State of Tamil Nadu Vs. S. Shanumugham
Chettiar & ANR [1980] INSC 184 (22 September 1980)
REDDY, O. CHINNAPPA (J) 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.
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 40.0 C ..
58.0 to 61 (b) Saponification value .. 188 to 193 (c) Iodine value .. 105 to
115 (d) Unsaponifiable matter .. Not more than 1.5 percent.
(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.
Back
