The sale of oil sweeping as mustard oil does not constitute an offense under the Prevention of Food Adulteration Act, and the Public Analyst's report is incomplete if it does not include all the tests required under the standards for mustard oil.

( 1 ) THIS revision petition is directed against the order of a learned Municipal Magistrate of Calcutta convicting the petitioners under Section 7 (1)/16 (1) (a) (i) of the Prevention of Food Adulteration Act. Petitioner No. 1 Messrs. Netai Chandra and Surendra Nath Dey alias Netai Charan Dey Surendra Nath Dev was sentenced to pay a fine of Rs. 100 Petitioners 2 and 3 were sentenced to undergo rigorous imprisonment for three months each. Two other persons, namely Netai Chandra Dey and Shyam Sundar Dey were also tried along with the petitioners but they were acquitted.

( 2 ) THE case for the prosecution is that on 22nd June 1981 Dr. A. B. Mazumdar, Food Inspector of the Corporation of Calcutta, went to the petitioners' firm and expressed his intention to take samples of mustard oil. He took two samples after complying with all formalities and sent samples to the Public Analyst for analysis and report. On receipt of his report that the samples were adulterated the accused persons were prosecuted and placed upon trial.

( 3 ) THE accused persons pleaded not guilty. Their defence is that petitioner No. 1 is a wholesale dealer in edible oils and it was granted a licence by the Corporation of Calcutta to deal not only in edible oils but also in oil sweeping. When oil is poured in drums drops fall on the floor and get mixed up with dirt and other impurities Such oil is mopped up with rags and squeezed into drums. Then the scum or the sediments are allowed to drop down to the bottom and the oil above the cum is sold as oil sweeping for manufacturing purposes, such as manufacturing soap. The oil sweeping is popularly known as Latamara or Sabari 9 tins containing such sweeping oil are kept outside the shop room near the door. Those tins had been sold by the petitioners as sweeping oil and were kept outside for being taken away by the buyer. Within a very short time of the tins being kept outside, the Food Inspector appeared on the scene and expressed his intention to take samples from those tins. Samples were accordingly taken by the Food Inspector. But at the time when they were taken the salesman definitely told him that the stuff from which the samples were taken was not mustard oil but oil sweeping Another plea of defence was that petitioner No. 2 Surendra Nath Dey and the two persons who were acquitted were not present and were not in charge of the business.

( 4 ) THE crucial point for determination in this case is whether the stuff from which the samples were taken by the Food Inspector was mustard oil, that is, food within the meaning of the Food Adulteration Act. The noticeable feature in this case is that as soon as the Food Inspector wanted to take samples of mustard oil from the aforesaid 9 tins the accused gave out that those tins did not contain mustard oil but oil sweeping. The Food Inspector also made a note that the accused had told him that the sample that was being taken was samples of sweeping oil. It appears from the Public Analyst's report also that the sample that was received by him was sample of "mustard oil said to be shipping oil". There is also the evidence of D. W. 1 Shyamlal who was examined as a defence witness that he had purchased those 9 tins of oil sweeping for manufacturing soap. There is evidence to show that Shyamlal is a "soapmaker and Seller". That would appear from the receipt granted by the Licence Officer of the Corporation of Calcutta. Account books were produced by the accused persons as well as by Shyamlal to prove the transaction, namely, the sale by the accused and purchase by Shyamlal of those 9 tins of oil sweeping. It is also beyond controversy that the said 9 tins were outside the accused's shop. There is evidence on behalf of the defence that after purchasing the said tins of oil sweeping Shyamlal gave the challans to the Thelawala to carry the oil sweeping to Shyamlal's shop. If that evidence is accepted then that would conclusively prove that the stuff from wh