Case: Kishan Chand Vs. Delhi Administration And Anr

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, 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 stabilisers 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." 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 when the proviso to R. 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 Rr. 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 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 exceed the maximum of the prescribed standard by 6.4 and the 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 when the proviso to R. 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 ingredientApart from falling into the error of misreading Rr. 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 handIt 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 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 exceed the maximum of the prescribed standard by 6.4 and the 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.