H. Baruah, J.

1. The petitioner herein is the proprietor of M/s. Sadhu Industries and Oil Mill situated at Lalpatty, Hojai. He has been convicted under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the PFA Act") and sentenced to suffer rigorous imprisonment for six (6) months and to pay a fine of Rs. 1,000/-, in default RI for two (2) months vide judgment and order dated 25-7-. 2002 passed by the Sub-Divisional Judicial Magistrate, Hojai at Sankardev Nagar in C.R. Case No. 1 of 1997. On appeal, the aforesaid judgment and order of conviction was affirmed by the judgment dated 30-8-2003 passed in Criminal Appeal No. 39 of 2002 by ad hoc Additional Sessions Judge, Hojai at Sankardev Nagar. Being convicted and sentenced as indicated above by the impugned judgment and order, the same is challenged by this instant Criminal Revision Petition. I have hearde Mr. B.M. Choudhury, learned counsel appearing for the petitioner as well as Mr. B. Gogoi, learned Additional P.P. appearing for the State-respondent.

2. The impugned judgment and order of conviction is primarily challenged on the following three (3) grounds :--

i) that the mustard oil contained in container found inside the mill premises from where the sample had been taken by the Food Inspector (P.W. 1) was not for sale";

ii) that the Food Inspector (P.W. 1) while taking sample of mustard oil from the mill belonging to the accused-petitioner herein failed to follow the provision of Section 10(7) of the Prevention of Food Adulteration Act; and

iii) that Rule 9(e) of the Prevention of Food Adulteration Rules, 1955 was not followed during the process of sample taking of the mustard oil.

3. The facts relevant to the case, at this stage may be summarized as follows :

4. The petitioner herein is the proprietor of the Mill under the name and style M/s. Sadhu Industries situated at Lalpatty, Hojai Town in the Sub-Division of Sankardev Nagar. In the Mill, the petitioner is/was dealing in grinding mustard oil, wheat and various other spices provided to him by various customers. Such grinding/milling, the petitioner took some price from the customers. On 30-9-1996 Food Inspector Shri D.D. Borah (P.W. 1) visited the Mill premises belonging to the petitioner along with his peon, Md. Samsul Haque Borbhuyan an employee of the office of the Sub-Divisional Medical and Health Officer, Hojai and while visiting on suspicion he decided to take sample of mustard oil and accordingly, served notice in Form-6 and purchased 375 gms of mustard oil from the container from inside the Mill. This aforesaid sample was taken in presence of P.W. 2, peon Md. Samsul Haque Borbhuyan. Before taking sample though P.W. 1, the Food Inspector tried to obtain the presence of independent witnesses, was unable have the presence and accordingly finding no other alternative had to take sample in presence of the peon only. It would be appropriate to state at this stage that before taking simple, the Food Inspector tried to persuade the persons present inside the mill to be witness in the sample taking process but they refused to be so and left the place. It is stated that the sample so taken had been divided in three parts and put inside the bottle taken from the office of the Sub-Divisional Medical and Health Officer, Hojai which had been properly sealed and packed. The samples having been sent for analysis, analysis report so submitted speaks for non-conforming of standards. Thereafter, a notice under Section 13(2) of the Act was sent to the petitioner herein. Thereafter, the Food Inspector, P.W. 1 submitted a complaint before the Sub-Divisional Judicial Magistrate, Hojai, Sankardev Nagar for trial of the accused. It would be appropriate to state that before commencement of the trial, one part of the sample was sent to Central Food Laboratory for analysis. The analysis report of the Central Food Laboratory also speaks for nonconforming of standard. In the trial the