JUDGMENT Akram, J. - This is a Rule on the District Magistrate of Howrah and upon the complainant Opposite Party to show cause why the conviction of the Petitioners under sec. 488/406 of the Calcutta Municipal Act (III of 1923) should not be set aside or such other order passed as to this Court may seem fit and proper. In this case a complaint was made by the Sanitary Inspector of the Howrah Municipality to the effect that on the 30th May, 1939, the Petitioners in contravention of secs. 406 and 407 of the Calcutta Municipal Act were selling, exposing for sale and storing for sale, in the Hindu Tiffin Room at the Howrah Railway Station Goods shed, two kinds of mustard oil which were not of the prescribed quality as was found upon an examination of the samples marked B 41 and B 43 for analysis by the Public Analyst. The Petitioners were thereupon summoned under sec. 488/406 of the said Act. 2. The defence taken by the Petitioners was, inter alia, that the mustard oil was for the use of the employees of the firm and not for sale, that according to the list by the East Indian Railway administration, food prepared in ghee only could be sold to the public and the Medical Department of the Railway was exercising strict supervision over the sales. 3. It appears that the Petitioner No. 1 is a firm of caterers running a number of Hindu refreshment Rooms under licences granted by several Railway authorities and the Petitioner No. 2 is their manager of the Tiffin Room at the Howrah Railway Station. The trying Magistrate convicted the Petitioners for stocking or selling food (alur dam) cooked in adulterated mustard oil, although the complaint was for selling adulterated mustard oil itself. 4. We do not think that the procedure followed in this respect by the learned Magistrate was quite correct but apart from it, in order to convict under sec. 406, Calcutta Municipal Act, it must be proved that the food was adulterated; in the present case, that on account of the action of the accused the quality or strength or value of the food was reduced or lowered or injuriously affected to the prejudice of the consumer--see sec. 3 (2) C of the Act; as to this, there is neither any evidence nor any finding by the learned Magistrate. 5. 3 (2) C of the Act; as to this, there is neither any evidence nor any finding by the learned Magistrate. 5. The mere fact that the saponification value of the mustard oil was found on analysis to be 179/7 in the one case and 179/85 in the other case, that is, somewhat in excess of the Government Notification fixing the outside limit of saponification as 175, cannot in our opinion support the present conviction under sec. 406, specially in view of the fact that it appears that the saponification value of mustard oil varies to some extent according to the kind of the mustard seed and the place where it is grown (see Jamieson's book "Vegetable Fats and Oils," page 200). In the absence of any evidence and of a finding to the effect that the food value of alur dam was deteriorated to the prejudice of the purchaser or consumer, we are unable to uphold the conviction in this case and we accordingly make the Rule absolute, and set aside the conviction and sentence passed upon the Petitioners. The order for payment of costs is also set aside and we direct that the fine and the cost, if paid, be refunded. Bartley, J. I agree