IN RE: SUDALAIMUTHU NADAR AND ANR. Vs. STATE

JUDGEMENT

(1.) PETITIONERS Sudalaimuthu Nadar and Murugiah Nadar are the owners of a grocery shop in Dindigul Road, Madurai, and the salesman in the shop respectively, and they have been convicted under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act (hereinafter called the Act) for having sold adulterated gingelly oil and sentenced to pay a fine of Rs. 75 each. The conviction is based on the report Exhibit P -7 that the sample of the gingelly oil taken from the shop of the petitioners gave a reading of 62.5 when examined at 40 °C. with the help of Butyro -refractometer, whereas according to the standard fixed in Clause A. 17.11 in Appendix B to Rule 5 of the Prevention of Food Adulteration Rules, it should only be between 58 and 61. C.W. 1 Narayanaswamy, Public Analyst, Madurai Municipality, was examined to speak to the report and gave expert opinion, though he did not actually do the test in this case. Both the Courts below found that gingelly oil sold by the petitioners was adulterated and prima facie this will be a question of fact.

(2.) SRI G. Gopalaswami, Advocate for the petitioners, urged that the rule framed under the Act providing that the gingelly oil not conforming to the specification as regards the Butyro -refractometer reading is adulterated is ultra vires of the rule making power of the Central Government. Section 2(i)(1) of the Act provides that an article of food shall be deemed to be adulterated if the quality or 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. Under Section 23(1)(b) of the Act, the Central Government may make rules defining the standards of quality for, and fixing limits of variability permissible in respect of any article of food. The contention of the learned Advocate for the petitioners is that the Central Government cannot, in framing rules defining the standards of quality make a condition that an article of food should satisfy a reading of Butyro -refractometer or other instrument. He relied on certain passages in Volume II of 'Oils; Fats and Waxes' by Lewkowitsch as throwing doubt about the efficacy of such Butyro -refractometer tests. Before referring to the passages, I deem it necessary to make one or two observations, namely, that Volume I of the above book is of the year 1913 and Volume II of the year 1914. This observation is intended only to point out that the two volumes of the book are more than half a century old. Further, the several passages relied on by the learned Advocate for the petitioners deal with butter fat and not with edible or vegetable oils. At page 817 of Volume II of the book the author has stated that owing to the rapidity with which the observation can be carried out, its importance has been sometimes overestimated, and it should therefore be distinctly remembered that the refractometric examination can only be Used as a sorting test, and that its indications must be supported by further tests. In the next page, the author has pointed out that "samples which give values lying outside the limits stated in the table must be looked upon as suspicious, or at least as 'abnormal', and further examination is required to establish whether a sample is pure or not." Thus, according to the author, even if, a sample furnishes numbers lying within the values, the conclusion must not yet be drawn that the sample is genuine. There could be no objection to this observation as several edible oils, having varying permissible range of refractive index could well have the same refraction index within the said range. Hence, to find out whether a particular edible oil, namely, gingelly oil is pure, one cannot rely merely on the refractive index test, but I shall presently show that if the oil does not satisfy the requirement of Butyro -refractometer test, by showing the reading between 58 to 61, it would be clear that oil is not pure gingelly oil. The learned Advocate for the petitioners pointed out a passage at page 819 of Volume II of the above book to show that 'refraction increases in a much greater ratio with the increase of unsaturated fatty acids; in other words, the higher the iodine value the higher will be the refraction.' Thus, the refraction may be higher than the permissible limit on account of the iodine value or admixture of other oils or impurities. At page 820 of Volume II it is pointed out that "refractometer figures lying outside the numbers given in the tables do not unmistakably point to adulteration, but they certainly point to an 'abnormal' butter," and that "further investigation must show whether the sample under examination is adulterated butter or not." But it is clear from page 327 of Volume I of the book that " the objection of the earlier observers, viz., that the refractive index is greatly influenced, by the methods of refining, the age of oil, the amount of free fatty acids, and the amount of oxidation a specimen has undergone, are unfounded to a great extent, more recent researches having proved that very valuable indications (especially in the case of butter fat) can be gained from the determination of the refractive index." The learned Advocate for the petitioners commented, on the fact that the report, Exhibit P -7, does not show whether tests have been done to find whether the sample of gingelly oil satisfied the other standards mentioned in A -17.11 in Appendix B to Rule 5 of the Rules, such as iodine value etc. Though C.W. 1 has been examined in this case, no question has been put to him about this aspect of the case. It is clear from; the decision of Narasimhan, G.J., in Jogendra Khuntia v. State of Orissa, I.L.R. (1964) Cal. 778, that,

(3.) THE learned Advocate for the petitioners urged that the Butyro -refractometer employed in this case is defective and he relied on the fact that in another case a sample of oil tested by the Analyst of the Madurai Municipality showed the sample did not satisfy the requirements of the rule as to Butyro -refractometer reading, whereas the sample sent to the General Food Laboratory, Calcutta, showed that the oil in question satisfied the requirement thereby indicating that it was not adulterated. The learned Sessions Judge who heard the appeal has rightly pointed out that merely because in another case there is difference between the Butyro -refractometer reading taken by the Public Analyst at Madurai and by the Analyst at the Calcutta Food Laboratory it cannot be said that there is doubt in regard to the correctness of the Butyro -refractometer reading taken in the case. It was open to the petitioner to have sent the sample given to him to the Central Food Laboratory as contemplated in the Act.