J.K. Mohanty, J.
1. This is an appeal filed by the State Government against the order of the S. D. J. M., Chhatrapur, Ganjam acquitting the accused-respondent, S. Dandasi Patro, who is a dealer in grocery articles of the charges u/s. 16(1)(a) of the Prevention of Food Adulteration Act, 1954.
2. Prosecution case is that on. 25-7-1977 the Food Inspector of Ganjam visited the grocery shop of the accused-respondent and suspected that edible Til oil kept in the shop for sale was adulterated. He purchased 375 gms. of Til oil and paid the price of the same to the respondent. Then-he divided the oil into three equal parts and kept each of them in a sample bottle after observing all formalities and taking necessary precautions. He sent one of the sample bottles to the Public Analyst for his examination and report. The Public Analyst opined that the sample was adulterated. So prosecution report was filed against the accused-respondent.
3. The plea of the accused-respondent is a complete denial. His further case is that he had kept the Til oil not for human consumption but for use of a fuel.
4. Prosecution examined three witnesses. P. Ws. l and 2 are the Food Inspectors and P. W. 3 is a seizure witness. None was examined by the defence. The learned Magistrate after considering the evidence on record and the report (Ext. 8) of the Public Analyst came to hold:
'Thus to bring the accused within the purview of the offence, it is first of all to be proved by the public Analyst that the sample collected by the Food Inspector is adulterated and unfit for human consumption. In the instant case nothing has been written in the report of the Public Analyst. Ext. 8, the report of the Public Analyst, only revealed that the sample of food is adulterated. In view of the above facts, I hold that the accused cannot be convicted and he cannot be said to have committed any offence. Thus I hold that the prosecution has failed to prove this point against the accused and the accused is entitled to an acquittal.'
5. It is urged on behalf of the State that the reasoning given by the learned Magistrate in acquitting the respondent is absolutely erroneous and not legally tenable. The learned Magistrate having found that the Til oil was unfit for human consumption and it was being sold in the shop of the respondent, he should not have acquitted the respondent merely because nothing has been written in the report of the Public Analyst that the sample of food was unfit for human consumption. The Public Analyst has clearly mentioned in his report, 'the sample is adulterated as it does not conform to the standard for Til oil in respect of free fatty acid content and Butyro-refractometer reading.' It may be mentioned here that the Butyro-refractometer reading of Til oil at 400c is 58.0 to 61.0 whereas in the sample oil it was 57.3. Free fatty acid as Oleic acid in Til oil, according to prescribed standard is not more than 3.0%, but in the sample oil it was 5.52% which is much higher than the prescribed standard. Reliance has been placed on a decision reported in A. I. R. 1974 S. C. 434 (Smt. Manibai and Anr. v. The State of Maharashtra) wherein it has been held:
'In a prosecution for sale of adulterated article of food it is not for the prosecution to show that the article was deleterious to health and if so, how much harmful effect it would have upon the health of the person consuming it. All that is required to be shown is that the article of food in question was adulterated. According to Section 2 an article of food shall be deemed to be adulterated if inter alia the quality or purity of the article falls below the prescribed limits of variability.'
Reliance has also been placed on a decision reported in A.I.R. 1980 S. C. 360 (Municipal Corporation of Delhi v. Tek Chand Bhatia) wherein it has been held :.-
' Various categories of 'adulterated food' mentioned in Section 2(1) (f) broadly fall into two kinds of adulteration ; firstly, where the constituent elements make the food obnoxious to human health or the existence of the particular composition of it, itself makes the food 'adulterated', and secondly, where the adulteration is constituted by the fact that the prescribed standard has not been observed in selling what purports to be a food of that standard of quality.'
6. In the other hand, it is argued on behalf of the respondent that the sample was taken on 25. 7. 1977 and was analysed by the public Analyst on 31. 8. 1977 and the report was sent on 4. 9. 1977. The sample was analysed more than one month after it was taken. The increase in the percentage of the free fatty acid as Oleic acid might be due to natural cause, i.e., due to delay in analysing the sample. It is for the prosecution to prove beyond doubt that the delay in analysing the sample had of relation to the excess percentage of Oleic acid found. If there would be any doubt, the accused is entitled to the benefit of the same. Reliance has been placed on a decision reported in A. I. R. 1962 Madras 342 (In re. P. Mohammud v. Sheriff Saheb). In the above case a sample of Gingelly oil was taken on 12. 8. 1959 and was actually analysed on 25. 8. 1959, thirteen days after. On analysis of the sample, it was found to contain 6.8% of Oleic acid, i e., 3.8 % over the allowed percentage of 3.0%. The question for consideration in that case was that the excess of Oleic acid over the allowed percentage was due to causes beyond the control of the petitioner. Reference was made to 'Industrial and Manufacturing Chemistry' by Martin and Cooke, 7th Edn. At page 62 of this book the authors note :-
' The acid value- This is a measure of the quantity of pottasium hydroxide required to neutralise the free fatty acids in an oil. Gradual decomposition of the glycerides into their components glycerol and free fatty acids takes place when a fat is exposed to the action of light and air, with the result that the acid value steadily rises. This value may therefore be a test of the freshness of an oil. Old and rancid fats sometimes have very high acid values.'
Reference was also made to 'Encyclopaedia of Science and Technology' by Megraw-Hill. At page 185 of the book under the head 'Spilage factors' it is stated :-
'Oxidation and hydrolysis are spoilage factors in the production and storage of edible fats and oils... Rancidity is an advanced stage of oxidative deterioration. Oxygen from the air first reacts with the unsaturated fatty acids at or adjacent to the double bonds from hydroparoxides which then decompose to yield aldshydes having the pungent odour and flavour of rancid fats. Oxidation is catalyzed by light and metals such as copper or iron and is accelerated by heat...'
Relying on the aforesaid authorities the learned Judge held :-
'Though the passages extracted above may not be conclusive as to the precise effect of exposure of oil for any particular period, it is generally clear from them that gingelly oil, like perhaps any other oil, is subject to deterioration in the process of which the fat content is likely to increase. At any rate, it cannot be asserted in the absence of evidence that the excess in this case, which in itself is not appreciable, over the 3 per cent fatty content permissible under the rules framed under the Act might not have been due to the delay in analysing the sample. It is for the prosecution to establish their case beyond doubt and if there is a delay of this kind in the analysis, it is for them to satisfy the Court that it had no relation to the incriminating excess percentage of the fatty content in the oil.'
On the above finding the petitioner was given the benefit of doubt and the order of his conviction and sentence was set aside. Reliance has also been placed on a decision reported in A. I. R. 1969 Calcutta 247 (Polsan Ltd. and Ors. v. Corporation of Calcutta) within it has been held :-
'Where a sample of ghee, taken from a sealed tin brought out of a cold storage, contains more moisture and oleic acid than the standard prescribed in A 11. 14 of Appendix I to the Prevention of Food Adulteration Rules, but the increases are within the possible range of variation under such circumstances, 'conviction for adulteration of ghee is illegal.
Since the tin is brought out from cold storage, moisture will be attracted to the ghee from the atmosphere. The moisture having come from outside due to an act of nature, should be eliminated in determining the quality of the ghee in the tin. The oleic acid and moisture contents are interrelated and an increase in moisture content will lead to a corresponding increase in the oleic acid content.
The defence is not required to prove its case with that exactitude as that of the prosecution. If the defence appears to be reasonable and probable, the Court is bound to give effect to it. The increases being within the possible ranges of variation under such circumstances, the defence is highly reasonable and probable and has to be given effect to. Thus. such conviction is illegal.'
7. In this case, as already mentioned, the sample was analysed after more than one month. It cannot be said that the delay in analysing the sample had no relation to the excess percentage of fatty content in the oil, which was found to be 2.52. The variance in butyro-refractometer reading at 40C is absolutely negligible. This is an appeal against an order of acquittal and after hearing counsel for both sides and in the facts and circumstances of this case, I do not see any reason to interfere with the order of the trial Court.
8. In the result, therefore, the appeal fails and is dismissed.