23 November 1964
Supreme Court


Case number: Appeal (civil) 934 of 1964






DATE OF JUDGMENT: 23/11/1964


CITATION:  1965 AIR 1167            1965 SCR  (2) 192  CITATOR INFO :  D          1974 SC 175  (11)

ACT: Fruit  Products  Order  1955-Issued  under  s.  3  Essential Commodities  Act,  1955-Clause 11 of  the  order  specifying qualitative  requirements  for  beverages  containing  fruit juices-Whether  order  -dealt  with  adulteration  of  fruit products-Therefore  whether invalid not having  been  issued under   the   Food  Adulteration  Act,   1954-Also   whether restriction  Order  made thereunder invalid  for  infringing Trade mark rights.

HEADNOTE: The  appellants manufacture a medicated syrup "Sharbat  Rooh Afza"  according  to  a formula and  containing  some  fruit juices.  Acting under s. 3 of the Essential Commodities Act, 1955,  the Central Government made the Fruit Products  order in  1955; as a result of an amendment in September  1956  of the  relevant provisions of this Order, the  requirement  of the  minimum  percentage of fruit juices in  a  fruit  syrup covered in part II of the Second Schedule of the Fruit Order was  raised  from  10% to 25%.  This  requirement  was  duly notified  to the Appellants.  Thereafter as a result  of  an inspection  of  their factory by the  Marketing  development Officer, the appellants received an order from him requiring them  to stop further manufacture and sale of ’Sharbat  Rooh Afza’  forthwith on the ground that it did not  contain  the minimum  percentage  of  fruit  juices  prescribed  by   the relevant  provisions  of the Fruit  Order.   The  appellants challenged  this  order in a Writ Petition  on  the  ground, inter  alia, that the Fruit Order did not apply to  ’Sharbat Rooh  Afza’ and also that the impugned order and  the  Fruit Order were invalid.  The High Court, however, rejected these grounds,  upheld  the validity of the Fruit Order  and  dis- missed the petition. It  was  contended  on behalf of  the  appellants  that  the ’Sharbat’ was a medicinal product and not a ’fruit  product’ as  defined by cl. 2(d) of the Fruit Order; that  the  Fruit Order  was invalid because it could have appropriately  been



issued  only under the Prevention of Food Adulteration  Act, 1954, and not the Essential Commodities Act, 1955; and  that the  impugned  order  was invalid because  it  affected  the appellant’s Trade-mark rigts. HELD  :  (i)  The Sharbat was a  fruit  product  within  the meaning of cl. 2(d) (v) of the Fruit order as the  residuary part  of that clause took in any beverages containing  fruit juices  or  fruit  pulp; as such, its  production  could  be controlled  by  the relevant provisions of the  order.   The High Court was right in rejecting the appellant’s contention that the Sharbat was a medicinal product in view of the fact that  the  appellants  had not claimed  exemption  from  the application  of  the  Fruit  Order  by  complying  with  Cl. 16(1)(c) thereof. [200 E-G; 201 H; 203 A] (ii)As  section  3(1)  of  the  Essential  Commodities  Act authorised   the   Central  Government   to   regulate   the qualitative   and  quantitative  production   of   essential commodities,  and as the pith and substance of the  relevant provisions  of the Fruit Order was clearly to  regulate  the qualitative production of the Fruit Products covered by  it, the  contention  that the regulations imposed by  the  order were outside the purview of s. 3(1), could  193 not be accepted.  The order was not therefore invalid on the ground   that  it  purported  to  tackle  the   problem   of adulteration and should therefore have been issued under the Prevention of Food Adulteration Act, 1954. [201 D-202 C] (iii)The  Fruit  Order and the Act under which  it  was issued  were  constitutionally  valid  as  the  restrictions imposed  by them were reasonable and in the interest of  the general public.  What the impugned order purported to do was to require the appellants to comply with reasonable restric- tions  imposed  by  the  Fruit  Order  and  the  fact  that, incidentally, compliance with the Fruit Order might tend  to affect the trade-mark rights, could not render the  impugned order invalid. [203 D-E] (iv)The  definition of ’synthetic beverage’ in cl. 2(k)  of the Fruit Order which indicates that it is a beverage  which contains no fruit juice cannot be said to conflict with  the requirements  of  cl. 11(2) that beverages  containing  less than  25%  fruit juices should be sold as  ’synthetic’  pro- ducts.   Furthermore, cl. 11 contains a  positive  provision and  the  validity of the mandatory requirements of  cl.  11 could  not be impaired by the alleged inconsistency  between that  provision and the definition of  ’synthetic’  beverage prescribed by cl. 2(k). [203 A-B] Amrit  Banaspati Co. Ltd. v. The Stale of U.P. Cr.   A.  No. 141 of 1959 dated 30-11-60, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 934 of 1964. Appeal  from the judgment and order dated January 13,  1964, of  the Punjab High Court (Circuit Bench) at Delhi in  Civil Writ No. 258-D of 1957. Hardayal  Hardy,  B.  Dutta,  M. S.  K.  Sastri  and  J.  B. Dadachanji, for the appellants. C.   K. Daphtary, Attorney-General R. K. P. Shankardass and R.   H. Dhebar, for the respondents. The Judgment of the Court was delivered by  Gajendragadkar,  C.J.  The  two  appellants,  the   Hamdard Dawakhana  (Wakf),  Delhi,  and  its  Mutawalli  Haji  Hakim Hameed,  represent the Hamdard Dawakhana  institution  which was  initially established in or about 1906 as  a  dawakhana



and was subsequently declared and founded as a Wakf.   Since its inception, the institution has been running dispensaries and  clinics  for  the treatment of patients  and  has  been manufacturing and supplying medicines and medicinal products according  to  Ayurvedic  and Unani  Systems  of  medicines. Appellant  No.  1 also manufactures medicated  syrups  which contain  some  fruit juices for medicinal use and  they  are prepared  according  to  a certain formula  devised  by  it. "Sharbat Rooh Afza" which is a medicated syrup  manufactured by appellant No. 1 is made of the following ingredients               "Kasni seeds, Khus, Pumpkin Juice, Water melon               Juice,   Chharila,   Ripe   grapes,   Spinach,               Nilofar, Sandal,               194               Gul Gaozaban, Coriandar, Carrot, Mint,  Kulfa,               Keora,  Rose,  Citrus  flower,  Orange  Juice,               Pine-apple Juice, Water, Sugar". The  formula determining the ratio and proportion  in  which each one of the ingredients has to be used, has been evolved by appellant No. 1 as a result of various experiments spread over  a long period.  The manufacture of this Sharbat  began in  1920.   It is intended to be used  for  common  ailments during  hot season, particularly for ailments like  loss  of appetite,  sun  stroke, nausea,  sleeplessness,  etc.   This Sharbat Rooh Afza is not a foodstuff, and cannot be regarded as  an  essential  commodity under S.  2  of  the  Essential Commodities  Act, 1955 (No. 10 of 1955) (hereinafter  called ’the  Act’).  In substance, this is the case as set  out  by the appellants in their petition. Purporting to act under s. 3 of the Act the Central  Govern- ment  made  an Order called the Fruit Products  Order,  1955 (hereinafter  called ’the Fruit Order’)  under  Notification No.  S.R.O. 1052 dated May 3, 1955.  Under clause 3  of  the Order, respondent No. 4, the Central Fruit Products Advisory Committee,  has  been constituted.  It appears that  on  the 22nd  September, 1956, the Central Government purporting  to act  under S. 3 of the Act, made certain amendments  in  the Fruit Order.  The result of one of the amendments thus  made was to direct that the minimum percentage of fruit juice  in the  final product of a fruit syrup as indicated in Part  11 of  the Second Schedule to the Fruit Order should be  raised from  10%  to 25%.  The change so made was notified  to  the appellants  by respondent No. 2, the  Marketing  Development Officer, Fruit Products, Central Zone, Delhi, on January 29, 1957.    As   a   result   of   this   intimation,   certain correspondence   followed   between   the   appellants   and respondent No. 2. The appellants had urged in the course  of this  correspondence  that Sharbat Rooh Afza  did  not  fall within the scope of the Act and the Fruit Order. On  March  25,  1957, respondent  No.  3,  the  Agricultural Marketing  Adviser  to the Government of India,  New  Delhi, invited a representative of the appellants for  discussions, and  as  a  result of the said  discussion,  Mr.  Sood,  the Marketing Development Officer, Delhi, inspected the  factory of the appellants and watched the process of manufacture  of Sharbat Rooh Afza on April 29, 1957.  Thereafter, on May 10, 1957, the appellants received a communication from Mr.  Sood ordering the appellants to stop further manufacture and sale of Sharbat Rooh Afza forthwith on  195 the ground that it did not contain the minimum percentage of fruit  juice prescribed by the relevant clause of the  Fruit Order.   This  communication  mentioned the  fact  that  the appellants  had  been specifically asked  to  prepare  fruit syrups  strictly  in  accordance  with  the   specifications



prescribed, but in utter disregard of the said instructions, the  appellants  had wilfully continued  to  contravene  the provisions of the Fruit Order.  That is why by virtue of the powers conferred on him by clause 13(f) of the Fruit  Order, the present order was served on the appellants.  It is  this order  which was challenged by the appellants by their  writ petition filed before the Punjab High Court on the 18th May, 1957 (No. 258-D of 1957). By  their  writ  petition, the appellants  prayed  that  the impugned  order  as  well  as  the  several  orders   passed preceding  it,  should  be quashed and a  writ  of  mandamus should  be issued against the respondents  restraining  them from seeking to enforce the material provisions of the Fruit Order  in respect of the appellants’ product  ’Sharbat  Rooh Afza’.  The appellants urged that the said Sharbat is not  a foodstuff, but a medicinal product and as such, its  produc- tion cannot be regulated under the provisions of s. 3 of the Act.   According  to  them,  the said  Sharbat  was  not  an essential commodity, nor was it a ’fruit product’ as defined by clause 2(d) of the fruit Order.  They also urged that the impugned  order  was  invalid, because  it  contravened  the fundamental rights of the appellants under Art. 19(1)(f)&(g) of  the Constitution; the Sharbat in question was in fact  a medicinal  product  and  as such,  the  impugned  order  was inconsistent with clause 16 (1) (c) of the Fruit Order.   It is on these grounds that the appellants sought relief by way of an appropriate writ or order quashing the impugned  order issued against them on May 10, 1957.  To this petition,  the appellants impleaded the Union of India as respondent No. 1. This  petition  was resisted by the respondents  on  several grounds.   It was alleged that the Sharbat in question  fell within  the  scope  of the Act and  the  Fruit  Order.   The respondents referred to the fact that the Hamdard  Dawakhana had  duly  applied and was granted a licence in  1955  as  a manufacturer engaged in the business of manufacturing  fruit products  for sale.  The Dawakhana is holding  this  licence since 1955.  The bottles in which the Sharbat in question is sold  by  the appellants do not bear labels  containing  the words  "for  medicinal  use  only".   It  appears  that  the Dawakhana  obtained  a licence for the year 1952  under  the Fruit Products Order 1948 for the manufacture of the Sharbat in  question.   On  analysis, it was  found  that  the  said Sharbat did not 196 contain fruit juice, though it was sold as fruit juice.  The label  ,on  the bottle of the Sharbat  depicts  pictures  of fruits.   Under the said Order of 1948 the synthetic  syrups containing no fruit juice were required to be clearly marked as  ’synthetic’  and  to  abstain  from  using  labels  with pictures  of  fruits.  In 1954 when it was  found  that  the Dawakhana  did not get the licence renewed,  the  appellants were  asked  either to get their licence renewed or  to  get exemption by complying with the necessary conditions.   When the appellants did not comply with these directions, some of the  bottles  of the Sharbat were detained  in  the  market. That led to a writ petition filed by the appellants in 1.954 (No.  11-D/1954)  in  the  Punjab  High  Court.   When   the petition,  however,  came  for final  hearing,  it  was  not pressed,  and  so,  was  dismissed on  June  5,  1954.   The Dawakhana  then  filed a suit for injunction, but  the  said suit  became  infructuous  with  the  expiry  of  the  Fruit Products Order, 1948 on January 25, 1955.  The present Fruit Order  came  into force on May 3, 1955;  and  the  Dawakhana filed another suit for injunction, but pending the suit, the appellants  applied  for and obtained a  licence  under  the



Fruit  Order and in consequence, the suit was  withdrawn  on October  18,  1955.  Even after obtaining the  licence,  the requirements  of the relevant provisions of the Fruit  Order as  to  the  minimum  percentage of  fruit  juice  were  not complied  with  by  the  appellants; and  that  led  to  the impugned order.  That is the background of the present  writ petition. In the present writ petition, the respondents urged that the Sharbat  in question is not sold for medicinal purposes;  it is  manufactured  by the appellants as a fruit  product  and sold  as such.  No exemption was claimed by  the  appellants under clause 16 of the Fruit Order.  The Sharbat in question is  foodstuff within the meaning of S. 2 of the Act  and  it falls  within the purview of the Fruit Order.  The  impugned order  is  not  unconstitutional,  because  the  restriction imposed by it is consistent with the relevant provisions  of the  Act  and the Fruit Order, and the said  provisions  are perfectly   valid,   because  they   impose   a   reasonable restriction in the interest of general public. This  writ  petition came on for final disposal  before  the Punjab  High Court on January 13, 1964.  The High Court  has rejected  the pleas raised by the appellants  and  dismissed their writ petition.  The High Court has held that there was no  substance  in the appellants’ grievance that  the  Fruit Order was invalid.  In support of this conclusion, the  High Court has relied upon a decision of this 197 Court  in  M/s.  Amrit Banaspati Co., Ltd. v. The  State  of Uttar Pradesh(1).  The High Court negatived the  appellants’ argument that the Sharbat in question was either prepared or sold  as a medicinal product.  In this connection  the  High Court has commented’ on the fact that the label borne by the bottles containing the Sharbat did not show that it was  for medicinal  use  only as required by cl. 16 (1)  (c)  of  the Fruit Order- According to the High Court, clause 1 1 of  the Fruit Order covered the case of the Sharbat prepared by  the appellants,  and so, the impugned order was justified.   The High  Court also found that there was no substance  in  the, grievance  made by the appellants that as a result  of  this impugned  order, their registered trade-mark label had  been affected. The High Court then examined the question as to whether  the provisions  of the Fruit Order could be said to be  invalid, and  it held that the said provisions were  perfectly  valid inasmuch as the restrictions imposed by them were reasonable and in the interests of’ the general public.  It is on these grounds  that  the  High  Court  dismissed  the  appellants’ petition. Thereafter,  the  appellants  applied  for  and  obtained  a certificate  from  the High Court to come to this  Court  in appeal.   This  certificate was granted on  July  22,  1964- After the appeal. was admitted in due course, the appellants moved  this  Court on October 26, 1964 for  stay;  in  fact, during  all  the  seven years that  the  writ  petition  was pending  before the High Court, the appellants had  obtained stay and they wanted the stay to continue pending the final’ disposal  of  this  appeal.  When we  found  that  the  writ petition had taken an unusually long time in the Punjab High Court,  we directed that the stay should continue in  favour of  the appellants, but that the appeal should be  heard  on November  9, 1964.  That is how the hearing of  this  appeal has been specially expedited. Before we deal with the points which have been raised before us by Mr. Pathak, we would refer very briefly to the  scheme and the relevant provisions of the Act and the Fruit  Order.



The  Act was passed in 1955 for the purpose  of  controlling the  production, supply and distribution of, and  trade  and commerce  in,  certain commodities in the interests  of  the general  public.  The commodities which were intended to  be brought  within  the  purview  of  the  Act  were  essential commodities as defined by s. 2(a) of the Act.  Amongst  them are included foodstuffs, including edible oil seeds and oils covered  by s. 2 (a) (v), and any other class of’  commodity which the Central Government may, by notified order, (1)  Criminal Appeal No. 141 of 1959 decided on 30-11-1960. 198 declare  to  be an essential commodity for the  purposes  of this Act, being a commodity with respect to which Parliament has power to make laws by virtue of entry 33 in List III  of the  Seventh Schedule to the Constitution; this is  included in the definition by s. 2 (a) (xi).  Section 3 (1 ) provides that  if  the Central Government is of opinion  that  it  is necessary   or  expedient  so  to  do  for  maintaining   or increasing  supplies  of  any  essential  commodity  or  for securing  their equitable distribution and  availability  at fair  prices,  it may, by order, provide for  regulating  or prohibiting the production, supply and distribution  thereof and trade and commerce therein.  Sub-section (2) by  clauses (a) to (h) provides for different categories of orders which may be passed by the Central Government without prejudice to the generality of the powers conferred on it by  sub-section (1).   It would thus be clear that the Act confers power  on the  Central Government to regulate the  production,  supply and  distribution of essential commodities.  This  power  is conferred  in a very general and wide sense by s. 3 (  1  ). There  can  be little doubt that the power to  regulate  the production of an essential commodity will include the  power to  regulate the production of essential  commodities  which may  operate  either qualitatively  or  quantitatively.   In other words, in regard to essential commodities, the Central Government  is  given  the  power  to  direct  how   certain essential  commodities  should  be  produced  and  in   what quantity.   This power, of course, can be exercised only  if the condition precedent prescribed by s. 3(1) is  satisfied, and that is that the Central Government should be of opinion that it is necessary or expedient to regulate the production of any essential commodity for one of the purposes mentioned by it.  This position cannot be, and is not, disputed before us.  In fact in M/s.  Amrit Banaspati Co. Ltd.(1) this Court whilst  dealing  with the provisions of  the  Vegetable  Oil Products Control Order, 1947, issued under s. 3 (1 ) of  the Act,  has definitely ruled that a qualitative regulation  in respect  of  the  production of an  essential  commodity  is permissible under s. 3(1) of the Act. That  takes us to the Fruit Products Order which was  issued by the Central Government on May 3, 1955, in exercise of the powers conferred on it by s. 3 of the Act.  Clause 2 of  the Fruit Order defines ’fruit product’.  Cl. 2(d) (1) takes  in synthetic  beverages,  syrups and sharbats; cl.  2  (d)  (v) takes in squashes crushes, cordials, barley water,  barreled juice  and ready-to-serve beverages or any  other  beverages containing  fruit juices or fruit pulp.  Clause 2 (d)  (xiv) takes  in any other unspecified items relating to fruits  or vegetables.  Clause 2(j) defines "sharbat" as 199 meaning  any  non-alcoholic  sweetened  beverage  or   syrup containing  non-fruit  juice  or  flavoured  with  non-fruit flavours,  such  as  rose, khus, kewra, etc;  and  cl.  2(k) defines  "synthetic beverage" as meaning  any  non-alcoholic beverage or syrups, other than aerated waters, containing no



fruit  juice  but  having an artificial  flavour  or  colour resembling as fruit.  Clause 7 of the Fruit Order prescribes that every manufacturer shall manufacture fruit products  in conformity   with   the  sanitary   requirements   and   the appropriate standard of quality and composition specified in the Second Schedule to this Order; it adds that every  other fruit  and  vegetable  product not  so  specified  shall  be manufactured in accordance with the standard of quality  and composition  laid  down  in this  behalf  by  the  Licensing Officer. That  takes  us to clause II; it is necessary to  read  this clause fully : -               (1)Any  beverage which does not contain  at               least  25  per centum of fruit  juice  in  its               composition shall not be described as a  fruit               syrup, fruit juice, squash or cordial or crush               and shall be described as a synthetic syrup.               (2)   Every  synthetic syrup shall be  clearly               and  conspicuously  marked on the label  as  a               ’SYNTHETIC’   product,   and   no    container               containing  such product shall have  a  label,               whether  attached  thereto or printed  on  the               wrapper of such container or, otherwise, which               may  lead the consumer into believing that  it               is  a fruit product, Neither the word  ’FRUIT’               shall  be used in describing such  a  product,               nor  shall  it be sold under the  cover  of  a               label, which carries the picture of any fruit.               Aerated  water  containing no fruit  juice  or               pulp  shall not have a label which  leads  the               consumer  into  believing that it is  a  fruit               product. Part II of the Second Schedule to the Fruit Order prescribes the specifications for fruit juice and other beverages.   In regard  to  fruit syrup, it provides, inter alia,  that  the minimum percentage of fruit juice in the final product  must be  25%.   The  respondents’ contention is  that  since  the Sharbat  in  question produced by the  appellants  does  not comply with this specification, it contravenes the mandatory provision  of  cl. 11(1).  Part IV of  the  Second  Schedule prescribes  the  specifications  for  synthetic  syrups  and sharbats.   Under this Part, there is no requirement  as  to any minimum of fruit juice in the said syrups and sharbats. 200 Clause  16  of the Fruit Order provides for cases  to  which this  Order does not apply, Clause 16 (1) (c) provides  that nothing in this Order shall be deemed to apply to any syrups which  are  sold in bottles bearing a label  containing  the words  "For medicinal use only" which does not  exhibit  any picture of fruits.  It is common ground that the  appellants do  not  sell the Sharbat in question in bottles  bearing  a label containing the words "For medicinal use only" and  so, cl. 1 6 (1) (c) does not apply and the appellants can  claim no exemption on that account. Mr.  Pathak no doubt attempted to argue that the Sharbat  in question is not an essential commodity and as such, it  does not fall within the purview of the Act or within the purview of the Fruit Order.  It appears that this plea was not urged by  the  appellants before the Punjab High  Court.   It  was argued  by  them before the High Court that the  Sharbat  in question  was a medicinal product; and that point  had  been considered  and rejected by the High Court; and so,  it  has assumed  that  the  Sharbat  in  question  is  an  essential commodity  within  the  meaning of S. 2  of  the  Act;  that question  cannot now be allowed to be argued for  the  first



time before this Court. Mr. Pathak wanted to suggest that the Sharbat in question is not  a fruit product and as such, is outside the purview  of the Fruit Order.  We are not impressed by this argument.  We have  already referred to cl. 2 (d) (v) of the  Fruit  Order which refers to several beverages, and the residuary part of this  clause takes in any other beverages  containing  fruit juices  or  fruit  pulp.  The suggestion  that  this  clause should be read ejusdem generis with the previous  categories of  beverages  cannot  obviously  be  accepted  because   an examination  of  the said beverages will disclose  the  fact that  there  is no genus by reference to which the  rule  of ejusdem  generis  can  be properly  invoked.   Besides,  the context  of the clause clearly suggests that it is  intended to take in all beverages other than those earlier specified, provided   they   contain  fruit  juices  or   fruit   pulp. Therefore, we feel no difficulty in holding that the Sharbat in question falls within the purview of cl. 2 (d) (v) of the Fruit Order and as such, its production can be controlled by its relevant provisions Then  it is urged by Mr. Pathak that the Fruit Order  itself is  invalid, because it does not purport to say that  before it was issued, the Central Government had formed the opinion that  it was necessary or expedient to issue the  Order  for maintaining  or  increasing  supplies of  the  commodity  in question.  Mr Pathak  201 contends, and rightly, that the condition prescribed by  the first  part of s. 3(1) of the Act is a  condition  precedent and  it  is  only  when and  after  the  said  condition  is satisfied that the power to issue a regulatory order can  be exercised by the Central Government.  This contention  again cannot be allowed to be raised for the first time in appeal, because  if  it had been raised before the High  Court,  the respondents would have had a chance to meet it.  It is true, as Mr. Pathak contends, that in the absence of any  specific averment made by the Fruit Order that the Central Government had  formed  the necessary opinion, no  presumption  can  be drawn  that  such opinion had been formed  at  the  relevant time;  but  it would have been open to  the  respondents  to prove  that such an opinion had been formed at the  relevant time; and it cannot be suggested that the failure to mention that fact expressly in the Fruit Order itself would preclude the  respondents from proving the said  fact  independently. That is why we think Mr. Pathak cannot be permitted to  urge this contention at this stage. Mr. Pathak, has, however, strenuously argued before us  that the Fruit Order is invalid, because its relevant  provisions indicate  that  it  is  an  Order  which  could  have   been appropriately   issued   under  the   Prevention   of   Food Adulteration Act, 1954 (No. 37 of 1954).  In support of this argument,  Mr. Pathak has relied on the fact that Act 37  of 1954  is  relatable to the legislative  power  conferred  by Entry  18  in  List  III of  the  Seventh  Schedule  to  the Constitution which refers to adulteration of foodstuffs  and other  goods; and so, the material provisions of  the  Fruit Order  which  really  prevent  the  adulteration  of   fruit products  could be legitimately enacted under this Act.   On the  other  hand,  the Essential Commodities  Act,  1955  is relateable  to  Entry  33 in List III and  the  Fruit  Order issued  under it would, therefore, be inappropriate,  having regard  to  the  object  which this  Order  is  intended  to achieve.   He  argues that the two powers are  distinct  and separate,  and the Fruit Order with which we are  concerned, cannot  be said properly to have been issued under the  Act.



It is true that the Prevention of Food Adulteration Act does deal  with the problem of preventing adulteration  of  food; but  it is not easy to accept Mr. Pathak’s  assumption  that the regulatory Order of the kind with which we are concerned which imposes regulations Of a qualitative character in  the production of essential goods, could have been issued  under this  Act.   But quite apart from this consideration  if  s. 3(1)  of  the  Act  authorises  the  Central  Government  to regulate  the  qualitative and  quantitative  production  of essential  commodities,  it  is idle  to  contend  that  the regulations p /65--14 202 imposed by the Fruit Order in respect of fruit products  are outside the purview of s. 3 (1).  The pith and substance  of the  relevant  provisions of the Fruit Order clearly  is  to regulate  the  qualitative  production  of  fruit   products covered   by   it.  This  object  is  illustrated   by   the specification  with which we are concerned.  Part II of  the Second  Schedule to the Fruit Order 1which has  imposed  the obligation on the manufacturers of fruit ’Syrups to  include at  least  25% of fruit juice in the final  product  of  the fruit  syrup produced by them, shows that by virtue  of  its powers  under  s. 3 (1) of the Act, the  Central  Government thought it necessary to require that a particular quality of fruit  syrup should be put on the market as fruit syrup  and no  other.  This object plainly falls within the purview  of s.  3(1),  and so, the contention that the  Fruit  Order  is invalid  inasmuch  as it purports to tackle the  problem  of adulteration of fruit product, cannot be accepted. Then Mr. Pathak suggested that there was some  inconsistency between the definition of ’synthetic beverage’ prescribed by cl.  2  (k) and the provisions of cl. 11 (2)  of  the  Fruit Order.   We have already read cl. 11.  The effect of cl.  11 (1) is that if any beverage does not contain at least 25 per cent of fruit juice, it shall not be described, inter  alia, as  ’fruit syrup’, but shall be ,described as  a  ’synthetic syrup’, and sub-cl. (2) of cl. 11 therefore provides that if any  syrup which has to be described as a ’synthetic  syrup’ by  virtue  of the provisions of sub-cl. (1) is put  on  the market,   it  would  be  necessary  to  describe  it  as   a ’Synthetic’  product clearly and conspicuously.  It is  with the object of bringing it to the notice of the customers  at large  that  the  synthetic product  does  not  contain  the minimum fruit juice prescribed by the Fruit Order that  sub- cl.  (2)  imposes  an  obligation  that  whoever  puts   the synthetic  product in the market shall mark it with a  label "Synthetic"  and  no attempt would be made to  describe  the product  as  though it was a fruit product.  That is  why  a specific  provision is made by sub-cl. (2) that neither  the word "Fruit" shall be used in describing such a product, nor will it bear a label which carries the picture of any fruit. From this provision aerated waters are exempted, because  it was  thought  that no customer would  ever  mistake  aerated water for fruit juice.  Now, if we bear in mind this  scheme of clause 11, it is difficult to see where the inconsistency lies  between  cl.  11 and the definition  of  a  ’synthetic beverage’  as  prescribed by cl. 2(k).   The  definition  of synthetic  beverage  indicates that it is a  beverage  which contains  no  fruit juice, and clause 11  which  contains  a positive provision that beverages 203 containing less than 25 per cent fruit juice should be shown as  a  ’synthetic’ product.  The  definition  of  ’synthetic beverage’  cannot be said to conflict with  the  requirement



that the products falling under cl. 11(2) should be sold  as ’synthetic’  products.   Besides,  clause  1  1  contains  a positive  provision  and  the  validity  of  the   mandatory requirements of cl. 11 cannot be said to be impaired by  any alleged  inconsistency  between the said provision  and  the definition  of ’synthetic beverage’ prescribed by cl. 2  (k) of the Fruit Order. The last contention which Mr. Pathak urged before us is that the  impugned  order  is invalid,  because  it  affects  the appellants’ trade-mark right.  It is not easy to  appreciate this  argument.  We have already held that the Act  and  the Fruit  Order issued by the Central Government by  virtue  of its  powers conferred by s. 3(1) of the Act are  valid.   If that  be so, the impugned order which is fully justified  by the  provisions  of the Act and the Fruit  Order  cannot  be challenged  as being invalid.  The conclusion that  the  Act and  the  Fruit Order issued under it  are  constitutionally valid proceeds on the basis that the restrictions imposed by them are reasonable and in the interests of general  public. What  the  impugned order purports to do is to  require  the appellants  to  comply  with  the  reasonable   restrictions imposed  by  the Fruit Order.  The  fact  that  incidentally compliance with Fruit Order may tend to affect their  trade- mark right cannot, in our opinion, render the impugned order invalid.   In  this connection, it is necessary to  bear  in mind  that  appellant No. I would not be justified  in  con- tending  that  the registered trade-mark  which  is  usually intended  to  distinguish  one  manufactured  article   from another  can  be  used by it even though  it  is  likely  to mislead  the  customers, or its use would mean a  breach  of some  other  law.   Besides,  it  is  significant  that  the impugned  order  does not really compel  the  appellants  to change their trade-mark.  If the appellants desire that  the Sharbat  in  question should be put on  the  market  without complying  with  the requirements of clause 1 1 ( 1  ),  all that they to do is to comply with cl.  1 1 (2) of the  Fruit Order.   In  the process of complying with cl. 1 1  (2),  if their trade-mark right is likely to be affected, that  would not   render  the  impugned  order  invalid,   because   the restriction  which is sought to be enforced against them  is found  to be reasonable and in the interests of the  general public.   Besides,  we  would  like  to  add  that  if   the appellants wanted to urge this point seriously, they  should have  placed  before the Court more material in  respect  of their alleged trade-mark right.  The appellants had  alleged in their writ petition that they are putting the 204 Sharbat on the market as a medicinal product.  In that case, they may claim exemption by complying with cl. 16 (i) (c) of the  Fruit  Order.   We are, therefore  satisfied  that  the Punjab High Court was right in holding that no case had been made out by the appellants for quashing the impugned order. Before  we part with this appeal, we would like to refer  to one unfortunate aspect of the present proceedings.  We  have already  indicated that the present writ petition was  filed by the appellants in the Punjab High Court on May 18,  1957, and it was finally decided on January 13, 1964.  It is  very much  to be regretted that the final disposal of  this  writ petition  should have taken such an unusually  long  period. The  appellants have been agitating this matter  since  1957 and  as  a result of the long duration of the  present  writ petition in the High Court, they have had the benefit of the stay  order  all this time, though ultimately it  was  found that  there was no substance in the petition.  It is  hardly necessary to add that writ petitions in which orders of stay



and   injunction   are   passed,  should   be   decided   as expeditiously as possible.  That is why when it came to  the notice  of this Court that this writ petition has  taken  an unusually long period in the High Court, we directed that it should  be set down for hearing within a fortnight after  it was brought to us on a notice of motion for stay. The result is, the appeal fails and is dismissed with costs. Appea1 dismissed. 205