c STA:TE OF TAMIL NADU v. S. SHANUMUGHAM CHETTIAR & ANR. September 22, 1980 [R. S. SARKARIA AND 0. CHINNAPPA REDDY, JJ.] Preventfon .r,f Food Adulterllltion Act, 1954; Section 16(l)(a) read with Section (i) and 2.(i) (L)-gingelly oil-increase in the Free Fatty Acid content- Oil whether becomes adulterated.
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 adulternted "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 Muni- cipal Food Inspector from the shop of the respondents. Aftet 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 Febrnary 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 tal:en 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 : I (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]
TAMIL NADU v. s. SHANUMUGHAM (Chinnappa Reddy, !.) 775 . In the instant case, the Public Analyst report had been superseded by the ~ertificate 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 l, 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, 7780]
2. Gingelly (Ti! or Sesame) oil is a semi-drying 'oil. It is only after Pro- longed exposure to air and light that there may be some discernible chemical -changs in gingelly (Ti! 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 10-1-1972 of the
Madras High Court in Crl. No. 657/70. A. V. Rangam for the Appellant. A. T. M. Sampath for the Respondents. The Jud?ment of the Court was delivered by and Order dated Appeal No. 64
CttrNNAPPA REDDY, J.-On November l, · 1969, a sample of gingelly oil was purchased by the Food Inspector, Madurai Munici- pality from the shop of the first respondent, who is now reported to be dead and against whom, t'.his appeal, has, therefore, abated. At that time re5pondent No. 2 was attending to the business. After complet- ing the necessary flormalities the Food Inspector arranged to send one part of the samplt". 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· ag4inst 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, rtlle Free Fat'.ty Acid content of the oil would, there- fore, 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 AduYteration Rules. Both the respondents .denied the offence. The
c c [1981] 1 S.C.Rp second respondent stated that he signed on the various documents produced by the prosecution as he was asked to do so by the Inspec- tor. 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 lihat 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 whkh had been produced by the Food Inspector in the Coul1t 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, 197(} and it was, therefore, likely that the Free Faitty 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 ~at the prc1Secution bad established that on the date when the sample was t.aken the Free Fatty Acid content of the oil exceeded 3 % . The State preferred an appeal to the Madras High Court against the order 'oil acquittal. The High Court confirmed the order of acquittal for the same reason as that given by the Di~trict 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 deem· ed 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 ease 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 expres&Xl from clean and sound seeds ofl Til (Sesamum indi- "."' .~ cum), black, brown, white, or mixed. 11! shall be clear, free
.J L_ TAMIL NADU v. s. SHANUMUGHAM (Chinnappa Reddy,!.) 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-rafractomerer reading at 40'C (b) Saponification value (c) Iodine value (ct) Unsaponifiable matter (e) Free fatty acid as Oleic acid. (f) Bellier test (Turbidity temperature-
Acetic acid method). 58.0to61 18°8 to 193 105 to 115 Not more than 1. 5 per cent. Not more than 3. 0 per cent. Not more than 22'C).] .]" Now, a sample of food purchased by a Food Inspec.tor 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 t;o ithe 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 foun- dation of the prosecution by the Food Inspector. After the insti- tution of the prosecution, the accused was given the right to request the Court to send the third part of the sample reta.ined 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 certi- ficate of the Director, Central Food Laboratory, .thereupon, super- seded the Public Analyst's report. · The ·Public Analyst's report, if not superseded by the Certificate of the Director. Central Food Labo- ratory and the Certificate of the Director, Central Food Laboratory might be used as evidence of the. facts stated therein in any proceed- ing under the Act with this difference that the
certificaite 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 th'e 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. s–M5 s. c. India I so
c 7'78 The samp~e, 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 Labora- tory 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 c
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 200° and 250°C without undergoing significant changes provided contact with air or oxygen is avoided …….. On exposure to air, oils and fats gradually undergo certain changes.
The dryin_g 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 1- oils, of which olive oil is typical, do not oxidize readily on exposure to air, although changes do take place gradually, in-. eluding slow hydrolysis (splitting to fatty acids and glycerol) and subsequent oxidation. This slow oxidation causes a
disagreeable smell and taste described by the te~ rancidity. TAMIL NADU v. s. SHANUMUGHAM (Chinnappa Reddy, !.) 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 unsatura~ion and the ·content of natural antioxidants. During !his 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 oxida- ·tion of unsaturated acids, called autoxidation. Chemically, the 'first identifiable oxidation products are hydroperoxides. These
break down into a large variety of low-molecular-weight aldehy- des, 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 inci- c
pient 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, bl!lt 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".
iGingelly (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 !Ilay be some discernible chemical changes in gingelly (til or seasame) oil. In fact it is men- tioned in the Encyclopaedia Britannica that seasame oil is unique in its flavour stability because of the presence of several natural anti- ·oxidants. There is nothing to indicate that the samples were not pack- ·ed as required by the rules. The report of the Public Analyst men- tions "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. Onder these conditions the Free Fatty Acid content of oils . 'Z:SO
remains UJ?-Changed for several months". The cer.tificate of the Direc- tor, 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 adl!llterated. 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 Adultera- tion Act and sentence him to pay a fine of Rs. 100 in default te> undergo simple imprisonment for a period of two weeks.
We are imposing a nominal sentence having regard to the circumstance that we are interferring with a concurrent order of acquittal more than ten years after the commission of the offence.
N.K.A.