Judgment

O. 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 per cent 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 Analysts report a complaint was filed against the two respondents for an offence under Section 16 (1) (a) and Section 7 (i) read with S. 2 (i) (1) and Cl. A.17.11 of Appendix B to the Prevention of Food Adulteration Rules. Both the respondents denied the offence. The 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 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".

2. 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.

3. The learned District Magistrate, Madurai, acquitted both the respondents observing that the Free Fatty Acid had increased from 5.1% to 6.2 per cent 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.

4. 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".

5. 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 Tit oil (Gingelly or sesame 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 from rancidity, suspended or other foreign matter, separa