s Nos 468 469 489 and 490 of 1969
Petitions Under article 32 of the Constitution of India for enforcement of fundamental rights
section V Gupte D Sudhakara Rao and B Parthasarathy for the petitioners in W P No 468 of 1969
BParthasarathY for the petitioners in W P Nos
469 489 and 490 of 1969
Niren De Attorney General B D Sharma and section P Nayar for respondent NO 1 in all the appeals
168 P Ram Reddy and G section Rama Rao for respondent No 2 in all the petitions
The Judgment of the Court was delivered by Shah J
The petitioners who are traders in foodgrains edible oils and other articles of food challenge the validity of section 7 read with section 2 v and 2 ix and section 19 section 2 i and section 1 0 read with section 13 of the Prevention of Food Adult Iteration Act 37 of 1954 and the rules framed thereunder
They claim that by the Act and the rules the fundamental rights guaranteed under articles 14 19 1 g and 203 of the Constitution are infringed
The Parliament with a view to control adulteration and mis branding of articles of food enacted the 
The petitioners concede that they do not claim a fundamental right to carry on business in adulterated or misbranded foodstuffs  they claim that they are honest traders and do not resort to any malpractice still in carrying on their business in foodstuffs they are by the Act subjected to restrictions which are not reasonable
They contend that the Act presumes every trader charged with an offence under section 1 6 1 a to be guilty and imposes upon him the burden of proving that he is not guilty of the offence charged by establishing facts which are not within his knowledge or which without great expense wholly incommensurate with his means and the facility available to him he cannot establish
They also claim that by the Act they are denied the equal protection of the laws and the guarantee of article 203 of the Constitution is infringed
The relevant provisions of the Act may first be noticed
Section 7 of the Act provides No person shall himself or by any person on his behalf manufacture for saleor store sell or distribute i any adulterated food ii any misbranded food iii any article of food for the sale of which a licence is prescribed except in accordance with the conditions of the licence iv any article of food for the sale of which is for the time being prohibited by the Food Health Authority in the interest of public health or V any article of food in contravention of any other  provision of this Act or of any rule made thereunder 169 By s10 a food inspector appointed under section 9  1  of the Act is authorised to take samples of any articles of food from any person selling such article or from any person who is in the course of conveying delivering or preparing to deliver such article to a purchaser or consignee or from a consignee after delivery of any such article to him and to send such sample for analysis to the public analyst and with the previous approval of the health officer having jurisdiction in the local area concerned or with the pre vious approval of the Food Health Authority to prohibit the sale of any article of food in the interest of public health
Sub section 5 of section 13 provides Any document purporting to be a report signed by a public analyst unless it has been superseded under sub section 3 or any document purporting to be a certificate signed by the Director of the Central Food Labo ratory may be used as evidence of the facts stated therein in any proceeding under this Act or under sections 272 to 276 of the Indian Penal Code Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts stated therein Section 161 prescribes the penalties  cls
a  f which are relevant provide 1 If any person a whether by himself or by any other person on his behalf imports into India or manufactures for sale or stores sells or distributes any article of food i which is adulterated or misbranded or the sale of which is prohibited by the Food Health authority in the interest of public health iiother than an article of food referred to in subclause i in contravention of any of the provisions of this Act or of any rule made thereunder or f whether by himself or by any other person on his behalf gives to the vendor a false warranty in writing in respect of any article of food sold by him he shall in addition to the penalty to which he may be liable under the provisions of section 6 be punish able with imprisonment for a term which shall not be less than L11Sup
Cl70 12 170 six months but which may extend to six years and with fine which shall not be less than one thousand rupees Provided that      
Section 19 deals with the defences which may and which may not be allowed in prosecutions under the Act
It provides 1 It shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale
2 A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves  a that he purchased the article of food i in a case where a licence is prescribed for the sale thereof from a duly licensed manufacturer distributor or dealer ii in any other case from any manufacturer distributor or dealer with a written warranty in the prescribed form and b that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it
3Any person by whom a warranty as is referred to in section 14 is alleged to have been given shall be entitled to appear at the hearing and give evidence
 Food is defined in section 2v as meaning any article used as food or drink for human consumption other than drugs and water and includes a any article which ordinarily enters into or is used in the composition or preparation of human food and b any flavouring matter or condiments
Clauses i and ix of section 2 define the expressions adulterated and misbranded
According to counsel for the petitioners the Act imposes un reasonable restrictions because it creates absolute liability by section 161 a and imposes severe penalties for storage and sale or distribution of articles of food found to be adulterated or misbranded or prohibited by law it prescribes standards which are technical and absolute and for the slightest departure therefrom the trader is liable to be prosecuted and punished
Counsel submitted that it is impossible for an ordinary trader without the 171 assistance of an expert technician to ascertain whether the articles of food purchased by him comply with the prescribed standards and that in prescribing the standards of quality the imperceptible changes which take place in foodstuffs by passage of time are not taken into account
In our judgment the restrictions imposed upon the conduct of business by traders in foodstuffs cannot be deemed unreasonable
By section 161 provision is made for imposing penalties among other acts for storage sale or distribution of articles of food which are adulterated or misbranded or sale of which is prohibited by the Food Healthauthority in the interest of the public health or is in contravention of the Act or the rules
The Act it is true does not make some blame worthy mental condition constituted by knowledge or intention relating to the nature of the article stored sold or distributed an ingredient of the offence
Unless the case falls within sub section
2 of section 19 if sale storage or distribution is established intention to sell articles or knowledge that the articles are adulterated misbranded or prohibited need no be proved by the prosecutor to bring home the charge
Sub section 1 of section 19 provides that it is no defence in a charge for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale
By that clause a bare plea of ignorance by a trader about the nature substance or quality of the food sold by him is not a defence in a prosecution for the offence pertaining to the sale of any adulterated food nor that the article was purchased for analysis
But in considering whether creation of absolute liability amounts to imposing unreasonable restrictions the Court has to strike a balance between the individual right and public weal
The Courts will not strike down an Act as imposing unreasonable restrictions merely because it creates an absolute liability for infringement of the law which involves grave danger to public health
The Courts will undoubtedly consider whether without imposing absolute liability the object of the statute could be reasonably secured
For that purpose the Court will consider the object of the Act apprehended danger to
the public interest arising out of the activity if not controlled and the possibility of achieving the intended results by less stringent provisions
The nature of the trade in foodstuffs the channels of supply and the movement of goods from trader to trader and fertile sources of adulteration and misbranding make it extremely difficult in a large majority of cases to establish affirmatively that storage or sale of adulterated or misbranded foodstuff was with a guilty mind
Provisions in the statute book creating absolute liability for sale of adulterated food are 172 fairly common
Section 31 of the English Foods  Drugs Act 1938 imposes absolute duty on a dealer in foodstuff regardless of negligence  Lindley vs George W Horner  Co Ltd1 and Lamb vs Sunderland and District Creamery Ltd 2  The same provision is repeated in section 2 of the Food and Drugs Act 1955
In Halsbury s Laws of England Vol 10 3rd Edn at p273 article 508 it is stated  A statutory crime may or may not contain an express definition of the necessary state of mind
A statute may require a specific intention malice knowledge wilfulness or recklessness
On the other hand it may be silent as to any requirement of mens rea and in such a case in order to determine whether or not mens rea is an essential element of the offence it is necessary to look at the objects and terms of the statute
In some cases the courts have concluded that despite the absence of express language the intention of the legislature was that mens rea was a necessary ingredient of the offence
In others the statute has been interpreted as creating a strict liability irrespective of mens rea
Instances of this strict liability have arisen on the legislation concern ing food and drugs liquor licensing and many other matters
In Mousell Brothers vs London and North Western Rail Co3 Atkin J observed   yet the legislature may prohibit an act or enforce a duty in such words to make the prohibitions or the duty absolute  
To ascertain whether a particular Act of Parliament has that effect or not regard must be had to the object of the statute the words used the nature of the duty laid down the person whom it is imposed the person by whom it would in ordinary circumstances be performed and the person upon whom the penalty is imposed In Quality Dairies York Ltd vs Pedley 4  the Court of Appeal held that Regulation 261 of the Mill and Dairies Regulation 1949 requiring a distributor to ensure that every vessel used as a container for milk shall be in a state of thorough cleanliness imposed an absolute liability
It is true that for the protection of the liberty of the citizen in the definition of offences blameworthy mental condition is ordinarily an ingredient either by express enactment or clear implica 1 3 2 4 173 tion  but in Acts enacted to deal with a grave social evil or for
ensuring public welfare especially in offences against public health eg statutes regulating storage or sale of articles of food and drink sale of drugs sale of controlled or scare commodities it is often found necessary in the larger public interest to provide for imposition of liability without proof of a guilty mind
If from the scheme of the Act it appears that compliance with the regulatory provisions will be promoted by imposing an absolute liability and that it cannot otherwise be reasonably ensured the Court will be justified in holding that the restriction on the right of the trader is in the interest of the general public
Adulteration and misbranding of foodstuffs is a rampant evil and a statute calculated to control that evil is indisputably in the interest of the general public  The statute imposing restrictions upon traders will not be deemed unreasonable merely because it makes a departure from the normal structure of statutes enunciating offences and prescribing punishments
By sub section
2 of section 19 even in respect of the absolute offence the Parliament has enacted that on proof of certain facts criminal liability will be excluded
Thereby a vendor is not deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves that the purchased the article of food from a duly licensed manufacturer distributor or dealer in a case where a licence is prescribed for the sale thereof and in any other case from any manufacturer distributor of dealer with a written warranty in the prescribed form provided the article of food while in his possession was properly stored and that he sold it in the same state as the purchased it
The argument of counsel for the petitioners that the provision that a retail seller who opens a container of a branded article of food loses even the limited protection under section 192 is without substance
Clause b of sub section
2 of section 19 does not provide nor does it imply that if the container of a branded article is opened the article of food ceases to be in them same state in which the vendor purchased it
If the article of food  is sold in the same condition in which it was purchased from a licensed manufacturer or dealer or was purchased with a warranty the vendor will not lose the protection of sub section
2 of section 19 merely because he opened the container
If the vendor has obtained the article from a licensed manufacturer distributor or dealer or from a manufacturer distributor or dealer with a warranty he is protected provided he has property stored the article and sells it in the same state as he purchased the article even if it turns out that the article was adulterated or misbranded
The Act does not dispense with proof that the article of food is adulterated misbranded or that its sale is prohibited it enacts that a vendor selling articles of food adulterated or misbranded cannot plead merely that he was ignorant of the nature substance or quality 174 of the goods
A statute enacted by the Parliament in the interest of public health which is generally made in similar statutes elsewhere imposing liability for an offence without proof of a guilty mind does not per se impose restrictions on the freedom to carry on trade which are unreasonable
It is true that stringent penalties are provided under section 16 1a
A vendor of adulterated misbranded or prohibited articles of food is punishable with imprisonment for a term which shall not in the absence of adequate and special reasons be less than six months and which may extend to six years and with fine which shall not be less than one thousand rupees
But for the protection of the public by ensuring the purity of articles of
food supplied to the people and preventing malpractices by the traders in articles of food severity of the penalties is not so disproportionate to the gravity of the offence that it may be deemed unreasonable
We are again unable to accept the argument that under the Act even when an article is purchased not as an article of food but for use otherwise the vendor will be deemed guilty if the article does not conform to the prescribed standards or is as an article of food adulterate or misbranded
Counsel said that coconut oil is used in the State of Kerala as a cooking medium and sale of adulterated coconut oil may in Kerala be an offence under section 16 but in other parts of the country where coconut oil is not used as a cooking medium and is used as a component of hair oil or for other purposes it amounts to imposing an unreasonable restriction to penalise the vendor who sells coconut oil knowing that the purchaser is not buying it as a cooking medium
But there are no articles which are used as food only in one part and are not at all used as food in another part of the country
Even coconut oil is used as a cooking medium by certain sections of the people in parts of India other than Kerala
In any event it is always open to a person selling an article capable of being used as an article of food as well as for other purpose to inform the purchaser by clear notice that the article sold or supplied is not intended to be used as an article of food
What is penalised by section 161 is importation manufacture for sale or storage sale or distribution Of any article of food
If what is imported manufactured or stored sold or distributed is not an article of food evidently S16 can have no application
The various items in the Schedule seting out standards of quality use technical expressions with which an ordinary retail dealer may not be familiar and also set out percentages of components which the dealer with the means at his command 175 cannot verify
But by section 3 the Central Government has to set up the Central Committee for Food Standards to advise the Central and the State Governments on matters arising out of the administration of the Act
The Committee consists of experts and representatives of the Central Government and of the State Governments and the Director General of Health Services is its Chairman
Under section 23 1 b the Central Government makes rules prescribing the standards of quality and the limits of variability permissible in any article of food
The rules are made after consultation with the Committee for Food Standards
The standards set out in the Appendix to the Rules are prescribed after consultation with the Committee for Food Standards
It has not been even urged that the standards have been fixed arbitrarily  Apart from a general argument that small retail dealers may not be in a position to ascertain whether goods purchased by them or in their possession are according to the standards no specific argument was advanced that the standards are not normal or that the variations in quality during the course of storage are unreasonably restricted
This Court in State of Uttar Pradesh vs Kartar Singh1 in which in dealing with an argument of invalidity of the rule setting out standards under the observed  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 a priori reasoning but only as a result of materials placed before the Court by way of scientific analysis
That where a party seeks to impeach the validity of a rule made by a competent authority 
the burden is on him to plead and prove the infirmity 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 formulating the classification of the zones and the prescription of the minimum 1  176 standards to each zone and where we have a rule framed with the assistance of a Committee containing ex
perts such as the one constituted under section 3 of the Act that presumption is strong if not overwhelming
 In the petitions a plea was raised that by the Act and the Rules the guarantee of article 14 was infringed but no argument was presented before us independently of the argument relating to infringement of the guarantee under article 191g in support of the contention that the Act infringed the guarantee of equality before the law or equal protection of the laws
The Act deals with the regulation of a class of traders and in view of the widespread malpractices and the practical difficulties of controlling those malpractices stringent provisions have been made by the Act
The classification is founded on an intelligible differentia and the differentia has a rational relation to the object sought to be achieved
The provisions of the Act again do not invest arbitrary authority upon those who are to administer the Act
nor can it be said that the standards prescribed are arbitrary
The Act does not infringe the guarantee of Art203 of the Constitution
By that clause no person accused of any offence shall be compelled to be a witness against himself
But by enacting that a plea by the vendor in a prosecution for an offence pertaining to sale of adulterated or misbranded article of food that he was ignorant of the nature substance or quality will not be a defence the guarantee under article 203 is not infringed
The vendor when charged with an offence is not thereby compelled to be a witness against himself
Nor can it be said that by making the report of the Director of Central Food Laboratory conclusive evidence of the facts stated therein any such infringement is intended
The provision has been made with a view to secure formal evidence of facts without requiring the Director to remain present and in  the interest of effective administration of the Act the certificate signed by the Director of the Central Food Laboratory is made final and conclusive evidence of the facts stated therein
The Director is a highly placed official an expert in determining the nature substance and quality of food and is wholly disinterested in the result of any case coming before the Courts
It is difficult to appreciate how con clusiveness attributed to the certificate of the Director compels the vendor charged with an offence under the Act to be a witness The petitions fail and are dismissed with costs
One hearing fee YP Petition dismissed


Summary:
The petitioners are traders in foodgrains edible oils and other articles of food
In a petition under Art32 they challenged the validity of sections 7 10 and 19 of the 
They contended that 1 sections 7 and 10 of the Act are violative of articles 14 and 191g because a section 161a of the Act read with section 191 imposes an absolute liability on dealers b the standards of quality and limits of variability Of quality prescribed by the Act are unreasonable and that small dealers would not be in a position to ascertain whether the goods purchased by them or in their possession are according to those standards as required by section 7 of the Act c even when an article is purchased not as an article of food but for other use the vendor would be deemed guilty if the article did not conform to the prescribed standards d if a retail seller opens a container of branded article of food he loses even the limited protection provided by section 192 and e that the penalties which may be imposed under section 161 a are unduly severe and 2 the non availability to the vendor of the plea of his ignorance and the conclusiveness of the certificate of the Director of Central Food Laboratory under section 135 of the Act violate the guarantee under article 203
HELD  a The Act does not make mens rea an ingredient of the offence
Ordinarily for the protection of the liberty of a citizen in the definition of offences blame worthy mental condition is made an ingredient but in Acts enacted to deal with a grave social evil or for ensuring public welfare especially in offences against health it is often found necessary in the larger public interest to provide for imposition of liability without proof of a guilty mind
If from the scheme of an Act it appears that compliance with the regulatory provisions will be promoted by imposing such absolute liability and that it cannot otherwise be reasonably ensured the court will be justified in holding that the restriction on the right of the trader is in the interest of the general public
172 H 173 C Adulteration and misbranding of food is a rampant evil in our country
The channels of supply and the movement of goods from trader to trader and fertile sources of adulteration and misbranding make it extremely difficult in a large majority of cases to establish affirmatively that storage or sale of adulterated or misbranded food stuffs was with a guilty mind
Therefore a statute calculated to control that evil is in the interest of the general public and merely because it makes a departure from the normal structure of statutes enunciating offences and prescribing punishments the restrictions on traders will not be deemed unreasonable
The defences set out in section 192 are open to the vendor and the act does not dispense with proof that the article of food is adulterated misbranded or that its sale is prohibited  it only enacts that a vendor selling adulterated and misbranded articles of food cannot merely plead that he was ignorant of the nature and quality of the goods
171 G H 173 C D 167 b The schedule to the Act uses technical expressions in relation to standards of quality and an ordinary retail dealer may not be familiar with them
But the rules made under section 231b prescribe clearly the standards of quality
The standards are arrived at after consultation
with the Committee for Food Standards which
consists of experts in the field of food technology and food analysis and representatives of the Central and State Governments
Hence the standards cannot be challenged as arbitrary or unreasonable
175 C c What is penalised by section 161 is the importation manufacture for sale or storage sale or distribution of any article of food
It is always open to a person selling an article capable of being used as an article of food as well as for other purpose to inform the purchaser by clear notice that the article sold or supplied was not intended to be used as an article of food and in such cases section 16 would not apply
174 G d Under section 192 if the vendor has obtained the article of food from a licensed manufacturer distributor or dealer or from a manufacturer distributor or dealer With a warranty he is protected provided he
has properly stored the article and sold it in the same state as he purchased it even if it turns out to be adulterated or misbranded
By merely opening the container the article of food does not cease to be in the same state in which the vendor purchased it
Therefore the vendor will not lose the protection of the sub section merely because he opens the container 173 G H e The severity of the penalty is not so disproportionate to the gravity of the offence that it may be deemed unreasonable because the penalties are imposed as a deterrent to prevent malpractices by traders in articles of food and to ensure the purity of articles of food
174 C The Act deals with the regulation of a class of traders and in view of the widespread malpractices and the practical difficulties of controlling the malpractices stringent provisions have been made in the Act
The classification is founded on an intelligible differentia and has a rational relation to the object sought to be achieved
176 C 2 Article 203 provides that no person accused of any offence shall be compelled to be a witness against himself
By providing that a plea of ignorance of the vendor wilt not be a defence and that the certificate of the Director of Central Food Laboratory who is a disinterested and high placed official as conclusive article 203 is not violated
176 D C