http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

    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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

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."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

    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."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

    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 319 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

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