JUDGMENT : S.C. Mohapatra, J. - This appeal by the State is directed against the order of acquittal of the accused-Respondent from a charge u/s 16(1)(a) and (ii) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act'). 2. Repentant has a grocery shop in village Putippadar under Purusottampur Police station of Ganjam District where he sells articles of food also. On 24-8-1979, the Food Inspector visited the shop and suspecting the Turmeric Powder and the Til oil exposed for sale to be adulterated, purchased the required quainter for analysis after observing the formalities. The Food Inspector (P.W. 1) also demanded the licence but, the Respondent could not produce the same. After receipt of the report of the public analyst that the sample of Til oil was adulterated, P.W. 1 submitted the prosecution report on the basis of which the Respondent faced the trial. 3. The Respondent took the plea that on receipt of notice he has already renewed his licence on payment of proper fee. As regards sale of adulterated Til oil Respondent claimed that the same was not an article of food in their area and was used for massaging the body. 4. Prosecution examined three witnesses and various documents to bring home the guilt of the Respondent. In defence, the Respondent examined one witness. 5. The learned Trial Judge has acquitted the Respondent on the finding that the licence has already been renewed and Til oil is not an edible oil in the area of the Respondent. 6. In appeal, Mr. R.K. Patra, the learned Additional Government Advocate appearing as the Public Prosecutor has assailed the acquittal on the ground that Til oil is an edible oil and the sale of adulterated Til oil is in contravention of the prohibition of Section 7 of the Act attracting the penalty u/s 16. Mr. S.C. Ghosh, the learned Counsel for the Respondent submitted that Til oil not being an article of food in the area, the Respondent has no liability under the Act for selling such articles. 7. The short question that requires consideration in this case is whether sale of Til oil, if found not to have been sold as au article of food, can attract the penal provision under the Act where it is found on analysis to be adulterated. 8. 7. The short question that requires consideration in this case is whether sale of Til oil, if found not to have been sold as au article of food, can attract the penal provision under the Act where it is found on analysis to be adulterated. 8. In this Court, the question arose for consideration in a case reported in Food Inspector of Puri Municipality v. K.G. Anjanayulu ILR 1966 Cutt. 58. Adulterated ghee was the subject matter of consideration. The plea of the accused was that he committed no offence as the adulterated ghee was not sold by him for human consumption but for lighting purposes. It was observed ...Although the ghee might have an alternative use, such as for lighting purposes, it cannot lose its importance as a food. It was open to the accused to sell such article for lighting purposes by any other name. But once he sells an article in the name of ghee, he is bound to sell it in an unadulterated form and once it is found to be adulterated, the seller becomes liable u/s 16 of the Act.... This decision has been followed in The Public Prosecutor, High Court of Andhra Pradesh v. B. Ramachandra Raju (1977) 1 An. W.R. 356. The Andhra Pradesh decision has been accepted in State of Tamil Nadu Vs. R. Krishnamurthy, . It is clear from the decision of this Court reported in Food Inspector of Puri Municipality v. K.G. Anjanayulu ILR 1966 Cutt. 58, (supra) that an article of food in an area when sold for any other purpose will not be an excuse when it is adulterated. In the Andhra Pradesh decision reported in The Public Prosecutor, High Court of Andhra Pradesh v. B. Ramachandra Raju (1977) 1 An. W.R. 356, (supra) the same principle was reiterated. In that case red Gram Dhal was offered for sale as cattle fodder. It was held that the accused cannot succeed with that plea. In State of Tamil Nadu Vs. R. Krishnamurthy, Gingelly Oil was mixed with 15% of groundnut oil and was sold as gingelly oil. The accused was acquitted in appeal on the finding that he could not be convicted unless it was established that the sale of gingelly oil was for human consumption. The acquittal was confirmed in High Court. In State of Tamil Nadu Vs. R. Krishnamurthy, Gingelly Oil was mixed with 15% of groundnut oil and was sold as gingelly oil. The accused was acquitted in appeal on the finding that he could not be convicted unless it was established that the sale of gingelly oil was for human consumption. The acquittal was confirmed in High Court. Examining such a case, Supreme Court observed that sale of gingelly oil mixed with groundnut oil is punishable u/s 16(1)(80)(i) read with Section 2(1)(a) notwithstanding the fact that the seller had expressly stated at the time of sale that it was intended for external use only. 9. Mr. R.K. Patra, the learned Public Prosecutor submitted that there cannot be any dispute that Till oil is 'food' as defined in Section 2(1)(a) of the Act. Relying on the observation of the Supreme Court reported in State of Tamil Nadu Vs. R. Krishnamurthy, that it is enough if the article is generally or commonly used for human consumption or in the preparation of human food. In that context the observation of the Supreme Court in the case reported in Andhra Pradesh Grain and Seed Merchants Association Vs. Union of India (UOI) and Another was pressed into service by Mr. Patra. It reads as follows: ...But there are no articles which are used as food only in one part, and are not at all used as food in another part of the country. Even coconut oil is used as a cooking medium by certain sections of the people in parts of India other than Kerala.... In the decision reported in Shah Ashu Jaiwant Vs. State of Maharashtra it was observed: ...It is self-evident that certain articles, such as milk, or bread, or butter, or food grains are meant for human consumption as food. These are matters of common knowledge. Other articles may be presumed to be meant for human consumption from representations made about them or from circumstance in which they are offered for sale.... In State of Tamil Nadu Vs. R. Krishnamurthy, it has been observed: ...But where the article is one which is generally or commonly used for human consumptive or in the preparation of human food, there can be no question but that the article is 'food'.... 10. There is no dispute that in some parts of the country, Til oil is used as food. R. Krishnamurthy, it has been observed: ...But where the article is one which is generally or commonly used for human consumptive or in the preparation of human food, there can be no question but that the article is 'food'.... 10. There is no dispute that in some parts of the country, Til oil is used as food. In view of the aforesaid observations, therefore, a presumption of fact arises that Til oil is food. In case no other materials would he available, on this presumption of fact, a conviction u/s 16 would lie. However, a presumption of fact is always rebuttable. In Andhra Pradesh Grain and Seed Merchants Association Vs. Union of India (UOI) and Another, it has been laid down ...In any event it is always open to a person selling an article capable of being used as an article of food as well as for other purpose to inform the purchaser by clear notice that the article sold or supplied is not, intended to be used as an article of food.... In Shah Ashu Jaiwant Vs. State of Maharashtra, it has been observed ...It becomes the duty of the prosecution to prove that the article which is the subject-matter of an offence is ordinarily used for human consumption as food whenever reasonable doubts arise on this question.... In State of Tamil Nadu Vs. R. Krishnamurthy, also it was observed: ...Where an article is generally or commonly not used for human consumption or in the preparation of human food but for some other purpose, notwithstanding that it may be capable of being used, on 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.... It was further observed at another place- ...In such an unlikely event, the person selling the article could inform the purchaser that the article sold was not meant to be used as an article of food. If prosecuted he could establish that in that area what he sold was not an article of food at all.... 11. It was further observed at another place- ...In such an unlikely event, the person selling the article could inform the purchaser that the article sold was not meant to be used as an article of food. If prosecuted he could establish that in that area what he sold was not an article of food at all.... 11. This Court in a recent decision reported in Sankarlal Agarwal v. State of Orissa 1982 C.L.R. (Cri.) 118, examined the evidence on record in exercise of Criminal Revisional Jurisdiction to find in absence of evidence to show that 'Mot dal' was an article of food meant for human consumption or was being consumed by persons, the accused could not be held to be liable for selling adulterated food. 12. From the discussion as above, the following conclusions are arrived at- (a) Articles which are ordinarily or commonly used as food can be presumed to be food. (b) Explanation of the accused that such article found to be adulterated was not intended to be used as food is not acceptable. (c) Where there is doubt or it is disputed by the accused that the article possessed or offered for sale is not 'food' in the area, prosecution is to prove the same. 13. In the present case, the Respondent has from the earliest time challenged that 'Til oil' is not an article of food in the area. Three prosecution witnesses have been cross-examined on that point. One witness has been examined in support of the defence to that effect. P.W. 1 is the Food Inspector. He is an inhabitant of the locality, In cross-examination, he stated: ...I am a local man. Usually, people of our locality use groundnut oil as edible oil. People also use Til oil for massage purpose and some people also consume it. P.W. 2, a Sanitary Inspector of the same office who is also an inhabitant of the same district stated in cross-examination: ...I belong to District Ganjam. In the r District, people use Til oil exclusively for massage on their body and not at all for edible purposes.... P.W. 3 who is also a Sanitary Inspector in the same office and was pleasant at the time of collection of sample by P.W. 1, belongs to the same Police station. In cross-examination, he stated Til oil is used for massage purpose.... D.W. 1 belongs to the same village. P.W. 3 who is also a Sanitary Inspector in the same office and was pleasant at the time of collection of sample by P.W. 1, belongs to the same Police station. In cross-examination, he stated Til oil is used for massage purpose.... D.W. 1 belongs to the same village. He is a ward-member of the village. In his examination-in-chief, he stated ...Generally, in our village Til oil is used for massage purposes. Nobody use it as an edible oil or consume.... In cross-examination on behalf of the prosecution, he further clarified the position by stating ...None of our village or in nearby village use Til oil as edible oil. From the time of our forefathers, we use it for massage purposes and not for human consumption. Til seed is consumed by human being. Til oil is not for human consumption, but for massage purposes. 14. From the aforesaid evidence on record, it is abundantly clear that Til oil is not 'food' in the area to attract the penalty under the Act for being sold adulterated. The Respondent is a village grocery shop owner. He sells Til oil in retail. The question would have been completely different in case the Respondent would have been a wholesale dealer exporting Til oil outside the village. Even where evidence would have been there that outsiders who consume Til oil as edible, come to the village and purchase Til oil for being used as edible oil, there would have been conviction. There is no such evidence in this case. 15. The prosecution having failed to prove that Til oil was 'food' as defined in Section 2(1)(11) of the Act in the area, the appeal fails and is accordingly dismissed. Final Result : Dismissed