State of Uttar Pradesh Vs. Kartar
Singh [1964] INSC 30 (6 February 1964)
06/02/1964 AYYANGAR, N. RAJAGOPALA AYYANGAR,
N. RAJAGOPALA SINHA, BHUVNESHWAR P.(CJ) SARKAR, A.K.
WANCHOO, K.N.
GUPTA, K.C. DAS
CITATION: 1964 AIR 1135 1964 SCR (6) 679
CITATOR INFO:
RF 1966 SC 128 (16) F 1971 SC2346 (12) R 1974
SC 1 (24) R 1974 SC 228 (16) R 1978 SC 933 (9)
ACT:
Constitution of India-Prevention of Food
AdulterationFixation of Reichert value of ghee for different States of India-If
unreasonable or discriminatory-Constitution of India, Art. 14-Prevention of
Food Adulterations Act, 1954, ss. 7, 16(1)(a) (i), 23-Prevention of Food
Adulterations Rules, 1955, r. 5, Appendix B A-11, item 14.
HEADNOTE:
The respondent was tried for the commission
of an offence under s. 7 read with s. 16(1)(a)(i) of the Prevention of Food
Adulteration Act, 1954 for selling adulterated ghee.
The analysis of the ghee had disclosed that
it had a Reichert Value of only 22-5 whereas the minimum Reichert value fixed
for Uttar Pradesh, where the respondent sold the ghee, was 28. The defence of
the respondent was that he had obtained the ghee which he sold from Jodhpur
where the Reichert value fixed was only 22 and that the sample must be held not
to be adulterated on the basis of the decision of the Allahabad High Court in
State v. Malik Ram, A.1,R. 1962 All. 156. This decision laid down that a distinction
should be made between ghee obtained from cattle in the hill districts and ghee
obtained from cattle in the plains and that ghee obtained from the hill
districts of U.P. cannot be held to be adulterated if its Reichert value was
equal to that prescribed for Himachal Pradesh which is a hilly area.
It was the contention of the respondent that
his ghee was admittedly pahadi ghee and therefore this decision would apply.
The First Class Magistrate rejected these
contentions and convicted him and sentenced him to six months' R.I. and a fine
of Rs. 500. On appeal the Sessions Judge concurred in the findings of the trial
court but reduced the sentence.
The respondent thereupon filed a Criminal
Revision Petition before the High Court. The High Court agreed with the courts
below that the ghee was not Jodhpur ghee but it was produced locally. But it
held that the Reichert values as fixed were not based on any reasonable
classification and therefore it was sufficient if a vendor satisfied the
minimum standard prescribed for any area in the country and since the minimum
prescribed for certain areas is 21 and since the ghee in question had 22-2 the
respondent was not guilty of the offence charged. The State thereupon appealed
to this Court by way of a certificate under Art. 134(1)(e) of the Constitution.
It was urged by the appellant that the High
Court was wrong in striking down or re-drafting the rules framed by the Central
Government in the manner in which the High Court has done purporting to invoke
680 Art. 14 of the Constitution and virtually setting up what the High Court
considered was the reasonable standard.
Held: (i) Where the Government have
prescribed certain standards after taking into considerations various factors
the court cannot strike down these standards as unreasonable or discriminatory
merely on some priori reasoning. It can do so only by basing its decision on
materials placed before it by way of scientific analysis. The party invoking
Art.
14 must make averments with details to
sustain such a plea and lead evidence to establish his allegations. In the
absence of such plea and evidence the court cannot accept the statement of a
party as to the unconstitutionality of a rule and refuse to enforce that rule
as it stands merely because in its view the standards are too high and for this
reason the rule is unreasonable.
(ii) Applying these principles it is found
that the case State v. Malik Ram (A.I.R. 1962 All. 156) was wrongly decided by
the Allahabad High Court. In the case under appeal the High Court took the
matter a step further and adopted the lowest Reichert value prescribed for any
area in the country as what should be adopted for every other area in the
country disregarding the rules. Hence the High Court was wrong in allowing the
revisions.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 164 of 1962.
Appeal from the judgment and order dated May
2, 1962, of the Allahabad High Court in Criminal Revision No. 1579 of 1961.
O. P. Rana and C. P. Lal, for the appellant.
Harnam Singh Chadda and Harbans Singh, for
the respondent.
February 6, 1964. The Judgment of the Court
was delivered by AYYANGAR J.-This appeal which comes before us on a certificate
of fitness granted by the High Court of Allahabad under Art. 134(1)(c) of the
Constitution, is against a judgment of that Court acquitting the respondent
Kartar Singh of an offence under s. 7 read with s. 16 (1)(a) (i) of the Prevention
of Food Adulteration Act, 1954 which may be conveniently referred to as the
Act.
681 The facts giving rise to the prosecution
are briefly these:
The respondent runs a shop at Haldwani and
among the products sold by him is ghee. On March 19, 1960 a quantity of the
ghee was purchased by the Food Inspector of the area and he put samples of the
purchase into three phials which were sealed in the respondent's presence. It
may be mentioned that even in the seizure memo the Food Inspector noted the
ghee purchased by him as "pahadi ghee". One of the samples was
forwarded to the Public Analyst to the Government of Uttar Pradesh for analysis
forascertaining whether the said ghee was adulterated.The analysis disclosed
that in several respects the samplewas substandard and that in particular it
had a ReichertValue of 22-5 as against the prescribed minimum of 28 for ghee in
Uttar Pradesh. After setting out the details of the analysis, the Public
Analyst expressed the opinion that the sample "contained a small
proportion of vegetable fat or oil foreign to pure ghee". On receipt of
this report, the Medical Officer of Health, Haidwani sanctioned the prosecution
of the respondent and a complaint was thereafter laid before the Magistrate 1st
Class by the Food Inspector.
The respondent pleaded not guilty and entered
on his defence. Subsequently, the second sample was got analysed by the
Director, Central Food Laboratory, who reported that his analysis disclosed a
Reichert Value of 21-7 as against 22-5 of the Public Analyst. The opinion
expressed by him as regards the sample of ghee which he analysed was the same
as that of the Public Analyst, viz., that the sample was adulterated.
The defence of the respondent who admitted
that he had sold the ghee, samples of which were the subject of analysis, but
denied it was adulterated, was two-fold: (1) He had obtained the ghee which he
sold from Jodhpur, (2) The sample must be held not to be adulterated on the
basis of the decision of the Allahabad High Court in State v. Malik Ram(1).
The plea by the respondent regarding the ghee
sold having come from Jodhpur was made because if this were established under
the rules framed under the Act, to which (1) A.I.R. 1962 AU. 156.
682 we shall later refer, the minimum
Reichert value prescribed for ghee in the Jodhpur area was 21 and that minimum
requirement was satisfied by the sample analysed. The respondent led evidence
to prove his purchase from Jodhpur but the learned Magistrate did not accept
this case.
The other defence was a point of law relying
on the decision of a Division Bench of the Allahabad High Court reported as
State v. Malik Ram(1). The learned Judges who decided that case drew a
distinction between ghee obtained from Cattle in the hill districts of Uttar
Pradesh and those from cattle in the plains. This decision was relied on by the
respondent because the ghee sold by him was noted as 'pahadi ghee' by the Food
Inspector. The learned Judges held that notwithstanding the terms of the rules
to which we shall later refer, ghee obtained from hilly areas of Uttar Pradesh
like Kumaun hills, could not be held to be adulterated if its Reichert value
was equal to that prescribed for Himachal Pradesh which was mostly a hilly
area. They therefore held that though the rules under the Food Adulteration Act
prescribed a minimum Reichert value of 28 for ghee for the entire State of
Uttar Pradesh, still if ghee from hill areas of the Uttar Pradesh State reached
a minimum of 26 Reichert value, such ghee would not be "adulterated
ghee". We shall consider the correctness of this decision after completing
the narrative of the proceedings. The learned Magistrate held that this
decision did not affect the present case because the Reichert value of the
respondent's ghee was less than 26.The Magistrate therefore convicted the respondent
andsentenced him to rigorous imprisonment for a period of sixmonths and a fine
of Rs. 500 and in default to furtherimprisonment for three months.
The respondent preferred an appeal to the
Sessions Judge Kumaon, and raised the same pleas and defences as he put forward
before the learned Magistrate. The Sessions Judge concurred in the finding of
the Magistrate regarding the story of the respondent having bought the ghee
from Jodhpur, and he also agreed with the Magistrate about the effect of the
decision of the Division Bench of the High Court which was also relied on
before him. The (1) A.I.R. 1962 All. 156.
683 Sessions Judge, however, while upholding
the conviction reduced the sentence of imprisonment from six months to one
month and the fine to Rs. 200.
The respondent thereupon filed a Criminal
Revision petition to the High Court under ss. 435 and 439 of the Criminal
Procedure Code. The learned Judge of the High Court agreed with the Courts
below on the finding of fact as regards the Jodhpur origin of the ghee
observing "as the file stands I am satisfied that this ghee was of local
origin". There was, of course, no point raised before him as regards the
correctness of the analysis. 'Me learned Judge, however, held that the basis on
which the Reichert value had been prescribed for the several areas in the
country was not based on any rational classification and he therefore held that
it was sufficient if any vendor of ghee in the country satisfied the minimum
standards prescribed for any area under these rules. As there were areas in the
country in regard to which a minimum Reichert value of 21 had been prescribed,
he held that the respondent was not guilty of adulteration and so directed his
acquittal. It is from this decision that the present appeal has been filed by
the State.
Before considering the point about the
standards prescribed under the Food Adulteration Act being violative of Art.
14, an Article which though not specifically mentioned, is apparently the
ground upon which the learned Judge has held that the prescription of the
Reichert value of 28 for Uttar Pradesh was unenforceable, it would be necessary
to set out the statutory provisions on which the decision of the present appeal
turns. The preamble to the Act describes it as one "to make provision for
the prevention of adulteration of food". Section 2 defines the word
'adulterated' as follows :
"An article of food shall be deemed to
be adulterated(i) 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;" 684 to read only the
portion that is material. Section 3 enables the Central Government to
constitute a committee for food standards and it runs "3.(1) The Central
Government shall, as soon as may be after the commencement of this Act,
constitute a Committee called the Central Committee for Food Standards to
advise the Central Government and the State Governments on matters arising out
of the administration of this Art and to carry out the other functions assigned
to it under this Act.
(2) The Committee shall consist of the
following members, namely:(a) the Director General, Health Services, ex
officio, who shall be the Chairman;
(b) the Director of the Central Food
Laboratory, ex officio;
(c) two experts nominated by the Central
Government;
(d) one representative each of the Central
Ministries of Food and Agriculture, Commerce and Industry, Railways and Defence
nominated by the Central Government;
(e) one representative each nominated by the
Government of each State;
(f) two representatives nominated by the
Central Government to represent the Union territories;
(g) two representatives of Industry and Commerce
nominated by the Central Government;
(h) one representative of the medical
profession nominated by the Indian Council of Medical Reserch".
685 Section 7 which prohibits the manufacture
and sale of adulterated food reads:
"No person shall himself or by any
person on his behalf manufacture for sale, or store, sell or distribute(i) any
adulterated food;......" Section 8 makes provision for State Governments
appointing Public Analysts and s. 9 for the appointment of Food Inspectors. The
next material provision is that contained in s. 13 which deals with the reports
of the analysis of food for the purpose of ascertaining whether there are
adulterated or sub-standard etc. Its first sub-section directs the Public
Analyst to make a report and under sub-s. (3) the Certificate issued by the
Director of the Central Food Laboratory under sub-s. (2) is to supersede the
report given by a Public Analyst under sub-s. (1). Section 16 provides for the
penalties for offences under the' Act. Section 23 confers on the Central
Government power to make rules but these rules have to be framed after
consultation with the Committee established under s. 3 and among the rules
which might be made are Section 23(1)(b)-defining the standards of quality for,
and fixing the limits of variability permissible in respect of, any article of
food;..............
"23. (2) All rules made by the Central
Government under this Act shall as soon as possible after they are made be laid
before both Houses of Parliament." Under the power conferred by s. 23, the
Prevention of Food Adulteration Rules, 1955, were promulgated.
Rule 5 which occurs in Part III of the
rules--headed "Definitions and Standards of quality"-specifies that
"the standards of quality of the various articles of food specified in
Appendix B to these rules are as defined in that appendix." Ghee is one of
the articles of food whose standards are prescribed in Appendix B, milk and
milk products being listed under head A-1 1. Ghee is dealt with in item 14 of
A-11 and the standard prescribed for it runs:
Ghee means the pure clarified fat derived
solely from milk or from curds or from cream to 686 which, no colouring matter
or preservative has been added. It shall conform to the following
specifications in Punjab, Uttar Pradesh, Bhopal Vindhya Pradesh, Bihar, West
Bengal (except Bishnupur) and PEPSU (except Mahendragarh):
(a)................
(b) Reichert Value Not less than 28.
(c).................
(d).................
In Madras, Andhra, Travancore-Cochin,
Hyderabad, Mysore, Orissa, Assam, Tripura, Manipur, Madhya Bharat, Bombay,
Himachal Pradesh, Mahendragarh District of PEPSU, Madhya Pradesh (except cotton
tract areas) and Rajasthan (except Jodhpur) the specifications will be the same
as above except that Reichert value shall be not less than 26.0.
In Saurashtra, Kutch, cotton tract areas of
Madhya Pradesh, Jodhpur Division of Rajasthan and Bishnupur Sub-division of
West Bengal the Reichert value shall not be less than 21 and the Butyro
refractometer reading at 40 degree C shall be between 41-5 to 45.0. The limits
for free fatty acids and moisture shall be the same as for ghee in Punjab,
PEPSU etc.
given above.
Explanation.-By cotton tract is meant the
areas in Madhya Pradesh where cotton seed is extensively fed to the cattle.
The learned counsel for the State has urged before
us that the learned Judge was not justified in striking down or redrafting the
rules framed by the Central Government in the manner in which he has done,
purporting to invoke Art. 14 of the Constitution, and in virtually setting up
what he considered was the reasonable standard of quality which should
determine whether the ghee sold by the respondent was adulterated or not. We
entirely agree with this submission.
Now, it is common ground that if the rules
were valid and the standards prescribed enforceable, the ghee 687 sold by the
respondent was 'adulterated' with the result that the respondent was guilty of
an offence under s. 7 read with s. 16 of 'the Act. The only question is whether
there was any material placed before the Court for refusing to apply the rules
for determining the standards of quality.
The standards themselves, it would be
noticed, have been prescribed by the Central Government on the advice of a
Committee which included in its composition persons considered experts in the
field of food technology and food analysis. In the circumstances, if the rule
has to be struck down as imposing unreasonable or discriminatory standards, it
could not be done merely on any apriori reasoning but only as a result of
materials placed before the Court by way of scientific analysis. It is obvious
that this can be done only when the party invoking the protection of Art. 14
makes averments with details to sustain such a plea and leads evidence to
establish his allegations. That where a party seeks to impeach the validity of
a rule made by a competent authority on the ground that the rules offend Art.
14 the burden is on him to plead and prove the infirmity is too well
established to need elaboration. If, therefore, the respondent desired to
challenge the validity of the rule on the ground either of its unreasonableness
or its discriminatory nature, he had to lay a foundation for it by setting out
the facts necessary to sustain such a plea and adduce cogent and convincing
evidence to make out his case, for there is a presumption that every factor
which is relevant or material has been taken into account in formulating the
classification of the zones and the prescription of the minimum standards to
each zone, and where we have a rule framed with the assistance of a committee
containing experts such as the one constituted under s. 3 of the Act, that
presumption is strong, if not overwhelming. We might in this connection add
that the respondent cannot assert any fundamental right under Art. 19(1) to carry
on business in adulterated foodstuffs.
Where the necessary facts have been pleaded
and established, the Court would have materials before it on which it could
base findings, as regards the reasonableness or otherwise or of the
discriminatory nature of the rules. In 688 the absence of a pleading and proof
of unreasonableness or arbitrariness the Court cannot accept the statement of a
party as to the unreasonableness or unconstitutionality of a rule and refuse to
enforce the rule as it stands merely because in its view the standards are too
high and for this reason the rule is unreasonable. In the case before us there
was neither pleading nor proof of any facts directed to that end. The only
basis on which the contention regarding unreasonableness or discrimination was
raised was an a priori argument addressed to the Court, that the division into
the zones was not rational, in that hilly and plain areas of the country were
not differentiated for the prescription of the minimum Reichert values. That a
distinction should exist between hilly regions and plains, was again based on a
priori reasoning resting on the different minimum Reichert values prescribed
for Himachal Pradesh and Uttar Pradesh and on no other. It was, however, not as
if the entire State of Himachal Pradesh is of uniform elevation or even as if
no part of that State is plain country but yet if the same minimum was
prescribed for the entire area of Himachal Pradesh, that would clearly show
that the elevation of a place is not the only factor to be taken into account.
At this stage it might be pointed out that
the test for Reichert or Reichert-Meissl value of ghee is one of the important
tests for detecting adulteration with certain vegetable oils by determining the
proportion of the volatile soluble acids in the ghee. The presence of the
adulterant disturbs the ratio existing in normal butter fat or ghee between
soluble and insoluble acids and volatile and nonvolatile acids. The Reichert
value of pure ghee is not constant, but is dependent on several factors-among
them the breed of the cattle to be found in an area, whether the cattle are
pasture fed or stall fed, and the nature of the additional feed given, the
nature of the terrain, the rainfall and climatic conditions etc. That the feed
available for the cattle is a very material and determining factor is apparent
even from the rules, for a distinction is drawn between different areas of
Madhya Pradesh depending on cotton seed being available for feeding the cattle.
It is on the basis of the conjoint effects of these and other factors which 689
obtain in the different areas, some pointing to a higher Reichert value and
others neutralising it and after extensive survey conducted from samples
collected and analysed during various seasons, that the country has been
divided into zones under the rule in Appendix 'B' and the minimum Reichert
value ascertained and prescribed for each.
From the fact that certain areas included in
some of the zones are hilly, it does not automatically follow that was the
potent factor or the only factor which was taken into consideration for
prescribing the standard for that region.
Without appreciating the several factors
which bear upon the Reichert value of the ghee produced in a locality and the
value attributed to each of these several relevant factors, it would not be
possible to pronounce upon the reasonableness or correctness of the
classification of the areas and the prescription of different standards to each
of them.
In State v. Malik Ram (1) a Division Bench of
the High Court held that because certain areas of Uttar Pradesh were hilly, the
Reichert value prescribed for the hilly areas like those in Himachal Pradesh
should be adopted and be given effect to notwithstanding there was no ambiguity
in the rules as regards the area where the prescribed standards should be
applicable. Except a principle which the Court deduced from the rules
themselves there was no material before the Court that the minimum standard
prescribed for Uttar Pradesh was defective in any respect. The approach adopted
by the learned Judges in Malik Ram's case appears to us to be a reversal of the
well-recognised principle that it is for those who challenge the
constitutionality of a statute or a statutory rule to allege and prove the grounds
of invalidity and the adoption of the contrary rule that when a party makes
such a challenge it is for those who seek to support it to sustain it by
positive evidence of its reasonableness and legality. The Court evolved from a
reading of the rules a principle that the standards vary with the elevation of
the place, without having before it any materials for such a conclusion save
what it considered was the rationale underlying the division into zones. As
already explained, even in Himachal Pradesh the elevation of every place is not
the same and there are areas which (1) A.I.R. 1962 All. 156.
134-159 S.C.-44 690 are higher than others
and so the test adopted does not even satisfy logic. We do not consider that
the Court was justified in practically legislating and laying down what the
rules should be rather than give effect to the law by adherence to the rules as
framed.
In the case now under appeal the learned
Judge took the matter a step further and he adopted the lowest Reichert value
prescribed for any area in the country as that which he would adopt for every
other area in the country disregarding the rules. We find no justification for
this either and, in fact, if the learned Judges in Malik Ram's case(1) were in
error in applying the Himachal standard to hilly areas of Uttar Pradesh, the
judgment now under appeal discloses even more error. We might add that if one
could legitimately discard the standard prescribed in the rules, as the learned
Judge has done, we do not see any principle in holding, as he seems to
indicate, that where the Reichert value is below 21 the ghee should be treated
as adulterated.
We, therefore, hold that the learned Judge
was not justified in allowing the revision of the respondent and acquitting
him.
The result is that the appeal is allowed, the
acquittal of the respondent is set aside and his conviction restored.
It was stated to us on behalf of the
respondent that of the imprisonment for one month to which the sentence passed
on him by the Magistrate was modified by the Sessions Judge, he had already
undergone a sentence of 18 days. He has been on bail practically since the
admission of his Revision Petition in the High Court. In the circumstances, we
consider that the sentence of imprisonment passed on him might be reduced to
the period already undergone. The sentence of fine imposed will, however,
stand.
Appeal allowed.
1) A.I.R. 1962 All. 156.
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