JUDGMENT - N.B. NAIK, J.:---The petitioner-accused challenges the Order of the learned Sessions Judge, Thane, dismissing his appeal against the order of the learned Chief Judicial Magistrate, Thane, convicting him for an offence under section 7(i)(v) and 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 read with Rule 44(e) of the Prevention of Food Adulteration Rules, 1955, and sentencing him to suffer R.I. for six months and to pay a fine of Rs. 1000/-. 2. Briefly stated the prosecution case is under : On 1st February, 1973 one Simpi, the Food Inspector, visited the shop of the petitioner accused named as "Chheda Provisional Stores", Thane and took sample of 450 gms. of groundnut oil by following the prescribed procedure. The sample was sent to the Public Analyst and he by his report Exh. 30 opined that the sample was adulterated under section 2(i)(a) of the Prevention of Food Adulteration Act, 1954 read with Rule 44(e) of the Prevention of Food Adulteration Rules, 1955. On these facts the accused was prosecuted. 3. The accused pleaded not guilty to the charge and claimed to be tried. His defence was that he was using one measure to sell different varieties of oil which was being purchased from outside, and, therefore, he submitted that he has not committed any offence. 4. Having regard to the report of the Public Analyst Exh. 30 and the evidence of the Food Inspector, the trial Court convicted the accused and sentenced him as stated at the outset of this judgment. The conviction and sentence was confirmed by the Sessions Court on appeal. 5. The correctness of that conviction and sentence is challenged by the accused in this revision application. 6. Mr. Chitnis, learned Advocate for the petitioner has assailed the judgments of the courts below in convicting the accused for breach of the Rule 44(e). His second submission is that if submission of his is accepted the case would be covered by proviso to section 16 of the Act and, therefore, the Court should having regard to the peculiar circumstances of this case, let off the accused only with a sentence of fine. 7. Mr. Tipnis, learned Advocate appearing for the Thane Council and Mr. Deo, learned Public Prosecutor could not dispute the first contention of Mr. Chitnis. With regard to the sentence which is awarded. Mr. 7. Mr. Tipnis, learned Advocate appearing for the Thane Council and Mr. Deo, learned Public Prosecutor could not dispute the first contention of Mr. Chitnis. With regard to the sentence which is awarded. Mr. Chitnis submitted that after all the accused is only a retailer and the extent of adulteration as appears from the report of the Public Analyst (Exh. 30) read in the light of the standards laid down by the Rules, would show that the variation of the standard is only marginal and he further submitted that since the accused has disposed of his shop and left for his native place, the Court may be pleased to treat that as adequate and special circumstances for not awarding the sentence of imprisonment. 8. Mr. Tipnis met the first point by submitting that a submission that the accused is a retailer should be treated as a special circumstance for awarding the sentence less than minimum prescribed would frustrate the very purpose of the Act inasmuch as 99 per cent of the offenders against the Act are retailers. With regard to the adulteration if any, which appears to be marginal, having regard to the a slight variation in the standard prescribed by the Rules, Mr. Tipnis could not dispute that fact. But he did not agree with the submissions of Mr. Chitnis that fine be reduced to Rs. 250/-. Under no circumstances submitted Mr. Tipnis, the fine of Rs. 1000/- which has been already paid by the accused could be interfered with. 9. With regard to the first submission of Mr. Chitnis about the case not being covered by Rule 45(e) and that it is actually a case of adulteration only under section 2(i)(1) of the Act; I find that there is considerable force in the same. Rule 44(e) would apply to a case of a mixture of two or more edible oils as an edible oil. But one would read with data mentioned in the report of the Public Analyst in vain to find out that it is a case of mixture of two more edible oils. It is true that the Public Analyst has opined that the sample is adulterated under section 2(i)(a) read with Rule 44(e), but then what is admissible is not his opinion but the date furnished by him. It is true that the Public Analyst has opined that the sample is adulterated under section 2(i)(a) read with Rule 44(e), but then what is admissible is not his opinion but the date furnished by him. There is nothing in the data furnished by him to show that it is case of breach of Rule 44(e). Therefore, his opinion ipse dixit cannot be accepted in the absence of data. On the material, therefore, and in the absence of the evidence of the Public Analyst it is not possible to hold that the case is covered by Rule 44(e). On the other hand, it is clearly a case of adulteration under section 2(i)(1) as is conceded even by Mr. Tipnis and Mr. Deo and I hold accordingly. 10. Having regard to the forgoing observations it would follow that the case of the accused would be covered by the proviso to section 16, and the next question which would be considered is as to whether there are adequate and special reasons to impose a sentence of imprisonment for a term of less than six months. As I pointed out earlier, the submission of Mr. Chitnis that the accused is a retailer is devoid of merit and has got to be left out of consideration. But there could be no doubt however that the extent of the variation in the standard prescribed by the Rules is very minimum and that too only in respect of three tests. 11. Under the heading Article 17.03, Groundnut oil is required to conform to the following standards : (a) Butyro-refractometer reading at 400C ... 54.0 to 57.1 (b) Saponification value ... 188 to 195. (c) Iodine valued ... 85 to 99 (d) Unsaponifiable matter ... Not more than 1.0 per cent. (e) Free fatty acid as eleic acid. ... 3.0 per cent. (f) Bellier test (turbidity temperature --- ... 360C to 410c. Acetic acid method) 12. The report of the Public Analyst at Exhibit 30 gives the following data :--- "Serial No. Name of the Vender. Butyro-refractomer reading Saponification of the sample at 400C. value. (a) (b) 125 Nanji Raisi Chheda. 58.0 192.1 Iodine value Unsaponifiable matter. Free fatty acid as oleic acid. Bellier test. (c) (d) (e) (f) 104.6 0.46 0.84 31.1". 13. It would thus appear that there is no variation in respect of Items (b), (d) and (e). Butyro-refractomer reading Saponification of the sample at 400C. value. (a) (b) 125 Nanji Raisi Chheda. 58.0 192.1 Iodine value Unsaponifiable matter. Free fatty acid as oleic acid. Bellier test. (c) (d) (e) (f) 104.6 0.46 0.84 31.1". 13. It would thus appear that there is no variation in respect of Items (b), (d) and (e). A slight variation is to be found only in respect of Items (a), (c) and (f). Having regard to these slight variations and the fact that the accused has disposed of his business and left for his place and having also regard to the fact that the incident is of 1st February, 1973 and since nearly 5 years have passed, I do not think that I should refuse to exercise my discretion in the matter of sentence. I, therefore, think that I should accede to the request of Mr. Chitnis that the accused need not be sent back to Jail as he has already undergone an imprisonment for 10 days. 14. In the result, the revision application is partly allowed. The accused is convicted only for the offence under section 7(i)(v) read with section 16(1)(a)(i) and his sentence is altered to the imprisonment already undergone and a fine of Rs. 1000/- in default of which he shall suffer further R.I. for one month. Rule is made absolute to that extent. -----