ORDER J.N. Takru, J. - Sheo Nath Singh has filed this revision against his conviction and sentence of nine months' R.I. and a fine of Rs. 1,000/- in default six months' further R.I. u/s 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act. 2. The conviction of the Applicant is based upon the following findings: (1) that the Applicant had a shop where, amongst other things, he sold oil, (2) that on 22-12-1964 at about noon Vijaj Bahadur Srivastava, a Food Inspector, purchased a sample of mustard oil from that shop from a person who posed to be the Applicant, (3) that subsequently the Food Inspector came to learn that the said person was not the Applicant but was his brother, Hari Singh, (since dead), (4) that the Applicant was not at his shop when the sample was taken from Hari Singh, (5) that the defence of the Applicant that he was ignorant of the proceedings which took place during his absence was unsustainable. 3. On behalf of the Applicant his Learned Counsel Sri A.D. Giri, contended that even if all the findings detailed above were accepted, the Applicant's conviction could not be sustained since there was no evidence to show that Hari Singh who sold the sample of mustard oil to the Food Inspector did so on behalf of the Applicant. After hearing the Learned Counsel for the parties, I am satisfied that this contention is well founded. 4. Section 7 for the violation of which the Applicant has been convicted, in so far as it is material for the present purposes, reads thus: No person shall himself or by any person on his behalf...sell.... (1) Any adulterated food; ... ... ... ... 5. A plain reading of the aforesaid provision shows that the offence created thereby is committed (1) when the article sold is 'adulterated food', and (2) when that article is sold either by the owner of the shop himself or by some one on his behalf. So far as the finding about the mustard oil being adulterated is concerned, Sri Giri did not feel called upon to challenge its correctness, and, hence, for the purposes of this revision the first ingredient of the offence may be assumed to have been proved. So far as the finding about the mustard oil being adulterated is concerned, Sri Giri did not feel called upon to challenge its correctness, and, hence, for the purposes of this revision the first ingredient of the offence may be assumed to have been proved. But the same cannot be said for the second ingredient, for the simple reason that there is no evidence, direct or circumstantial, to slow that Hari Singh sold the mustard oil on the Applicant's behalf. Both the courts below have, however, relied upon certain presumptions for holding that when Hari Singh sold the mustard oil to the Food Inspector he must be held to have done so on behalf of the Applicant. According to those courts since Hari Singh was the Applicant's brother, and further that as he also carried on the business of selling oil though separately from his brother, and under a different licence, he must be presumed to have sold the mustard oil with the authority, and, on behalf of the Applicant. In my opinion such a presumption can be drawn only if, (1) the fact and circumstances on which it is based have been affirmatively established and (2) the cumulative effect of those facts and circumstances leads to no other conclusion than the one sought to be drawn. Thus tested, the presumption drawn by the courts below is unwarranted as it is based upon conjectures and surmises; so far as the evidence is concerned it shows that the two brothers had separate shops and business licences, and that though they lived in the same house they had separate mess. In these circumstances unless there was some direct evidence to_show that Hari_Singh had the__authority or permission of the Applicant to sell on his behalf, or circumstantial evidence to show that he was frequently seen_doing so, it is not possible to endorse the finding of the learned Sessions Judge, that 'it was not improbable that the two brothers might have been carrying on the business jointly though under different licences and at two different shops'. It is no doubt regrettable that the Applicant has to be given the benefit of the doubt, but for this the prosecution has no one but itself to blame, as it should have been obvious to it as soon as it found that the mustard oil was sold to the Food Inspector not by the Applicant but by his brother, that if the prosecution_ was to succeed it was necessary for it to lead some evidence to prove that Hari Singh sold the mustard oil on behalf of the Applicant. As one of the ingredients of the offence has remained unproved the conviction and sentence of the Applicant cannot be maintained and they have to be set aside. I accordingly set them aside and allow this revision. The Applicant was granted bail for the pendency of his revision. He need not surrender and his bail bonds are hereby discharged and fine if paid shall be refunded to him.