Kishan Chand Vs. Delhi Administration
& ANR [1979] INSC 43 (20 February 1979)
KOSHAL, A.D.
KOSHAL, A.D.
FAZALALI, SYED MURTAZA
CITATION: 1979 AIR 1128 1979 SCR (3) 313 1979
SCC (4) 709
ACT:
Prevention of Food Adulteration Rules, 1955-
r. 61- Scope of.
HEADNOTE:
Rule 60 of the Prevention of Food
Adulteration Rules, 1955 defines "emulsifying agents" and
"stabilising agents" to mean substances which, when added to food,
are capable of facilitating a uniform dispersion of oils and fats in acqueous
media or vice versa and/or stabilising such emulsions. One of the agents
mentioned, among others, in the rule is brominated vegetable oils. Rules 61
declares that no emulsifying or stabilising agents shall be used in any food
except where they are used as specifically permitted. The proviso to the rule
states that certain emulsifying or stabilising agents including brominated
vegetable oils shall not be used in milk and cream.
A food inspector visited an Ice-cream factory
and collected a sample of chocolate ice cream. In the inventory of the sample
prepared by him it was stated that "this is prepared of covering
chocolate, vegetable ghee and ice cream". The Public Analyst, to whom the
sample was sent for analysis, stated that the sample was adulterated "as
the butyro-refractometer reading at 40 degree C was found 6.4 in excess and the
Baudouin test was found positive of the extracted fat." The factory, its
owner and the employee who sold the ice-cream, were prosecuted under the
Prevention of Food Adulteration Act. The trial court acquitted the factory but
convicted and sentenced both its owner and the employee.
On appeal the Additional Sessions Judge
acquitted both the accused.
On further appeal the High Court acquitted
the factory owner but convicted the employee (appellant before this Court). The
High Court pointed out that vegetable ghee could not be made to serve as an
emulsifying agent because r. 61 forbids addition of brominated vegetable oil to
milk or cream and without milk and/or cream manufacture of ice-cream was
inconceivable and that the appellant's stand had been that vegetable ghee had
been used and not that any brominated vegetable oil got into the ice-cream by
way of an emulsifying or stabilising agent.
Allowing the appeal,
HELD: 1 (a) The sample of ice-cream obtained
from the appellant was not shown to have been adulterated within the meaning of
the Act and the Rules. [316 D] (b) The prohibition contained in the proviso to
r. 61 does not apply to ice- cream, kulfi and chocolate ice cream covered by
sub-item A.11.02.08, wherein it is clearly stated that these three milk
products may contain permitted stabilizers and emulsifiers not exceeding 0.5
per cent by weight.
Clearly, therefore, brominated vegetable oils
could have formed a part of the chocolate ice cream to the extent of
0.5 per cent by weight, without the article
being treated as adulterated under the rules. What the proviso to r. 61
prohibits is the use of certain emulsifying and stabilising agents only in milk
and one of its products, namely, cream and not in other milk products such a
malai, dahi, cheese, ice cream and chocolate ice-cream. Had the intention of
the rule been to prohibit the use of the said agents in all milk products, the
expression would have been "shall not be used in milk and milk
products" and not "shall not be used in milk and cream". [318
C-E]
2. It was for the prosecution to prove
affirmatively that the sample contained an ingredient which made it adulterated
and any stand taken by the accused could hardly be used as evidence, unless its
truth was otherwise established. The prosecution had completely failed to prove
that the ingredient objected to by it was a substance other than a brominated
vegetable oil or that if it was oil of that description, its quantity was in
excess of 0.5% by weight. The analyst's report did not indicate the presence in
the sample of brominated vegetable oil beyond the prescribed maximum of 0.5% by
weight or of unbrominated vegetable, oils. [318G-H]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 245 of 1975.
Appeal by Special Leave from the Judgement
and order dated 25-3-1975 of the Delhi High Court in Criminal Appeal No.
122/72.
Harjinder Singh for the Appellant.
E. C. Agarwala and R. N. Sachthey for
Respondent No. 1 V. S. Desai, B. P. Maheshwari and Suresh Sethi for Respondent
No. 2.
The Judgment of the Court was delivered by
KOSHAL, J.-This is an appeal by special leave against a judgment of the High
Court of Delhi dated 25th March, 1975 convicting the appellant of an offence
under clause (i) of sub-section (1) of section 16 read with clause (i) of
section 7 of the Prevention of Food Adulteration Act 1954 (hereinafter called
the Act) and sentencing him to rigorous imprisonment for six months and a fine
of Rs. 1000/-, the sentence in default of payment of fine being rigorous
imprisonment for three months.
2. The facts giving rise to the appeal may be
briefly stated. Food Inspector V. P. Anand, (P.W.2) visited the premises of
Messrs Mebrose Ice-Cream and Frozen Food Co.
(which carries on business in Greater Kailash
No.1, a locality of New Delhi and is hereinafter referred to as the Company) on
the 22nd May 1970 and bought for 315 purposes of analysis a sample of chocolate
ice-cream from the appellant who was one of the employees of the Company.
An inventory of the sample was prepared by
the Food Inspector and at the foot of the same the appellant made the following
endorsement:
"A sample of Chocbar Ice-Cream
(Chocolate Ice- Cream) manufactured by Mebrose Ice-Cream and Frozen Food Co.,
M-67, Greater Kailash, given as per above.
This Ice-Cream Chocolate is of one lot. This
is prepared of covering Chocolate, vegetable ghee and Ice- Cream." The
sample was forwarded to the Public Analyst who thus details the conclusions
arrived at by him on analysis thereof, in report exhibit PE:
"Total solids by Weight :-45 per cent.
Protein by weight: 4.4 per cent.
Chocolate:-Present.
Butyro-refractometer reading at 40 degree C
of the fat extracted from ice-cream: 49.4.
Baudouin test of the extracted fat: Positive.
Melting point of the extracted fat:-34 degree
C." In his report the Public Analyst further stated that in his opinion
the sample was adulterated "as the Butyro- refractometer reading at 40
degree C was round 6.4 in excess and the Baudouin test was found positive of
the extracted fat.. ......" A complaint was lodged by the Municipal
Corporation of Delhi against the appellant, the Company and its managing
partner Avtar Singh in respect of an offence under section 7 read with section
16 of the Act. The trial court acquitted the Company but convicted the other
two accused, sentencing each of them to rigorous imprisonment for six months
and a fine of Rs. 1000/-, the sentence in default of payment of fine being
rigorous imprisonment for four months. Both the convicts appealed to the
Sessions Court and were acquitted by an order dated 9th March 1972 passed by an
Additional Sessions Judge. The Municipal Corporation of Delhi then knocked at
the door of the High Court which upheld the acquittal of Avtar Singh but
convicted and sentenced the appellant as aforesaid by the impugned judgment,
mainly for the reasons reproduced below:
"It is established on the record beyond
doubt that this endorsement was made by Kishan Chand and it contains an admission
that vegetable ghee was used in the preparation of 316 the ice-cream sold by
him. The judgment of the learned Additional Sessions Judge reveals that the
contention of the defence before him was that Vanaspati was used in the
preparation of the relevant ice-cream by way of emulsifier but the plea was
misconceived because vegetable ghee cannot be made to serve as an emulsifying
agent. A reference to the Prevention of Food Adulteration Rules, 1955 shows
that as per Rule 60 'brominated' vegetable oil is one of the recognised
emulsifying and stabilising agents but Rule 61 forbids addition of brominated
vegetable oil to milk or cream and without milk and/or cream manufacture of
ice-cream is inconceivable. Moreover, the stand of the accused from the very start
has been that 'vegetable ghee' had been used in the preparation of ice-cream
and not that any 'brominated' vegetable oil got into the ice-cream by way of an
emulsifying or stabilising agent. The evidence would not countenance the
contention raised before us."
3. Having heard learned counsel for the
parties at length we are of the opinion that the sample in question is not
shown to have been adulterated within the meaning of the Act.
4. The case is admittedly governed by the
Prevention of Food Adulteration Rules 1955 which have been framed by the
Central Government in exercise of the powers conferred on it by section 23 of
the Act and which are hereinafter called the Rules. Rule 60 defines
"emulsifying agents" and "stabilising agents" to mean
substances which, when added to food, are capable of facilitating a uniform
dispersion of oils and fats in aqueous media, or vice versa, and/or stabilising
such emulsions. The rule then proceeds to specify numerous agents of the type
mentioned and they include brominated vegetable oils. Rule 61 declares that no
emulsifying or stabilising agents shall be used in any food except where their
use is specifically permitted. A proviso added to the rule states that certain
emulsifying or stabilising agents, including brominated vegetable oils, shall
not be used in milk and cream. Appendix B to the Rules specifies the standard
of quality of various articles of food. Milk and milk products are dealt with
in that Appendix under Group A.11 which is divided into various items. Item
A.11.01 which is further divided into sub-items A-11.01.01 to A 11.01.11
contains definitions and standards of purity of various kinds of milk.
Item A.11.02 defines milk products thus:
"MILK PRODUCTS means the products
obtained from milk such as cream, malai, curd, skimmed milk curd, 317 chhanna,
skimmed milk chhanna, cheese, processed cheese, ice-cream, milk ices, condensed
milk sweetened and unsweetened, condensed skimmed milk sweetened and
unsweetened, milk powder, skimmed milk powder, partly skimmed milk powder,
khoa, infant milk food, table butter and deshi butter." Then follow
definitions of different kinds of milk products in sub-items A.11.02.01 to
A.11.02.21. "Cream" is defined as follows in sub item A.11.02.02:-
"CREAM excluding sterilised cream means the product of cow or buffalo milk
or of a combination thereof which contains not less than 25.0 per cent milk
fat." Chocolate ice-cream forms the subject matter of sub-item A.11.02.08
which runs thus:
"ICE-CREAM, KULFI, AND CHOCOLATE
ICE-CREAM mean the frozen product obtained from cow or buffalo milk or a
combination thereof or from cream, and/or other milk products, with or without
the addition of cane sugar, eggs, fruits, fruit juices, preserved fruits, nuts,
chocolate, edible flavours and permitted food colours.
It may contain permitted stabilizers and
emulsifiers not exceeding 0.5 per cent by weight. The mixture shall be suitably
heated before freezing. The product shall contain not less than 10.0 per cent
milk fat, 3.5 per cent protein and 36.0 per cent total solids except that when
any of the aforesaid preparations contain fruits or nuts or both, the content
of milk fat may proportionately reduced but shall not be less than 8.0 per cent
by weight.
"Starch may be added to a maximum extent
of 5.0 per cent under a declaration on a label as specified in sub-rule (2) of
Rule 43.
"The standards for ice-cream shall also
apply to softy ice cream." From the above examination of the provisions of
Appendix B to the Rules, it is clearly made out that the standard of purity for
each milk product has been separately laid down and that ice-cream, kulfi and
chocolate ice-cream are treated as a class by themselves, which is different,
for the purpose of purity from other milk products including cream. The classification
employed leaves no room for doubt that 318 when the proviso to rule 61 states
that certain emulsifying and stabilising agents shall not be used in milk and
cream, it prohibits the use of those agents only in milk and one of its
products, namely, cream and not other milk products such as malai, dahi,
cheese, ice-cream and chocolate ice-cream.
Had the rule-making authority meant by the
proviso to prohibit the use of the said agents in all milk products, the
expression used would have been "shall not be used in milk and milk
products" and not "shall not be used in milk and cream". The
prohibition contained in the proviso thus does not apply to ice-cream, kulfi,
chocolate ice-cream covered by sub-item A.11.02.08, wherein it is clearly
stated that these three milk products may contain permitted stabilisers and
emulsifiers not exceeding, 0.5 per cent by weight. In equating the words
"milk and cream" with milk and all its products, the high Court was
clearly in error and this is so in spite of the fact that ice-cream, kulfi and
chocolate ice-cream must have milk or cream as a necessary ingredient. It
follows that brominated vegetable oils could have formed a part of the
chocolate ice-cream sold by the appellant, to the extent 0.5 per cent by
weight, without the article being treated as adulterated under the Rules.
Before the appellant could be convicted, therefore, it was incumbent on the
prosecution to establish that the sample taken from him contained either
brominated vegetable oils or other permitted stabilisers and emulsifiers
exceeding 0.5 per cent by weight or that it did not conform to the prescribed
standard in some other detail.
Apart from falling into the error of
misreading rules 60 and 61, the High Court considered the sample taken from the
appellant to be adulterated by reason of the stand he had taken from the very
beginning to the effect that he had used "vegetable ghee" in the
preparation of the chocolate ice-cream and because, according to the High
Court, "vegetable ghee" was not brominated vegetable oil. This is
again an erroneous approach to the problem in hand. It was for the prosecution
to prove affirmatively that the sample in, question contained an ingredient
which made it adulterated and any stand taken by the accused could hardly be
used as evidence, unless its truth was otherwise established which not the case
is. All that was made out from the evidence before the court was that the
Butyro- refractometer reading at 40 degree C was higher than the maximum
prescribed for milk fat by 6.4 and that the Baudouin test was positive. These
two factors indicated that either vanaspati or milk fat to which til oil had
been added was one of the ingredients of the sample. There is not an iota of
evidence on the record to show whether or not such til oil was brominated,
which means that the prosecution had completely failed to prove that the
ingredient objected to by it was a substance other than 319 a brominated
vegetable oil or that if it was oil of that description its quantity was in
excess of 0.5 per cent by weight. The Butyro-refractometer reading did no doubt
except the maximum of the prescribed standard by 6.4 and the Baudouin test was
also positive but these factors did not indicate the presence in the sample of
brominated vegetable oil beyond the prescribed maximum of 0.5 per cent by
weight or of unbrominated vegetable oils.
5. The sample of chocolate ice-cream obtained
by the Food Inspector from the appellant not having been shown to be
adulterated, the appeal is accepted, the judgment of the High Court in so far
as it relates to the appellant is reversed, the conviction recorded against and
the sentence imposed upon the appellant by the High Court are set aside and he
is acquitted of the charge. The bail bond executed by him shall stand
cancelled.
P.B.R. Appeal allowed.
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