JUDGMENT : S.C. Mohapatra, J. - Both the respondents having been acquitted from the charge u/s 16(1)(a)(i) read with Section 7(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act') the present appeal has been preferred assailing the order of acquittal. 2. Respondent No. 1 is the son of respondent No. 2 who had a shop in Chatrapur town. Respondent No. 2 holds a food licence to sell articles of food in that shop. Their residential house is ten to fifteen houses apart from the shop in question as is revealed from the evidence of D. W. 1. 3. On 13. 6. 1979, the Food Inspector (P. W. 1) visited the shop and found three or four tins containing til oil in the shop of respondent No. 2. respondent No. 1 was carrying on the business in the shop at that time and respondent No. 2 was absent. He collected sample of til oil from one out of three or four tins of oil there. On the report (Ext. 7) of the Public Analyst that the sample of til oil was adulterated, the prosecution report was filed by the Food Inspector against both the respondents for having stored adulterated til oil for sale. 4. Both the respondents pleaded not guilty to the charge. Their plea was that the til oil was not stated for sale but was kept for their own use for the purpose of massage. Respondent No. 2 took the added plea that he was absent at the time the sample was collected. 5. At the commencement of the trial, the trial Court got one of the sample bottles examined by the Central Food Laboratory and received the report (Ext. 13) that the sample of til oil is adulterated. 6. Three witnesses ware examined and thirteen documents were exhibited by the prosecution to bring home the guilt of the respondents. One witness was examined in support of the defence plea. 7. In order to bring home the guilt, prosecution is to prove that : (a) the Article was stored for safe; (b) the said article was food and (c) the said article is adulterated Unless all the three requirements are satisfied, the respondents are entitled to acquittal. See. I. L. R. 1969 Cult. 86 (Kandrapara Municipality v, S. K, Abdul Aziz). 8. See. I. L. R. 1969 Cult. 86 (Kandrapara Municipality v, S. K, Abdul Aziz). 8. The word 'Store' in section 16(1)(a) of the Act is used in the context as 'Store for sale'. See 1971 (2) C. VV R. 304 (Mahashankar Kalidas v. State) 1971 (2) C. W. R. 126 (Haribans Singh v. Health Officer Baripada Municipality) and 37(1971) C.L.T. 1210 (Damodar Prasad Sharma v. State) The charge being for storing adulterated til oil, the conviction cannot be based for sale to the food Inspector (P. W. 1). See 37 (1971) C. L. T. 1210 (supra). Therefore, it is to be examined if prosecution has been able to. prove that the til oil was stored for sale. 9. The trial Court found that the til of was stored for sale. Mr. K. Patnaik, the learned counsel for the respondents assailing the finding submitted that Section 10(7) of the Act not having been complied with as found by the trial Court, the prosecution witnesses are not competent to prove that the til oil was stored for sale, Mr. P. K Mohanti, Additional Standing Counsel, the learned Public Prosecutor in this appeal submitted that the circumstances in this case led to the only inference that the til oil was stored for sale and non-compliance with Section 10(7) of the Act by not examining independent witnesses of the locality having been explained by the Food Inspector (P. W. 1 ), if would not be fatal to the prosecution. 10. Four tins of til oil were in the shop where some articles of food are also sold. When the residential house is only at a short distance from the shop, the plea of respondent No. 1 that it was kept in the shop for personal use as oil for massage is not acceptable. The purpose of storing the articles can be presumed from the place of storage and quantity stored. See 1971(1) C. W. R. 304 (supra) and 37 (1971) C. L. T. 1210 (Supra). In the absence of any material as to the time of purchase or the number of members in the family of the respondents to use four tins of oil for massage, it is difficult to accept the plea of the respondent No. 1 and it can safely be presumed that the oil was stored for sale. In the absence of any material as to the time of purchase or the number of members in the family of the respondents to use four tins of oil for massage, it is difficult to accept the plea of the respondent No. 1 and it can safely be presumed that the oil was stored for sale. D. W. 1 in his deposition stated that he had no earlier transaction with the respondents. Yet, he went to purchase edible oil which reinforces the presumption that the respondents, having the reputation of selling edible oil for sale, stored the four tins for sale. 11. Mr. Patnaik submitted that respondent No, 2, having been absent when the sample was collected would not be liable. The shoo belongs to respondent No. 2. It is not his plea that his son, respondent No. 1, stored til oil for sale beyond the authority to him. Section 16(1) envisages liability of a person in his absence also. His absence, therefore, would not be of any assistance to get rid of the liability for the storage of the til oil for sale. 12. The effect of non-compliance with the requirement of Section 10(7) of the Act is no longer res integra. While observing in A. I. R 1974 S.C. 788 (Ram Labhaya v. Municipal Corporation of Delhi and another ) that the Food Inspector must call one or more independent persons to be present at the time when such action is taken Supreme Court clarified that regardless of all circumstances, the absence of one or more independent witnesses would not vitiate the trial. Considering the decision in Babu Lal Hargovindas Vs. The State of Gujarat it observed : "Non-compliance with it would not vitiate the trial and since the Food Inspector was not in the position of an accompliance, his evidence alone, if believed, can sustain the convictions." Thus, in the facts and circumstances of each case the effect of non-compliance is to be examined. Where the Food Inspector made no attempt to secure independent witnesses of the locality his evidence is not to be accepted and the accused is entitled to the benefit. See Sitaram Thirani Vs. State of Orissa, and 48 ( 1979 ) C. L. T. 583 ( Chatiram Chandwani v. State). In the decision reported in I. L. R. (1979) Cutt. Where the Food Inspector made no attempt to secure independent witnesses of the locality his evidence is not to be accepted and the accused is entitled to the benefit. See Sitaram Thirani Vs. State of Orissa, and 48 ( 1979 ) C. L. T. 583 ( Chatiram Chandwani v. State). In the decision reported in I. L. R. (1979) Cutt. 99 (B. Bhimaraju Patra v. State) the independent witnesses who claimed to have been present had to be cross-examined u/s 154 of the Evidence Act and keeping the said fact in view, the non-compliance of Section 10(7) of the Act was given importance. In 1978 C. L. R. 148 (Dasarathi Pati v. State of Orissa) witnesses being available, non-compliance of Section 10(7) of the Act was seriously viewed. In 57 (1981) C, L. J. 355 (Banshidhar Behara v. Puri Municipality) the independent persons did not agree to be witnesses and, therefore, it was held that non-compliance of Section 10(7) of the Act will not effect the prosecution since the statement of the Food Inspector was believed. Even prior to the decision reported in Babu Lal Hargovindas Vs. The State of Gujarat this Court in a decision reported in The Puri Municipal Council Vs. Bana Das, held that the Food Inspector is to endeavour to secure two witnesses of the locality and in case of departure he is to explain the justification for the same. In the present case, it was stated by the Food Inspector (P. W. 1) that he called the witnesses of the locality who did not agree to be witnesses. There is no reason to disbelieve him. Therefore, non-compliance of Section 10(7) of the Act would not vitiate the prosecution. 13. Relying on the finding of the trial Court that til oil is generally used for massage purpose and in the district of Ganjam nowhere til oil is used as an edible oil. Mr. Patnaik submitted to accept the explanation of the respondent No. 1 that the til oil was kept for massage purpose for personal use It was further submitted that even on the assumption that it was kept for sale, it cannot be held to be an article of food and the trial Court ought to have found the same to have been stored for sale for massage purpose. He relied upon a decision in Government Appeal No 8 of 1981 decided on 27 2. He relied upon a decision in Government Appeal No 8 of 1981 decided on 27 2. 1985 (State of Orissa v. Narasingh Mohanty )where the acquittal of the accused was confirmed on the finding that even adulterated til oil Is not food in the area to attract penalty under the Act. On the basis of the observation of the Supreme Court in State of Tamil Nadu Vs. R. Krishnamurthy it was held that in cases where there is doubt or it is disputed by the accused that the article possessed or offered for sale is not 'food' in the area, prosecution is to Prove the same. Analysing the evidence of the prosecution witnesses that til oil was. not food in the area and the finding that it was sold in a grocery shop in a village to which there was no evidence that outsiders who consume til oil as edible oil come, the acquittal was confirmed by this Court. The said decision is of no avail to the respondents. 14. In A. 17. 11 of Appendix-B of the rules standard of 'Til Oil' as an article of food has been prescribed. D W. 1 has stated that til oil is edible oil. His going to purchase edible oil from the shop of the respondents leads to the inference that in the shop edible oils including 'Til Oil' are sold The statement of respondent No. 1 to D. W. 1 that edible oil is not sold in the shop when the Food Inspector was already there has no significance. Besides, til oil which is edible oil was being sold in the shop situated in Chatrapur town which is the district head quarters and Is on the Railhead. Judicial notice of these two facts can be taken u/s 57 of the Evidence Act. There is every chance of outsiders who use til oil as edible oil visiting the town and purchasing the 'Til Oil' as edible oil. In the circumstances, it can safely be concluded that 'Til Oil' stored for sale was 'food'. 15. The next question for consideration is whether the sample of til oft was adulterated. The trial Court found that the reports Ext. 7 and Ext. 13 not having contained the opinion that the article of food was unfit for human consumption, the accused persons are entitled to acquittal. 15. The next question for consideration is whether the sample of til oft was adulterated. The trial Court found that the reports Ext. 7 and Ext. 13 not having contained the opinion that the article of food was unfit for human consumption, the accused persons are entitled to acquittal. In support of this finding, the trial Court relied upon a decision of the Punjab and Haryana High Court reported in 1977 F. A. J 327 (Vijay Kumar and Hassan Lal v. State of Punjab) which was considering the question of adulteration of the article of food under Clause (f) of Section 2(ia). Where the food is not within the prescribed standard as under Clause (1) or (m) of Section 2(ia) the unfitness for human consumption is not one of the requirements Prosecution in such a case need not show that the article of food was unfit for human consumption. See Smt. Manibai and Another Vs. The State of Maharashtra, and Municipal Corporation of Delhi Vs. Tek Chand Bhatia, . 16. The acid contents of its constituents is reported to be more than the prescribed standard to have free fatty acid as oleic acid is not to be more than 3%. in til oil as prescribed in A. 17. 11 of Appendix-B. The Public Analyst in his report (Ext. 7) dated 28. 7. 1979 found the oleic acid to be within the permissible limit. The Director of Central Food Laboratory in Ext. 13, however found the acid content to be 3.4%. Relying upon a decision of the Allhabad High Court reported in 1978 F. A. J. 358 (Nagar Mahapalika, Lucknow v. Mushir Ahmed) the trial Court held that on account of delay in analysis in the Central Laboratory, there is increase in the content of free fatty acid as oleic acid. The Allahabad decision relates to ghee. In a decision of Calcutta High Court reported in Polsan Ltd. and Others Vs. Corporation of Calcutta it was Held that the oleic acid content can increase when it is kept in the cold storage since moisture would be attracted to the ghee from the atmosphere. In a decision of the Madras High Court reported in In Re: P. Mohammud Sheriff Saheb referring to some passages from Industrial and Manufacturing Chemistry' by Marten and Cool, 7th Edn. In a decision of the Madras High Court reported in In Re: P. Mohammud Sheriff Saheb referring to some passages from Industrial and Manufacturing Chemistry' by Marten and Cool, 7th Edn. it was held that the increase in the percentage of oleic acid in til oil was due to exposure to the light and air. This Court in a decision reported in 1985 (I) O. i. R. 313 (State of Orissa v. S Dandasi Patro) considering the oleic acid content in til oil to be 5.52% in place of 3% held : "...The simple 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 5.25 ..." In a recent decision in Government Appeal No. 11 of 1981 decided on 23-8-1985 (State v. Satyanarayan Murty) the decision reported in 1985 (I) O. R. 313 (supra) was followed and it was held that the natural cause for increase in the acid content cannot be completely ruled out. In the present case, the bottle was dry and clean when the sample was collected and it was properly sealed as found by the trial Court. However, the exposure to light cannot be ruled out. In such circumstance, the finding of the trial Court that the increase in the free fatty acid like oleic acid content is on account of delay in analysis by the Central Food Laboratory cannot be completely ruled out specially when the earliest analysis reported in Ext. 7 did not reveal the increased percentage of oleic acid content. The sample of till oil cannot be said to be adulterated on the basis of the report ( Ext. 13 ). 17. The iodine content in the sample was found to be 102 in Ext. 7 dated 28-7-1979. It was found to be 103 in Ext..13 dated 26-4-1980. The variable limit of iodine content in respect of til oil is 105 to 115. Therefore, in either case, it is not within the prescribed limit of variability. The trial Court found that the delay in examination of the sample in the Central Food Laboratory might have been the cause of variability in the iodine value than what was shown in the report of the Public Analyst in Ext. Therefore, in either case, it is not within the prescribed limit of variability. The trial Court found that the delay in examination of the sample in the Central Food Laboratory might have been the cause of variability in the iodine value than what was shown in the report of the Public Analyst in Ext. 7 and had the sample been examined earlier there would have been some other report of the Central Laboratory. No authoritative literature has been produced to reach the conclusion that in the facts and circumstances of this case, the variability in the iodine value was on account of any natural cause or delay. Besides, Ext. 7 also indicated the iodine value in the sample to be less than the required standard. The definition has made no exception for the slight variation in the standard. Variability is important and not its degree. Therefore, there can be no doubt that the sample of til oil analysed was adulterated. 18. To escape out of this conclusion, Mr. K. Patnaik, the learned counsel for the respondents submitted that the collection of sample itself being in contravention of the provisions u/s 10(7) of the Act, the analysis of the sample collected will be of no avail to the prosecution. Trial Court has given the added reason that Rule 9 (j) has not been followed in this case. 19. I have already indicated that the non-compliance with the requirement of Section 10(7) of the Act in this case would not affect the prosecution. Rule 9 (j) was not in the Statute Book on 13-6-1979 as it stood repealed since 4-1-1977. The. decision reported in ILR (1980) Cutt. 219 ( Bhagawandas Agarwalla v. State of Orissa ) based on Rule 9 (j) as relied upon by the trial Court has lost its force on account of the repeal. Rule 9-A which was in force providing for forwarding a copy of the report immediately after institution of the prosecution had been complied with. The prosecution report 'was filed on 5-9-1979 and the respondents received the report of the Public Analyst ( Ext. 7 ) on 5-9-1979 and 10-9-1979as has been found by the trial Court. Moreover, compliance with Rule 9-A has been held to be directory and not mandatory in the decision reported in ILR ( 1984) Cut. 1 (Cuttack Municipality, represented by Gourahari Panda v. Prakash Kumar Barik ). 7 ) on 5-9-1979 and 10-9-1979as has been found by the trial Court. Moreover, compliance with Rule 9-A has been held to be directory and not mandatory in the decision reported in ILR ( 1984) Cut. 1 (Cuttack Municipality, represented by Gourahari Panda v. Prakash Kumar Barik ). Thus, requirement of Section 13(2) of the Act has been satisfied. 20. Mr. Patnaik has assailed the initiation of the prosecution. He submitted that cognisance of the offence was vitiated on account of non-compliance with the requirement of Section 20 of the Act. He developed the argument on three points. The first attack is that in the absence of the order of sanction before the Court there was no material for its satisfaction of the pre-condition that there was written consent. His second attack is that on the assumption that there was written consent, it was not of the proper authority. The third attack is that the Food Inspector (P. W. 1) had no authority to file the prosecution report in Court. Ext. 8 which is the written consent of the Chief District Medical Officer reveals that the State Government authorised him to give written consent by Notification No. 27968, dated 10.8.1976. Giving importance to the word 'Notification', Mr. Patnaik submitted that it would be effective only when published in official gazette. It is sufficient to say that authority can be given by a general or special order u/s 20 of the Act. An order does not require publication in the official gazette. Merely because it is termed as 'notification' it does not lose the character of an order inspite of the same not being published in the official gazette. The existence of Ext. 8 on 3.9.1979 or 4.9.1979 is claimed to be doubtful as it did not accompany the prosecution report filed on 5.2.1979 and was proved as on 1.2.1980. It is not necessary that the written consent is to be filed in Court along with the prosecution report. In the decision reported in 38 (1972) C. L. T. 976 (Sanatan Sahoo v. The Puri Municipality), it was held as a fact that the Health Officer had no authority to give the written consent. It will be of no assistance to the respondents since I find in this case that the Chief District Medical Officer had such authority as found from Ext. 8 itself. The challenge to the cognisance by Mr. It will be of no assistance to the respondents since I find in this case that the Chief District Medical Officer had such authority as found from Ext. 8 itself. The challenge to the cognisance by Mr. Patnaik on the ground of filing of the prosecution report by the Food Inspector without authority of the Chief District Medical Officer is also without substance since section 20 of the Act requires the prior written consent and not filing of the prosecution report by the person authorised. This has been clearly enunciated in the decision reported in The Corporation of Calcutta Vs. Md. Omer Ali and Another, . 21. Mr. Patnaik submitted that the respondents were not given an opportunity to explain the report of the Director of Central Food Laboratory (Ext. 13) as the same was not brought to their notice while examination u/s 313, Cr. P. C. The respondents were represented by a counsel. The sample was sent for analysis to the Central Food Laboratory by the Court by order dated 1-2-1980 passed in presence of the respondents and after hearing them. Besides, the objection if accepted would only lead to exclusion of Ext. 13 from consideration. Even if Ext. 13 is excluded from consideration, Ext. 7, the report of the Public Analyst would clearly prove that the sample of til oil analysed was adulterated. 22. In conclusion, prosecution has been able to prove that the respondents stored adulterated til oil which is edible oil, for sale in the shop and are liable to be convicted of the offence charged. 23. u/s 20AA of the Act, the provision of Section 360 of the Code of Criminal Procedure, 1973, or the Probation of Offenders Act, 1958 are not to apply to persons convicted under the Act. The only exception is with regard to persons below the age of eighteen since age is an important factor for imposition of sentence, the trial court ought to have taken care to state the age in the form used for recording the statement u/s 313, Cr. P. C. Unfortunately, the trial Court did not keep in mind this provision. However, for the purpose of this case, it will not be very important since the respondents do not claim in this appeal to have come within this age of exception. P. C. Unfortunately, the trial Court did not keep in mind this provision. However, for the purpose of this case, it will not be very important since the respondents do not claim in this appeal to have come within this age of exception. However, in future, serious view would be taken in cases where the trial Courts ignore important facts though required in the form. It would amount to negligence. Having been convicted, each of the respondents is sentenced to undergo rigorous imprisonment for six months. In addition to the substantive sentence, each of the respondents shall pay a fine of Rs. 1,000/- ( one thousand ) and in default shall undergo rigorous imprisonment for fifteen days more. 24. In the result, the, appeal is allowed. Bail bonds furnished by the respondents are cancelled. 25. Before parting with, I record my appreciation for the assistance rendered in this case by Mr. K. Patnaik, Advocate and Mr. P. K. Mohanty, Additional Standing Counsel. Final Result : Allowed