Gopal Kishan Sharma, J.
1. This revision petition is directed against the judgment of the Addl. Sessions Judge, Baran, dated 23rd Oct., 1978, by which, he confirmed the conviction and the petitioner passed by the Judicial Magistrate, Baran vide his judgment dated 30th Aug., 1977, for the offence under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (here in after for short, 'the Act').
2. The facts of this case succinctly narrated are that on 3rd April, 74, Kaluram, Food Inspector visited the shop of firm, 'Moolchand Banamal', and purchased 450 gms. of groundnut oil and paid him Rs. 4.40. He then filled that sample of oil in 3 bottles; sealed them at the spot and sent them to public analyst for examination. After examination, the public analyst disclosed that the oil was upto the standard prescribed by the rules as given in Appendix-B, except that it was not free from rancidity, and hence, he described it as adulterated. After taking sanction, the petitioner was challaned. The learned Magistrate after recording the evidence and hearing both the sides, found the petitioner guilty of the offence under Section 7/16 of the Act, and sentenced him to 1 year's RI and a fine of Rs. 2000/- and in default of payment of fine, to further undergo 3 months RI. The petitioner then preferred an appeal against his conviction and sentence. The learned Addl. Sessions Judge, Baran, dismissed his appeal and maintained his conviction. But he reduced his sentence to 6 months RI and a fine of Rs. 1000/-. Against that judgment of the Addl. Sessions Judge, the present revision petition has been preferred,
3. The main argument advanced by Mr. Rastogi is that though according to the public analyst the sample was found to be upto the standard prescribed by the rules, but, while having Kreis-Test, it was found that on account of rancidity, the said oil was adulterated.
4. The only point to be considered in this case is whether the Kreis-Test is the conclusive one, and whether on account of this test, can the oil be declared to be adulterated.
5. The statement of the public-analyst, Mr. Bhattacharya CW 1, was read over to me. According to his statement and the report, Ex.P 5, the sample which was sent to him for examination, was found to be upto the standard prescribed by the rules. He then tested that sample by applying Kreis-Test, and then he opined there was rancidity and on account of this, the oil was described by him as adulterated. In his cross-examination, Mr. Bhattacharya staled that according to the latest literature of Kreis-Test, even in a fresh oil, colour reaction can be found, and on account of that, there may be misleading in the reading of the test. So on account of this statement, it is clear that even Kreis-Test is not the conclusive and definite test. By applying this test, even the result may be misleading. So, Mr. Bhattacharya could not say definitely that in the present case the oil which he tested by applying Kreis-Test, there could not be any doubt about misleading the correctness of the said test. So, I feel that no doubt, Kreis-Test is one of the tests. But, that cannot be said to be a fool-proof test. There are chances for misleading in that test also. Quite possible that in the present case, while applying Kreis-Test, there might be misleading. Mr. Bhattacharya did not say definitely that in the present case, there was no misleading about the conclusiveness and authenticity of this test. A similar case was decided by Justice Bhargava. That case is Municipal Council, Jaipur v. Chiranjilal 1983 RLR 530. That case was also of adulteration, and the non-petitioners were prosecuted for the offence under Section 7/16 of the Act. They were acquitted by the learned Magistrate; and the Municipal Council. Jaipur had come to this Court against their acquittal. In that case also, Kreis-Test was applied, and the public-analyst in that case also, was Mr. Bhattacharya, who is public analyst in this case. In that case, Justice Bhargava, after discussing the evidence, observed that Kreis-test is not the conclusive test for rancidity, and hence it could not be said conclusively that the sample was rancid or adulterated. The appeal of the Municipal Council, was, therefore, dismissed. The case cited above is similar to the present one. Here also, the sample was found to be upto the standard. But, on account of rancidity, it was declared to be adulterated. Rancidity was found on account of Kreis-Test, and as has been held by this court in the above case, and I have also opined above, this Kreis-Test is not the conclusive test, and it cannot be said to be an authenticated test. While applying this test, there are chances of having misleading in reading. So, it cannot be said that Kreis-Test is the conclusive test and should be taken as it is. Therefore, on the basis of this Kreis-Test, the public-analyst, Mr. Bhattacharya found the oil rancid. But, doubt remains there whether it was correctly tested, as the test itself was not a conclusive one. This doubt is certainly there in the present case, and when there is any doubt, its benefit should go to accused. Apart from this doubt, I agree with the observation of Justice Bhargava that Kreis-Test is not a conclusive or authenticated test, when the sample was found to be upto the standard and only on accent of Kreis-Test, it was found rancid or adulterated. I do not agree with the conclusiveness of the said test to convict the petitioner on the basis of the Kreis-Test. Both the lower courts have certainly failed to appreciate this aspect, and they have erred in convicting the accused-petitioner for the offence under Section 7/16 of the Act. The conviction of the petitioner, therefore, cannot be maintained,
6. In the result, the revision petition is accepted. The conviction and the sentence of the petitioner under Section 7/16 of the Act are set aside. He is on bail, need not surrender to his bail-bonds which are hereby cancelled. The amount of fine, if already deposited by the petitioner, be refunded to him.