Full Judgment Text
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PETITIONER:
DWARKA NATH & ANR.
Vs.
RESPONDENT:
MUNICIPAL CORPORATION OF DELHI
DATE OF JUDGMENT23/04/1971
BENCH:
VAIDYIALINGAM, C.A.
BENCH:
VAIDYIALINGAM, C.A.
SIKRI, S.M. (CJ)
RAY, A.N.
CITATION:
1971 AIR 1844 1971 SCR 466
1971 SCC (2) 314
ACT:
The Prevention of Food Adulteration Act (37 of 1954), s.
23(1) (c), (d), and (g), and Rules made thereunder r. 32(b)
and (e)-If within rule making power.
HEADNOTE:
The appellants were carrying on business in ghee. On the
labels of the tins of ghee the name of the business
premises of the appellants and the postal division were
given but the number of premises and the locality where the
premises was situate were not given. On the ground that the
label did not conform to the packing and labeling rules as
required under r. 32(b) and (e) of the rules made under s.
23(1) of the Prevention of Food Adulteration Act, 1954, the
appellants were prosecuted and were convicted, and a token
fine of Re. 1 was imposed on them. The judgment of the High
Court emphasised upon the violation of r. 32(e).
Rule 32(e) provides that every label should specify the
batch number or code number either in Hindi or English
numerical or alphabets or in combination, and r. 32(b)
requires the name and address of the manufacturer or
importer or vendor or packer to be given on every label.
The first proviso to r. 32 excludes the operation of cls.
(a) to (e) of the said rule in respect of food packages
weighing not more than 60 grams.
On the question whether sub-rr. 32(b) and (e) were within
the rule making power under s. 23(1) cls. (c), (d), (f), and
(g).
HELD:(1) The sub-rules could not have been made under
cl. (c). That clause deals with provisions for imposing
rigorous control over production, distribution and sale of
any article or class of articles of food notified by the
Central Government in the Official Gazette. But no such
notification regarding ghee had been issued by the Central
Government.
[474B]
(2)Clause (f) relates to prohibiting the sale or defining
the conditions of sale of any substance injurious to health
when used as food. This clause also has no application
because ghee is not a substance injurious to health when
used as food. [474C]
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(3)Clause (g) will have no application because one of the
essential requirements therein is that the rules made under
it should be related to the interest of public health. Any
rule made under this clause must be of universal application
because it is in the interest of public health. The
requirement regarding compliance with any such rule cannot
depend upon the quantity of food packed in any container.
Therefore, the fact that food packages not weighing more
than 60 grams are excluded under the proviso to the rule is
an indication that r. 32 is not framed under s. 23(1)
(g) of the Act. [474D-F]
(4)The object of a rule framed under s. 23(1) (d) must be
with a view to preventing the public or the purchaser being
deceived or misled as to the character, quality or quantity
of the article. The giving of the
467
batch number or code number alone without giving any further
particulars such as the date of manufacture of the article
and the period within which the said article has to be used
or consumed and the quantity of the article in the container
will not prevent the public or a purchaser from being
deceived or misled as to the character, quality or quantity
of the article. [474G-H; 475A.-B]
In the present case there was no obligation to specify on
the label the date of packing and manufacture of the article
of food or the period within which the article of food has
to be used or consumed. In the :absence of any such
obligation there is no rational or even a remote connection
between the batch or code number artificially given by a
packer and the public or purchaser being prevented from
being deceived or misled as to the character, quality or
quantity of the article contained in a sealed tin. [475C-E]
Therefore r. 32(e) is beyond the rule making power even
under s. 23 (1) (d) of the Act. Since r. 32(e) is invalid
the appellants could not have been convicted for its
violation. [475E-F]
(5)But r. 32(b) is within the rule making power under s.
23(1) (d), because, it is well known that in many cases in
business the name and address of a manufacturer or importer
or vendor or packer has become associated with the character
quality or quantity of the article. [476B]
In the present case, there is a substantial compliance with
the rule by the appellants, but according to the requirement
of the rule, some more particulars will have to be given,
namely, the number of the premises and the locality or the
area where the premises was situate. There was thus a
technical breach of r. 32(b). [476B-D]
[But since there was no indication from the judgments of the
lower courts that the appellant would have been convicted
for such a technical breach if there was no charge under r.
32(e) also, the appellants were acquitted.] [476E-F]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 264
of 1968.
Appeal by special leave from the judgment and order dated
November 7, 1967 of the Delhi High Court in Criminal
Revision. No. 371-D of 1965.
S.C. Manchanda, M. L. Aggarwal and N. K. Agarwala, for
the appellants.
B. P. Maheshwari, for the respondent.
V. A. Sayid Muhammad and S. P. Nayar, for the Union of
India.
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The Judgment of the Court was delivered by
Vaidialingam, J.-The short question that arises for conside-
ration in this appeal by the accused, by special leave, is
whether Rule 32(b) and (e) of the Prevention of Food
Adulteration Rules,
468
1955 (hereinafter to be referred as the Rules) is ultra
vires as being beyond the rule making power under S. 23 of
the Prevention of Food Adulteration Act, 1954 (hereinafter
to be referred as the Act). As the Rules have been framed
by the Central Government, notice had been issued by this
Court to the Attorney General.
The first appellant is a partner of the second appellant
M/s. Mohan Ghee Laboratories carrying on business in Pure
Deshi Ghee, in Gurdwara Road, New Delhi-5. On December 29,
1962 at about 12 50 p. m. five Food Inspectors of the
respondent visited the Laboratories of the appellants at
Gurdwara Road, and all of them purchased ghee from different
containers on payment of price. After going through the
necessary formalities as required by the Act and the Rules,
the samples of ghee purchased by the Food Inspectors were
sent to the Public Analysts for Delhi Municipal Corporation
for analysis. The Public Analyst tested the sample on
January 3, 1963 and reported that all the five samples taken
by the five Food Inspectors and sent to him conformed to
standard. It is also to be noted that on December 29, 1962,
the Food Inspectors had also seized the labelled tins from
which samples of ghee had been taken.
On August 31, 1963, the respondent filed five complaints in
the Court of the Magistrate, 1st Class, Delhi against the
appellants under Section 7/16 of the Act read with Rule
32(b) and (e) of the Rules. As all the complaints are on
the same pattern, we will just refer to one of those
complaints, filed on the basis of the report of the Food
Inspector Lekh Raj Bhutt. The averments are that the said
Food Inspector on December 29, 1962 at about 12.55 p. m.
took a sample of pure ghee from the appellants from one of
the sealed tins of pure ghee exhibited for sale at the sale
counter after due observance of the Rules. One sealed
bottle was given to the appellants at the spot. The
labelled tin of pure ghee from which the sample was taken
was also seized by the Food Inspector in the presence of
witnesses and the said tin is produced as an exhibit. The
complaint further proceeds to state that the sample of pure
ghee taken from the appellants conformed to the standard of
pure ghee. According to the report of the Public
Analysts, the sealed tin of pure ghee from which the sample
was taken had a label, but itdid not conform to the packing
and labelling Rules under the Act inasmuch as the name and
business address of the manufacturer or packer or vendor and
batch or Code numbers had not been specified on the label
as required under Rule 32(b) and (e) of the Rules ; and that
the appellants are guilty for non-obserance of the Labelling
Rules. The respondent ultimately prayed that the appellants
may be punished, according to law, for contravention of Rule
32(b) and (e) of the Rules.
469
Similarly, the charge framed in each of the five cases was
also on the same pattern. The charge after referring to the
substance of the complaint and after referring to the fact
that the sample of ghee taken from the shop of the
appellants conformed to the standard alleged :
"But complete address, Batch or Code No. etc.
were not written on the ghee tins seized by
the Food Inspectors.
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Therefore, you are to show-cause, why you
should not be punished under section 7/16 PFA
Act 1954, read with rule 32(b) and (e) of PFA
Rules, 1955."
The appellants pleaded not guilty to the
charge.
One of the Food Inspectors, Dina Nath has given evidence as
P. W. 1. We will only refer to that part of his evidence
which has a bearing on the point for consideration before
us. In chief examination he has stated that when he
examined the tin from which the sample of ghee had been
taken, he found that the tin did not bear the batch number,
the code number and that the address given therein was
incomplete. In cross-examination he has stated that the
address given on the label was Mohan Ghee Laboratories, New
Delhi-5 and there was also a further writing "Pure Ghee".
He was not able to say whether the address referred to above
and found on the tin was incomplete. He has further stated
that though he has been working as Food Inspector from about
1949, he does not remember if he had seen the premises
number written on any packing., He has further stated that
"Batch Number can start from any serial number. I am saying
about serial number by commonsense......... Code No. and
Batch number is the same."
We will refer to the question put to the first
appellant when he was examined under section
342 and to his answer in respect of the
labelling and packing.
"Q. There is an allegation against you that
labelling and packing of the Ghee tins taken
in possession, was defective, since they do
not bear the complete address of your shop,
Code number and Batch number. What have you
to say ?
A.It is incorrect. Labelling and packing
were in order, address was also
correct..........
The appellants had also examined some of their employees.
We will refer to the material part of the evidence of D.W.
2. who was incharge of supervising the packing of the ghee.
He has referred
470
to the fact that the address of the shop of the appellants
is Mohan Ghee Laboratories, New Delhi-5 and that they
receive letters, addressed as above. He has further
stated that the appellants purchase ghee from outsiders in
small tins and utensils and then pack them in their
premises. In cross-examination he has stated that the
premises of the appellants is situated in 37 Nai Wallan,
Gurdwara Road, Karol Bagh.
The Trial Magistrate has rather elaborately gone into the
question whether the samples of ghee seized from the
appellants conform to the standard and criticises without
any basis the evidence of the defence witnesses on the
ground that the appellants should not have printed on the
label "Pure Ghee" when they could not have known the quality
of ghee stored in the containers. This discussion is
totally irrelevant because, even according to the res-
pondent, the Public Analysts had certified that the samples
conformed to the standard and the appellants were not being
tried for adulteration of ghee.
Regarding the requirement regarding the Batch number or Code
number, the Magistrate after reference to Rule 32(e) holds
that the provision is mandatory and the object of giving
those particulars is to indicate the serial order in which
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the particular article of food was packed and thereby to
indicate the period for which it could remain fit for human
consumption. We are not able to appreciate wherefrom the
Magistrate got all these indications, because the relevant
Rule does not provide for giving any particulars regarding
the period for which the article of food could remain fit
for human consumption. Ultimately the Magistrate found the
appellants guilty for contravening Rule 32(b) and (e) and
sentenced them to pay a token fine of Re. 1 in each of the
five cases.
The appellants challenged their conviction before the
learned Additional Sessions Judge Delhi. The Sessions
Judge, by his order dated October 18, 1965 agreed with the
Trial Magistrate that the appellants are guilty of breach of
Rule 32(b) and (e). However, the Sessions Judge was of the
opinion that five separate complaints and five separate
convictions were not legal and therefore, he made a
recommendation to the High Court that the conviction of the
appellants is to be set aside in respect of four complaints
and that it should be maintained only in one case.
According to the learned Sessions Judge, the appellants have
not complied with the requirement of sub-rule (b) of Rule 32
as they have given on the label the address as "Mohan Ghee
Laboratories, New Delhi-5." without giving the number of the
premises and the locality where the premises is situate.
Similarly, the learned Sessions Judge is of the view that
the object of specification of Batch number and Code
471
number is to track down all the samples of food stuff that
were packed out of a particular lot if the authorities found
the sample to be defective. This will enable the
authorities to at once withdraw from the market all the
containers of a particular Batch number. In this view the
learned Session Judge held that the appellants have
committed breach of Rule 32(e).
The learned Chief Justice of the Delhi High Court, in the
order under attack, has held that it is enough if the
appellants are convicted in one case and accordingly the
reference made by the Additional Sessions Judge in this
regard was accepted. But on the main question as to whether
Rule 32 (b) and (e) was within the rule making power under
Section 23 of the Act, the learned Chief Justice has held
that the said rule is intra vires and comes within the rule
making power conferred under Section 23(1) (d). According
to the High Court the Batch number and Code number would
serve to provide a reassuring factor to the purchaser inas-
much as it would indicate to some extent the time when the
commodity was manufactured or packed. The High Court has
further held that the display of Batch number or Code number
would seem to be a relevant factor for assuring the public
or the purchaser that they are getting from the market an
article which is fresh enough to suit their purpose and
requirement. Ultimately, the High Court confirmed the
conviction of the appellants as well as the levy of fine of
Re. 1 in one case for breach of Rule 32(b) and (e).
Mr. S. C. Manchanda, learned counsel for the appellants con
tended that Rule 32 (b) and (e) is beyond the rule making
power conferred under Section 23 (1) (d) of the Act. The
learned counsel further pointed out that the reasons given
by the High Court are not warranted by the provisions of
either the Act or the Rules.
Dr. V. A. Syed Mohammad, appearing for the learned Attorney
General, contended that the impugned rule could be sustained
under clauses (c), (d) and (g) of Section 23( (1). In
particular he supported in full the reasons given by the
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High Court that the impugned rule is within the ambit of the
rule making power under Section 23 (1) (d).
Mr. B. P. Maheshwari, learned counsel for the respondent,
urged that apart from the clauses referred to on behalf of
the Attorney-General, the rule could be sustained even under
Section 23(1)(f).
In order to appreciate the contentions urged before us, it
is necessary to refer to the material part of Section 23 as
well as the relevant rules. Section 23(1) gives power, to
the Central Government to make rules. We have already
referred to the clauses
472
on which reliance is placed on behalf of the Attorney-
General and by the respondent, namely, clauses (c), (d) (f)
and (g). Section 23 (1) with those clauses reads as follows
:
"23(1) Power of the Central Government to make
rules:
The Central Government may, after consultation
with the Committee and subject to the
condition of previous publication, make rules-
*
(c) laying down special provisions for
imposing rigorous control over the production,
distribution and sale of any article or class
of articles of food which the Central
Government may, by notification in the
Official Gazette. specify in this behalf
including registration of the premises where
they are manufactured, maintenance of the
premises in a sanitary condition and
maintenance of the healthy state of human
beings associated with the production,
distribution and sale of such article or class
of articles.
(d) restricting the packing and labelling of
any article of food and the design of any such
package or label with a view to preventing the
public or the purchaser being deceived or
misled as to the character, quality or
quantity of the article
*
(f) prohibiting the sale or defining the
conditions of sale of any substance which may
be injurious to health when used as food or
restricting in any manner its use as an
ingradient in the manufacture of any article
of food or regulating by the issue of licences
the manufacture or sale of any article of food
;
(g) defining the conditions of sale or
conditions for licence of sale of any article
of food in the interest of public health."
The Rules have been framed by the Central Government in
exercise of the powers conferred by sub-section (2) of
Section 4 and sub-section (1) of Section 23 of the Act. The
Rules framed under sub-section (2) of Section 4 relate to
the functions of the Central Food Laboratory and allied
matters. We are not concerned with those rules. Part VII
of the Rules relates to the "packing and labelling of
foods". Rule 32 relating to the "contents of the label" is
in this part. Rule 32 with material clauses
473
(b) and (e) and the first proviso as well as the Explanation
reads as follows :
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"Rule 32 : Contents of the label-Unless
otherwise provided in these rules there shall
be specified on every label:-
*
(b) the name and business address of the
manufacturer or importer or vendor or packer,
*
(e) a batch number or code number either in
Hindi or English numericals or alphabets or in
combination :
Provided that in the case of food package
weighing not more than 60 grams particulars
including the statement under any clause need
not be specified.
Explanation.-The term ’label’ means a display
of written, printed, perforated, stencilled,
embossed or stamped matter upon the container,
cover lid and/ or crown cork of any food
package."
Admittedly there is no definition of the expressions "Batch
number" or "Code number" either in the Act or in the Rules.
Nor has any affidavit been filed on behalf of the respondent
or by the Attorney General of any expert whether these
expressions have any technical meaning in the trade and if
so what that is. The material available on record is only
the evidence of Dina Nath, one of the Food Inspectors, who
has given evidence as P. W. 1 in one of the complaints. We
have already adverted to his evidence which is to the effect
that Batch number can start from ;any serial number and that
what he says about serial number is only by commonsense.
Further, according to him Code number and Batch number is
the same. From this evidence it is clear that there is no
specific meaning attached to these two expressions either in
the Act or in the Rules and even the Food Inspectors are
,not very clear as to what those expressions mean.
He has also stated that in the label on the container, the
:address of the appellants had been given as "Mohan Ghee
Laboratories, New Delhi-5". According to him the said
address is incomplete because it does not give the details
about the door number of the premises, as well as the
locality where the premises is situate. He has also stated
that he does not remember to have seen the premises number
on any packing.
We have now to see whether any of the clauses in Section 23
(1) on which reliance is placed on behalf of the Attorney-
General and the respondent will sustain the provisions
contained in Clauses
974
(b) and (e) of Rule 32. We are not able to find anything
in Clauses (c), (f) and (g) of Section 23 (1) of the Act,
which will give power to the Central Government to frame
rules requiring the name and business address of
manufacturer or vendor being given ; or for Batch Number or
Code number being given on the labels. Clause, (c) deals,
with provisions for imposing rigorous control over pro--
duction, distribution and sale of any article or class of
articles. of food notified by the Central Government in the
Official Gazette. No notification issued by the Central
Government in this behalf regarding ghee has been brought to
our notice and, therefore,. clause (c) does not apply.
Clause (f) relates to prohibiting the sale or defining the
conditions of sale of any substance injurious to health when
used as food. This clause has also no application, because
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it is not the case of the respondent that the article of
food, with which we are concerned, namely, ghee, is a
substance which is injurious to health when used as food.
Clause (g) again will have no application because one of the
essential requirements, therein is that the rule should be
related to the interest of public health. Any rule made
under this clause, must be of universal application because
it is in the interest of public health. The requirement
regarding compliance with any such rule, cannot depend upon
the quantity or food packed in any container. That Clause
(g) of Section 23(1) will stand eliminated is clearly seen
by a reference to the first proviso to Rule 32. The said
proviso indicates that if the food package weighs not more
than 60 grams, the particulars mentioned in clauses (a) to
(e) of the Rule need not be specified. If a requirement has
to be in the interest of public health, as is mandatory
under Clause (g), the very fact that the first proviso to
Rule32 excludes the operation of clauses (a) to (e) of the
said rule in respect of food package weighing not more than
60 grams, is an indication that Rule 32 is not framed under
Clause (g) of Section 23(1) of the Act. From the above
discussion it is clear that under Clauses (c), (f) and (g)
of Section 23(1) of the Act, the rules contained in clauses
(b) and (c) of Rule 32, could not be framed."
This leaves us for consideration the question whether Rule
32 (b) and (e) fall within the ambit of rule making power
under Clause (d) of Section 23(1). We will first take up
for consideration the vires of Clause (e) of Rule 32. There
cannot be any controversy that the object of a rule framed
under clause (d) must be with a view to preventing the
public or the purchaser being deceived or misled as to the
character, quality or quantity of the article. We have
already pointed out that in this case the label contained
the words "pure ghee" and on analysis of the, sample it has
been found to conform to the standard. It is difficult for
us to appreciate how the giving of the batch number or
475
the code number alone without giving any further particulars
such as date of manufacture of the article of food and the
period within which the said article has to be utilised,
used or consumed and the quantity of the article in a
container, will prevent the public or the purchaser being
deceived or misled as to the character, quality or quantity
of the article. No attempt has been made by the respondent
to establish any relation between the giving of the batch
number or the code number with the public or the purchaser
being prevented from being deceived or misled in respect of
the matters referred to in Clause (d). We are not able to
find any rational or even a remote connection between the
batch or code number artificially given by a packer and the
public or the purchaser being prevented from being deceived
or misled as to the character, quality or quantity of the
article, contained in a sealed tin.
There is no definition of the expression "batch number" or
"code number" either in the Act or the Rules. It is also
admitted that even assuming that the batch or code number
has to be given, there is no further obligation to specify
in the label the date of packing and manufacture of the
article of food or the period within which the article of
food has to be utilised, used or consumed. In the absence,
of any obligation to give the particulars mentioned by us
above, the public or the purchaser will not be able to find
out even the freshness of the contents of a container.
Therefore, it follows that merely giving an artificial batch
number or code number will not be of any use to the public
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or to the purchaser. In view of all these circumstances we
are of the opinion that rule 32(e) is beyond the rule making
power even under Section 23 (1) (d) of the Act. The
appellants could not be convicted for any violation of
Clause (e) of Rule 32 as the said provision, as pointed out
above, is invalid.
We will now consider the question regarding the validity of
Clause (b) of Rule 32. That clause is also challenged as
being beyond the rule making power under Section 23 (1) (d)
of the Act. Clause (b) of Rule 32 requires that the name
and business address of the manufacturer, or importer, or
vendor or packer be given on every label. According to Mr.
Manchanda, this clause has also no relation to the purpose
for which the rules can be framed under Section 23 (1) (d)
of the Act. According to Mr. Manchanda, mere giving of name
and business address will not give any indication to the
public or the purchaser regarding the character, quality or
quantity of the article. Even assuming that Clause (b) of
Rule 32 is-valid, he pointed out, that in this case, his
clients have complied with the requirement by stating on the
label "Mohan Ghee Laboratories New Delhi-5." According to
him there has been at any rare substantial compliance with
476
the requirement of the rule and therefore his clients could
not be convicted for any violation of this clause.
We are not inclined to accept the contention of Mr. Man-
chanda that Clause (b) of Rule 32 is beyond the rule making
power of the Central Government under Section 23 (1) (d) of
the Act. It is well known that in many cases in business
the name and address of a manufacturer, or importer, or
vendor or packer has become associated with the character,
quality or quantity of the article and as such we are of the
opinion that Clause (b) of Rule 32 is a valid rule. In this
case, as pointed out by Mr. Manchanda there has been a
substantial compliance with that rule by the appellants giv-
ing in the label the address as "Mohan Ghee Laboratories,
New Delhi-5." But according to the requirement of the rule,
some more particulars will have to be given, namely, the
number of the premises and the locality or the area where
the premises is situate. This is the evidence adduced on
behalf of the prosecution also. Therefore, it can be said
that there is a technical breach of Clause (b) of Rule 32
inasmuch as full particulars, referred to above, have not
been given by the appellants in the label. No doubt, the
appellants have been convicted for breach of Clauses (b) and
(e) of Rule 32 and a fine of Re. 1 has been imposed. We
have already held that Clause (e) of Rule 32 is invalid and
the appellants cannot be convicted for non-compliance of the
same. Though there is a technical breach of Rule 32(b),
there is no indication available from the judgments of the
High Court and the subordinate courts that the appellants
would have been convicted for a technical breach of Rule
32(b) if there was no charge under Clause (e) of Rule 32
also. On the other hand, more prominence is given in the
judgments to the violation of Rule 32 (e) and the inference
is that the conviction is substantially for a violation of
the said rule. In the circumstances of this case, we
are of the view, that the appellants could not be
convicted for a technical breach of Rule 32(b) alone.
Therefore, the conviction of the appellants for offences,
under Rule 32(b) and (e) as well as the fine imposed in the
sum of Re. 1 for the said offence, are both set aside.
In the result, the appeal is accordingly allowed and the
judgment and order of the Delhi High Court in Criminal
Revision No. 371-D of 1965 are set aside. The fine, if
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collected, will be refunded.
V.P.S. Appeal
allowed.
477