Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9
PETITIONER:
STATE OF UTTAR PRADESH
Vs.
RESPONDENT:
KARTAR SINGH
DATE OF JUDGMENT:
06/02/1964
BENCH:
AYYANGAR, N. RAJAGOPALA
BENCH:
AYYANGAR, N. RAJAGOPALA
SINHA, BHUVNESHWAR P.(CJ)
SARKAR, A.K.
WANCHOO, K.N.
GUPTA, K.C. DAS
CITATION:
1964 AIR 1135 1964 SCR (6) 679
CITATOR INFO :
RF 1966 SC 128 (16)
F 1971 SC2346 (12)
R 1974 SC 1 (24)
R 1974 SC 228 (16)
R 1978 SC 933 (9)
ACT:
Constitution of India-Prevention of Food Adulteration-
Fixation of Reichert value of ghee for different States of
India-If unreasonable or discriminatory-Constitution of
India, Art. 14-Prevention of Food Adulterations Act, 1954,
ss. 7, 16(1)(a) (i), 23-Prevention of Food Adulterations
Rules, 1955, r. 5, Appendix B A-11, item 14.
HEADNOTE:
The respondent was tried for the commission of an offence
under s. 7 read with s. 16(1)(a)(i) of the Prevention of
Food Adulteration Act, 1954 for selling adulterated ghee.
The analysis of the ghee had disclosed that it had a
Reichert Value of only 22-5 whereas the minimum Reichert
value fixed for Uttar Pradesh, where the respondent sold the
ghee, was 28. The defence of the respondent was that he had
obtained the ghee which he sold from Jodhpur where the
Reichert value fixed was only 22 and that the sample must be
held not to be adulterated on the basis of the decision of
the Allahabad High Court in State v. Malik Ram, A.1,R. 1962
All. 156. This decision laid down that a distinction should
be made between ghee obtained from cattle in the hill
districts and ghee obtained from cattle in the plains and
that ghee obtained from the hill districts of U.P. cannot be
held to be adulterated if its Reichert value was equal to
that prescribed for Himachal Pradesh which is a hilly area.
It was the contention of the respondent that his ghee was
admittedly pahadi ghee and therefore this decision would
apply.
The First Class Magistrate rejected these contentions and
convicted him and sentenced him to six months’ R.I. and a
fine of Rs. 500. On appeal the Sessions Judge concurred in
the findings of the trial court but reduced the sentence.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9
The respondent thereupon filed a Criminal Revision Petition
before the High Court. The High Court agreed with the
courts below that the ghee was not Jodhpur ghee but it was
produced locally. But it held that the Reichert values as
fixed were not based on any reasonable classification and
therefore it was sufficient if a vendor satisfied the
minimum standard prescribed for any area in the country and
since the minimum prescribed for certain areas is 21 and
since the ghee in question had 22-2 the respondent was not
guilty of the offence charged. The State thereupon appealed
to this Court by way of a certificate under Art. 134(1)(e)
of the Constitution.
It was urged by the appellant that the High Court was wrong
in striking down or re-drafting the rules framed by the
Central Government in the manner in which the High Court has
done purporting to invoke
680
Art. 14 of the Constitution and virtually setting up what
the High Court considered was the reasonable standard.
Held: (i) Where the Government have prescribed certain
standards after taking into considerations various factors
the court cannot strike down these standards as unreasonable
or discriminatory merely on some priori reasoning. It can
do so only by basing its decision on materials placed before
it by way of scientific analysis. The party invoking Art.
14 must make averments with details to sustain such a plea
and lead evidence to establish his allegations. In the
absence of such plea and evidence the court cannot accept
the statement of a party as to the unconstitutionality of a
rule and refuse to enforce that rule as it stands merely
because in its view the standards are too high and for this
reason the rule is unreasonable.
(ii) Applying these principles it is found that the case
State v. Malik Ram (A.I.R. 1962 All. 156) was wrongly
decided by the Allahabad High Court. In the case under
appeal the High Court took the matter a step further and
adopted the lowest Reichert value prescribed for any area in
the country as what should be adopted for every other area
in the country disregarding the rules. Hence the High Court
was wrong in allowing the revisions.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 164 of
1962.
Appeal from the judgment and order dated May 2, 1962, of the
Allahabad High Court in Criminal Revision No. 1579 of 1961.
O. P. Rana and C. P. Lal, for the appellant.
Harnam Singh Chadda and Harbans Singh, for the respondent.
February 6, 1964. The Judgment of the Court was delivered
by
AYYANGAR J.-This appeal which comes before us on a
certificate of fitness granted by the High Court of
Allahabad under Art. 134(1)(c) of the Constitution, is
against a judgment of that Court acquitting the respondent
Kartar Singh of an offence under s. 7 read with s. 16 (1)(a)
(i) of the Prevention of Food Adulteration Act, 1954 which
may be conveniently referred to as the Act.
681
The facts giving rise to the prosecution are briefly these:
The respondent runs a shop at Haldwani and among the
products sold by him is ghee. On March 19, 1960 a quantity
of the ghee was purchased by the Food Inspector of the area
and he put samples of the purchase into three phials which
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9
were sealed in the respondent’s presence. It may be
mentioned that even in the seizure memo the Food Inspector
noted the ghee purchased by him as "pahadi ghee". One of
the samples was forwarded to the Public Analyst to the
Government of Uttar Pradesh for analysis forascertaining
whether the said ghee was adulterated.The analysis
disclosed that in several respects the samplewas sub-
standard and that in particular it had a ReichertValue of
22-5 as against the prescribed minimum of 28 for ghee in
Uttar Pradesh. After setting out the details of the ana-
lysis, the Public Analyst expressed the opinion that the
sample "contained a small proportion of vegetable fat or oil
foreign to pure ghee". On receipt of this report, the
Medical Officer of Health, Haidwani sanctioned the pro-
secution of the respondent and a complaint was thereafter
laid before the Magistrate 1st Class by the Food Inspector.
The respondent pleaded not guilty and entered on his
defence. Subsequently, the second sample was got analysed
by the Director, Central Food Laboratory, who reported that
his analysis disclosed a Reichert Value of 21-7 as against
22-5 of the Public Analyst. The opinion expressed by him as
regards the sample of ghee which he analysed was the same as
that of the Public Analyst, viz., that the sample was
adulterated.
The defence of the respondent who admitted that he had sold
the ghee, samples of which were the subject of analysis, but
denied it was adulterated, was two-fold: (1) He had obtained
the ghee which he sold from Jodhpur, (2) The sample must be
held not to be adulterated on the basis of the decision of
the Allahabad High Court in State v. Malik Ram(1).
The plea by the respondent regarding the ghee sold having
come from Jodhpur was made because if this were established
under the rules framed under the Act, to which
(1) A.I.R. 1962 AU. 156.
682
we shall later refer, the minimum Reichert value prescribed
for ghee in the Jodhpur area was 21 and that minimum re-
quirement was satisfied by the sample analysed. The res-
pondent led evidence to prove his purchase from Jodhpur but
the learned Magistrate did not accept this case.
The other defence was a point of law relying on the decision
of a Division Bench of the Allahabad High Court reported as
State v. Malik Ram(1). The learned Judges who decided that
case drew a distinction between ghee obtained from Cattle in
the hill districts of Uttar Pradesh and those from cattle in
the plains. This decision was relied on by the respondent
because the ghee sold by him was noted as ’pahadi ghee’ by
the Food Inspector. The learned Judges held that
notwithstanding the terms of the rules to which we shall
later refer, ghee obtained from hilly areas of Uttar Pradesh
like Kumaun hills, could not be held to be adulterated if
its Reichert value was equal to that prescribed for Himachal
Pradesh which was mostly a hilly area. They therefore held
that though the rules under the Food Adulteration Act
prescribed a minimum Reichert value of 28 for ghee for the
entire State of Uttar Pradesh, still if ghee from hill areas
of the Uttar Pradesh State reached a minimum of 26 Reichert
value, such ghee would not be "adulterated ghee". We shall
consider the correctness of this decision after completing
the narrative of the proceedings. The learned Magistrate
held that this decision did not affect the present case
because the Reichert value of the respondent’s ghee was
less than 26.The Magistrate therefore convicted the
respondent andsentenced him to rigorous imprisonment
for a period of sixmonths and a fine of Rs. 500 and in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9
default to furtherimprisonment for three months.
The respondent preferred an appeal to the Sessions Judge
Kumaon, and raised the same pleas and defences as he put
forward before the learned Magistrate. The Sessions Judge
concurred in the finding of the Magistrate regarding the
story of the respondent having bought the ghee from Jodhpur,
and he also agreed with the Magistrate about the effect of
the decision of the Division Bench of the High Court which
was also relied on before him. The
(1) A.I.R. 1962 All. 156.
683
Sessions Judge, however, while upholding the conviction
reduced the sentence of imprisonment from six months to one
month and the fine to Rs. 200.
The respondent thereupon filed a Criminal Revision petition
to the High Court under ss. 435 and 439 of the Criminal
Procedure Code. The learned Judge of the High Court agreed
with the Courts below on the finding of fact as regards the
Jodhpur origin of the ghee observing "as the file stands I
am satisfied that this ghee was of local origin". There
was, of course, no point raised before him as regards the
correctness of the analysis. ’Me learned Judge, however,
held that the basis on which the Reichert value had been
prescribed for the several areas in the country was not
based on any rational classification and he therefore held
that it was sufficient if any vendor of ghee in the country
satisfied the minimum standards prescribed for any area
under these rules. As there were areas in the country in
regard to which a minimum Reichert value of 21 had been
prescribed, he held that the respondent was not guilty of
adulteration and so directed his acquittal. It is from this
decision that the present appeal has been filed by the
State.
Before considering the point about the standards prescribed
under the Food Adulteration Act being violative of Art. 14,
an Article which though not specifically mentioned, is
apparently the ground upon which the learned Judge has held
that the prescription of the Reichert value of 28 for Uttar
Pradesh was unenforceable, it would be necessary to set out
the statutory provisions on which the decision of the
present appeal turns. The preamble to the Act describes it
as one "to make provision for the prevention of adulteration
of food". Section 2 defines the word ’adulterated’ as
follows :
"An article of food shall be deemed to be
adulterated-
(i) 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;"
684
to read only the portion that is material. Section 3
enables the Central Government to constitute a committee for
food standards and it runs
"3.(1) The Central Government shall, as soon
as may be after the commencement of this Act,
constitute a Committee called the Central
Committee for Food Standards to advise the
Central Government and the State Governments
on matters arising out of the administration
of this Art and to carry out the other
functions assigned to it under this Act.
(2) The Committee shall consist of the
following members, namely:-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9
(a) the Director General, Health Services,
ex officio, who shall be the Chairman;
(b) the Director of the Central Food
Laboratory, ex officio;
(c) two experts nominated by the Central
Government;
(d) one representative each of the Central
Ministries of Food and Agriculture, Commerce
and Industry, Railways and Defence nominated
by the Central Government;
(e) one representative each nominated by the
Government of each State;
(f) two representatives nominated by the
Central Government to represent the Union
territories;
(g) two representatives of Industry and Com-
merce nominated by the Central Government;
(h) one representative of the medical
profession nominated by the Indian Council of
Medical Reserch".
685
Section 7 which prohibits the manufacture and
sale of adulterated food reads:
"No person shall himself or by any person on
his behalf manufacture for sale, or store,
sell or distribute-
(i) any adulterated food;......"
Section 8 makes provision for State Governments appointing
Public Analysts and s. 9 for the appointment of Food Ins-
pectors. The next material provision is that contained in
s. 13 which deals with the reports of the analysis of food
for the purpose of ascertaining whether there are adulterat-
ed or sub-standard etc. Its first sub-section directs the
Public Analyst to make a report and under sub-s. (3) the
Certificate issued by the Director of the Central Food
Laboratory under sub-s. (2) is to supersede the report given
by a Public Analyst under sub-s. (1). Section 16 provides
for the penalties for offences under the’ Act. Section 23
confers on the Central Government power to make rules but
these rules have to be framed after consultation with the
Committee established under s. 3 and among the rules which
might be made are-
Section 23(1)(b)-defining the standards of quality for, and
fixing the limits of variability permissible in respect of,
any article of food;..............
"23. (2) All rules made by the Central
Government under this Act shall as soon as
possible after they are made be laid before
both Houses of Parliament."
Under the power conferred by s. 23, the Prevention of Food
Adulteration Rules, 1955, were promulgated.
Rule 5 which occurs in Part III of the rules--headed
"Definitions and Standards of quality"-specifies that "the
standards of quality of the various articles of food
specified in Appendix B to these rules are as defined in
that appendix." Ghee is one of the articles of food whose
standards are prescribed in Appendix B, milk and milk
products being listed under head A-1 1. Ghee is dealt with
in item 14 of A-11 and the standard prescribed for it runs:
Ghee means the pure clarified fat derived
solely from milk or from curds or from cream
to
686
which, no colouring matter or preservative has
been added. It shall conform to the following
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9
specifications-
in Punjab, Uttar Pradesh, Bhopal Vindhya Pradesh, Bihar,
West Bengal (except Bishnupur) and PEPSU (except
Mahendragarh):
(a)................
(b) Reichert Value Not less than 28.
(c).................
(d).................
In Madras, Andhra, Travancore-Cochin, Hyderabad, Mysore,
Orissa, Assam, Tripura, Manipur, Madhya Bharat, Bombay,
Himachal Pradesh, Mahendragarh District of PEPSU, Madhya
Pradesh (except cotton tract areas) and Rajasthan (except
Jodhpur) the specifications will be the same as above except
that Reichert value shall be not less than 26.0.
In Saurashtra, Kutch, cotton tract areas of Madhya Pradesh,
Jodhpur Division of Rajasthan and Bishnupur Sub-division of
West Bengal the Reichert value shall not be less than 21 and
the Butyro refractometer reading at 40 degree C shall be
between 41-5 to 45.0. The limits for free fatty acids and
moisture shall be the same as for ghee in Punjab, PEPSU etc.
given above.
Explanation.-By cotton tract is meant the areas in Madhya
Pradesh where cotton seed is extensively fed to the cattle.
The learned counsel for the State has urged before us that
the learned Judge was not justified in striking down or re-
drafting the rules framed by the Central Government in the
manner in which he has done, purporting to invoke Art. 14 of
the Constitution, and in virtually setting up what he
considered was the reasonable standard of quality which
should determine whether the ghee sold by the respondent was
adulterated or not. We entirely agree with this submission.
Now, it is common ground that if the rules were valid and
the standards prescribed enforceable, the ghee
687
sold by the respondent was ’adulterated’ with the result
that the respondent was guilty of an offence under s. 7 read
with s. 16 of ’the Act. The only question is whether there
was any material placed before the Court for refusing to
apply the rules for determining the standards of quality.
The standards themselves, it would be noticed, have been
prescribed by the Central Government on the advice of a
Committee which included in its composition persons
considered experts in the field of food technology and food
analysis. In the circumstances, if the rule has to be
struck down as imposing unreasonable or discriminatory
standards, it could not be done merely on any apriori
reasoning but only as a result of materials placed before
the Court by way of scientific analysis. It is obvious that
this can be done only when the party invoking the protection
of Art. 14 makes averments with details to sustain such a
plea and leads evidence to establish his allegations. That
where a party seeks to impeach the validity of a rule made
by a competent authority on the ground that the rules offend
Art. 14 the burden is on him to plead and prove the infir-
mity is too well established to need elaboration. If,
therefore, the respondent desired to challenge the validity
of the rule on the ground either of its unreasonableness or
its discriminatory nature, he had to lay a foundation for it
by setting out the facts necessary to sustain such a plea
and adduce cogent and convincing evidence to make out his
case, for there is a presumption that every factor which is
relevant or material has been taken into account in formu-
lating the classification of the zones and the prescription
of the minimum standards to each zone, and where we have a
rule framed with the assistance of a committee containing
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9
experts such as the one constituted under s. 3 of the Act,
that presumption is strong, if not overwhelming. We might
in this connection add that the respondent cannot assert any
fundamental right under Art. 19(1) to carry on business in
adulterated foodstuffs.
Where the necessary facts have been pleaded and established,
the Court would have materials before it on which it could
base findings, as regards the reasonableness or otherwise or
of the discriminatory nature of the rules. In
688
the absence of a pleading and proof of unreasonableness or
arbitrariness the Court cannot accept the statement of a
party as to the unreasonableness or unconstitutionality of a
rule and refuse to enforce the rule as it stands merely
because in its view the standards are too high and for this
reason the rule is unreasonable. In the case before us
there was neither pleading nor proof of any facts directed
to that end. The only basis on which the contention re-
garding unreasonableness or discrimination was raised was an
apriori argument addressed to the Court, that the division
into the- zones was not rational, in that hilly and plain
areas of the country were not differentiated for the
prescription of the minimum Reichert values. That a
distinction should exist between hilly regions and plains,
was again based on apriori reasoning resting on the
different minimum Reichert values prescribed for Himachal
Pradesh and Uttar Pradesh and on no other. It was, however,
not as if the entire State of Himachal Pradesh is of uniform
elevation or even as if no part of that State is plain
country but yet if the same minimum was prescribed for the
entire area of Himachal Pradesh, that would clearly show
that the elevation of a place is not the only factor to be
taken into account.
At this stage it might be pointed out that the test for
Reichert or Reichert-Meissl value of ghee is one of the
important tests for detecting adulteration with certain
vegetable oils by determining the proportion of the volatile
soluble acids in the ghee. The presence of the adulterant
disturbs the ratio existing in normal butter fat or ghee
between soluble and insoluble acids and volatile and non-
volatile acids. The Reichert value of pure ghee is not
constant, but is dependent on several factors-among them the
breed of the cattle to be found in an area, whether the
cattle are pasture fed or stall fed, and the nature of the
additional feed given, the nature of the terrain, the rain-
fall and climatic conditions etc. That the feed available
for the cattle is a very material and determining factor is
apparent even from the rules, for a distinction is drawn
between different areas of Madhya Pradesh depending on
cotton seed being available for feeding the cattle. It is
on the basis of the conjoint effects of these and other
factors which
689
obtain in the different areas, some pointing to a higher
Reichert value and others neutralising it and after
extensive survey conducted from samples collected and
analysed during various seasons, that the country has been
divided into zones under the rule in Appendix ’B’ and the
minimum Reichert value ascertained and prescribed for each.
From the fact that certain areas included in some of the
zones are hilly, it does not automatically follow that was
the potent factor or the only factor which was taken into
consideration for prescribing the standard for that region.
Without appreciating the several factors which bear upon the
Reichert value of the ghee produced in a locality and the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9
value attributed to each of these several relevant factors,
it would not be possible to pronounce upon the reasonable-
ness or correctness of the classification of the areas and
the prescription of different standards to each of them.
In State v. Malik Ram (1) a Division Bench of the High Court
held that because certain areas of Uttar Pradesh were hilly,
the Reichert value prescribed for the hilly areas like those
in Himachal Pradesh should be adopted and be given effect to
notwithstanding there was no ambiguity in the rules as
regards the area where the prescribed standards should be
applicable. Except a principle which the Court deduced from
the rules themselves there was no material before the Court
that the minimum standard prescribed for Uttar Pradesh was
defective in any respect. The approach adopted by the
learned Judges in Malik Ram’s case appears to us to be a
reversal of the well-recognised principle that it is for
those who challenge the constitutionality of a statute or a
statutory rule to allege and prove the grounds of invalidity
and the adoption of the contrary rule that when a party
makes such a challenge it is for those who seek to support
it to sustain it by positive evidence of its reasonableness
and legality. The Court evolved from a reading of the rules
a principle that the standards vary with the elevation of
the place, without having before it any materials for such a
conclusion save what it considered was the rationale
underlying the division into zones. As already explained,
even in Himachal Pradesh the elevation of every place is not
the same and there are areas which
(1) A.I.R. 1962 All. 156.
134-159 S.C.-44
690
are higher than others and so the test adopted does not even
satisfy logic. We do not consider that the Court was
justified in practically legislating and laying down what
the rules should be rather than give effect to the law by
adherence to the rules as framed.
In the case now under appeal the learned Judge took the
matter a step further and he adopted the lowest Reichert
value prescribed for any area in the country as that which
he would adopt for every other area in the country disre-
garding the rules. We find no justification for this either
and, in fact, if the learned Judges in Malik Ram’s case(1)
were in error in applying the Himachal standard to hilly
areas of Uttar Pradesh, the judgment now under appeal
discloses even more error. We might add that if one could
legitimately discard the standard prescribed in the rules,
as the learned Judge has done, we do not see any principle
in holding, as he seems to indicate, that where the Reichert
value is below 21 the ghee should be treated as adulterated.
We, therefore, hold that the learned Judge was not justified
in allowing the revision of the respondent and acquitting
him.
The result is that the appeal is allowed, the acquittal of
the respondent is set aside and his conviction restored.
It was stated to us on behalf of the respondent that of the
imprisonment for one month to which the sentence passed on
him by the Magistrate was modified by the Sessions Judge, he
had already undergone a sentence of 18 days. He has been on
bail practically since the admission of his Revision
Petition in the High Court. In the circumstances, we
consider that the sentence of imprisonment passed on him
might be reduced to the period already undergone. The
sentence of fine imposed will, however, stand.
Appeal allowed.
1) A.I.R. 1962 All. 156.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9
691