(Prayer: Appeal (disposed of on 26-7-1937) under S. 417, Crl. P.C., 1898 against the acquittal of the aforesaid respondent-accused by the Chief Presidency Magistrate, Egmore, Madras, in C.C. No. 4324 of 1956.)

This is an appeal by the State against the order passed by the Chief Presidency Magistrate in C.C. No. 4324 of 1956.

The respondents are charged under S. 7(2) of the Essential Commodities Act, 1955, read with S. 4(1) of the Vegetable Oil Products Control Order, 1947. The circumstances under which the prosecution was launched are these.

Under the directions from the Deputy Director of Commerce, P.W. 4 went to the shop of the respondents and purchased one tin of Vanaspathi which was called Lion Brand. It was sent to P.W. 2, the Government analyst. It was a two pound tin and the price was Rs. 2-8-0. On analysis it is stated the oil did not conform to the specifications raid down in the rules framed under O. 4(1) of the Vegetable Oil Products Control Order, 1947. Stocking, therefore, of such commodity for sale is liable to be dealt with under S. 7(2) of the Essential Commodities Act, Act X of 1955.

Under S. 4(1) of the Vegetable Oil Products Control Order, no producer to whom the order applies shall stock or sell any Vegetable oil product in contravention of the special or general order issued by the Controller. The Controller has issued an order by G.O.Ms. No. 2132, Food and Agriculture, dated 14th November 1950, according to which the product shall conform to the specifications mentioned thereunder. This specification is mentioned in Cl. (11) of the said order. It says that it shall contain raw or refined sesame (til) oil not less than 5 per cent by weight so that when the vegetable oil product is mixed with the refined groundnut oil in the proportion of 20 to 80 the red colour product by the Baudouin test (as described in note (2) below) shall not be lighter than 2-0 red units in a one c.c. cell on Lovibond scale. Then note (2) prescribes how the above test shall be carried out.

Now by a subsequent notification of the Government of India issued by G.O.Ms. No. 938 Food and Agriculture, 16th May 1950, there was an amendment of the Vegetable Oil Products Control Order. In Sub-Cl

. (1) of Cl

. (4) of the Vegetable Oil Products Control order for the word producer the word person was substituted. It is clear that if this amendment had not been passed the respondent who is not a producer will not be liable. To make all persons who stock such goods which are not upto the standard lia ble, the amendment has been introduced. This amendment was brought to the notice of the lower Court not by the production of the notification concerned, but by its publication in what is called Madras Police Gazette. The lower Court did not accept this amendment as shown in the Madras Police Gazette, holding that it is perhaps a mistake for producer and therefore he acquitted the accused.

The appeal is filed mainly on this ground because on the face of it, the Government notification makes it quite clear that this order of the lower Court based on this is not sustainable. The lower Court should have called for the Gazatte notification and have perused the same before accepting or rejecting the notification of the same in the Madras Police Gizette. In the appeal before me the learned Counsel, who appears for the respondent, does not dispute the fact that on account of the amendment any person who stocks also will be liable and he is not Seeking to support his acquittal on the ground on which the lower Court has acquitted.

Learned Counsel, who appears for the respondents, hereby seeks to support the acquittal on other grounds. In the lower Court he examined a defence witness, D.W. 1, to prove that the tin that is sold was purchased from Messrs. Parry and Co. and that according to their test it is not below 2 and odd as pointed out by the analyst. D.W. 1 is apparently a representative of the Parry and Co. and after looking into the accounts he says that on 27th April, 1953, the respondent has purchased three, two pound tins, and subsequently he has not purchased any tins, and that Ex. D-1 was forwarded to the accused. Ex. D-1 is a copy of the letter dated 9th February, 1956 from the Indian Vegetable Oil Products Ltd. to Messrs. Parry and Co., Madras. According to this letter in the month of December the numbers of tins that were sold were from 722 to 84

2. The Government analyst seems to have marked this tin as 320. The tin was sent for and the number is not quite clear. It may be 320 or it may be 820. Even if it is 820 according to this letter the tin which is one of the tins sold by the respondents must conform to the standard. According to the analysis by respondents vendor Baudouin colour reading was 4.5 units. They pointed out that it is very important that analytical agents used for the test should conform strictly to certain specifications failing which there is every likelihood of the results being vitiated. It is, therefore, suggested on behalf of the defence that if the respondents are to be made liable for stocking oil which does not conform to the standard they should be given an opportunity of getting the oil tested through Court. In short it is contended that as in food adulteration cases, if the stuff is to be tested by food analyst a portion of the quantity taken must be given to the seller, so that if necessary he can have the test carried out through Court, and thus verify that the test carried out by the analyst is correct or not. In this case no such sample has been given and the accused has been denied the opportunity of getting the oil taken by the food analyst tested through Court by some other recognised analyst. If a sample had been given under the seal they could have brought it to Court and asked the Court itself to send it to some other analyst and have it tested by another analyst. But such an opportunity has not been given to them. There is no question of any allegation of any dishonesty in the test conducted by the food analyst. Bat it is obvious that in such cases even an oversight of using any particular agent may result in a different analysis and it cannot be said that always and on all occasions the tests are conducted in such a manner that there is no room for any error to creep in. No doubt it was a duty of the accused to establish that an error has crept in. In this case the opportunity that they could have had to prove this has not been given to them by the purchaser not giving to them a portion of the article taken from them. In the circumstances though I am not prepared to condemn a certificate given by the food analyst as pointed out in the letter, Ex. D-1, there is just a possibility of some error creeping in somewhere, resulting in different results being produced. It cannot be said now that such a possibility is ruled out in this case. In my opinion, therefore, it cannot be said that the case against the accused has been proved beyond all reasonable doubt. It is in this view that I confirm the acquittal and not for the reasons given by the learned Magistrate. Prima facie , no doubt the State was fully justified in filing this appeal against acquittal as the ground on which the acquittal was based is not a sustainable one.

In the result the appeal is dismissed.