Judgment : This appeal has been filed by the State against the judgment of acquittal passed by the Judicial First Class Magistrate, Tirunelveli, in C.C.No.778 of 1984, dated 312. 1984 acquitting the accused/respondent herein of the charge under Secs.7(1), 16(1)(a)(i) read with Sec.2(1)(a) and (m) of the Prevention of Food Adulteration Act (hereinafter called as the Act). 2. The case against the accused is that on 30.3.1984 at about 7.30 a.m. the Food Inspector went to the Srivenkateswara Cool Drinks Stall at Sivaiaperi Road, Palayamkottai, and took sample of rose milk that was being sold there. It was sent to the Public Analyst, and after analysis it was found to be in deficient of 72% fat. The further case of the prosecution is that the accused/ respondent was the owner of that stall and one Subbiah, a juvenile, was the salesman in that stall on that day. On these grounds, the Food Inspector filed C.C.No. 778 of 1984 against the accused/ respondent and C.C.No. 547 of 1984 was filed against Subbiah, the juvenile. We are now concerned with Criminal Appeal No. 518 of 1986 which has been filed against the accused/ respondent herein in C.C.No. 773 of 1984. 3. It is contended by the learned Government Advocate appearing for the appellant/State that the court below as a result of a serious error, recorded a verdict of acquittal. He would submit that the court below has held that under Sec.10(7) of the Act the Food Inspector when took sample of the rose milk should have called one or more persons to-be present when such sample was taken and taken his or their signatures, but in this case the Food Inspector has failed to do so and therefore the charge is vitiated and that so holding the trial court came to the conclusion that the accused is entitled for acquittal. But, this view of the court below is not correct. The learned Government Advocate submits that in this case the Food Inspector did call two persons to be present when he took sample, but unfortunately they refused to come. In this regard the Food Inspector has spoken, as P.W.1. I find that this submission of the learned Government Advocate has merit. The learned Government Advocate relied on the Supreme Court decision in Rom Labhaya v. Delhi Municipality A.I.R. 1974 S.C. 789. In this regard the Food Inspector has spoken, as P.W.1. I find that this submission of the learned Government Advocate has merit. The learned Government Advocate relied on the Supreme Court decision in Rom Labhaya v. Delhi Municipality A.I.R. 1974 S.C. 789. The headnote ‘A’ therein correctly reads as follows: “(A) Prevention of Food Adulteration Act (1954), Sec. 10(7) - Nature of Provision under -Non-compliance with it whether vitiates the trial. The words “one or more persons” in Sec. 10(7) must mean one or more independent persons. The Food Inspector ought to try and secure the presence of One or more independent persons when he takes action under any of the provisions mentioned in the said sub-section, as provisions of Sec. 10(7) are mandatory. The obligation which Sec. 10(7) casts on the Food Inspector, however, is to ‘call’ one or more persons to be present when he takes action. The facts in the instant case show that the Food Inspector did call the neighbouring shop-keepers to witness the taking of the sample but none was willing to co-operate. As he could not certainly compel their presence, the prosecution was relieved of its obligation under the provision and therefore non-compliance with it did not vitiate the trial. Moreover as the Food Inspector was not in the position of an accomplice his evidence alone, if believed, can sustain the conviction. This, however, ought not to be understood as minimising the need to comply with the salutary provision in Sec. 10(7) which was enacted as safeguard against possible allegations of excessesor unfair practices by the Food Inspector”. I find no reason whatsoever to disbelieve the evidence of the Food Inspector (P.W.1.) that he called two persons to be present, but they refused. In this position, applying the abovesaid decision of the Supreme Court, I think the reasoning given by the court below for acquitting the accused cannot sustain. I find no other infirmity in the case of the prosecution. As such the order of acquittal is set aside and the accused is convicted. 4. Coming to the question of sentence, considering the fact that since the date of charge-sheet i.e., 15. 1984, nine years have passed, in my view the minimum sentence of three months rigorous imprisonment and a fine of Rs.500 (Rupees five hundred only) would suffice to meet the ends of justice. 4. Coming to the question of sentence, considering the fact that since the date of charge-sheet i.e., 15. 1984, nine years have passed, in my view the minimum sentence of three months rigorous imprisonment and a fine of Rs.500 (Rupees five hundred only) would suffice to meet the ends of justice. Accordingly, I sentence the accused/ respondent to undergo rigorous imprisonment for three months and to pay a fine of Rs.500 (Rupees five hundred only), in default to undergo rigorous imprisonment for two months. 5. Regarding the substantial sentence of imprisonment, in view of G.O.Ms.No.296 Home (Prisons-IV) Department, dared 202.1993 the accused/respondent will be entitled, to remission of the entire three months rigorous imprisonment. Therefore, he need not surrender to be imprisoned. As regards the fine, the accused will have one month time for payment before the trial court.