Full Judgment Text
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PETITIONER:
KISHAN CHAND
Vs.
RESPONDENT:
DELHI ADMINISTRATION AND ANR.
DATE OF JUDGMENT20/02/1979
BENCH:
KOSHAL, A.D.
BENCH:
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.
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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 stabi-
314
lisers 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]
JUDGMENT:
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
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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."
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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."
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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 is not the case. 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
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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
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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.
320