s 16(1)(a)(i) and 16(1)(a)(ii) of the Act. It is trite law that where a person is found selling adulterated food he can be dealt with u/s 16(1)(a)(i) alone and there can be no conviction u/s 16(1)(e)(ii) of the Act. See 1979 (I) FAC 124: Municipal Corporation of Delhi v. Shri Darshan Kumar and State 1984 (II) FAC 203: Municipal Corporation of Delhi v. Anil Kumar and Anr. and 1981 (I) FAC 3: Mohammed Ali v. State of U.P. Rule 50 deals with the requirement of a licence subject to the proviso to Sub-rule (1). Sub-rule (1) provides that no person shall manufacture, sell, stock, distribute or exhibit for sale any article of food, including prepared food or ready to serve food, except under a licence. Article of food would obviously exclude any adulterated food. Sub-rule (1) provides that no person shall manufacture, sell, stock, distribute or exhibit for sale any article of food, including prepared food or ready to serve food, except under a licence. Article of food would obviously exclude any adulterated food. Therefore, when a person sells adulterated food though he may not have a licence the proper procedure to deal with would be by resort to Section 16(1)(a)(i), and Section 16(1)(a)(ii) has no application. The conviction u/s 16(1)(a)(i) is therefore maintained, while that u/s 16(1)(a)(ii) is set aside. 12. On the question whether the sentence was adequate or harsh, it is seen that only for special and adequate reasons to be recorded, sentence below the prescribed minimum can be awarded. This is apparent from the first proviso to Section 16(1) which in terms provides that for adequate and special reasons sentence for a term not less than three months and fine which shall not be less than five hundred rupees can be imposed. The higher limit of the custodial sentence is extended up to two years. From the materials on record it is clear that the Petitioner does not have a fixed place of business and is a petty hawker. Considering the apparent poverty of the Petitioner and the quantity of stock he was dealing in my view, ends of justice would be met if the Petitioner's custodial sentence is reduced to three month's R.I., and the quantum of fine as fixed by the courts below is maintained along with the default sentence as indicated by the court below. 13. The revision application is dismissed, subject to the modification of sentence as aforesaid. Final Result : Dismissed