M. V. Krishnan Nambissan Vs. State of
Kerala  INSC 18 (18 January 1966)
18/01/1966 SUBBARAO, K.
CITATION: 1966 AIR 1676 1966 SCR (3) 373
Prevention of Food Adulteration Act (37 of
1954), ss. 7 and 16(1) (a) (i) and Prevention of Food Adulteration Rules, rr.
5, 44 and Appendix B--Butter-milk--Standard
of quality whether specified.
The appellant was the manager of a dairy
farm. He was charged with an offence under ss. 7 and 16(1) (a) (i) of the Prevention
of Food Adulteration Act, 1954, read with r. 44 of the Prevention of Food
Adulteration Rules, 1955, in that, he exposed for sale skimmed thick
buttermilk, which to analysis, was found to be adulterated with water to the
extent of 11 per cent, and had thus not maintained the standard prescribed for
butter-milk. The trial Court acquitted him on the ground that no standard of
quality was prescribed for buttermilk. On appeal, the High Court convicted him,
on the view that, the standard for milk has been fixed by the Rules, that the
same standard was made applicable to curd and that, as butter-milk was in
essence curd from which butter has been extracted, butter-milk should contain
the same quantity of solids-not fat as curd should contain.
In appeal to this Court,
HELD. Appendix B to the Prevention of Food
Adulteration Rules, which specifies the standards of quality of various
articles of food, shows that it is not an ingredient of the definition of
butter-milk that it should contain any particular percentage of solids-not-fat.
Wherever the rule making authority intended to prescribe a specific standard
for the contents of a product, it definitely stated so, but in the case of
butter-milk, no standard for 'contents either specifically or with reference to
other items is prescribed. The only requirement is that it shall be a product
obtained after removal of butter from curd by churning or otherwise. Therefore,
the appellant had not committed the offence with which he was charged. [377 C,
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 93 of 1964.
Appeal from the judgment and order dated
October 11, 1963 of the Kerala High Court in Criminal Appeal No. 153 of 1962.
R. Ganapathy Iyer, for the appellant.
P. Govinda Menon and M. R. K. Pillai, for the
The judgment of the Court was delivered by
Subba Rao, J. The appellant is the manager of the Palghat Depot of Messrs.
Nambissan's D. V. Dairy Farm. On July 20, 1961, one of the Food Inspectors
visited his depot and purchased from the second accused, the salesman in charge
of the depot, two 374 nazhies of "skimmed thick butter-milk" out of
the stock exposed for sale in the depot. He sent a sample of it for analysis to
the Public Analyst. The Analyst reported that the solids-not-fat content in the
said sample was 7.5 per cent, as against 8.5 per cent. prescribed for curd: he
was of the opinion that the sample contained not less than II per cent. of
added water. When the sample was analysed a few months later by the Central
Food Analyst, he reported that the solids-not-fat content in the sample was
only 6-4 per cent. Thereupon a complaint was filed in the Court of the District
Magistrate (Judicial), Palghat, against the appellant and his sales-man-we are
not concerned in this appeal with the charge against the sales-man. The charge
against the appellant was that he committed an offence under s. 16(1)(a)(i) and
s. 7 of the Prevention of Food Adulteration Act, 1954 (37 of 1954) hereinafter
called the Act, read with r. 44 of the Prevention of Food Adulteration Rules,
1955, hereinafter called the Rules. The charge against him was that he exposed
for sale "skimmed thick butter-milk" which on analysis was found to
be adulterated with water to the extent of II per cent. The learned District
Magistrate, on a consideration of the entire evidence placed before him, came
to the conclusion that the appellant was not guilty of the offence with which
he was charged: he held that no standard of quality was prescribed for
butter-milk and, therefore, the accused could not be convicted for the offence
under the Act and the Rules. On appeal, the High Court took the view that the
standard for milk had been fixed by the Rules, that the same standard was made
applicable to curd and that, as butter-milk was in essence curd from which
butter had been extracted, the butter-milk should contain the same quantity of
solids-not- fat as curd should contain. On this reasoning, the High Court held
that, as the sample showed only 6.4 per cent. of solids-not-fat content while
it should have contained 8.5 per cent. of it, the accused had committed the
offence under the said provisions and sentenced him to pay a fine of Rs. 100/-,
in default to suffer simple imprisonment for one month. Hence the present
appeal, by certificate.
Mr. R. Ganapathy Iyer, learned counsel for
the appellant, contended that the appellant was prosecuted for not maintaining
the standard prescribed for butter-milk and that, as no standard ,",as in
fact prescribed for the said product, the High Court went wrong in convicting
To appreciate this contention it is necessary
to notice the relevant provisions of the Act and the Rules.
Section 2(i)(1). 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 375 present in quantities which are
in excess of the prescribed limits of variability.
Section 7. No person shall himself or by any
person on his behalf manufacture for sale, or store, sell or distribute:
(i) any adulterated food:
(ii) any misbranded food;
(V) any article of food in contravention of
any other provision of this Act or of any rule made there under.
Section 16. (i) If any person- (a) whether by
himself or by any person on his behalf imports into India or manufactures for
sale, or stores, or distributes, any article of food in contravention of any of
the provisions of this Act or of any rule made there under.
he shall, in addition to the penalty to which
he may be liable under the provisions of s. 6, be punishable....
In exercise of the power conferred under s.
23 of the Act, the Central Government made rules defining the standard of
quality for, and fixing the limits of variability permissible in respect of,
any article of food. Rule 5 reads:
"Standards of quality of the various
articles of food specified in Appendix B to these Rules are as defined in that
Appendix." APPENDIX B A.11.01.Milk means the normal clean and fresh
secretion obtained by complete milking of the udder of a healthy cow, buffalo,
goat or sheep during the period following at least 72 hours after calving or
until colostrum free whether such secretion has been processed or not.
A.11.01.01.Cow milk shall contain not less
than 3.5 per cent of milk fat, except in Orissa, where it shall be not less
than 3 per cent and in Punjab and PEPSU where it shall be not less than 4.0 per
cent. The milk solids other than milk fat shall be not less than 8.5 percent.
A.11.01.02.Buffalo milk shall contain not
less than 5.0 per cent of milk fat except in Delhi, Punjab, PEPSU, Uttar
Pradesh, Bihar, West Bengal, Assam, Bombay and Saurashtra where it shall not be
less than 6 per cent. The Sup. CI/66-11 376 .lm15 milk solids other than milk
fat shall not be less than 9 per cent.
A.11.01.03.Goat or sheep milk shall contain
not less than 3.0 per cent of milk fat except in Madhya Pradesh, Punjab, PEPSU,
Bombay, Uttar Pradesh and Travancore Cochin where it shall be not less than 3.5
per cent. The milk solids other than milk fat, shall be not less than 9 per
Where milk, other than skimmed milk is sold
or offered for sale without any indication as to whether it is derived from
cow, buffalo, goat, or sheep the standard prescribed for buffalo milk shall
A.11.02.Skimmed milk, either fresh or
reconstituted, means milk from which all or most of the milk fat has been
removed by mechanical or any other process and includes "separated
milk" or "machine skimmed milk". The milk solids other than milk
fat shall be not less than 8.5 per cent.
A.11.03.Butter-milk means the product
obtained after removal of butter from curds by churning or otherwise.
A.11.05.(a) Table (creamery) butter means the
product prepared exclusively from milk, cream or curd of cow or buffalo or a
combination thereof with or without the addition of salt and coloured with
annatto and shall contain not less than 80 per cent of milk fat and not more
than 16 per cent of moisture. No preservative is permissible in table butter.
Diacetyl may be added for flavour but shall not exceed 4 parts per million.
(b)Deshi (cooking) butter means the product
prepared exclusively from milk, cream or curd of cow or buffalo or a
combination thereof, without the addition of any salt or any colour or any
preservative and intended exclusively for use in cooking or for preparation of
ghee. It shall contain not more than 20 per cent of moisture and not less than
76 per cent of milk fat. Where butter is sold or offered for sale without any
indication as to whether it is table butter or deshi butter, the standards of
quality prescribed for table butter shall apply.
A.11.06.Dahi or curd-(a) Whole milk dahi or
curd means the product obtained from fresh whole milk either of cow or buffalo
by souring. It shall not contain any ingredient not found in Milk except
sucrose and/or gur.
377 (b)Skimmed milk dahi or curd means the
product obtainedfrom skimmed milk either of cow or buffalo by souring. It shall
not contain any ingredient not found in milk,except sucrose and/or gur.
The standard of purity of dahi or curd shall
be the same as prescribed for the milk from which it is derived- Where dahi or
curd, other than skimmed milk dahi is sold or offered for sale without any
indication as to whether it is derived from cow or buffalo milk, the standards
prescribed for dahi prepared from buffalo milk shall apply.
It will be seen from the said provisions that
it is not an ingredient of the definition of butter-milk that it should contain
any particular percentage of solids-not-fat.
Indeed, no standard in regard to its contents
The only standard, if it may be described as
one, is that it shall be a product obtained after removal of butter from curd
by churning or otherwise. It is not suggested that the butter-milk in question
was not a product obtained in the manner described there under. Prime facie,
therefore, it follows that the appellant has not committed any offence with
which he: was charged, namely, that he had added water to the extent of II per
cent to the butter-milk.
Mr. Govinda Menon, learned counsel for the
State, contended that a fair reading of the definition of the various milk
products in Appendix B leads to an irresistible conclusion that for buttermilk
the same standard of solids-not-fat prescribed for curds would apply. It was
said that butter- milk was nothing more than curd from which fat had been
removed and, therefore, there was no reason why, apart from fat, the other
contents should be different from those found in the milk.
It will be seen from the definitions of the
various products in Appendix B to the Rules, which we have already extracted,
that wherever the rule-making authority intended to prescribe a specific
standard for the contents of a product, it definitely states so. The standards
of solids-not-fat are fixed for the milk of cow, buffalo, goat or sheep.
Though standards are, fixed for the said milk
products, in defining "skimmed milk", "deshi (cooking)
butter", and " skimmed milk dahi or curd" the standard of
quality is prescribed with reference to other products. But when we come to
buttermilk, no standard for its contents either specifically or with reference
to other items is prescribed.
A comparative study of the said items leaves
no room for doubt that the rule making authority, for reasons, which, we think,
are obvious has not thought fit or feasible to prescribe any such standard in
regard to the contents of butter-milk. We cannot by inference read something in
the definition of butter-milk which is not there. The reason for this omission
is presumably due to the fact that it is not possible to maintain in
butter-milk the same percentage of solids-not-fat content as is found in curds
or milk, for water will be added in the process of making butter-milk owing to
the fact that butter grains in the churn .are washed with cold water which will
run off into the butter- milk. Anyhow, we would prefer to rest our judgment on
the absence of fixation of any standard in respect of butter- milk rather than
on the process of conversion of curds into butter-milk. We should not be
understood to have expressed any view on the question whether a prosecution
could be launched for adulteration of butter-milk under some other clauses of
the definition of "adulterated" in s. 2 of the Act, for in the
present case the prosecution was only for not maintaining the standard.
In the result, the order of the High Court is
set aside and that -of the District Magistrate is restored. The fine, if it had
already been collected, shall be refunded Appeal allowed.