Municipal Corporation of Delhi Vs.
Shiv Shankar  INSC 40 (1 February 1971)
SIKRI, S.M. (CJ) BHARGAVA, VISHISHTHA
CITATION: 1971 AIR 815 1971 SCR (3) 607 1971
SCC (1) 442
Repeal-Implied-Prevention of Food
Adulteration Act, 1954Fruit Products Order, 1955-Sale of adulterated VinegarProsecution
under Adulteration Act-Competence-If Fruit Products Order impliedly repeals
The respondent, who was selling Vinegar under
a license granted under the Fruit Products Order, 1955, made by the Central
Government under s. 3 of the Essential Commodities Act, was prosecuted under
the Prevention of Food Adulteration Act. 1954, for selling adulterated vinegar.
He pleaded that vinegar, whether brewed or synthetic, being a food product and
standard specification for such vinegar being tabulated in Part XIV attached to
the Second Schedule of the Fruit Order, persecution without the previous
sanction of the licensing Officer as required by clause 15 of the said order
was incompetent. The trial judge rejected the contention. But the High Court
quashed the proceedings.
It was observed that the special provisions
of the Fruit Order had overriding effect and therefore a manufacturer of fruit
products could only be prosecuted under the provisions of the Fruit Order.
In the appeal to this Court it was contended
for the respondent that there was an irreconcilable conflict between the two
statutory provisions, and the Fruit Order being, not only of a date later than
the Adulteration. Act but also having, by virtue of s. 3(6) of the Essential
Commodities Act overriding effect over all other laws, it must prevail over the
Adulteration Act and the rules. On the question whether the Fruit Order
impliedly repeals the Adulteration Act,
HELD : The plea of implied repeal must fail
and the appeals must be allowed.
To determine if a later statutory provision
repeals by implication an earlier one it is necessary to scrutinise and
consider the true meaning and effect both of the earlier and the later statute.
If the objects of the two statutory provisions are different and the language
of each statute is restricted to its own object or subject, then they are
generally intended to run in parallel lines without meeting and there would be
no real conflict though apparently it may appear to be so on surface. [611 D-G]
The provisions of the Adulteration Act and the Fruit Order, for effectuating
their respective objects, have imposed, different restrictions in the
manufacture and sale of vinegar whether brewed or synthetic. in the interest of
public health the respondent has to comply with the provisions of the
Adulteration Act and Rules and in the interests of equitable distribution of
essential commodities including the articles of food covered by the Essential
Commodities Act and the Fruit Order they have to comply with the provisions of
the fruit Order. Both the provisions are supplementary and cumulative in their
operation and no provision of the Fruit Order is shown to be destructive of or
fatal to any provision of the Adulteration Act or the Rules made there under so
as to compel the court to hold that they cannot stand together. If the
Adulteration Act or Rules impose some restrictions on the manufacturer, dealer
and seller of vinegar, then they have to comply with them irrespective of the
fact that the Fruit Order imposes lesser number of restrictions in respect of
The former do not render compliance with the
latter impossible, nor does compliance with the former necessarily and
automatically involve violation ,of the latter. Even if both 'statutes to some
extent overlap, section 26 of the General Clauses Act fully protects the guilty
parties against double jeopardy or double penalty. [618 C-H] Om Prakash Gupta
V., State of U.P.,  S.C.R. 423, T. S. Baliali v. T. S. Rengachari, 1969 3
S.C.R. 65, State v. Gurcharan Singh, A.I.R. 1952 Punjab 89, and Paine v.
Stater,  11 Q.B.D. 120. ,referred to.
CRIMINAL APPELLATE JURISDICTION:, Criminal
Appeals Nos. 151 to 158 of 1966.
Appeals from the judgment and order dated
December 30. 1964 of the Punjab High Court, Circuit Bench at Delhi in Criminal
Revisions Nos. 81-D to 83-D, 107-D and 129-D to 132-D of 1964.
Bishan Narain, B. P. Maheshwari and N. K.
Jain, for the appellant (in all the appeals).
C. K. Daphtary, N. N. Goswami, K. L. Mehta
and S. K. Mehta, the respondent (in Cr. A. No. 151/1966).
K. L. Gossain, N. N. Goswami, K. L. Mehta and
S. K. Mehta, the respondent (in Cr. As. Nos. 152 to 158 of 1966).
S. K. Mehta for the intervener.
The Judgment of the Court was delivered by
Dua, J.-These eight appeals with certificate (Crl. Al)peals Nos. 151 to 158 of
1966) raise a common question of law and would, therefore, be disposed of by a
common judgment. In-deed, all the appeals in the Punjab High Court were also
disposed of by a learned single Judge of that Court sitting on circuit at Delhi
by a common judgment and another learned single Judge of the same Court
similarly certified the cases to be fit for ,appeal to this Court by a common
The only question canvassed at the bar
requiring determination by us is whether the respondent is liable to be
prosecuted under the Prevention of Food Adulteration Act, 37 of 1954 (hereafter
called the Adulteration Act) for selling adulterated vinegar when the vinegar
is being sold under a licence granted under the Fruit Products Order, 1955
(hereafter called the Fruit Order) made by the Central Government under s. 3 of
the Essential Commodities Act. The High Court has relying on an unreported
Bench decision of the Punjab High Court in State v. RaJ Kumar (Crl. A. 996 f
1961 decided on October 29, 1962) held that they cannot be prosecuted. It was
argued in the High Court that the rules made under the Adulteration Act had
come into force after the enforcement of the Fruit Order and vinegar being
mentioned as an article of food in those rules, prosecution under both the
provisions of law was permissible. Reliance in support of this argument was
also placed on s. 26 of the General Clauses Act. This argument was not accepted
and it was observed that the special provisions of the Fruit Order had
overriding effect and, therefore, a manufacturer of Fruit Products could only
be prosecuted under the provisions of the Fruit Order. Prayer for reference to
a larger Bench for reconsideration of Raj Kumar's case (supra) did not find
favour with the learned single Judge.
In this Court the view taken in Raj Kumar's
case (supra) was sought to be supported by the learned counsel for the,
respondent. The provisions of the Fruit Order and of the Adulteration Act, it
was contended, could not harmoniously co-exist on the statute book, as
compliance with one would, in certain contingencies, result in violation of the
other some respects. With respect to the particular charges tried in the cases
in appeal, however, no attempt was made on behalf of the respondents to show
that there was any fatal conflict or inconsistency between the two provisions.
The question before us accordingly lies within a very narrow compass. The
appellant urged that there is no implied repeal of the Adulteration Act by the
Fruit Order in so far as the sale of vinegar is concerned, whereas the case of
the respondent is that there is an implied repeal and the respondents are not
liable to be prosecuted under the Adulteration Act for violating its
provisions. Shri Bishan Narain sought support for his submission from Om
Prakash Gupta v. State of U.P. (1) and T. S. Baliah v. T. S. Rangachari (2). In
the former case S. 5 (1 ) (c) of the Prevention of Corruption Act was held not
to repeal s. 409 I.P.C. The decision of the Punjab High Court (Khosla and
Falshaw, JJ.) in State v. Gurcharan Singh(3) holding to the contrary was
overruled. In the latter case s. 52 of the Income tax Act, 1922 was held not to
repeal s. 177, T.P.C.
It is unnecessary to refer in detail to the
facts of all the eight cases separately as no such reference was made by either
side at the bar. Shri Bishan Narain for the appellant, by way of illustra(1)
 S.C.R. 423 (2)  3 S.C.R. 65.
(3) A.I.R. 1952 Punjab 89.
610 tion made a passing reference to the
facts of Crl. Appeal No. 155 of 1966. From the record of that appeal we find
that samples of (i) sugar cane juice vinegar, (ii) vine (pure) vinegar and
(iii) pure jaman vinegar, were takes by a Food Inspector from the shop of the
respondent on October 17, 1960 and on the 'same having been found highly
adulterated and unfit for human consumption because of the presence of
sulphuric acid which is prohibited, complaints under ss. 7/16 of the Adulteration
Act were instituted by the Municipal Prosecutor in December, 1960. After the
prosecution evidence was recorded, the respondent Shiv Shanker applied to the
trial magistrate in October, 1963 praying that the prosecution be dropped. In
this application it was admitted that the prosecution had arisen out of a raid
dated October 17, 1960 at the promises of the accused "when allegedly
samples of vinegar were taken which are stated to be adulterated because of the
presence of sulphuric acid".
It was pleaded that-the petitioning accused
had secured in 1960 a licence under the Fruit Order and vinegar whether brewed
or synthetic being a food product and standard specification for such vinegar
being tabulated in Part XIV attached to the Second Schedule of the Fruit Order,
prosecution without the, previous sanction of the Licensing Officer as required
by cl. 15 of the said Order was unauthorised. Prosecution under the
Adulteration Act was on this ground pleaded to be incompetent. In the
application reliance in support of this plea was placed on the unreported Bench
decision of the Punjab High Court in Raj Kumar's case in which according to the
accused it had been held that a licensee under the Fruit Order could not be
prosecuted for any contravention of that Order or of the Adulteration Act
without the previous sanction of the Licensing Authority appointed under the
Fruit Order. The trial magistrate basing himself on an unreported single Bench
decision of the Punjab High Court and on s. 26 of the General Clauses Act rejected
this application. On revision, the Additional Sessions Judge relying on the
decision in Raj Kumar's, case (supra) made a reference to the High Court
recommending that the proceedings be quashed. J. S. Bedi, J., relying on Raj
Kumar's case (supra) quashed the proceedings. S. K. Kapur J., who certified the
case to be fit for appeal after quoting a passage from Raj Kumar's case (supra)
considered the question raised to be important enough for appeal to this Court.
The general principles governing implied
repeal appear to us to have long since been settled. The difficulty is normally
experienced in their application to a given case. From the passage quoted by
Kapur J., from the unreported Bench decision in Raj' Kumar's case (supra)
upholding the implied repeal of the Adulteration Act by the Fruit Order it
seems to us that the Division Bench did not correctly and fully grasp them. We
accordingly, 611 consider it proper to broadly restate the general rule. It was
laid in Paine v. Stater (1) that when two Acts are inconsistent or repugnant
the later will be read as having impliedly repealed the earlier. As the
legislature must be presumed in deference to the rule of law to intend to enact
consistent and harmonious body of laws, a subsequent legislation may not be too
readily presumed to effectuate a repeal of existing statutory laws in the
absence of express or at least clear and unambiguous indication to that effect.
This is essential in the interest of
certainty and consistency in the laws which the citizens are enjoined and
expected to. obey. The legislature, which may generally be presumed to know the
existing law, is not expected to intend to create confusion by its omission to
express its intent to repeal in. clear terms. The courts, therefore, as a rule,
lean against implying a repeal unless the two provisions are so plainly
repugnant to each other that they cannot stand together and it is not possible
on any reasonable hypothesis to give effect to both at the same time. The
repeal must, if not express, flow from necessary implication as the only
intendment. The provisions must be wholly incompatible with each other so that
the two provisions operating together would lead to absurd consequences, which
intention could not reasonably be imputed to the legislature. It is only when a
consistent body of law cannot be maintained without abrogation of the previous
law that the plea of implied repeal should be sustained. To determine if a
later statutory provision repeals by implication an earlier one it is accordingly
necessary to closely scrutinise and consider the true meaning and effect both
of the earlier and the later statute. Until this is done it cannot be
satisfactorily ascertained if any fatal inconsistency exists between them. The
meaning, scope and effect of the two statutes, as discovered on scrutiny,
determines the legislative intent as to whether the earlier law shall cease or
shall only be supplemented. If the objects of the two statutory provisions are
different and the language of each statute is restricted to its own objects or
subject, then they are generally intended to run in parallel lines without
meeting and there would be no real conflict though apparently it may appear to
be so on the surface. Statutes in pari materia although in apparent conflict
should also so far ,is reasonably possible, be construed to be in harmony with
each other and it is only when there is an irreconcilable conflict between the
new provision and the prior statute relating to the same subject matter, that
the former, being the later expression of the legislature, may be held to
prevail, the prior law yielding to the extent of the conflict. The same rule of
irreconcilable repugnancy controls implied repeal of 'a general by a special
The subsequent provision treating a phase of
the same genera subject matter in a more minute way may be intended to imply
repeal pro-tanto of the (1)  11 Q.B.D. 120.
612 Repugnant general provision with which it
cannot reasonably co, exist. When there is no inconsistency between the general
and the special statute the latter may well be construed as supplementary.
In the light of these broad guidelines we may
now examine the two statutes as they stood in 1960 because the cases with which
we are concerned relate to that year. The history and the scheme of the two
statutory provisions would be helpful in discovering the legislative intent on
the question of implied repeal. Turning first to the Adulteration Act, it was
enacted by the Parliament to make provision for the prevention of adulteration
of food and it came into force on June 1, 1955. Previously corresponding laws
on adulteration of foodstuffs were in force in different States, having been
enacted by their respective legislatures. All those laws were repealed by s. 25
of the Adulteration Act. It may be pointed ,out that under the Government of
India Act, 1935 "adulteration of foodstuffs and other goods" was a
provincial subject whereas under the Constitution it is included in the
Concurrent List. Section 2(i) of this Act which defines the word
"adulterated" consists of several sub-clauses. One of these
sub-clauses is (1) according to which "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 present in quantities Which are in
excess of the prescribed limits of variability". Clause (v) of s. 2
defines "food" to mean "any article used as food or drink for
human consumption other than drugs and water and includes : (a) any article
which ordinarily enters into or is used in the composition or preparation of
human food, and (b) any flavouring matter or condiments. According to cl. (ix)
an article of food shall be deemed to be "misbranded" if it falls
within an) one of the sub-clauses (a) to (k). It is not necessary to reproduce
all these sub-clauses. "Package" has' been defined in cl. (X) to mean
"a box, bottle, casket, tin, barrel, case, receptacle, sack, bag, wrapper
or other thing in which an article of food is placed or packed". We have
referred to the definitions of "misbranded" and " package"
because one of the cases before us (Crl. A. 154 of 1966) is a case of alleged
misbranding, the remaining seven cases being ,of alleged adulteration.
Section 5 prohibits import of, inter alia,
adulterated and misbranded food and all articles of food in contravention of
any provision of the Act or of any rules made there under.
Section 7 prohibits manufacture for sale or
store and also sale and distribution of, inter alia, adulterated and misbranded
food land of articles of food, in contravention of the Adulteration Act and the
Rules made there under.
Section 8 provides for appointment of Public
Analysts and s. 9 for the appointment of Food Inspectors. The powers of Food
Inspectors are contained in S. 10. He possesses very wide powers for the
purpose of effectively achieving the statutory object of preventing the
manufacture, sale and distribution etc., of adulterated articles of food. The
procedure for taking samples of food by the Food Inspector for analysis is
prescribed in s. 11 and the report of the Public Analyst is made admissible by
s. 13. The proviso to sub-s. (5) of s. 15 makes the certificate signed by the
Director of Central Food Laboratory final and conclusive proof of the facts
stated therein. The Central Food Laboratory is established by the Central
Government under s.
4 for the purpose of carrying on functions
entrusted to it by the Adulteration Act or by the Rules made there under.
Section 16 provides for penalties for offences
under the Adulteration Act and cl. (a) of sub-s. (1) makes it an offence for
any person, whether by himself or by any person on his behalf to import into
India or manufacture for sale or to store, sell or distribute any article of
food in contravention of any of the provisions of the Act or of any rules made
there under. In the prosecution for an offence pertaining to the sale of an
adulterated or misbranded article of food s. 19 makes impermissible the defence
that the vendor was ignorant of the nature, substance or quality of the food
sold by him or that the purchaser having purchased an article for analysis was
not prejudiced by the sale. Section 20 prohibits cognizance and trial of
offences under the Act except when prosecution is instituted by or with the
written consent of the State Government or a local authority or a person
authorized in this behalf by such Government or authority. Under the proviso to
this section a purchaser referred to in s. 12, is, however, empowered to
institute a prosecution if he produces in court a copy of the report of the
Public Analyst along with the complaint.
Section 21 overrides s. 32, Cr.P.C. in the
matter of sentence to be passed under this Act by the Presidency Magistrates or
Magistrates of 1 Class, trying offences under the Act. Section 23 confers on
the Central Government wide powers to make rules under the Act after consulting
the Central Committee for Food Standards appointed by the Central Government
under s. 3. Section 24 empowers the State Government, (after consultation with
the Central Committee for Food Standards and with previous publication) to make
rules for giving effect to the provisions of the Act in matters not covered by
s. 23. Various States have actually framed rules under this section.
We may now briefly refer to the Prevention of
Food Adulteration Rules, 1955 (hereafter called the Adulteration.Rules).
These rules were made by the Central
Government under s.
4(2) and s. 23(1) of the Adulteration Act and
were published in the Official Gazette as per notification dated September 12,
1955. The rules other than those contained in Part III Appendix B-Item A.12
Margarine, Part VI and Part VII came into force on the date of 614 their
publication in the Official Gazette : the rules contained in Part III, Appendix
B, Item A.12 Margarine came into force on June 1, 1956 and the rules contained
in Part VI and Part VII came into force on December 1, 1956-: vide r. 1(3).
Under S. 23(2) (prior to its amendment in 1964) all rules made under sub-s. (1)
had to be laid as soon as possible before both Houses of Parliament. By Act 49
of 1964 sub-s. (2) was amended so as to provide for every rule made under
sub-s. (1) to be laid before each House of Parliament while in session, for a
total period of 30 days in order to afford an opportunity to the two Houses to
study and to modify or annul it for, future if both Houses so agree. We have
referred to this amendment as some of the rules were amended thereafter. The
effect of the subsequent amendment of some of the rules will be noticed later.
The Adulteration Rules clearly bring out the anxiety of their authors to see
that wholesome food is sold to the citizens.
The duties and powers of Food Inspectors as
contained, inter alia, in rr. 9 and 1 3, broadly illustrate this anxiety.
These rules also indicate that the framers of
the Rules were not unaware of the different provisions of the Fruit Order.
By way of illustration reference may be made
to r. 50 which prescribes conditions of licence to manufacture, sell, stock,
distribute or exhibit certain articles of food. In cl. (1) of sub-r. (1) of
this rule the fruit-products covered under the Fruit Order and some other
articles have been excluded from the operation of this rule. This clause was
amended twice, once in November, 1956 and again in April, 1960. Had the
Adulteration Act been intended to be impliedly repealed by the Fruit Order
(which would also mean implied repeal of the rules) it would have been
unnecessary to expressly exclude such fruit-products from the operation of this
rule. Rule 5 and Appendix B of these Rules came into force on December 1, 1956
after the promulgation of the Fruit Order. According to r. 5 the standard of
quality of the various articles of food specified in Appendix B are as
specified therein. In Appendix B item at sl. no. A.16 deals with "fruit
products". But the articles of fruit products dealt with in A. 16.01 to A.
16.12 clearly show that vinegar is not included in the expression "fruit
products". Vinegar is dealt with in A.20 and synthetic vinegar in A.20.01.
Both these items were added in April, 1960.
We may now turn to the Essential Commodities
Act, 10 of 1955 and the Fruit Order. The Essential Commodities Act was enacted
in 1955 with the object of providing, in the interests of the general public,
for the control of the production, supply and distribution of, and trade and
commerce in, certain commodities. It came into force on April 1, 1956 repealing
the Essential Commodities Ordinance No. 1 of 1955 which had been promulgated
with the same object and enforced on January 26,1955, the date of the expiry of
the Essential Supplies (Temporary) Powers Act 26 of 1946. The last named Act
had replaced the Essential Supplies (Temporary Powers) Ordinance No. XVIII of
1946 which had come into force on October 1, 1946. That Ordinance was
promulgated with the object of continuing, during a limited period, powers to
control the production, supply and distribution of, and trade and commerce in,
foodstuffs and certain other commodities. To empower the Indian Legislature to
enact law on this subject matter the British Parliament had passed India
(Central Government and Legislation) Act, 1946(9 and 10 Geo. Vl, c.39). The
lndian Legislature not being in session the Ordinance was promulgated to meet
the emergency and this was replaced by Act 26 of 1946. Reference has been made
by us to this past history for the purpose of indicating the different objects
and purposes intended to be achieved by the two legislative measures. Section 2
of the Essential Commodities Act which is the definition section defines in cl.
(a) "essential commodity to mean any of the classes of commodities stated
in sub-cls. (i) to (xi). Sub-clause (v) refers to "foodstuffs, including
edible oil-seeds and oils" and cl.
(xi) confers power on the Central Government
to declare by a notified order any other class of commodity to be an essential
commodity for the purposes of the Act, being a commodity with respect to which
Parliament has power to make laws by virtue of Entry 33 in List III in the 7th
Schedule to the Constitution. Section 3 of the Act confers on the Central
Government power to control production, supply, distribution etc., of essential
commodities by providing, by an order, for regulating or prohibiting the
production, supply and distribution of those commodities and trade and commerce
therein. Every order made under this section has to be laid before both Houses
of Parliament as soon as may be after it is made. By virtue of s. 6 Orders made
under s. 3 have effect notwithstanding anything inconsistent there, with
contained in any enactment other than the Essential Commodities Act. Section 7
provides for penalties for contravention of orders made under s. 3. Under s. 11
courts are prohibited from taking cognizance of offences punishable under this
Act except on a report in writing of the facts constituting such an offence
made by a person who is a public servant as defined in s. 21, I.P.C. Section 12
of this Act vests in the Presidency Magistrates and Magistrates of 1 Class
power to pass sentences of fines exceeding Rs.
1,000/on convicted persons notwithstanding
the restriction in this respect imposed on their powers by s. 32, Cr.P.C. As
already noticed earlier, an ordinance called the, Essential Corn modifies
Ordinance, 1 of 1955 had been promulgated on the expiry of the Essential
Commodities (Temporary Powers) Act and the present Act was passed to replace
6 16 It may appropriately be pointed out at
this stage that it was not the respondent's case that the Essential Commodities
Act had the effect of impliedly repealing the Adulteration Act for the purposes
of these cases. The only argument urged was that the Fruit Order had that
effect and its overriding effect by virtue of S. 3 of the Act was strongly
emphasised. We may now turn to the Fruit Order (S.R.O. 1052 dated 3rd May, 1955
published in the Gazette of India dated 14th May, 1955) which was made by the
Central Government in exercise of the powers, conferred on it by s. 3 of the
Essential Commodities Act. Clause (2) of this Order, which is the definition
clause, defines the expression "fruit product" in sub-cl. (d) and
"vinegar, another brewed or synthetic" is included in this expression
as per item (ii) of this sub-clause. "Licensing Officer" as defined
in subcl. (g) means the Agricultural Marketing Adviser to the Government of
India and it includes any other Officer empowered in this behalf by him with
the approval of the Central Government. "Manufacturer" as defined in
(h) means a licensee engaged in the business
of manufacturing in fruit products for sale and includes a person purchasing
such fruit products in bulk and repacking them for sale either by himself or
through someone else.
Clause 4 prohibits all persons from carrying
on business of manufacture except and in accordance with the terms of an
effective licence granted to him under this Order in Form "B". Clause
5 prescribes procedure for applications for the grant of a licence under cl. 4.
Clause 7 enjoins the manufacturers to manufacture fruit products in conformity
with the sanitary requirements and the appropriate standard of quality and
composition specified in the Second Schedule to the Order and cl. 8 lays down
the requirements to be complied with by the manufacturers in regard to the
packing, marketing and labelling of containers, of fruit products.
Clause 10 prohibits sale, exposure for sale,
despatch or delivery to any agent or broker for the purpose of sale, any fruit
products which do not conform to the standard of quality and composition specified
in the Second Schedule or which are not ,packed, marked and labelled in the
manner laid down in the Order: ,the proviso to this clause contains directions
for fruit products imported into India. Clause 12 contains a mandate for every
manufacturer to comply with the directions and orders issued to him and failure
to do so is to be deemed to be a contravention of the provisions of the Order.
According to cl. 15 no prosecution for contravention of any of the provisions
of this Order is to be instituted without the previous sanction of the
The object and purpose of the Adulteration
Apt is to eliminate the danger to human life and health from the sale of
unwholesome articles of food. It is covered by Entry 18, List III of the 7th
Schedule to the Constitution. The Essential Commodi617 ties Act on the other
hand has for its object the, control of the production, supply and distribution
of, and trade and commerce in,. essential commodities and is covered by Entry
33 of List III. In spite of this difference in their main objects, control of
production and distribution of essential commodities may, to an extent from a.
broader point of view include control of the quality of the essential articles
of food and, thus considered, it may reasonably be urged that to some extent it
covers the same field as is covered by the provisions of the Adulteration Act.
The two provisions may, therefore, have within these narrow limits co-terminus
fields of operation. On this premise we have to see if the two provisions can
stand together having cumulative effect and in case they cannot, which
provision has the overriding or controlling effect. It is needless to point out
that they can stand together if the powers are intended to be exercised for
different purposes without fatal inconsistency or repugnancy.
At the bar Shri Daphtary in his usual
persuasive manner argued that there is an irreconcilable conflict between the
two statutory provisions and the Fruit Order being, not only of a date later
than the Adulteration Act but also having, by virtue of s. 3(6) of the
Essential Commodities Act, overriding effect over all other laws, it must
prevail over the Adulteration Act and Rules. He pointed out that under the
Fruit Order the prosecution can be instituted only with the previous sanction
of the Licensing Officer whereas under the Adulteration Act even a purchaser
may, without any such sanction, institute a prosecution merely by producing
along with his complaint a certificate from the Public Analyst.
He also drew our attention to s. 20-A of the
Adulteration Act according to which, unlike the Fruit Order, the Court trying
an offence under that Act is empowered to implead the manufacturer, distributor
or dealer of any article of food, it is satisfied that he is also concerned
with, that offence, and proceed against him as though the prosecution had been
instituted-against him under s. 20. We do not think this section in any way
reflects the legislative intention of implied repeal of the Adulteration Act by
the Fruit Order. The two statutory provisions can operate within their
respective spheres without giving rise to any absurdity or such grave
inconvenience as would impel the court to sustain the plea of implied repeal.,
Incidentally it may also be pointed out that this section was added by Act 49
of 1964 which came into force on March 1, 1965 long after 1960 when the present
cases were started. Shri Daphtary developed his argument by adding that if the
respondents have manufactured for sale and have sold vinegar in accordance with
the terms of the licence granted to them under the Fruit Order then imposition
of further restrictions under the Adulteration Act and Rules with a threat of
severe penal consequences for violation of those provisions would 618 be in
direct conflict with the mandate or directions under the Fruit Order. The
counsel contended that at least the freedom to manufacture and sell vinegar as
permitted by the Fruit Order is curtailed or further circumscribed by the
Adulteration Act and Rules and this must necessarily cut across the provisions
of the Fruit Order. He illustrated his point by submitting that under the Fruit
Order use of colouring matter is more liberal than under the Adulteration Act
and Rules. In view of these conflicting provisions the Adulteration Act and
Rules, according to Shri Daphtary must be held to have been impliedly repealed
by the Fruit Order.
We are unable to agree with this submission.
The two statutory provisions, for the purpose of effectuating their respective
objects, have imposed ,different restrictions on the respondents when they
manufacture and sell vinegar whether brewed or synthetic. We are, however,
'.Informed at the bar that in the present case the disputed vinegar is
synthetic. In the interest of public health the respondents have to comply with
the provisions of Adulteration Act and Rules and in the interests of equitable
distribution of essential commodities including the articles of food covered by
Essential Commodities Act and the Fruit Order they have to comply with the
provisions of the Fruit Order. The provisions of the Adulteration Act and of
the Fruit Order to which our attention was drawn seem to be supplementary and
cumulative in their operation and no provision of the Fruit Order is shown to
be destructive of or fatal to any ,provision of the Adulteration Act or the
Rules made thereunder So as to compel the court to hold that they cannot stand
together. If the Adulteration Act or Rules impose some restrictions on. the
manufacturer, dealer and seller of vinegar then they have to comply with them
irrespective of the fact that the Fruit Order imposes lesser number of
restrictions in respect of these matters. The former do not render compliance
with. the latter impossible, nor does compliance with the former necessarily
and automatically involve violation of the latter. Indeed, our attention was
not drawn to any provision of the Adulteration Act and Rules, compliance with
which would result in breach of any mandate, whether affirmative or negative,
of the Fruit Order. We are, therefore, unable to find any cogent or convincing
reason for holding that the Parliament intended by enacting the Essential
Commodities Act or the Fruit Order to implidely repeal the provisions of the
adulteration Act and the Rules in respect the statutes can function with full
the provisions of the Adultera of the vinegar in dispute. Both vigour side by
side in their own parallel channels. Even if they happen to some extent to
overlap. s. 26 of the General Clauses Act fully protects the guilty parties
against double jeopardy or double penalty.
This section lays down that where an Act or
omission constitutes an,' offence under two or more enactments then the
offender shall be liable to be prosecuted and punished under either or any of
those enactments but shall not 619 be liable to be punished twice for the same
offence. If, therefore, the provisions of the Adulteration Act and those of
Fruit Order happen to constitute offences covering the same acts or omissions
then it would be, open to the prosecuting authorities to punish the offender
under either of them subject to the only condition that a guilty person should
not be punished twice over.
There is also another aspect which has to be
kept in view.
Both the Adulteration Act and the Essential Commodities
Act have been amended from time to time after their enactment.
Being governed by Entries in List III of the
7th Schedule even the States have power to amend these enactments and indeed
they have been so amended in some States. The subsequent amendments of the
Adulteration Act and of the Essential Commodities Act by the Parliament and the
amendment of the Adulteration Rules would also tend to negative any legislative
intendment of implied repeal of the Adulteration Act by the Essential Commodities
Act or the Fruit Order. It may be recalled that cl. (1) of sub-r. (1) of r. 50
of the Adulteration Rules was amended in 1956 and again in 1960 and the amended
clause is indicative of the rule making authority being conscious of both the
statutory provisions being operative in their respective fields at the same
time, thereby negativing implied repeal. A.20 dealing with "vinegar"
was also added in Appendix B of the Adulteration Rules in 1956 and A. 20.01
dealing with " synthetic vinegar" was added in April, 1960. A passing
reference may also be made to some of the relevant amendments in some rules
made subsequent to the enforcement of the amended section 23 (2). In r. 55 in
items at sl.nos. 19 and 20, dealing with pickles and chutnies made from fruit
or vegetables and with tomato and other sauces, respectively, the preservatives
mentioned in cl. 2 were amended. Similarly in r. 51(2) the table containing
articles like fruit and vegetable juices including tomato juice was amended.
Both the above amendments were made in December, 1965. It may here be pointed
out that pickles, chutnies, tomato products, kutchups, sauces and also other
unspecified items relating to fruits or vegetables are included in the
definition of "fruit product" under the Fruit Products Order. These
amendments, though made after 1960, do seem to further negative the intendment
of implied repeal as argued on behalf of the respondent. In view of the
foregoing discussion it seems to us that the two statutory provisions can
harmoniously operate without causing confusion or resulting in absurd
consequences' and the scheme of the Adulteration Act and Rules can without
difficulty fit into the scheme of the Fruit Order under the Essential
Commodities Act. The challenge on the ground of implied repeal must, therefore,
Incidentally we may note that the view taken
by the learned single Judge in this case was later overruled by a Full Bench of
the 918 Sup. C.I./71 620 Delhi High Court in Municipal corporation v. Harnarain
(Crl.A. No. 163 of 1967 decided in May, 1969).
Shri Daphtary, as a last resort, tried to
press into service Art. 14 in his challenge to the prosecution of the
respondent. According to him the prosecuting authorities have an unguided
licence to prosecute his clients under one or the other statute and since the
penalty under the Adulteration Act is more severe than that under the Fruit
Order the principle of equality before the law is violated As this point was
not taken in any of the courts below we did not permit him to raise it in this
Court. It would, however, be open to the respondent, if so advised, to raise
this point in accordance with law in the court below, because the cases have
not yet been finally disposed of.
The competence of the prosecution having been
challenged at an intermediate stage, the cases will have to go back to the
trial court. As these cases have been pending since 1962 the trial court should
dispose them of with due dispatch and without any further avoidable delay.
The appeals are accordingly allowed and the
cases remitted to the trial court for further proceedings according. to law in
the light of the observations made above.
R.K.P.S. Appeals allowed.