State by Public Prosecutor vs P.N. Swami

K.N. Mudaliar, J.—This is an appeal filed by the State against the order of the Court of Sub-Divisional Magistrate acquitting one P. K.

Swamy, the accused-Respondent herein, for an offence u/s 16(1)(a)(i) read with S. 7(ii) of the Prevention of Food Adulteration Act.

The accusation against the Respondent is that, on 27th June 1970 at 9.25 a.m., he was found in possession of gingelly oil and sold the same

which was found to contain free fatty acids in excess of the permitted limit to the extent of 60 per cent by the public Analyst on an analysis.

P.W. 2 purchased 450 milli litres of gingelly oil and paid a cash of Rs. 2.40. After observing all the formalities, the sample oil was poured

equally in three clean, dry, empty bottles and were corked and sealed and relevant labels were affixed. P. W. 2 gave one bottle to the accused. A

mahazar Ex. P 1 for the taking of samples and giving one of the bottles to the accused was prepared, and it was attested by the accused and P. W.

1.

The Public analyst analysed the sample oil and certified that the oil contained free fatty acids in excess of the permitted, to the extent of 60 per

cent. He also stated in his report Ex. P. 4 that 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.

The learned trial Magistrate held that the gingelly oil exposed to light and air or other atmospheric conditions was likely to give rise to the

increase of fatty aids contained in the oil. In this case, the sample oil was analysed 13 days after it was taken. But the learned trial Magistrate gave

the finding that the excess fatty acids could not have been due to the delay in analysing the oil, in view of the statement of the public Analyst in Ex.

P. 4 that the sample was received properly sealed to be air and moisture tight and packed in thick paper to be proof against access to light. He

considered the evidence of P. W. 2 who stated that the shop of the accused is an east facing one in which light would fall, that the tin from which

the sample oil was taken was to the left of the place where the accused was sitting, and that the place was in such a position that it would receive

light and air. The learned trial Magistrate relying on the decision in In Re: P. Mohammud Sheriff Saheb, held that it is for the prosecution to

establish beyond doubt that the excess of free fatty acids was not due to the oil being exposed to light or other atmospheric conditions and

acquitted the accused. The present appeal is by the State against the order of acquittal.

It is true that P. W. 2 stated that he did not know whether the excess of fatty acids was due to the oil being exposed to light or air. In In Re: P.

Mohammud Sheriff Saheb, Veeraswami. J. (as he then was) considered the argument regarding the delay of 11 days in analysing the sample

gingelly oil in that case and its impact on the presence of the excess fatty acids in the oil. Referring to the decision of Kunhamed Kutti, Jain Crl. R.

C. No. 273 of 1960, cited in support of the argument, the learned Judge observed:

But a perusal of his judgment shows that there was evidence in that case that the increase in the percentage of free fatty acid could be due to

natural causes. There is no such evidence in the present case.

Dealing with the facts of the case before him, the learned Judge observed that, though the gingelly oil might be subject to deterioration, there was

no conclusive evidence as to the precise effect of exposure of the oil for any particular period and that the excess of fatty acids was in itself not

appreciable. The learned Judge summed up the finding in the following words:

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.

In the present case, on the evidence the learned trial Magistrate held that the excess fatty acids would not be due to the delay in analysing the oil.

In my view, the rationale of the said decision would not be applicable to the facts of this case.

It is argued by the learned Counsel for the Respondent accused that, in view of the evidence of P. W. 2 that the tin from which the sample oil

was taken was exposed to light and air, it cannot be said that the accused was responsible. In other words, the argument is that the increase in the

percentage of fatty content was even before the sample oil was taken and, therefore, such an increase in the fatty content would not result in

fastening guilt on the accused. Assuming for a moment that this excess percentage of fatty content was in the oil before the sample was taken, it

emerges clearly that the accused was selling adulterated oil. It does not matter when the fatty content accreted to the oil. In my view, he will be

liable. The order of acquittal is set aside. The accused is convicted u/s 16(1)(a)(i) read with S. 7(ii) of the Act and sentenced to pay a fine of Rs.

25/- in default to suffer R. I for two months. Time for payment of fine is one month from this date.