Dwarka Nath & ANR Vs. Municipal
Corporation of Delhi [1971] INSC 125 (23 April 1971)
VAIDYIALINGAM, C.A.
VAIDYIALINGAM, C.A.
SIKRI, S.M. (CJ) RAY, A.N.
CITATION: 1971 AIR 1844 1971 SCR 466 1971 SCC
(2) 314
ACT:
The Prevention of Food Adulteration Act (37 of
1954), s. 23(1) (c), (d), and (g), and Rules made there under r. 32(b) and
(e)-If within rule making power.
HEADNOTE:
The appellants were carrying on business in
ghee. On the labels of the tins of ghee the name of the business premises of
the appellants and the postal division were given but the number of premises
and the locality where the premises was situate were not given. On the ground
that the label did not conform to the packing and labeling rules as required
under r. 32(b) and (e) of the rules made under s.
23(1) of the Prevention of Food Adulteration
Act, 1954, the appellants were prosecuted and were convicted, and a token fine
of Re. 1 was imposed on them. The judgment of the High Court emphasised upon
the violation of r. 32(e).
Rule 32(e) provides that every label should
specify the batch number or code number either in Hindi or English numerical or
alphabets or in combination, and r. 32(b) requires the name and address of the
manufacturer or importer or vendor or packer to be given on every label.
The first proviso to r. 32 excludes the
operation of cls.
(a) to (e) of the said rule in respect of
food packages weighing not more than 60 grams.
On the question whether sub-rr. 32(b) and (e)
were within the rule making power under s. 23(1) cls. (c), (d), (f), and (g).
HELD:(1) The sub-rules could not have been
made under cl. (c). That clause deals with provisions for imposing rigorous
control over production, distribution and sale of any article or class of
articles of food notified by the Central Government in the Official Gazette.
But no such notification regarding ghee had been issued by the Central
Government.
[474B] (2)Clause (f) relates to prohibiting
the sale or defining the conditions of sale of any substance injurious to
health when used as food. This clause also has no application because ghee is
not a substance injurious to health when used as food. [474C] (3)Clause (g)
will have no application because one of the essential requirements therein is
that the rules made under it should be related to the interest of public
health. Any rule made under this clause must be of universal application
because it is in the interest of public health. The requirement regarding
compliance with any such rule cannot depend upon the quantity of food packed in
any container.
Therefore, the fact that food packages not
weighing more than 60 grams are excluded under the proviso to the rule is an
indication that r. 32 is not framed under s. 23(1) (g) of the Act. [474D-F]
(4)The object of a rule framed under s. 23(1) (d) must be with a view to
preventing the public or the purchaser being deceived or misled as to the
character, quality or quantity of the article. The giving of the 467 batch
number or code number alone without giving any further particulars such as the
date of manufacture of the article and the period within which the said article
has to be used or consumed and the quantity of the article in the container
will not prevent the public or a purchaser from being deceived or misled as to
the character, quality or quantity of the article. [474G-H; 475A.-B] In the
present case there was no obligation to specify on the label the date of
packing and manufacture of the article of food or the period within which the
article of food has to be used or consumed. In the :absence of any such
obligation there is no rational or even a remote connection between the batch
or code number artificially given by a packer and the public or purchaser being
prevented from being deceived or misled as to the character, quality or
quantity of the article contained in a sealed tin. [475C-E] Therefore r. 32(e)
is beyond the rule making power even under s. 23 (1) (d) of the Act. Since r.
32(e) is invalid the appellants could not have been convicted for its
violation. [475E-F] (5)But r. 32(b) is within the rule making power under s.
23(1) (d), because, it is well known that in
many cases in business the name and address of a manufacturer or importer or
vendor or packer has become associated with the character quality or quantity
of the article. [476B] In the present case, there is a substantial compliance
with the rule by the appellants, but according to the requirement of the rule,
some more particulars will have to be given, namely, the number of the premises
and the locality or the area where the premises was situate. There was thus a
technical breach of r. 32(b). [476B-D] [But since there was no indication from
the judgments of the lower courts that the appellant would have been convicted
for such a technical breach if there was no charge under r.
32(e) also, the appellants were acquitted.]
[476E-F]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 264 of 1968.
Appeal by special leave from the judgment and
order dated November 7, 1967 of the Delhi High Court in Criminal Revision. No.
371-D of 1965.
S.C. Manchanda, M. L. Aggarwal and N. K.
Agarwala, for the appellants.
B. P. Maheshwari, for the respondent.
V. A. Sayid Muhammad and S. P. Nayar, for the
Union of India.
The Judgment of the Court was delivered by
Vaidialingam, J.-The short question that arises for consideration in this
appeal by the accused, by special leave, is whether Rule 32(b) and (e) of the
Prevention of Food Adulteration Rules, 468 1955 (hereinafter to be referred as
the Rules) is ultra vires as being beyond the rule making power under S. 23 of
the Prevention of Food Adulteration Act, 1954 (hereinafter to be referred as
the Act). As the Rules have been framed by the Central Government, notice had
been issued by this Court to the Attorney General.
The first appellant is a partner of the
second appellant M/s. Mohan Ghee Laboratories carrying on business in Pure
Deshi Ghee, in Gurdwara Road, New Delhi-5. On December 29, 1962 at about 12 50
p. m. five Food Inspectors of the respondent visited the Laboratories of the
appellants at Gurdwara Road, and all of them purchased ghee from different
containers on payment of price. After going through the necessary formalities
as required by the Act and the Rules, the samples of ghee purchased by the Food
Inspectors were sent to the Public Analysts for Delhi Municipal Corporation for
analysis. The Public Analyst tested the sample on January 3, 1963 and reported
that all the five samples taken by the five Food Inspectors and sent to him
conformed to standard. It is also to be noted that on December 29, 1962, the
Food Inspectors had also seized the labelled tins from which samples of ghee
had been taken.
On August 31, 1963, the respondent filed five
complaints in the Court of the Magistrate, 1st Class, Delhi against the
appellants under Section 7/16 of the Act read with Rule 32(b) and (e) of the
Rules. As all the complaints are on the same pattern, we will just refer to one
of those complaints, filed on the basis of the report of the Food Inspector
Lekh Raj Bhutt. The averments are that the said Food Inspector on December 29,
1962 at about 12.55 p. m.
took a sample of pure ghee from the
appellants from one of the sealed tins of pure ghee exhibited for sale at the
sale counter after due observance of the Rules. One sealed bottle was given to
the appellants at the spot. The labelled tin of pure ghee from which the sample
was taken was also seized by the Food Inspector in the presence of witnesses
and the said tin is produced as an exhibit. The complaint further proceeds to
state that the sample of pure ghee taken from the appellants conformed to the
standard of pure ghee. According to the report of the Public Analysts, the
sealed tin of pure ghee from which the sample was taken had a label, but it did
not conform to the packing and labelling Rules under the Act inasmuch as the
name and business address of the manufacturer or packer or vendor and batch or
Code numbers had not been specified on the label as required under Rule 32(b)
and (e) of the Rules ; and that the appellants are guilty for non-obserance of
the Labelling Rules. The respondent ultimately prayed that the appellants may
be punished, according to law, for contravention of Rule 32(b) and (e) of the
Rules.
469 Similarly, the charge framed in each of
the five cases was also on the same pattern. The charge after referring to the
substance of the complaint and after referring to the fact that the sample of
ghee taken from the shop of the appellants conformed to the standard alleged :
"But complete address, Batch or Code No.
etc.
were not written on the ghee tins seized by
the Food Inspectors.
Therefore, you are to show-cause, why you
should not be punished under section 7/16 PFA Act 1954, read with rule 32(b)
and (e) of PFA Rules, 1955." The appellants pleaded not guilty to the
charge.
One of the Food Inspectors, Dina Nath has
given evidence as P. W. 1. We will only refer to that part of his evidence
which has a bearing on the point for consideration before us. In chief examination
he has stated that when he examined the tin from which the sample of ghee had
been taken, he found that the tin did not bear the batch number, the code
number and that the address given therein was incomplete. In cross-examination
he has stated that the address given on the label was Mohan Ghee Laboratories,
New Delhi-5 and there was also a further writing "Pure Ghee".
He was not able to say whether the address
referred to above and found on the tin was incomplete. He has further stated
that though he has been working as Food Inspector from about 1949, he does not
remember if he had seen the premises number written on any packing., He has
further stated that "Batch Number can start from any serial number. I am
saying about serial number by commonsense......... Code No. and Batch number is
the same." We will refer to the question put to the first appellant when
he was examined under section 342 and to his answer in respect of the labelling
and packing.
"Q. There is an allegation against you
that labelling and packing of the Ghee tins taken in possession, was defective,
since they do not bear the complete address of your shop, Code number and Batch
number. What have you to say ? A.It is incorrect. Labelling and packing were in
order, address was also correct..........
The appellants had also examined some of
their employees.
We will refer to the material part of the
evidence of D.W.
2. who was incharge of supervising the
packing of the ghee.
He has referred 470 to the fact that the
address of the shop of the appellants is Mohan Ghee Laboratories, New Delhi-5
and that they receive letters, addressed as above. He has further stated that
the appellants purchase ghee from outsiders in small tins and utensils and then
pack them in their premises. In cross-examination he has stated that the
premises of the appellants is situated in 37 Nai Wallan, Gurdwara Road, Karol
Bagh.
The Trial Magistrate has rather elaborately
gone into the question whether the samples of ghee seized from the appellants
conform to the standard and criticises without any basis the evidence of the
defence witnesses on the ground that the appellants should not have printed on
the label "Pure Ghee" when they could not have known the quality of
ghee stored in the containers. This discussion is totally irrelevant because,
even according to the respondent, the Public Analysts had certified that the
samples conformed to the standard and the appellants were not being tried for
adulteration of ghee.
Regarding the requirement regarding the Batch
number or Code number, the Magistrate after reference to Rule 32(e) holds that
the provision is mandatory and the object of giving those particulars is to
indicate the serial order in which the particular article of food was packed
and thereby to indicate the period for which it could remain fit for human
consumption. We are not able to appreciate wherefrom the Magistrate got all
these indications, because the relevant Rule does not provide for giving any
particulars regarding the period for which the article of food could remain fit
for human consumption. Ultimately the Magistrate found the appellants guilty
for contravening Rule 32(b) and (e) and sentenced them to pay a token fine of
Re. 1 in each of the five cases.
The appellants challenged their conviction before
the learned Additional Sessions Judge Delhi. The Sessions Judge, by his order
dated October 18, 1965 agreed with the Trial Magistrate that the appellants are
guilty of breach of Rule 32(b) and (e). However, the Sessions Judge was of the
opinion that five separate complaints and five separate convictions were not
legal and therefore, he made a recommendation to the High Court that the
conviction of the appellants is to be set aside in respect of four complaints
and that it should be maintained only in one case.
According to the learned Sessions Judge, the
appellants have not complied with the requirement of sub-rule (b) of Rule 32 as
they have given on the label the address as "Mohan Ghee Laboratories, New
Delhi-5." without giving the number of the premises and the locality where
the premises is situate.
Similarly, the learned Sessions Judge is of
the view that the object of specification of Batch number and Code 471 number
is to track down all the samples of food stuff that were packed out of a
particular lot if the authorities found the sample to be defective. This will
enable the authorities to at once withdraw from the market all the containers
of a particular Batch number. In this view the learned Session Judge held that
the appellants have committed breach of Rule 32(e).
The learned Chief Justice of the Delhi High
Court, in the order under attack, has held that it is enough if the appellants
are convicted in one case and accordingly the reference made by the Additional
Sessions Judge in this regard was accepted. But on the main question as to
whether Rule 32 (b) and (e) was within the rule making power under Section 23
of the Act, the learned Chief Justice has held that the said rule is intra
vires and comes within the rule making power conferred under Section 23(1) (d).
According to the High Court the Batch number and Code number would serve to
provide a reassuring factor to the purchaser in as much as it would indicate to
some extent the time when the commodity was manufactured or packed. The High
Court has further held that the display of Batch number or Code number would
seem to be a relevant factor for assuring the public or the purchaser that they
are getting from the market an article which is fresh enough to suit their
purpose and requirement. Ultimately, the High Court confirmed the conviction of
the appellants as well as the levy of fine of Re. 1 in one case for breach of
Rule 32(b) and (e).
Mr. S. C. Manchanda, learned counsel for the
appellants con tended that Rule 32 (b) and (e) is beyond the rule making power
conferred under Section 23 (1) (d) of the Act. The learned counsel further
pointed out that the reasons given by the High Court are not warranted by the
provisions of either the Act or the Rules.
Dr. V. A. Syed Mohammad, appearing for the
learned Attorney General, contended that the impugned rule could be sustained
under clauses (c), (d) and (g) of Section 23( (1). In particular he supported
in full the reasons given by the High Court that the impugned rule is within
the ambit of the rule making power under Section 23 (1) (d).
Mr. B. P. Maheshwari, learned counsel for the
respondent, urged that apart from the clauses referred to on behalf of the
Attorney-General, the rule could be sustained even under Section 23(1)(f).
In order to appreciate the contentions urged
before us, it is necessary to refer to the material part of Section 23 as well
as the relevant rules. Section 23(1) gives power, to the Central Government to
make rules. We have already referred to the clauses 472 on which reliance is
placed on behalf of the AttorneyGeneral and by the respondent, namely, clauses
(c), (d) (f) and (g). Section 23 (1) with those clauses reads as follows :
"23(1) Power of the Central Government
to make rules:
The Central Government may, after consultation
with the Committee and subject to the condition of previous publication, make
rules* * * (c) laying down special provisions for imposing rigorous control
over the production, distribution and sale of any article or class of articles
of food which the Central Government may, by notification in the Official
Gazette. specify in this behalf including registration of the premises where
they are manufactured, maintenance of the premises in a sanitary condition and
maintenance of the healthy state of human beings associated with the
production, distribution and sale of such article or class of articles.
(d) restricting the packing and labelling of
any article of food and the design of any such package or label with a view to
preventing the public or the purchaser being deceived or misled as to the
character, quality or quantity of the article * * * (f) prohibiting the sale or
defining the conditions of sale of any substance which may be injurious to
health when used as food or restricting in any manner its use as an in gradient
in the manufacture of any article of food or regulating by the issue of
licences the manufacture or sale of any article of food ;
(g) defining the conditions of sale or
conditions for licence of sale of any article of food in the interest of public
health." The Rules have been framed by the Central Government in exercise
of the powers conferred by sub-section (2) of Section 4 and sub-section (1) of
Section 23 of the Act. The Rules framed under sub-section (2) of Section 4
relate to the functions of the Central Food Laboratory and allied matters. We
are not concerned with those rules. Part VII of the Rules relates to the
"packing and labelling of foods". Rule 32 relating to the
"contents of the label" is in this part. Rule 32 with material clauses
473 (b) and (e) and the first proviso as well as the Explanation reads as
follows :
"Rule 32 : Contents of the label-Unless
otherwise provided in these rules there shall be specified on every label:* * *
(b) the name and business address of the manufacturer or importer or vendor or
packer, * * * (e) a batch number or code number either in Hindi or English
numericals or alphabets or in combination :
Provided that in the case of food package
weighing not more than 60 grams particulars including the statement under any
clause need not be specified.
Explanation.-The term 'label' means a display
of written, printed, perforated, stencilled, embossed or stamped matter upon
the container, cover lid and/ or crown cork of any food package."
Admittedly there is no definition of the expressions "Batch number"
or "Code number" either in the Act or in the Rules.
Nor has any affidavit been filed on behalf of
the respondent or by the Attorney General of any expert whether these
expressions have any technical meaning in the trade and if so what that is. The
material available on record is only the evidence of Dina Nath, one of the Food
Inspectors, who has given evidence as P. W. 1 in one of the complaints. We have
already adverted to his evidence which is to the effect that Batch number can
start from ;any serial number and that what he says about serial number is only
by commonsense.
Further, according to him Code number and
Batch number is the same. From this evidence it is clear that there is no
specific meaning attached to these two expressions either in the Act or in the
Rules and even the Food Inspectors are ,not very clear as to what those
expressions mean.
He has also stated that in the label on the
container, the :address of the appellants had been given as "Mohan Ghee
Laboratories, New Delhi-5". According to him the said address is
incomplete because it does not give the details about the door number of the
premises, as well as the locality where the premises is situate. He has also
stated that he does not remember to have seen the premises number on any
packing.
We have now to see whether any of the clauses
in Section 23 (1) on which reliance is placed on behalf of the AttorneyGeneral
and the respondent will sustain the provisions contained in Clauses 974 (b) and
(e) of Rule 32. We are not able to find anything in Clauses (c), (f) and (g) of
Section 23 (1) of the Act, which will give power to the Central Government to
frame rules requiring the name and business address of manufacturer or vendor
being given ; or for Batch Number or Code number being given on the labels.
Clause, (c) deals, with provisions for imposing rigorous control over production,
distribution and sale of any article or class of articles. of food notified by
the Central Government in the Official Gazette. No notification issued by the
Central Government in this behalf regarding ghee has been brought to our notice
and, therefore,. clause (c) does not apply.
Clause (f) relates to prohibiting the sale or
defining the conditions of sale of any substance injurious to health when used
as food. This clause has also no application, because it is not the case of the
respondent that the article of food, with which we are concerned, namely, ghee,
is a substance which is injurious to health when used as food.
Clause (g) again will have no application
because one of the essential requirements, therein is that the rule should be
related to the interest of public health. Any rule made under this clause, must
be of universal application because it is in the interest of public health. The
requirement regarding compliance with any such rule, cannot depend upon the
quantity or food packed in any container. That Clause (g) of Section 23(1) will
stand eliminated is clearly seen by a reference to the first proviso to Rule
32. The said proviso indicates that if the food package weighs not more than 60
grams, the particulars mentioned in clauses (a) to (e) of the Rule need not be
specified. If a requirement has to be in the interest of public health, as is
mandatory under Clause (g), the very fact that the first proviso to Rule32
excludes the operation of clauses (a) to (e) of the said rule in respect of
food package weighing not more than 60 grams, is an indication that Rule 32 is
not framed under Clause (g) of Section 23(1) of the Act. From the above
discussion it is clear that under Clauses (c), (f) and (g) of Section 23(1) of
the Act, the rules contained in clauses (b) and (c) of Rule 32, could not be
framed." This leaves us for consideration the question whether Rule 32 (b)
and (e) fall within the ambit of rule making power under Clause (d) of Section
23(1). We will first take up for consideration the vires of Clause (e) of Rule
32. There cannot be any controversy that the object of a rule framed under
clause (d) must be with a view to preventing the public or the purchaser being
deceived or misled as to the character, quality or quantity of the article. We
have already pointed out that in this case the label contained the words
"pure ghee" and on analysis of the, sample it has been found to
conform to the standard. It is difficult for us to appreciate how the giving of
the batch number or 475 the code number alone without giving any further
particulars such as date of manufacture of the article of food and the period
within which the said article has to be utilised, used or consumed and the
quantity of the article in a container, will prevent the public or the
purchaser being deceived or misled as to the character, quality or quantity of
the article. No attempt has been made by the respondent to establish any
relation between the giving of the batch number or the code number with the
public or the purchaser being prevented from being deceived or misled in
respect of the matters referred to in Clause (d). We are not able to find any
rational or even a remote connection between the batch or code number
artificially given by a packer and the public or the purchaser being prevented
from being deceived or misled as to the character, quality or quantity of the
article, contained in a sealed tin.
There is no definition of the expression
"batch number" or "code number" either in the Act or the
Rules. It is also admitted that even assuming that the batch or code number has
to be given, there is no further obligation to specify in the label the date of
packing and manufacture of the article of food or the period within which the
article of food has to be utilised, used or consumed. In the absence, of any
obligation to give the particulars mentioned by us above, the public or the purchaser
will not be able to find out even the freshness of the contents of a container.
Therefore, it follows that merely giving an
artificial batch number or code number will not be of any use to the public or
to the purchaser. In view of all these circumstances we are of the opinion that
rule 32(e) is beyond the rule making power even under Section 23 (1) (d) of the
Act. The appellants could not be convicted for any violation of Clause (e) of
Rule 32 as the said provision, as pointed out above, is invalid.
We will now consider the question regarding
the validity of Clause (b) of Rule 32. That clause is also challenged as being
beyond the rule making power under Section 23 (1) (d) of the Act. Clause (b) of
Rule 32 requires that the name and business address of the manufacturer, or
importer, or vendor or packer be given on every label. According to Mr. Manchanda,
this clause has also no relation to the purpose for which the rules can be
framed under Section 23 (1) (d) of the Act. According to Mr. Manchanda, mere
giving of name and business address will not give any indication to the public
or the purchaser regarding the character, quality or quantity of the article.
Even assuming that Clause (b) of Rule 32 is-valid, he pointed out, that in this
case, his clients have complied with the requirement by stating on the label
"Mohan Ghee Laboratories New Delhi-5." According to him there has
been at any rare substantial compliance with 476 the requirement of the rule
and therefore his clients could not be convicted for any violation of this
clause.
We are not inclined to accept the contention
of Mr. Manchanda that Clause (b) of Rule 32 is beyond the rule making power of
the Central Government under Section 23 (1) (d) of the Act. It is well known
that in many cases in business the name and address of a manufacturer, or
importer, or vendor or packer has become associated with the character, quality
or quantity of the article and as such we are of the opinion that Clause (b) of
Rule 32 is a valid rule. In this case, as pointed out by Mr. Manchanda there
has been a substantial compliance with that rule by the appellants giving in
the label the address as "Mohan Ghee Laboratories, New Delhi-5." But
according to the requirement of the rule, some more particulars will have to be
given, namely, the number of the premises and the locality or the area where
the premises is situate. This is the evidence adduced on behalf of the
prosecution also. Therefore, it can be said that there is a technical breach of
Clause (b) of Rule 32 inasmuch as full particulars, referred to above, have not
been given by the appellants in the label. No doubt, the appellants have been
convicted for breach of Clauses (b) and (e) of Rule 32 and a fine of Re. 1 has
been imposed. We have already held that Clause (e) of Rule 32 is invalid and
the appellants cannot be convicted for non-compliance of the same. Though there
is a technical breach of Rule 32(b), there is no indication available from the
judgments of the High Court and the subordinate courts that the appellants
would have been convicted for a technical breach of Rule 32(b) if there was no
charge under Clause (e) of Rule 32 also. On the other hand, more prominence is
given in the judgments to the violation of Rule 32 (e) and the inference is
that the conviction is substantially for a violation of the said rule. In the
circumstances of this case, we are of the view, that the appellants could not
be convicted for a technical breach of Rule 32(b) alone.
Therefore, the conviction of the appellants
for offences, under Rule 32(b) and (e) as well as the fine imposed in the sum
of Re. 1 for the said offence, are both set aside.
In the result, the appeal is accordingly
allowed and the judgment and order of the Delhi High Court in Criminal Revision
No. 371-D of 1965 are set aside. The fine, if collected, will be refunded.
V.P.S. Appeal allowed.
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