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
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
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
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;
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
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
