State of Maharastra Vs. Baburao Ravaji
Mharulkar & Ors [1984] INSC 198 (26 October 1984)
REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA
(J) SEN, A.P. (J) VENKATARAMIAH, E.S. (J)
CITATION: 1985 AIR 104 1985 SCR (1)1053 1984
SCC (4) 540 1984 SCALE (2)643
ACT:
Deemed Adulteration Prevention of Food
Adulteration Rules 1955 Rule 5 read with paragraph A. 11.02.08 of Appendix
there to and sections 2 (ia) (;) and 2(ia) (m) of the Prevention of Food
Adulteration Act, 1954-The circumstance that the standard of milk fat for
buffalo milk is 5% should not render it impossible for Ice cream to contain
milk rat less than 10% Ice cream containing than 10% must be deemed to be
adulterated within the meaning of Section 2(ia)(m) of the Prevention of Food
Adulteration Act, 1954 incurring liability under section 16(1)(a) (ii) of the
said Act. D
HEADNOTE:
Based on the report of Public Analyst which
showed that the sample of ice cream purchased by the Food Inspector, E' Ward,
Rajarampuri from the shop of the 4th respondent firm, the partners of which
were respondents I to 3, contained 5.95% of milk fat, as against the minimum of
10% prescribed by paragraph A 11.02 08 of Appendix of the Prevention of Food
Adulteration Rules 1955, all the respondents were brought to trial before the
Chief Judicial Magistrate of Kohlapur. The learned Magistrate thought that it
was impossible to attain the standard of purity prescribed by the rules as ice
cream was but a preparation of milk and the standard of purity prescribed for
buffalo milk was but a minimum of 5% milk fat. He was, therefore, of the view
that Rules 5 read with paragraph A. 11.02 08 of Appendix was impossible of
compliance and, therefore, bad in law and thus acquitted all the respondents.
On appeal by State, learned Single Judge of the High Court of Bombay dismissed
the appeal in limine. Hence the State appeal under Art. 136 of the Constitution.
Allowing the appeal in part, the Court
HELD: 1:1. The circumstance that the standard
of milk fat for buffalo milk is 5% should not render it impossible for ice
cream to contain a minimum percentage of 10 of milk fat. There are several ways
by which the higher percentage of milk fat in ice cream may be attained. The
most elementary method is to heat the milk sufficiently to reduce the
percentage of water and increase the percentage of milk fat. Another obvious
method is to add cream containing a high percentage of milk fat separately to
the milk before making ice cream out of it. [1055B-D] 1: 2. Rule 5 of the
Prevention of Food Adulteration Rules 1955 provides 1054 that standard and
quality of the various articles of food specified in Appendix thereto are to be
defined in that Appendix. Paragraph A. 11.02.08 of Appendix prescribes a
minimum standard of 10% milk fat in the case of ice cream, kulfi and chocolate
ice cream. Section 2 (ia) (m) provides that an article of food shall be deemed
to be adulterated if the quality or purity of article falls below the
prescribed standard but which does not render it injurious to health.
Therefore, the ice cream sold by the first
respondent was adulterated within the meaning of section 2(ia) (m) of the
Prevention of Food Adulteration Act, 1955. [1055D-G] 1: 3. In the circumstance,
the 1st and the 4th respondents are, therefore liable to be convicted under
section 16(1)(a)(ii) of the Food Adulteration Act while respondents 2 and 3 are
entitled to acquittal as there is nothing to indicate that they were in charge
of or were in any way responsible for the conduct of the business of the firm.
[1055G-H, 1056A] 1: 4. As to sentence, in view of the fact that the offence was
committed quite some years ago, the offence happens to be the first offence and
the Supreme Court was now interfering with an order of acquittal, the ends of
justice will be met by the imposition of the minimum sentence of three months
prescribed by the proviso section 16(1) of the Act and a fine of Rs. 2,000
each. [1056B-C]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 460 of 1984.
Appeal by Special leave from the Judgment and
Order dated the 14th September, 1982 of the Bombay High Court in Criminal
Appeal No. 440 of 1982 M.N. Shroff for the Appellant.
V.S. Desai, and Mrs. J.S. Wad for the
Respondent.
The Judgement of the Court as delivered by
CHINNAPPA REDDY, J. Special Leave granted.
The Food Inspector, 'E' Ward, Rajarampuri,
purchased a sample of ice cream from the shop of the 4th respondent- firm, the
partners of which were respondents I to 3. After following the procedure
prescribed by statute, one part of the sample was sent to the Public Analyst
for analysis. The report of Public Analyst showed that the sample of ice cream
contained 5.95% of milk fat as against the minimum of 10% prescribed by
paragraph A. 11.02.08 of Appendix of the Prevention of Food Adulteration Rules,
1955.
The learned Chief Judicial Magistrate of
Kohlapur thought that it 1055 was impossible to attain the standard of purity
prescribed by paragraph A. 11.02.08 of Appendix of the Prevention of Food
Adulteration Rules, 1955, as ice cream was but a preparation of milk and the
standard of purity prescribed for buffalo milk was but a minimum of 5% milk
fat. The learned Magistrate was, therefore, of the view that Rule 5 read with
paragraph A. 11.02.08 of Appendix was impossible of compliance and, therefore,
bad in law. On appeal by the State, a learned Single Judge of the High Court of
Bombay dismissed the appeal in limine The State has preferred an appeal to this
Court under Art. 136 of the Constitution. We do not have the slightest
hesitation in allowing the appeal.
We are unable to appreciate why the
circumstance that the standard of milk fat for buffalo milk is 5% should render
it impossible for ice cream to contain a minimum percentage of 10% milk fat.
There are several ways by which the higher percentage of milk fat in ice cream
be attained. The most elementary method is to heat the milk sufficiently to
reduce the percentage of water and increase the percentage of milk fat. Another
obvious method is to add cream containing a high percentage of milk fat
separately to the milk before making ice cream out of it. We do not have to
advise caterers and restaurateurs about how ice cream containing the minimum
prescribed percentage of milk fat should be prepared. Section 2 (ia) (1) of the
Prevention of Food Adulteration Act, 1954 provides that an article of food
shall be deemed to be adulterated if the quality of purity of the article of
food falls below, the prescribed standard, which renders it injurious to
health. Section 2(ia) (m) provides that an article of food shall be deemed to
be adulterated if the quality or purity of the article falls below the
prescribed standard, but which does not render it injurious to health. In the
case before us, there is nothing to show that the low percentage of milk fat
renders the ice cream injurious to health. Rule 5 of the Prevention of Food
Adulteration Rules, 1955 provides that standard of quality of the various
articles of food specified in Appendix to these rules are to be as defined in
that Appendix. Paragraph A. 11. 02. 08 of Appendix prescribed a minimum
standard of 10ø/" milk fat in the case of ice cream, kulfi and chocolate
ice cream. There cannot be the least doubt that the ice cream sold by the first
respondent was adulterated within the meaning of s. 2 (la) (m) of the
Prevention of food Adulteration Act, 1954. The first and the fourth respondents
are, therefore, liable to be convicted under s. 16 (1) (a) (ii) of the Food
Adulteration Act, 1954. So far as respondents 2 and 3 are concerned, there is
nothing 1056 to indicate that they were incharge of or were in any way
responsible for the conduct of the business of the firm.
Their acquittal is confirmed' Respondents 1
and 4 are convicted under s. 16 (1) (a) (ii) of the Prevention of Food Adulteration
Act, 1954 and each of them is sentenced to suffer imprisonment for a period of
three months and a fine of Rs. 2, 000/- each. In default of payment of fine
they shall suffer a imprisonment for a further term of one month. We are
imposing the minimum sentence of imprisonment prescribed by the proviso to s.
16 (1) as the offence was committed quite some years ago and we are now
interfering With an order of acquittal and this appears to be a first offence.
S.R. Appeal partly allowed.
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