Case: Kishan Chand Vs. Delhi Administration And Anr

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 cl. (i) of sub-section (1) of Section 16 read with cl. (j) 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 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 Chocobar 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 : 44 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 found 64 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 or 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 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 R. 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."

Reasoning:
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.