Judgment : ( 1 ) IN C. C. No. 43 of 1985, on the file of the Judicial First Class Magistrate, tirunelveli, petitioner was convicted under Sections 7 (1), 10 (1) (a) (i) read with 2 (1a) (a) and (m) of the Prevention of Food Adulteration Act and sentenced to undergo rigorous imprisonment for six months and to pay a fine of rs. 1,000/-in default to undergo rigorous imprisonment for two more months. Aggrieved petitioner challenged the sustainability of his conviction and consequential sentence in C. A. No. 94 of 1987 before the Court of Sessions, tirunelveli. Appellate Court concurred with the findings recorded by the trial magistrate and dismissed the appeal. Hence this revision. ( 2 ) PROSECUTION case in brief is as follows: P. W. 1 Food Inspector, Srivaikundam municipality, stopped the petitioner at or about 5 a. m. on 1-12-1984, when he was carrying a mixure of cow and buffalo milk for sale and intimated his intention to take sample of the milk in his possession, for the purpose of analysis. After observing formalities ordained by law; P. W. 1 purchased 750 Ml. of milk after paying Rs. 2/-is sale consideration to the petitioner. P. W. 2 Sanitary inspector who was present with P. W. I attested the seizure Mahazar. Milk sample, on analysis was found to be deficient in non-fat solid to the extent of 57% and deficient in fat to the extent of 44%. After service of intimation under section 13 (2) of the Act subsequent to initiation of prosecution, Petitioner faced his trial, but did not choose to exercise his option to forward another sample to the Central Food Laboratory. ( 3 ) BOTH the courts below accepted the prosecution case and rejected the defence, that sampling was not done in accordance with law and further the milk was not intended for sale. Petitioner was dealt with as stated earlier. ( 4 ) IN this revision, Ms. Nappinay, learned Counsel appearing on behalf of the petitioner, submitted that mandatory provisions of Section 10 (7)of the Act have not been complied with and further intimation under Section 13 (2) of the Act was sent separately without the report of the Analyst and on both the grounds petitioner was liable to be acquitted. On these grounds. I have heard Mr. G. Kumaravelu, learned Government Advocate. On these grounds. I have heard Mr. G. Kumaravelu, learned Government Advocate. He pointed out that at 5 a. m. in the morning independent witnesses were not available according to P. W. 1 and on that score this prosecution cannot be thrown out. On the second ground, he stated that there was no prejudice to the petitioner. ( 5 ) I have carefully considered the divergent contentions. There is one serious lacuna which has not been sought to be correlated by the prosecution. In his substantive evidence, P. W. I has stated that sampling was done at 5 p. m. on 1-12-1984. Evidence of P. W. 2 is that milk was purchased from the petitioner at 5 a. m. on 1-12-1984. Documents show that sampling of milk was done at 5 a. m. It may be that P. W. 1 had committed a mistake. But without such evidence court will not be justified in concluding, that substantive evidence of P. W. 1 had to be overlooked merely because the documents denoted a different time, specially when the petitioner has challenged the very sampling process. It is in this context, that the claim of non-availability of independent witnesses for seizure, assumes very great relevance. The appellate court sought to get over this infirmity by pointing out that in Section 10 (7) of the Act there was no mention that persons to be called by the Food Inspector must be independent. This approach is certainly erroneous, for in Manickam vs. Food Inspector, Thiagaduram, 1987 L. W. Crl. 481. David Annoussamy, J. has observed, on the basis of law enunciated by the supreme Court, that persons called by the Food Inspector should be independent and not subject to the influence of the Food Inspector. Otherwise, the whole purpose of Section 10 (7) which is to ensure fairness in sample taking, gets destroyed. Thoughp. W. 1 has stated in his evidence, that independent witnesses were not available, it cannot be readily accepted if the sampling time was 5 p. m. in a busy street at Srivaikundam. If the sampling was at 5 a. m. probably witnesses may not have been readily available. Object is, that the Food inspector must bona fide attempt to secure independent witnesses, for sampling. If the sampling was at 5 a. m. probably witnesses may not have been readily available. Object is, that the Food inspector must bona fide attempt to secure independent witnesses, for sampling. That P. W. 1 did not make any serious attempt to get at independent witnesses is clear from the evidence of P. W. 2, that no neighbours were called for the purpose of sampling. Prosecution owed a duty to have re-examined P. W. 1 to fix the time of sampling. If there is vital discrepancy about the time of sampling and there is a doubt about no attempt having been made to procure independent witnesses for sampling, more so when the sampling process has been challenged, it will not be fair to convict the petitioner inspite of such a serious lapse. The appellate Court held, that the sampling ought to have been in the morning hours, for despatch to the Public Analyst had been made on the same day by p. W. 1. This observation cannot easily be upheld, for P. W. 1 when cross-examined has admitted of certain corrections in Ex. P-3 which is Form No. 7. He claims that such corrections should have been made by the Despatching Clerk. The further admission is that the seal had also been affixed without proper corrections. Therefore, petitioner is bound to succeed on the first ground of challenge. ( 6 ) I am not inclined to agree with the second contention advanced. Petitioner had received the report of the analyst as well as intimation on the same day. There has been no prejudice to him and further he had not chosen to exercise his right under Section 13 (2) of the Act. ( 7 ) IN any event, this revision is bound to be allowed on the first ground. The conviction and sentence imposed on the petitioner shall stand set aside. Petitioner is acquitted. Fine, if paid shall stand refunded. This revision is allowed.