JUDGMENT M.P. Saxena, J. - Jagdish has filed this appeal against the judgment and order dated 8-3-77 passed by the Third Additional Sessions Judge, Azamgarh, convicting him under section 7/16 of the Prevention o f Food Adulteration Act and sentencing him to five years' R.I. and to a fine of Rs. 1000/- and in default of its payment to six months' further R.l. 2. The prosecution case briefly stated is that the appellant runs a grocers shop in village Chakla and deals in mustard oil and linseed oil alongwith other articles. On 23-12-1975 at about 3 p.m. the Food Inspector Nagar Palika, Azamgarh visited the shop of the appellant and demanded edible mustard oil which was being exposed for sale, After giving requisite notice he purchased 45 grams of mustard oil and paid Rs. 2.70 as its price. Its receipt was also obtained. This sample was taken in the presence of Lallman and Chhangur and was divided into three parts which were kept in three phials. One phial was left with the appellant, another was sent to the Public Analyst and the third one was kept in the office of the Nagar Palika. On analysis the Public Analyst reported that the sample contained about 3% linseed oil and was, therefore, adulterated. On receiving this report the Food Inspector obtained requisite sanction from the Deputy Chief Medical Officer, Azamgarh and filed a complaint against the appellant. 3. The appellant denied the said charge and gave out that the Food Inspector had no doubt visited his shop and wanted to take sample of mustard oil but he gave out to him that he was not possessed of edible oil. At this the Food Inspector asked him to give the sample of whatever oil possessed by him. He had a container in which the linseed oil was kept. He poured the linseed oil in another container and gave the mustard oil to the Inspector in that container. His signatures were obtained but the oil was not examined in his presence. 4. After going through the evidence on the record the learned trial court believed the prosecution version that sample of mustard oil was taken by the Food Inspector from the shop of the appellant and it was found to be adulterated. Accordingly the appellant was convicted and sentenced. 5. The learned counsel for the appellant has pressed two main points before me. Accordingly the appellant was convicted and sentenced. 5. The learned counsel for the appellant has pressed two main points before me. Firstly, that the Inspector did not comply with R.I. 14 of the Prevention of Food Adulteration Rules which required that the container in which the sample is taken must be properly cleaned. In the instant case it is not alleged to have been done. Secondly, his contention is that the sample conformed to the prescribed standard. I have looked into the statement of the Food Inspector and in my judgment it gives a fatal blow to the prosecution story. He had stated as follows : 'The accused had given 450 grams of mustard oil in his own container. This container was formerly used for keeping oil but at the time it was delivered it did not contain any oil. It was empty. There was no oil in it but it was oilish. I do not remember whether the accused had given out to me that this container contained linseed oil. He was dealing in linseed oil also but did not see it'. The aforesaid statement makes it clear that the appellant had supplied mustard oil to the Food Inspector in his own container. It was formerly used for containing linseed oil. It was oilish at the time the mustard oil was given in it to the Food Inspector. In these circumstances the possibility of certain percentage of linseed oil getting mixed with mustard oil cannot be completely ruled out. The Public Analyst found only 3% of linseed in the sample which was too marginal. In these circumstances the Food Inspector did not comply with the requirements of R.I. 14 and the possibility of certain percentage of linseed oil getting mixed with mustard oil cannot be completely ruled out and the appellant could not be successfully convicted. 6. The appeal is accordingly allowed and the appellant's conviction under section 7/16 of the Prevention of Food Adulteration Act and the sentence awarded thereunder are set aside. The fine, if deposited shall be refunded to him.