R. B. LAL, J. This appeal by the com plainant is directed against the order of ac quittal dated December 23, 1976 passed by Shri R. N. Agarwala, II Additional Sessions Judge, Mathura. The Food Inspector, Hira Lal Gola, of Municipal Board, Vrindaban visited the Parchuni shop of Raman Lal, respondent, situa ted in Retia Bazar, Vrindaban town on November 24, 1976 at about 1 p. m. He found about 10 kilo-grams oil in a canister which Raman Lal was exposing for sale. On en quiry Raman Lal gave out that the oil was Laha oil. The Food Inspector disclosed his identity to Raman Lal and gave him a no tice of his (Food Inspector) intention to take a sample of the oil for analysis. He pur chased 375 grams oil on payment of Rs. 2. 05 P. , and obtained its receipt from Raman Lal respondent. He sealed the oil in three phials in equal quantity and observed all the rules and procedure in respect of the taking of the sample. The necessary documents were also prepared. A phial of sample oil was handed over to the respondent and a receipt was ob tained in token thereof. One phial of oil sample was sent to the Public Analyst for report and he reported that the sample contained about 22% linseed oil. A copy of this report was sent to thfe respondent by registered post. Dr. D. C. Singhal, Medical Officer of Health, Municipal Board, Vrindaban, accorded sanction to Food Inspector Hira Lal Gola to launch prosecu tion against the respondent and thereafter, the Food Inspector filed complaint against the respondent. The Magistrate committed the case to the court of session on August 20, 1976. In the court of session, two charges were fram ed against the respondent, one for selling adulterated Laha oil which was an offence punishable under Section 7/16 of the Preven tion of Food Adulteration Act (briefly the Act) and the other for selling Laha Oil in contravention of rule 44 (e) of the Rules framed under the Act. Raman Lal respondent admitted that the Food Inspector had taken a sample of Laha Oil from his shop. Ho also admitted receipt of a copy of the report of public analyst. He however, contended that he had started his shop some time back and he was selling oil, Gur and Ratab for horses. Raman Lal respondent admitted that the Food Inspector had taken a sample of Laha Oil from his shop. Ho also admitted receipt of a copy of the report of public analyst. He however, contended that he had started his shop some time back and he was selling oil, Gur and Ratab for horses. Laha oil was not used as human food. It was an article for giving to horses and also for massaging them. He added that he had not mixed anything in the oil. He examined two wit nesses in defence. The learned Additional Sessions Judge took the view that it was not proved that Laha oil or linseed oil (Alsi-ka-Tel) was used for human consumption and was edi ble oil. Hence it could not be said that the accused had contravened the provisions of Section 7 of the Act punishable under Sec tion 16 (1) of the same Act. He further observed that the accused had informed the Food Inspector at the time of the taking of the sample that the oil in question was not edible oil and for this reason as well as the accused could not be said to have committed an offence. Rule 44 (e) prohibited sale of a mixture of two or more edible oils. Since it was not proved that Laha oil and linseed oil were edible oils there was no contraven tion of rule 44 (e ). The learned Judge, therefore, acquitted Raman Lal, accused. The Food Inspector did not feel satisfied and, therefore, filed this appeal with leave. At the outset, the learned counsel for the respondent has submitted that the well settled practice is that the appellate court would not interfere with the finding record ed by the lower court and reverse the order of acquittal, if the finding is based on a reasonable view of the evi dence. In the connection the learn ed counsel has referred to the Supreme Court decision in the case of Dhan Kumar v. Municipal Corpn. , Delhi A. I. R. 1979 S. C. 1782. This rule applies to findings of fact recorded by the lower court. If the acquittal is based on an erroneous view of law it can certainly be re versed if the correct view warrants a con viction. , Delhi A. I. R. 1979 S. C. 1782. This rule applies to findings of fact recorded by the lower court. If the acquittal is based on an erroneous view of law it can certainly be re versed if the correct view warrants a con viction. The first question for consideration in this appeal is whether Laha Oil and linseed oil are edible oils and food within the mean ing of Section 2 (v) of the Act, as the defini tion stood at the time of taking of this sample. As indicated earlier, the learned trial Judge took the view that there was no evidence to show that the two oils in ques tion were edible oils. In this connection he referred to the statements of two defence witnesses and said that they had stated that Laha oil was not used by human beings. The learned Judge mis-read the statements of the two defence witnesses. Gir Raj (DW-1) was a Halwai and he said in his exami-nation-in-chief that Laha oil was not used in preparation of articles of food. In cross- examination, in the beginning, he said that Laha and linseed oils were not used as food even by poor people but towards the end of his cross-examination he clearly said that he could not say if Laha and linseed oils were used by human beings in food. Beni Singh (DW-2) was a Tonga driver and merely said that Laha oil was used for giving to horses and for their massage. He did not say that Laha oil or linseed oil was not used by human beings in food. The Food Inspector had clearly stated that Laha oil was used as food by him on beings. Thus so far as the oral evidence was concerned, there was no definite evidence to come to the conclusion that the two oils in question were not edible oils and were not covered under the defini tion of food as given in Section 2 (v) of the Act. The standard of quality of linseed oil is laid down in item No. A-17-04 of Appen dix B of the Act. This implies that linseed oil is an article of food for purposes of the Act. If the learned trial Judge had cared to peruse Appendix B, he would have come to know that linseed oil is an edible oil and an article of food. This implies that linseed oil is an article of food for purposes of the Act. If the learned trial Judge had cared to peruse Appendix B, he would have come to know that linseed oil is an edible oil and an article of food. In the decision in the case of Muncipal Board, Kanpnr v. Janki Prasnd A. I. R. 1963 Alld. 433 (F. B.), a Full Bench of this Court held that linseed oil is used as a cooking medium and is included in the definition of food as given in Section 2 (v) (a) of the Act. From this it is clear that linseed oil is food within the meaning of the Act. The Food Inspector stated in cross-exa mination that no standard of purity of Laha oil was given in the rules. This answer logically gives rise to the question as to why, then, the Food Inspector took sample of Laha oil for analysis. He could take sample of an article of food only for analysis. The. fact that the Food Inspector had taken a sample of Laha oil indicates that he considered Laha oil to be an article of food. A clarification was, therefore, essential to remove an ambiguity which the above answer of the Food Inspec tor created. It was the duty of the learned trial Judge to seek this clarification by put ting necessary questions. This was, however not done. It only shows that the learned Judge went on recording the evidence in a rather mechanical manner. Lahi is in fact, a type of black mustard seed and Laha oil is no thing but mustard oil. It was so held by a Division Bench of this Court in the decision in the case of State v, Bal Makund A. I. R. 1954 Alld. 97 (D. B. ). The Food Inspector clearly said that Laha oil is used by human beings as edible oil. Thus it is clear that Laha oil is also1 edible oil and an article of food within the mean ing of the term food as defined in the Act. The view of the trial court that the two oils were not edible oils, was wholly erroneous and deserves to be set aside. That view cannot be sustained on the ground that it was a view reasonably possible on the evid ence available on the record. The view of the trial court that the two oils were not edible oils, was wholly erroneous and deserves to be set aside. That view cannot be sustained on the ground that it was a view reasonably possible on the evid ence available on the record. The learned counsel for the respondent has emphasised the fact that the respondent had informed the Food Inspector that the oil of which he was taking a sample, was not meant for human consumption but was meant for being given to horses and for their massage, and, therefore, that oil could not be treated as food for purposes of the Act. In this connection, the learned counsel has re ferred to two decisions namely Nagar Maha Ialika, Varanasi v. Parineshwar 1973 A. Crl. C. 64, and Gyan Chandra v. State 1980 (U. P.) Cr. L. R. 5. He has sub mitted that in both these decisions it was held that since the oil in question was stated to be not for human consumption, it, could not come within the purview of the Act so as to make the seller liable for punish ment under the Act. He has also pointed out that the learned trial Judge had record ed a finding of fact that the accused had given out to the Food Inspector that the oil in question was not meant for human con sumption but was for being given to horses. The Food Inspector denied that at the time of taking of the sample the accused had told him that the oil in question was meant for being given to horses and for their massage only. The other witness Ramesh who was also an employee of the Nagar Palika, and was with the Food Inspector, on the other hand, said that the accused had given out this fact when the Food Inspector was taking sample of the oil in question. Both these statements could not be true at the same time. This difference in the statements of the two witnesses, requires at least a departmental probe for suitable ac tion against the person who did not make a true statement on this point. The stand of the accused was that, he had clearly told the Food Inspector that the oil was not meant for human consumption and was meant for being used for horses. The stand of the accused was that, he had clearly told the Food Inspector that the oil was not meant for human consumption and was meant for being used for horses. The learned trial Judge took the view that this information was conveyed to the Food Inspector. In the above state of evidence, this finding of the learned trial Judge may be accepted as correct and well founded for purposes of this appeal. The two decisions cited by the learned counsel for the respondent cannot help him because there is a clear pronouncement of the Supreme Court laying down to the con trary. The Supreme Court considered the scope of the definitions of terms food and sale given in clauses (v) and (xii) respec tively of Section 2 of the Act, in the decision in the case of State of Tamil Nadu v. R. Krishna Murthy A. I. R. 1980 S. C. 538, While considering the definition of the term food, their Lordships observed thus:- "it is notorious that there are, unfor tunately, in our vast country, large seg ments of population who, living as they do, far beneath ordinary subsistence level, are ready to consume that which may otherwise be thought as not fit for human consumption. In order to keep body and soul together, they are often tempted to buy and use as food, articles which are ad ulterated and even unfit for human con sumption which are sold at inviting prices, under the pretence or without pretence that they are intended to be used for pur poses other than human consumption. It is to prevent the exploitation and self-des truction of these poor, ignorant and illite rate persons that the definition of food is couched in such terms as not to take account whether an article is intended for human consumption or not. In order to be food for the purposes of the Act, an article need not be fit for human consumption; it need not to be described or exhibited as intended for human consumption, it may even be otherwise described or exhibited; it need not even be necessarily intended for human con sumption; it is enough if it is generally or commonly used for human consumption or in the preparation of human food. Where an article is generally or commonly not used for human consumption or in the prepara tion of human food but for some other pur pose, notwithstanding that it may be capable of being used, in rare occasions, for human consumption or in the preparation of human food, it may be said depending on the facts and circumstances of the case, that it is not food. In such a case the question whether it is intended for human consumption or in the preparation of human food may become material. But there the article is one which is generally or commonly used for human consumption or in the preparation of human food, there can be no question but that the article is food. The above was a case of mixture of Gingelly oil and groundnut oil. Their Lord ships observed at another place (para 12) thus:- "we are, therefore of the opinion that the sale of gingelly oil mixed with ground nut oil is punishable under Section 16 (1) (a) (i) read with Section 2 (iv) (a) not withstanding the fact that the seller had expressly stated at the time of sale that) it was intended for external use only. " While considering the definition of term sale, their Lordships observed that the de finition is designedly wide and covers every kind, manner and method of sale. The use of words for human consumption Or use of for analysis in the definition can in view of the context, only mean whether for human consumption or for any other purpose (in cluding analysis ). Their Lordships further observed thus:- "to give any other interpretation to the definition of sale would be to exclude from the ambit of the Act that which has been included by 1,he definition of food. Further, sale for analysis can never be a sale for human consumption but it 19 nonetheless a sale within the meaning of the definition. It is an un qualified sale for the purpose of the Act. To insist that an article sold for analysis should have been offered for sale for hu man consumption would frustrate the very object of the Act. A person selling an adulterated sample to a Food Inspector could invariably inform him that it was not for human consumption and thereby insure himself against prosecution for sell ing adulterated food. To insist that an article sold for analysis should have been offered for sale for hu man consumption would frustrate the very object of the Act. A person selling an adulterated sample to a Food Inspector could invariably inform him that it was not for human consumption and thereby insure himself against prosecution for sell ing adulterated food. If sale for analysis is an unqualified sale for the purposes of the Act, there is no reason why other sales of the same article should not be sales for the purposes of the Act. The question may be asked why sale for analysis should be specially mentioned if all manner of sales are included in the definition. It is only to prevent the argument that sale for ana lysis is not a consensual sale and hence no sale, an argument which was advanced and rejected in Mangaldas v. State of Maharashtra A. I. R. 1966 S. C. 128. " From the above observation of the Sup reme Court it becomes clear that the act that the seller had expressly stated at the time of sale that the oil was not meant for human consumption but was meant for being given to horses cannot help the respondent. Mustard oil is not an article which is generally or commonly not used for human consumption or in the preparation of human, food but for some other purposes notwith standing that it may be capable of being used, on rare occasions, for human consump tion or in the preparation of human food, and therefore, it cannot be taken out of the ambit of the term food as defined in the Act. Here I may add that the statement of Beni Singh (DW-2) shows that Laha oil is not used generally and commonly as food or massage oil for horses. It is used for these purposes only when a horse falls ill i. e. only on rare occasions. This use will not take out Laha oil from the category of those oils which are generally or commonly used for human consumption or for preparation of food. The learned counsel for the respondent has tried to get over the above Igal position by urging that the shop of the respondent did not sell any article "for human use or consumption and it was a shop which was dealing only in horse feed. This contention cannot be accepted. The learned counsel for the respondent has tried to get over the above Igal position by urging that the shop of the respondent did not sell any article "for human use or consumption and it was a shop which was dealing only in horse feed. This contention cannot be accepted. There is no material on the record to lead to such a conclusion. The two defence witnesses did not say so. The respondent did not adduce any other evid ence to substantiate this contention. Noth ing was elicited from the prosecution wit nesses which could go to support this stand. The prosecution evidence shows that the shop of the respondent was of Parchuni where he sold tea, soap, gurratab and other articles of daily use. The mere fact that a Tonga stand was near the shop, would not mean that the shop was dealing in articles required for horses only. It is in evidence that the shop was in the main mar ket and near the Abadi. Hence I reject this contention of the learned counsel. For the above reasons, the contention of the learned counsel for the respondent that the respondent is not liable because he had given out to the Food Inspector at the time of taking the sample that the oil was not meant for human consumption, cannot be accepted and is repelled. The learned counsel has next contend ed that here was no compliance with the requirements of sub- section (7) of Section 10 of the Act inasmuch as the Food Inspec tor did not call any public witness to be a witness of the taking of sample. Admission of the Food Inspector in cross-examination shows that he had not cared to call a public witness to be a witness of the taking of sam ple. This WP. S no doubt a lapse on the part of the Food Inspector but it cannot help the prosecution in the case. The object of the provision contained in sub-section (7) is to ensure the regularity and to secure evidence of the action of the Food Inspector. In the event of non-compliance with the provision of Section 10 (7) of the Act it has to be seen if the accused has been prejudiced in his defence in any manner and whether the evi dence regarding the taking of sample is worthy of acceptance. In the event of non-compliance with the provision of Section 10 (7) of the Act it has to be seen if the accused has been prejudiced in his defence in any manner and whether the evi dence regarding the taking of sample is worthy of acceptance. In the instant case the accused admitted all the facts regarding taking of sample. He made only one addi tion namely, that he had given out to the Food Inspector at the time of the taking of the sample that the oil was not meant for human consumption but was for being given to horses. This fact too has been accepted, for the purposes of the case. It has not been pointed out how the failure to comply with the provisions of Section 10 (7) has caused any prejudice to the accused. It. therefore, follows that the non-compliance with provisions of sub-section (7) of Section 30 of the Act has no adverse effect on the prosecution case on account of the peculiar facts and circumstances of this case. The learned counsel for the respondent has not assailed the prosecution case and evidence on merits on any other ground. The sample of oil can be treated as ad ulterated within the meaning of sub-clauses (a) and (b) of clause (i) of Section 2 of the Act. It is covered under the last part of sub-clause (a) because the respondent had represented the oil to be Laha oil but it was found to contain another oil namely linseed oil to the extent of 22%. Thus, the oil sold by the respondent was not of the nature, substance or quality which it was represent ed to be. The sample is also covered under sub-clause (b) because of the presence of 22% linseed oil which can be said to be any other substance which effects. . . . injurious ly the nature, substance or quality of the article of food. Clause (a) if rule 44 prohibits sale of a mixture of two or more edible oils as an edible oil. The case is also covered under this clause because what the respondent was selling, was a mixture of two edible oils. The respondent was charged both for selling adulterated Laha oil and for selling it in contravention of rule 44 (e ). The case is also covered under this clause because what the respondent was selling, was a mixture of two edible oils. The respondent was charged both for selling adulterated Laha oil and for selling it in contravention of rule 44 (e ). Thus, both the charges are made out against the res pondent; however, the question is whether he can be convicted and sentenced on both counts simultaneously. The words, other than an article of food referred to in sub-clause (i) occurring in the beginning of sub-clause (ii) of clause (a) of sub-section (1) of Section 16 of the Act, take out an article of food which is covered under sub-clause (i) as an adulterated article, from the purview on sub-clause (ii ). Sub-clause (ii) can apply to an article of food which does not come within the purview of sub-clause (i) or in other words, which is not an adul terated, article of food. A similar view was taken by the Delhi High Court in the case Municipal Corporation of Delhi v. Darshan Kumar 1980 Cr. L. J. 86 (D. B.), the same view was also taken by Bench of Madhya Pradesh High Court. I am in respectful agreement with this view. On account of the above legal position, the respondent cannot be convicted on both the charges at one and the same time. In the instant, case he can be convicted of the offence of selling adulterated Laha oil which is an offence under Section 7 (i) punishable under Section 16 (1) (a) (i) of the Act. I hold Baman Lal respondent guilty of this off ence. Next I come to the question of sentence. The learned counsel for the respondent has urged that benefit of probation provisions be allowed to the respondent and he nay not be sent to jail. In this connection he has pointed out that Section 20-AA was added to the Act with effect from April 1, 1976 and the offence in this case was committed prior to that date. I have carefully considered these submissions of the learned counsel. In my view, these circumstances are not suffi cient to give the benefit of the probation pro visions to the respondent. The imperative of social defence must discourage the applicability of the probation principle. I have carefully considered these submissions of the learned counsel. In my view, these circumstances are not suffi cient to give the benefit of the probation pro visions to the respondent. The imperative of social defence must discourage the applicability of the probation principle. This was observed by the Supreme Court in the deci sion Prcm Ballabh v. State (Delhi Adminis tration A. I. R. 1977 S. C. 56. The instant case does not come under the proviso to sub-section (1) of Sec tion 16 of the Act. Hence the minimum sentence which can be awarded is imprisonment for six months and a fine of Rs. 1000| -. The appeal in allowed. Order of acquit tal Jated Lecember 23, 1970 is set aside. Raman Lal, respondent is convicted of an offence undar Section 7 (i) read with Sec ion 16 (1) (a) (i) of the Prevention of Food Adulteration Act and is sentenced to under go rigorous imprisonment for six months and pay a fine of Rs. 1,000| -. In default of payment of fine he shall further undergo rigorous imprisonment for three months. The respondent is allowed three months time to pay up the fine. The respondent shall be taken into custody to serve out the sentence according to law. .