B.N. Sarma, J.
1. This revision petition has been directed against the judgment and order of the Sessions Judge, Dhubri, dated 21-3-1973 affirming the conviction and sentence of the petitioner under Section 16(1)(a) read with Section 7(i) of the Prevention of Food Adulteration Act, 1954, (hereinafter called the Act), for storage of adulterated mustard oil, for sale.
2. The Assistant Surgeon I of Sapatgram, as Food Inspector, took samples of mustard oil from the shop of the petitioner on 30-4-1968 and sent the same to the Public Analyst for examination and report. The Public Analyst in his report dated 9-7-1968 opined that the sample was of adulterated mustard oil. The only ground on which the sample was held to be adulterated by the Public Analyst is that sesame oil (til oil) was found present in the sample. The other ingredients of the sample oil were found to be within the limit prescribed for mustard oil in Item 17.06 of Appendix 'B' to the Prevention of Food Adulteration Rules, 1955 (hereinafter called the Rules). On the basis of the report of the Public Analyst the petitioner was prosecuted before the Additional District Magistrate (J), Dhubri under Section 16 read with Section 7 of the Act for sale and storage for sale of adulterated mustard oil on a complaint by the Chairman of the Sapatgram Small Town Committee. The learned Additional District Magistrate found the petitioner to be guilty both for sale and storage for sale of adulterated mustard oil and accordingly convicted him under the aforesaid section and sentenced him to rigorous imprisonment for 6 months and also to pay a fine of Rs. 500/- in dafault to R. I. for another 3 months on each count, i.e. for sale and storage for sale of adulterated mustard oil. On appeal the learned Sessions Judge acquitted the petitioner of the charge for selling adulterated mustard oil on the technical ground that P. W. 4, Dr. Nayak who took the sample was not validly appointed as Food Inspector under the Act. He however affirmed the conviction and sentence of the petitioner for storage of adulterated mustard oil for sale, by his judgment and order dated 21-3-1973 which is the impugned order.
3. Mr. J. P. Bhattacharjee the learned Counsel for the petitioner attacked the impugned order on two grounds. His first contention was that there is no valid sanction for prosecution of the petitioner and as such the impugned order is without any jurisdiction. His other contention was that the report of the Public Analyst does not go to establish that the sample in question was of adulterated mustard oil, to warrant the conviction of the petitioner for storage of adulterated mustard oil.
4. There is no force in the first contention. In none of the Courts below the petitioner took the plea that the prosecution was bad for want of a valid sanction. Be that as it may, it is seen from the document marked Ext. 3(2) that by Resolution No. 1 of the meeting of the Sapatgram Small Town Committee held on 27-8-1968, the Town Committee on a consideration of the facts and circumstances of the case along with those of 3 other cases and the reports of the Public Analyst in those cases authorised the Chairman of the Town Committee to launch a prosecution against the petitioner and others in consultation with lawyer. This is a sufficient sanction, in my opinion, for prosecution of the petitioner, within the meaning of Section 20 of the Act,
5. This brings us to the next and the most important point for consideration, namely, whether on the basis of the report of the Public Analyst, Ext. 4, the sample seized from the shop of the petitioner can be said to be adulterated.
6. As I have already pointed out, all the ingredients of mustard oil were found to be within the limit prescribed in Item A.17.06 of Appendix 'B' of the Rules. The only ground on which the Public Analyst characterised the sample as adulterated is that sesame oil (til oil) was found present with mustard oil in the sample. The quantity or proportion of the til oil found present in the sample is not mentioned in the report of the Public Analyst. It has therefore got to be seen whether mere presence of some til oil, which is also edible oil, would go to make the sample adulterated within the meaning of Section 2(i) of the Act.
7. In Section 2(i) the word 'adulterated' has been given 12 definitions as contained in Clauses (a) to (1). It was conceded by Mr. S. K. Sen, the learned Counsel for the respondent that the definitions as given in Clauses (a) to (k) are not attracted by the report of the Public Analyst. According to him the definition as given in Clause (1) is attracted in the present case. This clause is in the following terms:
(1) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability;
It has been submitted by Mr. Sen that because of the presence of til oil in the mustard oil the quality or purity of the mustard oil has fallen below the prescribed standard.
As laid down in Rule 5 of the Rules the standards of quality of the various articles of food specified in Appendix 'B' to the Rules are as defined in the Appendix. In Item A.17.06 the standard of mustard oil has been prescribed and it is as below:
A.17.06 Mustard Oil (Sarsonkatel) means the oil expressed from clean and sound mustard seeds, belonging to the compestris. juncea or napus varieties of brassica. It shall be clear, free from rancidity, suspended, or foreign matter separated water, added colouring or flavouring substances of mineral oil. It shall conform to the following standards:
(a) Butyro-refractometer reading at 40C 58.0 to 60.5
(b) Saponification value 168 to 176.
(c) Iodine value 96 to 108
(d) Unsaponifiable matter Not more than 1.2 per cent.
(e) Free fatty acid as Olieic acid Not more than 3.2 per cent.
(f) Bellier Test (Turbidity Temperature acetic acid method) ... Not more than 27.5C
(g) +Test for argemone oil-Negative
(h) Test for hydrocyanic acid-Negative
It is not prescribed that the test for til oil, or for the matter of that for any other edible oil, should be negative. What has been prescribed is that test for argemone oil should be negative. Again the standard of mustard seeds has been prescribed in item A.05.15 and it is as below:
A.05.15- Mustard (Rai, Sarson) whole means the dried seeds of Brassica alba(L.) Boissa. (Safed rail), Brassica compestris L.var. dishotoma (Kali Sarson) Brassica compestris L. var. yellow Sarson, Syn. Brassica compestris L.var. glauca (Pili Sarson), Brassica com-pestris L.var. toria (Toria), Brassica Juncea (L) et Czern. (Rai, Lotni) and Brassica nigra (L) Koch (Bensarai rai). The proportion of extraneous matter which includes dust, dirt, stones, lumps of earth, chaff, stem, straw, edible food-grains, edible oil seeds of any other variety or any other impurity shall not exceed 7.0 per cent, by weight. It shall be free from seeds of argemone mexicana Linn.
8. It is seen from the standard of quality of mustard as prescribed, in the above item that the presence of edible oil seeds of any other variety upto 7.0 per cent, is permissible. Only the presence of argemone mexicana Linn is prohibited. It is for this reason, the test for argemone oil in mustard oil should be negative. When presence of til seeds or for the matter of that of any other edible oil seeds upto 7.0 per cent, is permissible in mustard seeds, it will necessarily follow that the presence of some til oil not exceeding 7.0 per cent, in mustard oil, expressed from such mustard, is not impermissible. This is also deducible from the fact that it has not been prescribed, while laying down the standard of mustard oil that the test for til oil or for any other edible oil should be negative, as has been done in the case of argemone oil. Had it been the intention of the Legislature that the admixture of another edible oil, simpliciter, irrespective of the proportion or effect would go to make any mustard oil adulterated, it would have been laid down in item A. 17.06 as in the case of argemone oil that the test for any other edible oil should be negative. When it has not been prescribed in item A. 17.06 of Appendix 'B' to the Rules that the test for til oil or for any other edible oil should be negative, it cannot be said that the standard or purity of the sample of mustard oil in question is below the prescribed standard simply because of the presence of some til oil, the quantity or proportion of which is not mentioned.
9. It may also be mentioned here that Clause (e) of Rule 44 prohibits the sale of admixture of two or more edible oils as edible oil. Such a sale is punishable under Section 16(1)(a)(ii) read with Section 7(y) of the Act for contravention of the aforesaid Rule. If mere admixture of two edible oils, as in the instant case, would go to bring any sample within the definition of 'adulterated' as argued by Mr. Sen, a person selling or storing for sale such oil could be convicted and punished under Section 16(1)(a)(i) read with Section 7(i) of the Act, for sale of adulterated oil and there would have been no necessity to enact Rule 44 as above. The very fact of enactment of Rule 44(e) goes to show that admixture of two edible oils, simpliciter, does not come within the definition of the word 'adulterated' as given in Section 2(i) of the Act.
10. As a result of the foregoing discussion I am unable to agree with Mr. Sen that the sample of mustard oil in question is adulterated merely because there was some til oil present, the quantity or proportion of which has not been mentioned. -
11. In the instant case the petitioner was not prosecuted under Section 16(1)(a)(ii) read with Section 7(v) of the Act for sale of admixture of two edible oils in violation of Rule 44. That apart, the learned Sessions Judge has acquitted the petitioner of the offence for sale of adulterated mustard oil on the ground that the Assistant Surgeon who seized the sample was not validly appointed as Food Inspector and the State has not filed any appeal against this acquittal. That being the position, it is not necessary in this case to decide whether in the circumstances of the case the petitioner is liable to be convicted and punished for sale of admixture of two edible oils in violation of R. 44 (e). As it has been found that the sample of mustard oil seized, from the shop of the petitioner was not adulterated the petitioner's conviction and sentence under Section 16(1) read with Section 7(i) of the Act for storage of adulterated mustard oil for sale must be set aside.
12. In the result, the conviction and sentence of the petitioner complained of are set aside and he is acquitted of the charge under Section 16(1)(a)(i) read with Section 7(i) of the Act for storage of adulterated mustard oil for sale. The revision petition is allowed. The fine, if already realised shall be refunded to the petitioner.