JUDGMENT

1. This is an appeal by Messrs Ultadanga Oil Mills and Saroj Ranjan Bhattacharjee who have been convicted by a learned Municipal Magistrate of Calcutta under Section 16(x)(a)(i) read with. Section 7(i) of the Prevention of Food Adulteration Act, 1954, and sentenced to pay a fine of Rs. 200/- each. In default of payment of fine the second accused was to undergo rigorous imprisonment for one month. The learned Magistrate further directed under Section 11(5)(b) of the said Act that the oil seized should be destroyed by the Food Inspector at the cost of the accused in presence of the Court. There is a Revisional petition against the order of destruction which has been heard along with this appeal.

2. The case for the prosecution is that on the 14th December, 1959, Dr. S.S Kundu, Food Inspector of the Corporation of Calcutta, visited the Oil Mill and took a sample of til oil for the purpose of analysis and that on analysis the oil was found adulterated. The accused were prosecuted by the Food Inspector under the provisions, of the aforesaid Act. The offence complained of as stated in the petition of complaint is as follows:—

“Selling, manufacturing and storing for sale Til oil on 14-12-59 which on analysis was found that it does not conform to the standard in respect of B.R reading and saponification value. Hence it is adulterated. F.I No. 7367/110. Lab. No. 2455. Report No. K/326”.

3. The accused pleaded not guilty. The defence was that the til oil was extracted from Agartala white seeds, that there is always some distinction between oil that is extracted from those seeds and oil that is extracted from seeds other than Agartala and Assam seeds and that although the standard of quality of the sample in question in this case might not conform to the standard laid down under the Prevention of Food Adulteration Rules, still it would conform to the standards in respect of the oil extracted from Agartala seeds as found on analysis by different bodies like the Calcutta University, Bombay University and Messrs Hindustan Lever Limited. The standard of quality of til oil as given in Appendix ‘B’ to the Prevention of Food Adulteration Rules is as follows:—

“A.17.II Til Oil (Gingelly or Sesame oil) means the oil expressed from clean and sound seeds of Til (Sesamum indicum) black, brow white, or mixed. It shall be clear, free fro rancidity, suspended or other foreign matter, separated water, added colouring or flavouring sub-stances, or mineral oil. It shall conform to the following standards:

(a) Butyro refractometer reading at 40°C 58.0 to 61.0 (b) Saponification value 188 to 193 (c) Iodine value 105 to 115 (d) Unsaponifiable matter — Not more than 1.5 per cent (e) Free fatty acid as Oleic acid — No more than 3.0 per cent

(a)(f) Bellier test (turbidity temperature Acetic acid method) — Not more than 22°C.”

4. The report of the Public Analyst is given below:

“I further certify that I have analysed the afore-mentioned sample and declare the result my analysis to be as follows:—

B.R at 40° …… 62.??? Holde's Test ………………………… negative ??? Baudouin Test ……………………… positive ??? Hexabromide Test ………………… negative ??? Test for Mineral Oil ……………… negative ??? Bellier's turbidity temp …………… 20.8° ??? Saponification value ………………… 186. ??? Iodine value ……………………… 113. ??? Free fatty acid as oleic acid ……… 0.67° ???

and am of the opinion that the sample of ??? oil does not conform to the standard in respect of B.R reading and Saponification value. Hence it is adulterated.”

5. P.W 4 Khudiram Sahoo, Assistant Analyst under the Public Analyst of the Corporation of Calcutta deposed that the sample was found adulterated on analysis. The evidence of the witness as recorded by the learned Magistrate is quoted below:

“The sample did not conform to the prescribed standard in respect of B.R reading and saponification value and hence it was adulterated. The B.R reading was above the maximum allowance limit and saponification was below the minimum prescribed.”

6. This analyst was cross-examined and in his cross-examination he deposed as follows:—

“The different varieties of til seeds are black, brown, white and mixed. The different varieties may lead to different results but the results must be within the prescribed limits.”

7. While the standard of B.R reading at 40°C in Appendix ‘B’ is 58.0 to 61.0 on analysis the B.R reading at 40°C was found by the Public Analyst to be 62.8; the maximum limit was thus exceeded by 1.8 Then while in the prescribed standard the standard of saponification value varies between 188 and 193 the Public Analyst found the saponification value after analysis to be 186.1, the standard falling below the minimum by 1.9 The variations are slight though not negligible. The defence case was that at the time of the seizure of the til oil and taking of the sample the accused persons told the Food Inspector that the oil was extracted from Agartala white seeds. That suggestion was given to the Food Inspector on the accused's behalf during cross-examination but the suggestion was not accepted by him. The two witnesses who were examined on behalf of the prosecution as witnesses to the seizure and taking of the sample, namely, P.W 2 Bisweswar Ghosal and P.W 3 Sarada Prasad supported the defence case that the accused had made such a representation to the Food Inspector. On a consideration of the evidence the learned Magistrate, preferred the evidence of one of the prosecution witnesses, namely, the Food Inspector to that of the other two prosecution witnesses. The learned Magistrate thinks that P.W 2 was not reliable because he used to work sometimes as the accused's broker of seeds and that P.W 3 also was not reliable as he was an employee of a firm which sometimes sold mustard seed to the accused's mill. I am not impressed with the reasons given by the learned Magistrate at least so far as P.W 3 is concerned. It is also to be remembered that none of these two witnesses, namely, P.Ws 2 and 3 supported the prosecution case that they witnessed the seizure and taking of the sample. Therefore, the evidence of the Food Inspector had to be taken with caution. I do not find any reasons why the evidence of P.W 3 should not be accepted. There is also no reason why the defence case that at the very earliest opportunity, namely, at the time of the seizure of the oil the accused told the Food Inspector that the oil had been extracted from Agartala white seeds, is not true or probable. That fact was testified to by two of the prosecution witnesses, namely, P.Ws 2 and 3. Therefore, the defence case that the oil was extracted from Agartala white seeds is quite true or probable and there is no reason to discard that part of the defence case.

8. Now there is a good deal of correspondence on the record to show that the matter of fixing a different standard in respect of til oil extracted from Agartala and Assam white seeds has been engaging the attention of the different authorities for sometime past. The earliest of the series of letters is Ext. C dated the 1st January, 1960, and the last of the letters is Ext. A dated, the 12th January, 1961. But it appears that the matter has not yet been finalised. Ext. C is a letter from the Assistant Director (Chemicals). Indian Standards Institution, to the Secretary, Central Committee for Food Standards, Ministry of Health, New Delhi. The letter is quoted below:

“Dear Sir,

Your kind attention is invited to our Indian Standard Specification for Sesame Oil, IS: 547-1954, which prescribes the various physicochemical requirements for this oil.

It was brought to our notice by the Oil Technologists Association of India, Howrah, and the Bengal Oil Mills Association (BOMA), Calcutta, that certain varieties of white til (Sesame) seeds grown in Assam and Agartala for the normal manufacture of sesame oil give oils of higher iodine value, refractive index, specific gravity and unsaponifiable matter, and a lower saponification value as compared to the Indian Standard. They have, therefore, requested us to consider amending the standard to accommodate this special variety of oil also.

Samples of the oil seeds supplied by the above Association were identified by the Superintendent, Indian Botanical Garden, Calcutta, as the same as that prescribed in the Indian Standard. Samples of oil supplied by the Association as well as oil extracted from the seeds supplied by them were analysed by the laboratories of Hindustan Lever Ltd., Bombay and the Department of Chemical Technology, University of Bombay. The test report (copy enclosed) is in agreement with the contention of the BOMA.

The matter will be placed before our Oils,. Fats and Soaps Sectional Committee, CAFDC 5; for considering possible amendment or revision of the Indian Standard. In the meanwhile, we have received a telegram and a letter from BOMA, (copy enclosed) asking for our intervention in the-matter. The Indian Standards being in close agreement with the specifications of CCFS, we thought it necessary to keep you posted with the complete case from our end so that you may like to take any action that is deemed fit.”

9. Along with Ext. C there is an enclosure showing analysis of sesame oil from the samples provided by the Oil Technologists Association of India. These are in respect of oil seeds from Agartala and Assam. The result of analysis by the Department of Chemical Technology, University of Bombay, is that the refractive index at 40°C is 1.4724 to 1.4728 which would correspond roughly to 70.3; the saponification value varies between 185.4 and 186.9 The result of analysis by Messrs Hindustan Lever Ltd., Bombay, is that the refractive index at 40°C is 1.4672 which would correspond roughly to 62.4; the saponification value is 186.5 The result of analysis by the University College of Science and Technology, Department of Applied Chemistry, Calcutta, University, of sesame oil crushed out of white sesame seeds of Agartala supplied by the Bengal Oil Mills Association is as follows:—

“Refactive Index at 40°C is 1.4705” which would correspond to 67.1; “the saponification value is 182.4”.

10. According to the results obtained by the above mentioned Departments of the Universities of Bombay and Calcutta and also by Messrs Hindustan Lever Ltd., the sample in question in this case does not appear to be adulterated but I must make it clear that the samples that were examined by the Universities and Messrs Hindustan Lever Ltd., were not the samples which were taken by the Food Inspector from the accused mill but those were seeds or oil supplied independently by certain Associations. I must also make it clear that the standard as prescribed in the Prevention of Food Adulteration Rules has not yet been altered and according to that standard the sample in this case is adulterated. Even one of the defence witnesses, namely, D.W 1 Saurindra Kumar Har said in answer to a question put by the Court that,

“Up till now no separate standard has been prescribed by the Central Government for Agartala white til seeds”.

11. In short the matter of prescribing a different standard in respect of oil extracted from white til seeds of Agartala and Assam is even now engaging the attention of the authorities but so long as the standard prescribed in the Act is not amended, that standard has to be followed and according to that standard the sample of til oil which was taken by the Food Inspector is adulterated as has been found by the Public Analyst. According to his report the sample does not conform to the standard of quality prescribed under the Act in respect of B.R Reading and Saponification value.

12. It is contended by Mr. Ghosh appearing on behalf of the appellants that the slight variation is not only due to the oil being extracted from Agartala white, seeds but may also be due to defective sampling. Mr. Ghosh contends that there is no evidence that the sample was kept in a dry, clean phial as required by Rule 14 of the Prevention of Food Adulteration Rules under Part 5. The Rule lays down,

“Samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other writable containers which shall be closed sufficiently tight to prevent leakage, evaporation or in the case of dry substance, entrance of moisture, and shall be carefully sealed”.

13. The Food Inspector has not given any evidence to show that Rule 14 was strictly complied with, namely, that the sample was taken for analysis is clean and dry bottles or phials. I have been taken through the whole of the evidence of the Food Inspector. He says that all formalities were duly complied with but a general and sweeping statement like that cannot amount to showing that Rule 14 was strictly complied with. It is of the utmost importance that in a case of this nature under the present Act where penalties are severe the requirements in the matter of taking samples should be very carefully observed. It is true that the rules do not deal in details with the manner or procedure if taking samples except what is provided in Rule 14. But Rule 14 lays down a salutary provision that if the phial or the bottle in which the sample is taken is not clean, dry, in other words, if it contains other matter, sediments etc., which might be responsible for variations in the standard of quality, then it cannot be said that the results of anaylsis are dependable. I have been referred by Mr. Ghosh to certain books, one of which is a book on “Methods of Sampling and Testing Vegetable Oils and Fats under Agmark” issued by the Agricultural Marketing Adviser to the Government of India, New Delhi, Ministry of Food and Agriculture. That book deals with methods of sampling and testing intended principally for the use of packers authorised to grade vegetable oils and fats on the basis of Agmark standards of quality prescribed under the Agricultural Produce (Grading and Marketing) Act, 1937. I do not for a moment suggest that the standards prescribed in that book should be taken to be the standards under the Prevention of Food Adulteration Act. But the book is of help in showing that the samples should be taken by some scientific method. Under the heading “General principles” it is stated—

(a) No amount of correct analysis can make up for incorrect sampling. It is, at the same time, almost impossible to write directions for sampling of oils and fats that will cover all conditions and circumstances that may confront the individual responsible for taking the sample. There are instances in which, the judgment and experience of the individual shall prevail. There are, however, certain general rules which must always be followed if the sample is to be representative.

(b) If the bottom of the tank from which sample is to be taken is smaller than its middle or top or vice versa, the contour of the tank should be taken into account. The sample of samples from each section (e.g, each I foot level) should be regulated in reverse order to the cubical capacity of each section. For example, if the bottom 1 foot section is one-fourth of the middle 1 foot section, then one 1 foot sectional sample should be drawn from the bottom level and four 1 foot sectional samples from the middle. These samples are then thoroughly mixed and made into a composite sample.

(c) If the consignment is not uniform in character, each sample drawn should be treated as separate and submitted to the laboratory without mixing.”

14. In the book on “Vegetable Fats and Oils” by George S. Jamieson directions on similar lines regarding taking of samples from top, bottom and intermediate points have been given at page 373. How samples should be taken and evaluation of oilseeds and other fat-bearing materials should be made have been discussed in “Vegetable Fats and Oils” by E.W Eckey.

15. Mr. Talukdar appearing on behalf of the Corporation of Calcutta contends that the Food Inspector has deposed in his evidence that all the formalities were duly complied with, that there was no cross-examination on this point besides the suggestion that was not done in presence of witnesses and that, therefore, his evidence amounts to this that the provisions of Rule 14 were duly complied with; since the Rules do not lay down any procedure or method of drawing samples, the Food Inspector is not bound to follow any of the uthorities in the matter of drawing samples. It is not possible for me to accept Mr. Talukdar's contention. I do not for a moment suggest that the Food Inspectors should follow this authority or that authority in the matter of drawing sarnies but they should take the samples in a manner excluding all possibilities of contamination so that the analysis of the sample can give a correct picture. Even before the coming into force of the Prevention of Food Adulteration Act, 1954, there were prosecutions for adulteration under the Calcutta Municipal Act, and where no standard of quality was prescribed in respect of any food stuff he Public Analyst used to follow the authorities the matter of analysis. Similarly although the rules do not prescribe any procedure in details for drawing samples, still it is to be expected that the Food Inspectors should draw the samples in, a careful manner and they must tell the Court in heir evidence the manner in which the samples were taken and whether they were kept in clean, ??? phials or bottles. The Food Inspector in this case was very particular in giving details about division of the sample into three parts, packing and sending etc. But he should have been equally particular in telling the Court as to how the ample of oil was drawn. The matter of sampling ??? of special importance in the peculiar facts of this case. In the instant case besides saying that he took the sample the Food Inspector did not prescribe how or in what manner he took the sample of oil from the tank or the drum. Since ??? cannot be said with certainty that the sample was taken in dry and clean phials and since there is no evidence as to in what manner the sample was drawn, it cannot be said with certainty that the analysis has been correct and can be depended upon. What I mean to say is that it is quite possible that the analysis that was done by the Public Analyst in the present case was done in incorrect sampling. That possibility cannot be ??? out. Therefore, the accused persons are ??? to the benefit of doubt in this case; the prosecution has failed to prove the case beyond reasonable doubt.

16. Accordingly, the convictions and sentences of the accused persons are set aside and they are acquitted. The fines if paid must be refunded.

17. The appeal is, accordingly, allowed.

18. Regarding the revisional petition, in view of my above finding, namely, that the prosecution has failed to prove beyond reasonable doubt that the sample was adulterated, the order of destruction of the oil in question in this case cannot be sustained.

19. That order is, accordingly, set aside and the revisional petition is made absolute.

JF/M/K.S.B

20. Appeal allowed.