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PETITIONER: M.   V. KRISHNAN NAMBISSAN

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT: 18/01/1966

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. HIDAYATULLAH, M. BACHAWAT, R.S.

CITATION:  1966 AIR 1676            1966 SCR  (3) 373

ACT: Prevention of Food Adulteration Act (37 of 1954), ss. 7  and 16(1) (a) (i) and Prevention of Food Adulteration Rules, rr. 5,  44  and  Appendix  B--Butter-milk--Standard  of  quality whether specified.

HEADNOTE: The  appellant  was  the manager of a dairy  farm.   He  was charged with an offence under ss. 7 and 16(1) (a) (i) of the Prevention  of Food Adulteration Act, 1954, read with r.  44 of the Prevention of Food Adulteration Rules, 1955, in that, he  exposed  for  sale skimmed thick  buttermilk,  which  to analysis,  was  found to be adulterated with  water  to  the extent  of  11  per cent, and had thus  not  maintained  the standard  prescribed  for  butter-milk.   The  trial   Court acquitted him on the ground that no standard of quality  was prescribed  for  buttermilk.   On  appeal,  the  High  Court convicted  him, on the view that, the standard for milk  has been  fixed  by the Rules, that the same standard  was  made applicable  to curd and that, as butter-milk was in  essence curd  from  which  butter has  been  extracted,  butter-milk should  contain the same quantity of solids-notfat  as  curd should contain. In appeal to this Court, HELD.   Appendix  B to the Prevention of  Food  Adulteration Rules,  which specifies the standards of quality of  various articles of food, shows that it is not an ingredient of  the definition  of  butter-milk  that  it  should  contain   any particular percentage of solids-not-fat.  Wherever the  rule making  authority intended to prescribe a specific  standard for the contents of a product, it definitely stated so,  but in  the  case  of butter-milk, no  standard.  for  ’contents either  specifically  or with reference to  other  items  is prescribed.   The  only requirement is that it  shall  be  a product  obtained  after  removal of  butter  from  curd  by churning  or  otherwise.  Therefore, the appellant  had  not committed the offence with which he was charged. [377 C,  F- H]

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JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 93  of 1964. Appeal from the judgment and order dated October 11, 1963 of the Kerala High Court in Criminal Appeal No. 153 of 1962. R.   Ganapathy Iyer, for the appellant. P.   Govinda Menon and M. R. K. Pillai, for the respondent. The judgment of the Court was delivered by Subba  Rao, J. The appellant is the manager of  the  Palghat Depot of Messrs.  Nambissan’s D. V. Dairy Farm.  On July 20, 1961,  one  of  the Food Inspectors visited  his  depot  and purchased from the second accused, the salesman in charge of the depot, two 374 nazhies  of  "skimmed thick butter-milk" out  of  the  stock exposed  for sale in the depot.  He sent a sample of it  for analysis  to the Public Analyst.  The Analyst reported  that the  solids-not-fat content in the said sample was  7.5  per cent,  as against 8.5 per cent. prescribed for curd: he  was of  the opinion that the sample contained not less  than  II per  cent. of added water.  When the sample was  analysed  a few  months later by the Central Food Analyst,  he  reported that  the solids-not-fat content in the sample was only  6-4 per  cent.  Thereupon a complaint was filed in the Court  of the  District  Magistrate (Judicial), Palghat,  against  the appellant  and  his sales-man-we are not concerned  in  this appeal  with the charge against the sales-man.   The  charge against the appellant was that he committed an offence under s.   16(1)(a)(i)  and  s.  7  of  the  Prevention  of   Food Adulteration  Act, 1954 (37 of 1954) hereinafter called  the Act, read with r. 44 of the Prevention of Food  Adulteration Rules,  1955,  hereinafter  called the  Rules.   The  charge against  him  was that he exposed for  sale  "skimmed  thick butter-milk"  which on analysis was found to be  adulterated with  water  to  the extent of II  per  cent.   The  learned District  Magistrate,  on  a  consideration  of  the  entire evidence placed before him, came to the conclusion that  the appellant  was not guilty of the offence with which  he  was charged: he held that no standard of quality was  prescribed for  butter-milk  and, therefore, the accused could  not  be convicted  for the offence under the Act and the Rules.   On appeal,  the High Court took the view that the standard  for milk had been fixed by the Rules, that the same standard was made  applicable  to curd and that, as  butter-milk  was  in essence  curd  from  which butter had  been  extracted,  the butter-milk should contain the same quantity of  solids-not- fat  as  curd should contain.  On this reasoning,  the  High Court held that, as the sample showed only 6.4 per cent.  of solids-not-fat  content while it should have  contained  8.5 per cent. of it, the accused had committed the offence under the  said provisions and sentenced him to pay a fine of  Rs. 100/-,  in  default to suffer simple  imprisonment  for  one month.  Hence the present appeal, by certificate. Mr.  R. Ganapathy Iyer, learned counsel for  the  appellant, contended   that  the  appellant  was  prosecuted  for   not maintaining  the  standard prescribed  for  butter-milk  and that,  as no standard ,",as in fact prescribed for the  said product, the High Court went wrong in convicting him. To appreciate this contention it is necessary to notice  the relevant provisions of the Act and the Rules.               Section 2(i)(1).  An article of food shall  be               deemed  to  be adulterated if the  quality  or               purity   of  the  article  falls   below   the               prescribed standard or its constituents are                                    375

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             present  in quantities which are in excess  of               the prescribed limits of variability.               Section  7. No person shall himself or by  any               person on his behalf manufacture for sale,  or               store, sell or distribute:               (i)   any adulterated food:               (ii)  any misbranded food;               (V)   any article of food in contravention  of               any other provision of this Act or of any rule               made thereunder.               Section 16. (i) If any person-               (a)   whether  by himself or by any person  on               his behalf imports into India or  manufactures               for  sale,  or  stores,  or  distributes,  any               article of food in contravention of any of the               provisions  of  this Act or of any  rule  made               thereunder.               he shall, in addition to the penalty to  which               he may be liable under the provisions of s. 6,               be punishable.... In  exercise of the power conferred under s. 23 of the  Act, the  Central Government made rules defining the standard  of quality   for,   and  fixing  the  limits   of   variability permissible  in  respect of, any article of  food.   Rule  5 reads:               "Standards of quality of the various  articles               of food specified in Appendix B to these Rules               are as defined in that Appendix."                 APPENDIX B               A.11.01.Milk means the normal clean and  fresh               secretion obtained by complete milking of  the               udder of a healthy cow, buffalo, goat or sheep               during the period following at least 72  hours               after calving or until colostrum free  whether               such secretion has been processed or not.               A.11.01.01.Cow  milk  shall contain  not  less               than 3.5   per  cent  of milk fat,  except  in               Orissa, where it shall be not less than 3  per               cent and in Punjab and PEPSU where it shall be               not  less then 4.0 per cent.  The milk  solids               other than milk fat shall be not less than 8.5               percent.               A.11.01.02.Buffalo milk shall contain not less               than 5.0 per cent of milk fat except in Delhi,               Punjab,  PEPSU,  Uttar  Pradesh,  Bihar,  West               Bengal, Assam, Bombay and Saurashtra where  it               shall not be less than 6 per cent.  The               Sup.  CI/66-11 376 .lm15 milk solids other than milk fat shall not be less than 9 per cent. A.11.01.03.Goat  or  sheep milk shall contain  not  less than  3.0  per cent of milk fat except  in  Madhya  Pradesh, Punjab,  PEPSU, Bombay, Uttar Pradesh  and  TravancoreCochin where  it  shall be not less than 3.5 per  cent.   The  milk solids  other  than milk fat, shall be not less than  9  per cent. Where  milk, other than skimmed milk is sold or offered  for sale without any indication as to whether it is derived from cow,  buffalo,  goat, or sheep the standard  prescribed  for buffalo milk shall apply. A.11.02.Skimmed  milk, either fresh or reconstituted,  means milk from which all or most of the milk fat has been removed by  mechanical or any other process and includes  "separated

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milk" or "machine skimmed milk".  The milk solids other than milk fat shall be not less than 8.5 per cent. A.11.03.Butter-milk means the product obtained after removal of butter from curds by churning or otherwise. A.11.05.(a)  Table  (creamery)  butter  means  the   product prepared  exclusively  from milk, cream or curd  of  cow  or buffalo  or  a  combination  thereof  with  or  without  the addition of salt and coloured with annatto and shall contain not  less than 80 per cent of milk fat and not more than  16 per  cent  of moisture.  No preservative is  permissible  in table  butter.  Diacetyl may be added for flavour but  shall not exceed 4 parts per million. (b)Deshi  (cooking)  butter  means  the  product  prepared exclusively from milk, cream or curd of cow or buffalo or  a combination thereof, without the addition of any salt or any colour or any preservative and intended exclusively for  use in cooking or for preparation of ghee.  It shall contain not more  than 20 per cent of moisture and not less than 76  per cent of milk fat.  Where butter is sold or offered for  sale without  any indication as to whether it is table butter  or deshi butter, the standards of quality prescribed for  table butter shall apply. A.11.06.Dahi  or curd-(a) Whole milk dahi or curd means  the product  obtained  from fresh whole milk either  of  cow  or buffalo by souring.  It shall not contain any ingredient not found in Milk except sucrose and/or gur.                             377 (b)Skimmed milk dahi or curd means the product obtainedfrom skimmed milk either of cow or buffalo by souring. It shall  not contain any ingredient not found  in  milk,except sucrose and/or gur. The standard of purity of dahi or curd shall be the same  as prescribed for the milk from which it is derived- Where dahi or curd, other than skimmed milk dahi is sold  or offered for sale without any indication as to whether it  is derived  from cow or buffalo milk, the standards  prescribed for dahi prepared from buffalo milk shall apply. It  will be seen from the said provisions that it is not  an ingredient  of the definition of butter-milk that it  should contain   any  particular  percentage   of   solids-not-fat. Indeed, no standard in regard to its contents is prescribed. The only standard, if it may be described as one, is that it shall  be  a product obtained after removal of  butter  from curd by churning or otherwise.  It is not suggested that the butter-milk  in question was not a product obtained  in  the manner  described  thereunder.  Prime facie,  therefore,  it follows  that  the appellant has not committed  any  offence with which he: was charged, namely, that he had added  water to the extent of II per cent to the butter-milk. Mr. Govinda Menon, learned counsel for the State,  contended that  a fair reading of the definition of the  various  milk products  in Appendix B leads to an irresistible  conclusion that  for  buttermilk the same  standard  of  solids-not-fat prescribed for curds would apply.  It was said that  butter- milk  was  nothing more than curd from which  fat  had  been removed and, therefore, there was no reason why, apart  from fat, the other contents should be different from those found in the milk. It will be seen from the definitions of the various products in Appendix B to the Rules, which we have already extracted, that   wherever  the  rule-making  authority   intended   to prescribe a specific standard for the contents of a product, it  definitely states so.  The standards  of  solids-not-fat are  fixed  for  the milk of cow, buffalo,  goat  or  sheep. Though  standards are, fixed for the said milk products,  in

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defining  "skimmed  milk", "deshi (cooking) butter",  and  " skimmed  milk  dahi  or curd" the  standard  of  quality  is prescribed  with reference to other products.  But  when  we come  to  buttermilk, no standard for  its  contents  either specifically or with reference to other items is prescribed. A  comparative  study of the said items leaves no  room  for doubt that the rule making authority, for reasons, which, we think,  are  obvious  has not thought  fit  or  feasible  to prescribe  any  such standard in regard to the  contents  of butter-milk.  We cannot by inference read some thing in  the definition  of butter-milk which is not there.   The  reason for this omis- 378 sion  is presumably due to the fact that it is not  possible to   maintain   in  butter-milk  the  same   percentage   of solids-not-fat  content  as is found in curds or  milk,  for water  will  be added in the process of  making  butter-milk owing  to  the  fact that butter grains in  the  churn  .are washed  with cold water which will run off into the  butter- milk.   Anyhow, we would prefer to rest our judgment on  the absence  of fixation of any standard in respect  of  butter- milk rather than on the process of conversion of curds  into butter-milk.  We should not be understood to have  expressed any  view  on the question whether a  prosecution  could  be launched  for adulteration of butter-milk under  some  other clauses  of the definition of "adulterated" in s. 2  of  the Act,  for in the present case the prosecution was  only  for not maintaining the standard. In the result, the order of the High Court is set aside  and that -of the District Magistrate is restored.  The fine,  if it had already been collected, shall be refunded Appeal allowed. 379