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PETITIONER: STATE OF MAHARASTRA

       Vs.

RESPONDENT: BABURAO RAVAJI MHARULKAR & ORS.

DATE OF JUDGMENT26/10/1984

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) SEN, A.P. (J) VENKATARAMIAH, E.S. (J)

CITATION:  1985 AIR  104            1985 SCR  (1)1053  1984 SCC  (4) 540        1984 SCALE  (2)643

ACT:      Deemed Adulteration  Prevention  of  Food  Adulteration Rules 1955  Rule  5  read  with  paragraph  A.  11.02.08  of Appendix there  to and  sections 2 (ia) (;) and 2(ia) (m) of the  Prevention   of   Food   Adulteration   Act,   1954-The circumstance that  the standard of milk fat for buffalo milk is 5%  should not  render it  impossible for  Ice  cream  to contain milk rat less than 10% Ice cream containing than 10% must be  deemed to  be adulterated  within  the  meaning  of Section 2(ia)(m) of the Prevention of Food Adulteration Act, 1954 incurring  liability under section 16(1)(a) (ii) of the said Act. D

HEADNOTE:      Based on the report of Public Analyst which showed that the sample  of ice cream purchased by the Food Inspector, E’ Ward, Rajarampuri  from the shop of the 4th respondent firm, the partners  of which  were respondents  I to  3, contained 5.95% of  milk fat, as against the minimum of 10% prescribed by paragraph  A 11.02  08 of  Appendix of  the Prevention of Food Adulteration  Rules  1955,  all  the  respondents  were brought to  trial before  the Chief  Judicial Magistrate  of Kohlapur.  The   learned  Magistrate  thought  that  it  was impossible to  attain the  standard of  purity prescribed by the rules as ice cream was but a preparation of milk and the standard of  purity prescribed  for buffalo  milk was  but a minimum of  5% milk fat. He was, therefore, of the view that Rules 5  read with  paragraph A.  11.02 08  of Appendix  was impossible of compliance and, therefore, bad in law and thus acquitted all  the respondents.  On appeal by State, learned Single Judge  of the  High Court  of  Bombay  dismissed  the appeal in  limine. Hence  the State appeal under Art. 136 of the Constitution.      Allowing the appeal in part, the Court ^      HELD: 1:1.  The circumstance  that the standard of milk fat for  buffalo milk  is 5% should not render it impossible for ice  cream to contain a minimum percentage of 10 of milk fat. There  are several  ways by which the higher percentage of  milk  fat  in  ice  cream  may  be  attained.  The  most elementary method is to heat the milk sufficiently to reduce

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the percentage  of water and increase the percentage of milk fat. Another  obvious method  is to  add cream  containing a high percentage  of milk  fat separately  to the milk before making ice cream out of it. [1055B-D]      1: 2.  Rule 5  of the  Prevention of  Food Adulteration Rules 1955 provides 1054 that standard  and quality  of the  various articles of food specified in  Appendix thereto  are to  be defined  in  that Appendix. Paragraph  A. 11.02.08  of Appendix  prescribes  a minimum standard  of 10%  milk fat in the case of ice cream, kulfi and  chocolate ice  cream. Section 2 (ia) (m) provides that an article of food shall be deemed to be adulterated if the quality  or purity of article falls below the prescribed standard but  which does  not render it injurious to health. Therefore, the  ice cream  sold by  the first respondent was adulterated within  the meaning  of section 2(ia) (m) of the Prevention of Food Adulteration Act, 1955. [1055D-G]      1:  3.  In  the  circumstance,  the  1st  and  the  4th respondents are,  therefore liable  to  be  convicted  under section 16(1)(a)(ii)  of the  Food  Adulteration  Act  while respondents 2  and 3  are entitled  to acquittal as there is nothing to  indicate that  they were in charge of or were in any way  responsible for  the conduct of the business of the firm. [1055G-H, 1056A]      1: 4.  As to  sentence, in  view of  the fact  that the offence was  committed quite  some years  ago,  the  offence happens to  be the  first offence  and the Supreme Court was now interfering  with an  order of  acquittal, the  ends  of justice will  be  met  by  the  imposition  of  the  minimum sentence of  three months  prescribed by the proviso section 16(1) of the Act and a fine of Rs. 2,000 each. [1056B-C]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION :  Criminal Appeal No. 460 of 1984.      Appeal by  Special leave  from the  Judgment and  Order dated the  14th September,  1982 of the Bombay High Court in Criminal Appeal No. 440 of 1982      M.N. Shroff for the Appellant.      V.S. Desai, and Mrs. J.S. Wad for the Respondent.      The Judgement of the Court as delivered by      CHINNAPPA REDDY, J. Special Leave granted.      The Food  Inspector, ’E’ Ward, Rajarampuri, purchased a sample of  ice cream  from the  shop of  the 4th respondent- firm, the  partners of  which were respondents I to 3. After following the  procedure prescribed  by statute, one part of the sample  was sent to the Public Analyst for analysis. The report of Public Analyst showed that the sample of ice cream contained 5.95%  of milk  fat as  against the minimum of 10% prescribed by  paragraph A.  11.02.08  of  Appendix  of  the Prevention of Food Adulteration Rules, 1955.  The  learned Chief  Judicial Magistrate of Kohlapur thought that it 1055 was impossible  to attain  the standard of purity prescribed by paragraph  A. 11.02.08  of Appendix  of the Prevention of Food Adulteration  Rules, 1955,  as  ice  cream  was  but  a preparation of  milk and  the standard  of purity prescribed for buffalo  milk was  but a  minimum of  5% milk  fat.  The learned Magistrate  was, therefore,  of the view that Rule 5 read with  paragraph A.  11.02.08 of Appendix was impossible of compliance  and, therefore,  bad in law. On appeal by the

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State, a  learned Single  Judge of  the High Court of Bombay dismissed the  appeal in  limine The  State has preferred an appeal to  this Court under Art. 136 of the Constitution. We do not have the slightest hesitation in allowing the appeal. We are  unable to  appreciate why  the circumstance that the standard of milk fat for buffalo milk is 5% should render it impossible for  ice cream to contain a minimum percentage of 10% milk  fat. There  are several  ways by  which the higher percentage of  milk fat  in ice  cream be attained. The most elementary method is to heat the milk sufficiently to reduce the percentage  of water and increase the percentage of milk fat. Another  obvious method  is to  add cream  containing a high percentage  of milk  fat separately  to the milk before making ice  cream out  of it.  We  do  not  have  to  advise caterers and  restaurateurs about  how ice  cream containing the minimum  prescribed percentage  of milk  fat  should  be prepared. Section  2 (ia)  (1) of  the  Prevention  of  Food Adulteration Act,  1954 provides  that an  article  of  food shall be  deemed to  be adulterated if the quality of purity of the article of food falls below, the prescribed standard, which renders  it injurious  to health.  Section  2(ia)  (m) provides that  an article  of food  shall be  deemed  to  be adulterated if  the quality  or purity  of the article falls below the  prescribed standard, but which does not render it injurious to health. In the case before us, there is nothing to show  that the low percentage of milk fat renders the ice cream injurious  to health. Rule 5 of the Prevention of Food Adulteration Rules,  1955 provides  that standard of quality of the  various articles  of food  specified in  Appendix to these rules are to be as defined in that Appendix. Paragraph A. 11.  02. 08  of Appendix prescribed a minimum standard of 10ø/" milk fat in the case of ice cream, kulfi and chocolate ice cream.  There cannot  be the  least doubt  that the  ice cream sold  by the  first respondent  was adulterated within the meaning  of s.  2 (la)  (m) of  the Prevention  of  food Adulteration Act, 1954. The first and the fourth respondents are, therefore,  liable to  be convicted under s. 16 (1) (a) (ii)  of   the  Food  Adulteration  Act,  1954.  So  far  as respondents 2 and 3 are concerned, there is nothing 1056 to indicate  that they  were incharge  of or were in any way responsible for  the conduct  of the  business of  the firm. Their acquittal  is  confirmed’  Respondents  1  and  4  are convicted under s. 16 (1) (a) (ii) of the Prevention of Food Adulteration Act,  1954 and  each of  them is  sentenced  to suffer imprisonment  for a period of three months and a fine of Rs. 2, 000/- each. In default of payment of  fine they shall suffer a imprisonment for a further term of one  month.   We  are   imposing  the  minimum  sentence  of imprisonment prescribed  by the  proviso to s. 16 (1) as the offence was  committed quite  some years  ago and we are now interfering With  an order  of acquittal and this appears to be a first offence. S.R.                                  Appeal partly allowed. 1057