T.P. Mukherji, J.
1. This Rule is directed against the conviction of the petitioners under Section 16 of the Prevention of Food Adulteration Act and the sentence of a fine of Rs. 1,000 each, in default, rigorous imprisonment for one year passed on them thereunder. The subject-matter of the prosecution was mustard oil which on chemical analysis was found to be adulterated being mixed with linseed oil.
2. Mr. Talukdar appearing in support of the Rule takes amongst others two major objections to the finding of the Courts below and these are, first, that there is nothing on record to connect the report of the chemical analyst with the sample of oil that was seized from the shop of the petitioner and secondly that all the prescribed tests not having been undertaken in this case, the analysis that was done was not in accordance with the requirements of the law and the analyst not having been examined in the case, the Courts below fell into an error in basing the conviction on that report of the analyst in this case.
3. So far as the first contention is concerned, there is indeed no evidence to connect the report of the chemical analysis, Ext. 3, in the case, with the sample of mustard oil that was taken by the Food Inspector P. W. 1. There is nothing in the evidence of P. W. 1 which may connect Ext. 3 with the sample in question. This contention of Mr. Talukdar must be given effect to.
4. Coming to the second contention that is raised, Mr. Choudhury appearing for the State argues that although all the prescribed tests might not have been done in this case, we have it from the report of the analysts Ext. 3 itself that the sample taken contains linseed oil and if that be the position the same would be adulterated in accordance with the definition of the term 'Adulterated as given in Section 2(i) (b) or (c). With respect to the failure of the chemical analyst to undertake all the tests, the argument advanced on behalf of the Slate is that even if we take it that those two tests which were omitted would yield a result favourable to the accused, even then there would be no answer to the result of the tests as it would stand, which would indicate that the sample did not conform to the prescribed standard in that regard.
5. In Ext. 3 it is no doubt mentioned that there was linseed oil present in the sample. If linseed oil was mixed with mustard oil it was not something which could be seen physically. The opinion of the analyst in this regard is a matter of inference obviously from the result of the tests that were done by him. I may refer in this connection to the standards of linseed oil as also of popy seed oil (A 17.08) and sufflower oil (A 17.09) in the appendix to the P. F. A. Act Rules and a comparison of the standards prescribed for these three kinds of oil would show that the adulterating medium alleged in the sample in question might as well have been popy seed oil or safflowcr oil. The opinion of the chemical analyst as to the adulterating medium was clearly a matter of his inference from the result of the chemical examination done by him. This brings us to the question of acceptability of the result of the examination that was done in this case.
6. One of the definitions of the term 'adulterated' is to be found in Section 2(i)(1) and it is to the following effect;
if 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.
This is the definition which is relevant in the context of chemical examination of a sample.
7. Rule 5 of the Rules framed under the Prevention of Food Adulteration Act refers to standards of quality of various articles of food and says that the standards are to be as defined in the appendix to the Rules. In Appendix B, A 17.06 prescribes the standard of quality so far as mustard oil is concerned. The standards prescribed are five in number and the tests of acceptable purity within prescribed limits of variability are given. In the present case, the chemical analyst undertook three of the five tests for the purpose of ascertaining whether the sample conforms to the prescribed standard, and with reference to the result of those three tests came to the conclusion that the sample was adulterated. The question arises whether the opinion as to adulteration unless all the prescribed tests are undertaken should be acceptable to the Court, unless the analyst examines himself in the case for the purpose of explaining the position that: the failure to undertake two of the prescribed tests gives rise to. This question was considered in the case of Netai Chandra v. Corporation of Calcutta : AIR1967Cal65 , where it was held under similar circumstances that although the report of the chemical analysis would be evidence under Section 13(5) of the Prevention of Food Adulteration Act, the question as to whether the opinion of the analyst would be acceptable without his examination at the trial would depend on the facts of each individual case. In that case the report of the analyst was not found acceptable at its face value.
8. When the legislature has prescribed five standards and has recommended testing of the sample with reference to all those standards and when some of the prescribed tests are not done and the chemical analyst also is not examined the Court is faced with the question as to the reason for insisting on testing all the prescribed standards and the result of the failure to act up to the requirements of the law in that regard. There must be a reason behind the insistence on testing all the prescribed standards. The Act does not say that if the sample is found not to conform to say one or more of the prescribed standards, it should be treated as adulterated. What the Act says is that the sample shall conform to all the prescribed standards within, of course, the limits of variability. It may as well be that the correctness of the result of one test is capable of verification with reference to the result of the others or it may be that the results of the different tests will act as checks and counter-checks for the purpose of verifying the ultimate result of the analysis. Whatever that be, if the statute requires that all the tests have to be done and if it is found that all the tests have not been done, it is the duty of the prosecution to examine the analyst for the purpose of explaining to the Court the position and the situation that arises and in the absence of the evidence of the analyst the Court may very well refuse to rely upon the result of the tests as appearing in the report that is submitted. It is in this view of the matter that I find that it would be extremely risky to act only upon the result of the report of analysis in this case when all the prescribed tests have not been done and when the analyst also has not been examined in Court.
9. In view of the above, the Courts below should not have accepted the chemical analyst's report Ext. 3 in the case and made the order of conviction of the accused thereon. The rule accordingly is made absolute. The order of conviction and sentence passed on the petitioners is set aside and they are acquitted. Fines, if paid, be refunded.