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PETITIONER: STATE OF TAMIL NADU

       Vs.

RESPONDENT: S.SHANUMUGHAM CHETTIAR & ANR.

DATE OF JUDGMENT22/09/1980

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) SARKARIA, RANJIT SINGH

CITATION:  1981 AIR  175            1981 SCR  (1) 774  1980 SCC  (4) 487  CITATOR INFO :  D          1981 SC 611  (1)  RF         1983 SC 684  (14)

ACT:      Prevention of  Food  Adulteration  Act,  1954;  Section 16(1)(a) read  with Section  (i) and  2(i)(L)-gingelly  oil- increase in  the Free Fatty Acid content-oil whether becomes adulterated.

HEADNOTE:      Under section  2(i)(L) (before  it was amended in 1976) of the Prevention of Food Adulteration Act, 1954, an article of food  is deemed  to be  adulterated "if  the  quality  of purity of the article falls below the prescribed standard or its constituents  are present  in quantities  which  are  in excess of the prescribed limits of variability".      On  November  1,  1969,  sample  of  gingelly  oil  was purchased by  the Municipal  Food Inspector from the shop of the respondents. After completing the necessary formalities, the Food  Inspector arranged  to send one part of the sample to the  Public Analyst  for  analysis.  The  Public  Analyst analysed the  sample on  November 11, 1969 and reported that it  contained  5.1%  of  Free  Fatty  Acid  as  against  the permissible limit  of 3%.  On receipt  of  the  report,  the respondents  were  prosecuted  for  offences  under  Section 16(1)(a)(i) read  with  Section  7(i)  and  2(i)(L)  of  the Prevention of  Food  Adulteration  Act.  At  the  trial,  in pursuance of the respondents request, another sample was got analysed on  February 6,  1970 by the Director, Central Food Laboratory.  According  to  his  report,  the  gingelly  oil contained 6.2%  of the  Free Fatty  Acid and  was therefore, adulterated.      The District  Magistrate observing  that the Free Fatty Acid had  increased from  5.1% to  6.2% between November 11, 1969 and  February 6, 1970 and it was therefore, likely that the Free  Fatty Acid content in the oil might have similarly increased between November 1, 1969 when the sample was taken and November  11, 1969  when the  sample was analysed by the Public Analyst,  held that  it was  not possible to say that the prosecution  had established  that on  the date when the sample was  taken the  Free Fatty  Acid content  of the  oil exceed 3%  and  acquitted  the  respondents.  The  order  of

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acquittal was  confirmed by the High Court. In the appeal to this Court, it was, ^      HELD:1 (i) The judgments of the District Magistrate and the High  Court are  set aside.  The  second  respondent  is convicted under  Section 16(1)(a)(i)  and sentenced to pay a fine. [780C]      (ii) There  was no  justification for the conclusion of the District  Magistrate and  the High  Court that  the Free Fatty Acid  content of  the oil  on the date when the sample was taken  might have  been less  than 3%  and therefore not adulterated. [780B] 775      In the instant case, the Public Analyst report had been superseded by the  certificate of the Director, Central Food Laboratory, and the latter certificate had become conclusive evidence of  the facts  mentioned in  it. The  sample,  must therefore be  held, to  be adulterated. There was nothing in the  evidence,   nor  had   anything  been  shown  from  any scientific work which would suggest that the Free Fatty Acid content would  so rapidly  increase in  the space  of  about three months.  If it  was less  than 3%  on November 1, 1969 when the  sample was  taken it  could not  have increased to 6.2% by February 6, 1970 when the sample was analysed by the Central Food Laboratory. [777H, 778D]      2. Gingelly  (Til or  Sesame) oil is a semi-drying oil. It is  only after  Prolonged exposure  to air and light that there may  be some  discernible chemical changes in gingelly (Til or sesame) oil. [779G]      New Encyclopaedia  Britannica, Vol.  13  pages  526-527 referred to.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 115 of 1975.      Appeal by  Special Leave  from the  Judgment and  order dated 10-1-1972  of the Madras High Court in Crl. Appeal No. 64 No. 657/70.      A. V. Rangam for the Appellant.      A. T. M. Sampath for the Respondents.      The Judgment of the Court was delivered by      CHINNAPPA REDDY,  J.-On November  1, 1969,  a sample of gingelly oil  was purchased  by the  Food Inspector, Madurai Municipality from  the shop  of the first respondent, who is now reported  to be dead and against whom, this appeal, has, therefore,  abated.  At  that  time  respondent  No.  2  was attending to  the business.  After completing  the necessary formalities the  Food Inspector arranged to send one part of the sample to the Public Analyst at Madras for analysis. The sample was  analysed by  the Public  Analyst on November 11, 1969 and  it was  reported by  him that it contained 5.1% of Free Fatty  Acid as  against the  limit of  3.0% permissible under clause A.17.11 of Appendix B to the Prevention of Food Adulteration Rules,  1955. In  his report  he also mentioned that  the  sample  was  properly  sealed,  it  was  air-and- moisture-tight and  packed in  thick paper so as to be proof against light,  and, the  Free Fatty Acid content of the oil would, therefore,  remain unchanged  for several  months. On receipt of the Public Analyst’s report a complaint was filed against the  two respondents for an offence under sec. 16(1) (a) and Sec. 7(i) read with sec. 2(i) (L) and Clause A.17.11 of Appendix  ’B’ to  the  Prevention  of  Food  Adulteration Rules. Both the respondents denied the offence. The

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776 second respondent  stated that  he  signed  on  the  various documents produced  by the prosecution as he was asked to do so by  the Inspector.  He did not read the contents of those documents. The brother of the second respondent was examined as a  defence witness  and he stated that he was in the shop when the  Food Inspector came there and purchased the sample and that at the time of the sale the Food Inspector was told that the gingelly oil was not meant to be used as an article of food but was meant for "oil bath".      At the trial a request was made by the respondents that another part  of the  sample which  had been produced by the Food Inspector  in the  Court might be sent to the Director, Central Food Laboratory, Calcutta, for analysis. It was sent as desired. The sample was analysed by the Director, Central Food Laboratory,  Calcutta on February 6. 1970. According to his report  the gingelly  oil contained  6.2% of  Free Fatty Acid and was, therefore, adulterated.      The learned District Magistrate, Madurai acquitted both the respondents  observing that  the  Free  Fatty  Acid  had increased from  5.1% to  6.2% between  November 11, 1969 and February 6, 1970 and it was, therefore, likely that the Free Fatty Acid content in the oil might have similarly increased between November  1, 1969  when the  sample  was  taken  and November 11,  1969, when  the sample  was  analysed  by  the Public  Analyst,   Madras.  On  that  ground,  the  District Magistrate held  that it  was not  possible to  say that the prosecution had established that on the date when the sample was taken  the Free  Fatty Acid  content of the oil exceeded 3%. The  State preferred  an appeal to the Madras High Court against the order of acquittal. The High Court confirmed the order of  acquittal for the same reason as that given by the District Magistrate.  The State  has filed this appeal after obtaining special  leave of  this Court under Art 136 of the Constitution.      Under Sec.  2(i)(L) (before  it was amended in 1976) of the Prevention of Food Adulteration Act, 1954, an article of food is  deemed to  be adulterated "if the quality of purity of the  article falls  below the  prescribed standard or its constituents are  present in  quantities which are in excess of the prescribed limits of variability".      Paragraph A.17.11  of Appendix  ’B’ to  the Rules  made under the Prevention of Food Adulteration Act prescribes the standard in  the case  of Til  oil (Gingelly or seasame oil) and to the extent relevant it reads as follows:           ["A.17.11.-Til oil  (Gingelly or sesame oil) means      the oil  expressed from  clean and  sound seeds  of Til      (Sesamum indicum),  black, brown,  white, or  mixed. It      shall be clear, free 777      from rancidity,  suspended  or  other  foreign  matter,      separated  water,   added   colouring   or   flavouring      substances, or  mineral oil.  It shall  conform to  the      following standards:      (a) Butyro-rafractometer reading at 40oC   .. 58.0 to                                                    61      (b) Saponification value                   .. 188 to                                                    193      (c) Iodine value                           .. 105 to                                                    115      (d) Unsaponifiable  matter             .. Not more than                                              1.5 per cent.      (e) Free fatty acid as Oleic acid.   .. Not more than                                              3.0 per cent.      (f) Bellier test(Turbidity temperature- Not more than

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        Acetic acid method).                22oC).] .]"      Now, a sample of food purchased by a Food Inspector has to be  divided by  him into  3 parts and each part has to be marked, sealed  and fastened  separately. Before the Act was amended in  1976, one part was to be delivered to the person from whom  the sample was taken, another part was to be sent for analysis to the Public Analyst and the third part was to be retained with the Food Inspector to be produced by him in case legal  proceedings were taken or it became necessary to send it  for analysis  to the  Director of  the Central Food Laboratory. The  Public Analyst  was required  to deliver  a report of  the result  of his  analysis and  this report was ordinarily the  foundation of  the prosecution  by the  Food Inspector. After  the institution  of the  prosecution,  the accused was given the right to request the Court to send the third part  of the  sample retained by the Food Inspector to the Director, Central Food Laboratory for a certificate. The Director, Central  Food Laboratory  was required  to send to the  Court  a  certificate  specifying  the  result  of  his analysis and  the certificate  of the Director, Central Food Laboratory,  thereupon,   superseded  the  Public  Analyst’s report. The  Public Analyst’s  report, if  not superseded by the Certificate of the Director. Central Food Laboratory and the Certificate  of the  Director, Central  Food  Laboratory might be used as evidence of the facts stated therein in any proceeding under  the Act  with  this  difference  that  the certificate of  the Director, Central Food Laboratory was to be  final  and  conclusive  evidence  of  the  facts  stated therein.      In the  present case  the certificate  of the  Director showed that  the sample  of gingelly  oil contained  6.2% of Free Fatty  Acid whereas  the permissible limit was 3% only. We are  not concerned with the Public Analyst’s report since that has been superseded by the certificate of the Director, Central Food Laboratory, and the latter certificate has been made conclusive  evidence of  the facts mentioned in it. The sample, it must therefore be found, was adulterated. 778      The sample,  as we  mentioned  earlier,  was  taken  on November 1,  1969, the analysis by the Public Analyst was on November 11,  1969 and the analysis by the Director, Central Food  Laboratory  was  on  February  6,  1970.  The  learned District Magistrate and the High Court thought that although the Free Fatty Acid content in that part of the sample which was sent  to the  Director, Central Food Laboratory was 6.2% on the  date when the Director analysed the oil it could not be said  to have  been established that on the date when the sample was  taken by  the Food Inspector the Free Fatty Acid content exceeded 3%. According to them it could well be that the Free Fatty Acid content increased due to natural causes. We are  unable to  agree with  the lower  Courts.  There  is nothing in  the evidence,  nor has anything been shown to us from any  scientific work  which would suggest that the Free Fatty Acid content would so rapidly increase in the space of about three months that what was less than 3% on November 1, 1969, when  the  sample  was  taken  increased  to  6.2%  by February 6,  1970, when  the  sample  was  analysed  by  the Central Food  Laboratory. On  the  other  hand  in  the  New Encyclopaedia Britannica  Volume 13  (pages 526-527)  it  is said:           "Fats can  be heated  to between  200o  and  250oC      without undergoing significant changes provided contact      with air  or oxygen  is avoided..  On exposure  to air,      oils and  fats gradually  undergo certain  changes. The      drying oils absorb oxygen (dry) and polymerize readily;

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    thin  layers  form  a  skin  or  protective  film.  The      semidrying oils  absorb oxygen more slowly and are less      useful as  paint  oils.  Still,  sufficient  oxygen  is      absorbed in  time to  produce distinct  thickening  and      some  film  formation.  Oxidation  of  the  drying  and      semidrying oils  is accelerated  by spreading  the  oil      over a  large surface.  On greasy  cloths, for example,      oxygen  absorption   may  proceed   so   rapidly   that      spontaneous combustion  ensues. The  nondrying oils, of      which olive  oil is  typical, do not oxidize readily on      exposure  to   air,  although  changes  do  take  place      gradually, including slow hydroysis (splitting to fatty      acids and glycerol) and subsequent oxidation. This slow      oxidation  causes   a  disagreeable   smell  and  taste      described by the term rancidity. 779           The chemical  reactions involved  in oil oxidation      have been  studied  widely,  when  oils  and  fats  are      exposed to  air, little change takes place for a period      of time  that varies from oil to oil depending upon the      amount and  type of  unsaturation and  the  content  of      natural antioxidants.  During this  so-called induction      period, there is virtually no change in either odour or      chemistry of  the oil  because of the protective effect      of   natural   antioxidants,   especially   tocopherol.      Gradually, the  effectiveness of  the  anti-oxidant  is      overcome and there is an accelerating rate of oxidation      of unsaturated  acids, called autoxidation. Chemically,      the   first   identifiable   oxidation   products   are      hydroperoxides. These  break down  into a large variety      of low-molecular-weight  aldehydes,  esters,  alcohols,      ketones, acids, and hydrocarbons, some of which possess      the  pungent,  disagreeable  odours  characteristic  of      rancid fats.  In soyabean  oil exposed  to air  to  the      point of  incipient rancidity,  more than 100 different      oxidation products  have been  identified. Natural oils      such  as   coconut  oil,   with  very   low  levels  of      unsaturation, are very stable to flavour deterioration,      but the  more highly  unsaturated oils such as soyabean      oil or  safflower oil  lose their flavour more quickly.      Sesame oil  is unique  in its flavour stability because      of  the   presence  of   several  natural  antioxidants      (sesamin, sesamolin,  sesamol). Synthetic  antioxidants      such as propyl gallate, butylated hydroxyanisole (BHA),      and butylated  hydroxytoluene (BHT)  have been  used to      retard the  onset of rancidity and increase the storage      life of edible fats". Gingelly (Til  or seasame)  oil we  may mention  is  a  semi drying  oil.   From  the   extract  from  the  Encyclopaedia Britannica it  is only  after prolonged  exposure to air and light that there may be some discernible chemical changes in gingelly (til  or seasame)  oil. In  fact it is mentioned in the Encyclopaedia  Britannica that  seasame oil is unique in its flavour  stability because  of the  presence of  several natural antioxidants.  There is nothing to indicate that the samples were not packed as required by the rules. The report of the Public Analyst mentions "The sample has been received properly sealed,  to be air and moisture tight and packed in thick paper to be proof against access to light. Under these conditions the Free Fatty Acid content of oils 780 remains unchanged  for several  months". The  certificate of the Director,  Central Food  Laboratory mentions  "The seals were intact".  We are,  therefore, clearly  of opinion  that there  was  no  justification  for  the  conclusion  of  the

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District Magistrate  and the  High Court that the Free Fatty Acid content  of the  oil on  the date  when the  sample was taken might  have been  less  than  3%  and  therefore,  not adulterated. We  set aside  the judgments  of  the  District Magistrate  and  the  High  Court  and  convict  the  second respondent under  Sec. 16(1)(a)(i)  read with  sec. 7(i) and 2(i) (L)  of the  Prevention of  Food Adulteration  Act  and sentence him  to pay a fine of Rs. 100 in default to undergo simple imprisonment  for a  period  of  two  weeks.  We  are imposing  a   nominal  sentence   having   regard   to   the circumstance that we are interfering with a concurrent order of acquittal more than ten years after the commission of the offence. N.K.A. 781