JUDGMENT 1. - The learned Munsif & Judicial Magistrate, Gangapur City convicted tbe accused-petitioner vide his judgment dated June 16,1975 under sec. 7/16 of the Prevention of Food Adulteration Act, 1954. (hereinafter referred to as the Act) and sentenced him to undergo six months rigorous imprisonment and a fine of Rs. 1,000. He preferred an appeal before the learned Additional Sessions Judge, Gangapur City, who, while upholding the conviction of the accused-petitioner under Sec. 7/16 of the Act, modified the sentence and sentenced the accused-petitioner to one and a half months rigorous imprisonment and a fine of Rs. 1,000/- or in default to further suffer 15 days simple imprisonment. Hence this revision. 2. The revision arises in the following circumstances. 3. Shri S. L, Santoshi (PW1) Food Inspector, Municipal Board, Gangapur City, visited the Oil Mill of M/s Lohiya Industries, Nehar Road, Gangapur, on March 27, 1974 at about 1.30 P. M. He noticed that in the Oil Mill 9 drums of groundnut oil were stored for purposes of sale. He grew suspicious about their purity and noticed that the accused-petitioner was present there. The Food Inspector purchased 375 Grams of groundnut oil under receipt (Ex. P 2) from the accused petitioner. It was divided in three samples and each sample was duly wrapped, corked and sealed in the presence of Motbirs. One of the samples was sent to the Public Analyst for examination and the Public Analyst found that all the constituents were in accordance with the prescribed standards of purity contained in Appendix A item A 17.03 of the Food Adulteration Rules, 1955 hereinafter referred to as the Rules but it was found to be rancid and as such adulterated. After obtaining the sanction of the local authority, a complaint was filed against the accused petitioner, and the learned Magistrate after trial convicted and sentenced the accused, as stated. In appeal, only the sentence was modified. 4. When the case was pending in the Court of the learned Magistrate, an application under sec. 13(2) of the Act for sending the sample of the Court to the Director, Central Food Laboratory, Calcutta was filed on behalf of the petitioner. The Director, Central Food Laboratory, Calcutta on examination of the sample, found that it was not rancid but test for castor-oil was positive and hence it was adulterated. 13(2) of the Act for sending the sample of the Court to the Director, Central Food Laboratory, Calcutta was filed on behalf of the petitioner. The Director, Central Food Laboratory, Calcutta on examination of the sample, found that it was not rancid but test for castor-oil was positive and hence it was adulterated. The learned Magistrate sought clarification about the sample being rancid vide his letter dated February 12, 1975 and the Director of Central Food Laboratory, Calcutta, vide his letter dated 24-3-75 informed the learned Magistrate that the sample was declared adulterated for presence of castor-oil and this is prohibited under rule 44(s) of the Rules. It was also intimated that rancidity is by and large an organoleptic quality. Chemical tests for its determination are not very satisfactory. Hence, no specific test for rancidity was done. However free fatty acids are also taken to be an index of rancidity among others. A further clarification was sent by letter dated May 7, 1975 by the Director, Central Food Laboratory, Calcutta to the learned Magistrate that castor-oil has not been included as an edible oil in the Rules. If there is any difficulty in applying the rule 44(e) of the Rules in the present case, it is adulterated also under sec. 2 (1) (a) of the Prevention of Food Adulteration Act, 1954. 5. The argument of the learned Advocate that Rule 44 (e) of the Rules will apply in this case has no force. This court has already held so in Moolchand v. The State of Rajasthan (S. B. Criminal Revision No. 497 of 1976) decided on January 16, 1979 . A perusal of rule 44 (e) of the Rules will make it clear that it will only apply if the sale of admixture of two or more edible oils as an edible oil takes place. The letter dated May 7, 1975 of the Director, Central Food Laboratory, Calcutta, as well as a perusal of Appendix-Items A 17.03 to A. 17.16 will make it clear that castor-oil is not an edible oil. Therefore, rule 44 (e) will not apply to the facts of this case and there has been no contravention of rule 44 (e) of the Rules. 6. Therefore, rule 44 (e) will not apply to the facts of this case and there has been no contravention of rule 44 (e) of the Rules. 6. A perusal of the judgment of the learned Magistrate will make it clear that the accused-petitioner was convicted, as in the opinion of the learned Magistrate the sample of food was adulterated, because it contained foreign matter, that is, castor-oil. Under item A. 17.03 of Appendix 1 of the Rules, ground nut oil must also be free from any foreign matter. Any matter which is not an edible oil will be foreign matter and hence it can be said that the sample of groundnut oil did not conform to the prescribed standards of purity under sec. 2 (i) (a) (m) of the Act. The accused has, therefore, been rightly convicted under sec. 7/16 of the Act. 7. The argument of the learned Advocate for the accused petitioner is that the accused-petitioner was only a Chowkidar of the Mill. He was neither a proprietor nor a Munim. There can be no doubt that a sale even by a servant to the Food Inspector for the purpose of analysis will be covered under sec. 7 of the Act and in this connection it will suffice to make a reference to Sarju Prasad v. The State of U. P., AIR 1961 S.C. 631 . A perusal of the statement of Habib (PW2), who is a prosecution witness and was an employee of the Mill shows that the accused-petitioner was only a Gate-keeper. When the Food Inspector came to the Oil Mill and asked him to sell ground-nut oil for purposes of analysis, he sold the same to him. It has come in the statement of the accused under sec. 313 Cr. P. C. that he was only a Gate-keeper on the Mill and one Hulas Chand was its Manager. He was employed by Hulas Chand as a Gate-keeper and the owners were residing at Calcutta.The learned Advocate requests that because he was simply a Chowkidar, a lenient view in the sentence is called for, because the case is going on for the last five years. 8. In the result, the revision partly succeeds. So far as the conviction of the petitioner under sec. 8. In the result, the revision partly succeeds. So far as the conviction of the petitioner under sec. 7/16 of the Act is concerned, the same is upheld, and the revision is dismissed, but looking to the fact that the accused-petitioner was only a Gate-keeper, and further looking to the fact that the case is going on for the last five years, the ends of justice shall be met if the accused-petitioner is sentenced to rigorous imprisonment already undergone, which in this case is 7 days, and to a fine of Rs. 1,000/- in default of payment of fine to further 15 days simple imprisonment.Revision partly allowed. *******