06 February 1964
Supreme Court


Case number: Appeal (crl.) 164 of 1962






DATE OF JUDGMENT: 06/02/1964


CITATION:  1964 AIR 1135            1964 SCR  (6) 679  CITATOR INFO :  RF         1966 SC 128  (16)  F          1971 SC2346  (12)  R          1974 SC   1  (24)  R          1974 SC 228  (16)  R          1978 SC 933  (9)

ACT: Constitution  of  India-Prevention  of  Food   Adulteration- Fixation  of Reichert value of ghee for different States  of India-If  unreasonable  or  discriminatory-Constitution   of India,  Art. 14-Prevention of Food Adulterations Act,  1954, ss.  7,  16(1)(a) (i), 23-Prevention of  Food  Adulterations Rules, 1955, r. 5, Appendix B A-11, item 14.

HEADNOTE: The  respondent was tried for the commission of  an  offence under  s.  7 read with s. 16(1)(a)(i) of the  Prevention  of Food  Adulteration Act, 1954 for selling  adulterated  ghee. The  analysis  of  the  ghee had disclosed  that  it  had  a Reichert  Value  of only 22-5 whereas the  minimum  Reichert value fixed for Uttar Pradesh, where the respondent sold the ghee, was 28.  The defence of the respondent was that he had obtained  the  ghee  which he sold from  Jodhpur  where  the Reichert value fixed was only 22 and that the sample must be held  not to be adulterated on the basis of the decision  of the Allahabad High Court in State v. Malik Ram, A.1,R.  1962 All. 156.  This decision laid down that a distinction should be  made  between  ghee obtained from  cattle  in  the  hill districts  and ghee obtained from cattle in the  plains  and that ghee obtained from the hill districts of U.P. cannot be held  to be adulterated if its Reichert value was  equal  to that prescribed for Himachal Pradesh which is a hilly  area. It  was the contention of the respondent that his  ghee  was admittedly  pahadi  ghee and therefore this  decision  would apply. The  First Class Magistrate rejected these  contentions  and convicted  him and sentenced him to six months’ R.I.  and  a fine of Rs. 500.  On appeal the Sessions Judge concurred  in the  findings of the trial court but reduced  the  sentence.



The respondent thereupon filed a Criminal Revision  Petition before  the  High  Court.  The High Court  agreed  with  the courts  below that the ghee was not Jodhpur ghee but it  was produced  locally.  But it held that the Reichert values  as fixed  were not based on any reasonable  classification  and therefore  it  was  sufficient if  a  vendor  satisfied  the minimum standard prescribed for any area in the country  and since  the  minimum prescribed for certain areas is  21  and since  the ghee in question had 22-2 the respondent was  not guilty of the offence charged.  The State thereupon appealed to  this Court by way of a certificate under Art.  134(1)(e) of the Constitution. It was urged by the appellant that the High Court was  wrong in  striking  down or re-drafting the rules  framed  by  the Central Government in the manner in which the High Court has done purporting to invoke 680 Art.  14 of the Constitution and virtually setting  up  what the High Court considered was the reasonable standard. Held:     (i)  Where the Government have prescribed  certain standards  after taking into considerations various  factors the court cannot strike down these standards as unreasonable or  discriminatory merely on some priori reasoning.  It  can do so only by basing its decision on materials placed before it  by way of scientific analysis.  The party invoking  Art. 14  must make averments with details to sustain such a  plea and  lead  evidence to establish his  allegations.   In  the absence  of such plea and evidence the court  cannot  accept the statement of a party as to the unconstitutionality of  a rule  and  refuse to enforce that rule as it  stands  merely because in its view the standards are too high and for  this reason the rule is unreasonable. (ii) Applying  these  principles it is found that  the  case State  v.  Malik  Ram (A.I.R. 1962  All.  156)  was  wrongly decided  by  the Allahabad High Court.  In  the  case  under appeal  the  High Court took the matter a step  further  and adopted the lowest Reichert value prescribed for any area in the  country as what should be adopted for every other  area in the country disregarding the rules.  Hence the High Court was wrong in allowing the revisions.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 164  of 1962. Appeal from the judgment and order dated May 2, 1962, of the Allahabad High Court in Criminal Revision No. 1579 of 1961. O. P. Rana and C. P. Lal, for the appellant. Harnam Singh Chadda and Harbans Singh, for the respondent. February  6, 1964.  The Judgment of the Court was  delivered by AYYANGAR   J.-This  appeal  which  comes  before  us  on   a certificate  of  fitness  granted  by  the  High  Court   of Allahabad  under  Art.  134(1)(c) of  the  Constitution,  is against  a judgment of that Court acquitting the  respondent Kartar Singh of an offence under s. 7 read with s. 16 (1)(a) (i)  of the Prevention of Food Adulteration Act, 1954  which may be conveniently referred to as the Act.                             681 The facts giving rise to the prosecution are briefly  these: The  respondent  runs  a  shop at  Haldwani  and  among  the products sold by him is ghee.  On March 19, 1960 a  quantity of the ghee was purchased by the Food Inspector of the  area and  he put samples of the purchase into three phials  which



were  sealed  in  the respondent’s  presence.   It   may  be mentioned  that even in the seizure memo the Food  Inspector noted  the ghee purchased by him as "pahadi ghee".   One  of the samples was forwarded to the Public Analyst   to     the Government of Uttar Pradesh for analysis forascertaining whether the said ghee was adulterated.The  analysis disclosed that in several respects the samplewas  sub- standard and that in particular it had a ReichertValue   of 22-5  as  against the prescribed minimum of 28 for  ghee  in Uttar  Pradesh.  After setting out the details of  the  ana- lysis,  the  Public Analyst expressed the opinion  that  the sample "contained a small proportion of vegetable fat or oil foreign  to  pure  ghee".  On receipt of  this  report,  the Medical  Officer  of Health, Haidwani  sanctioned  the  pro- secution  of the respondent and a complaint  was  thereafter laid before the Magistrate 1st Class by the Food  Inspector. The  respondent  pleaded  not  guilty  and  entered  on  his defence.   Subsequently, the second sample was got  analysed by the Director, Central Food Laboratory, who reported  that his  analysis disclosed a Reichert Value of 21-7 as  against 22-5 of the Public Analyst.  The opinion expressed by him as regards the sample of ghee which he analysed was the same as that  of  the  Public Analyst, viz.,  that  the  sample  was adulterated. The defence of the respondent who admitted that he had  sold the ghee, samples of which were the subject of analysis, but denied it was adulterated, was two-fold: (1) He had obtained the ghee which he sold from Jodhpur, (2) The sample must  be held  not to be adulterated on the basis of the decision  of the Allahabad High Court in State v. Malik Ram(1). The  plea by the respondent regarding the ghee  sold  having come from Jodhpur was made because if this were  established under the rules framed under the Act, to which (1)  A.I.R. 1962 AU. 156. 682 we shall later refer, the minimum Reichert value  prescribed for  ghee  in the Jodhpur area was 21 and that  minimum  re- quirement  was satisfied by the sample analysed.   The  res- pondent led evidence to prove his purchase from Jodhpur  but the learned Magistrate did not accept this case. The other defence was a point of law relying on the decision of a Division Bench of the Allahabad High Court reported  as State v. Malik Ram(1).  The learned Judges who decided  that case drew a distinction between ghee obtained from Cattle in the hill districts of Uttar Pradesh and those from cattle in the  plains.  This decision was relied on by the  respondent because  the ghee sold by him was noted as ’pahadi ghee’  by the   Food   Inspector.   The  learned  Judges   held   that notwithstanding  the  terms of the rules to which  we  shall later refer, ghee obtained from hilly areas of Uttar Pradesh like  Kumaun hills, could not be held to be  adulterated  if its Reichert value was equal to that prescribed for Himachal Pradesh which was mostly a hilly area.  They therefore  held that  though  the  rules under  the  Food  Adulteration  Act prescribed  a minimum Reichert value of 28 for ghee for  the entire State of Uttar Pradesh, still if ghee from hill areas of the Uttar Pradesh State reached a minimum of 26  Reichert value, such ghee would not be "adulterated ghee".  We  shall consider  the correctness of this decision after  completing the  narrative of the proceedings.  The  learned  Magistrate held  that  this decision did not affect  the  present  case because the Reichert     value of the respondent’s ghee  was less than 26.The  Magistrate   therefore   convicted   the respondent andsentenced      him  to rigorous  imprisonment for a period of sixmonths    and  a fine of Rs. 500 and  in



default to furtherimprisonment for three months. The  respondent  preferred an appeal to the  Sessions  Judge Kumaon,  and  raised the same pleas and defences as  he  put forward  before the learned Magistrate.  The Sessions  Judge concurred  in  the finding of the Magistrate  regarding  the story of the respondent having bought the ghee from Jodhpur, and  he also agreed with the Magistrate about the effect  of the  decision of the Division Bench of the High Court  which was also relied on before him.  The (1)  A.I.R. 1962 All. 156.                             683 Sessions  Judge,  however, while  upholding  the  conviction reduced the sentence of imprisonment from six months to  one month and the fine to Rs. 200. The respondent thereupon filed a Criminal Revision  petition to  the  High Court under ss. 435 and 439  of  the  Criminal Procedure Code.  The learned Judge of the High Court  agreed with the Courts below on the finding of fact as regards  the Jodhpur  origin of the ghee observing "as the file stands  I am  satisfied  that this ghee was of local  origin".   There was,  of course, no point raised before him as  regards  the correctness  of the analysis.  ’Me learned  Judge,  however, held  that  the basis on which the Reichert value  had  been prescribed  for  the several areas in the  country  was  not based  on any rational classification and he therefore  held that it was sufficient if any vendor of ghee in the  country satisfied  the  minimum standards prescribed  for  any  area under  these rules.  As there were areas in the  country  in regard  to  which a minimum Reichert value of  21  had  been prescribed,  he held that the respondent was not  guilty  of adulteration and so directed his acquittal.  It is from this decision  that  the  present appeal has been  filed  by  the State. Before considering the point about the standards  prescribed under the Food Adulteration Act being violative of Art.  14, an  Article  which  though not  specifically  mentioned,  is apparently the ground upon which the learned Judge has  held that the prescription of the Reichert value of 28 for  Uttar Pradesh was unenforceable, it would be necessary to set  out the  statutory  provisions  on which  the  decision  of  the present appeal turns.  The preamble to the Act describes  it as one "to make provision for the prevention of adulteration of  food".   Section  2 defines the  word  ’adulterated’  as follows :               "An  article  of food shall be  deemed  to  be               adulterated-               (i)   if the quality or purity of the  article               falls  below  the prescribed standard  or  its               constituents  are present in quantities  which               are  in  excess of the  prescribed  limits  of               variability;" 684 to  read  only  the portion that  is  material.   Section  3 enables the Central Government to constitute a committee for food standards and it runs               "3.(1)  The Central Government shall, as  soon               as may be after the commencement of this  Act,               constitute  a  Committee  called  the  Central               Committee  for  Food Standards to  advise  the               Central  Government and the State  Governments               on  matters arising out of the  administration               of  this  Art  and  to  carry  out  the  other               functions assigned to it under this Act.               (2)   The  Committee  shall  consist  of   the               following members, namely:-



             (a)   the  Director General, Health  Services,               ex officio, who shall be the Chairman;               (b)   the   Director  of  the   Central   Food               Laboratory, ex officio;               (c)   two  experts  nominated by  the  Central               Government;               (d)   one  representative each of the  Central               Ministries  of Food and Agriculture,  Commerce               and  Industry, Railways and Defence  nominated               by the Central Government;               (e)   one representative each nominated by the               Government of each State;               (f)   two  representatives  nominated  by  the               Central  Government  to  represent  the  Union               territories;               (g)   two representatives of Industry and Com-               merce nominated by the Central Government;               (h)   one   representative  of   the   medical               profession nominated by the Indian Council  of               Medical Reserch".               685               Section 7 which prohibits the manufacture  and               sale of adulterated food reads:               "No  person shall himself or by any person  on               his  behalf  manufacture for sale,  or  store,               sell or distribute-               (i) any adulterated food;......" Section  8 makes provision for State Governments  appointing Public  Analysts and s. 9 for the appointment of  Food  Ins- pectors.   The next material provision is that contained  in s.  13 which deals with the reports of the analysis of  food for the purpose of ascertaining whether there are adulterat- ed  or sub-standard etc.  Its first sub-section directs  the Public  Analyst  to make a report and under sub-s.  (3)  the Certificate  issued  by  the Director of  the  Central  Food Laboratory under sub-s. (2) is to supersede the report given by  a Public Analyst under sub-s. (1).  Section 16  provides for  the penalties for offences under the’ Act.  Section  23 confers  on the Central Government power to make  rules  but these  rules have to be framed after consultation  with  the Committee  established under s. 3 and among the rules  which might be made are- Section 23(1)(b)-defining the standards of quality for,  and fixing the limits of variability permissible in respect  of, any article of food;..............               "23.  (2)  All  rules  made  by  the   Central               Government  under  this Act shall as  soon  as               possible  after they are made be  laid  before               both Houses of Parliament." Under  the power conferred by s. 23, the Prevention of  Food Adulteration Rules, 1955, were promulgated. Rule  5  which  occurs  in Part  III  of  the  rules--headed "Definitions  and Standards of quality"-specifies that  "the standards  of  quality  of  the  various  articles  of  food specified  in  Appendix B to these rules are as  defined  in that  appendix." Ghee is one of the articles of  food  whose standards  are  prescribed  in Appendix  B,  milk  and  milk products  being listed under head A-1 1. Ghee is dealt  with in item 14 of A-11 and the standard prescribed for it runs:               Ghee  means  the pure  clarified  fat  derived               solely  from milk or from curds or from  cream               to               686               which, no colouring matter or preservative has               been added.  It shall conform to the following



             specifications- in  Punjab,  Uttar Pradesh, Bhopal Vindhya  Pradesh,  Bihar, West   Bengal   (except   Bishnupur)   and   PEPSU   (except Mahendragarh): (a)................ (b)  Reichert Value     Not less than 28. (c)................. (d)................. In  Madras,  Andhra, Travancore-Cochin,  Hyderabad,  Mysore, Orissa,  Assam,  Tripura, Manipur,  Madhya  Bharat,  Bombay, Himachal  Pradesh,  Mahendragarh District of  PEPSU,  Madhya Pradesh  (except cotton tract areas) and  Rajasthan  (except Jodhpur) the specifications will be the same as above except that Reichert value shall be not less than 26.0. In Saurashtra, Kutch, cotton tract areas of Madhya  Pradesh, Jodhpur Division of Rajasthan and Bishnupur Sub-division  of West Bengal the Reichert value shall not be less than 21 and the  Butyro  refractometer reading at 40 degree C  shall  be between  41-5 to 45.0. The limits for free fatty  acids  and moisture shall be the same as for ghee in Punjab, PEPSU etc. given above. Explanation.-By  cotton tract is meant the areas  in  Madhya Pradesh where cotton seed is extensively fed to the cattle. The  learned counsel for the State has urged before us  that the learned Judge was not justified in striking down or  re- drafting  the rules framed by the Central Government in  the manner in which he has done, purporting to invoke Art. 14 of the  Constitution,  and  in virtually  setting  up  what  he considered  was  the reasonable standard  of  quality  which should determine whether the ghee sold by the respondent was adulterated or not.  We entirely agree with this submission. Now,  it is common ground that if the rules were  valid  and the standards prescribed enforceable, the ghee                             687 sold  by  the respondent was ’adulterated’ with  the  result that the respondent was guilty of an offence under s. 7 read with s. 16 of ’the Act.  The only question is whether  there was  any  material placed before the Court for  refusing  to apply the rules for determining the standards of quality. The  standards  themselves, it would be noticed,  have  been prescribed  by  the Central Government on the  advice  of  a Committee   which  included  in  its   composition   persons considered experts in the field of food technology and  food analysis.   In  the  circumstances, if the rule  has  to  be struck  down  as  imposing  unreasonable  or  discriminatory standards,  it  could  not be done  merely  on  any  apriori reasoning  but only as a result of materials  placed  before the Court by way of scientific analysis.  It is obvious that this can be done only when the party invoking the protection of  Art. 14 makes averments with details to sustain  such  a plea and leads evidence to establish his allegations.   That where  a party seeks to impeach the validity of a rule  made by a competent authority on the ground that the rules offend Art.  14 the burden is on him to plead and prove the  infir- mity  is  too  well established to  need  elaboration.   If, therefore, the respondent desired to challenge the  validity of the rule on the ground either of its unreasonableness  or its discriminatory nature, he had to lay a foundation for it by  setting out the facts necessary to sustain such  a  plea and  adduce cogent and convincing evidence to make  out  his case, for there is a presumption that every factor which  is relevant  or material has been taken into account in  formu- lating the classification of the zones and the  prescription of  the minimum standards to each zone, and where we have  a rule  framed with the assistance of a  committee  containing



experts  such as the one constituted under s. 3 of the  Act, that  presumption is strong, if not overwhelming.  We  might in this connection add that the respondent cannot assert any fundamental  right under Art. 19(1) to carry on business  in adulterated foodstuffs. Where the necessary facts have been pleaded and established, the  Court would have materials before it on which it  could base findings, as regards the reasonableness or otherwise or of the discriminatory nature of the rules.  In 688 the  absence of a pleading and proof of unreasonableness  or arbitrariness  the  Court cannot accept the statement  of  a party as to the unreasonableness or unconstitutionality of a rule  and  refuse to enforce the rule as  it  stands  merely because in its view the standards are too high and for  this reason  the  rule is unreasonable.  In the  case  before  us there  was neither pleading nor proof of any facts  directed to  that  end.  The only basis on which the  contention  re- garding unreasonableness or discrimination was raised was an apriori  argument addressed to the Court, that the  division into  the- zones was not rational, in that hilly  and  plain areas  of  the  country  were  not  differentiated  for  the prescription  of  the  minimum  Reichert  values.   That   a distinction  should exist between hilly regions and  plains, was  again  based  on  apriori  reasoning  resting  on   the different  minimum Reichert values prescribed  for  Himachal Pradesh and Uttar Pradesh and on no other.  It was, however, not as if the entire State of Himachal Pradesh is of uniform elevation  or  even  as if no part of that  State  is  plain country  but yet if the same minimum was prescribed for  the entire  area  of Himachal Pradesh, that would  clearly  show that  the elevation of a place is not the only factor to  be taken into account. At  this  stage it might be pointed out that  the  test  for Reichert  or  Reichert-Meissl value of ghee is  one  of  the important  tests  for detecting  adulteration  with  certain vegetable oils by determining the proportion of the volatile soluble  acids in the ghee.  The presence of the  adulterant disturbs  the  ratio existing in normal butter fat  or  ghee between  soluble and insoluble acids and volatile  and  non- volatile  acids.   The Reichert value of pure  ghee  is  not constant, but is dependent on several factors-among them the breed  of  the cattle to be found in an  area,  whether  the cattle  are pasture fed or stall fed, and the nature of  the additional feed given, the nature of the terrain, the  rain- fall  and climatic conditions etc.  That the feed  available for the cattle is a very material and determining factor  is apparent  even  from the rules, for a distinction  is  drawn between  different  areas  of Madhya  Pradesh  depending  on cotton  seed being available for feeding the cattle.  It  is on  the  basis of the conjoint effects of  these  and  other factors which 689 obtain  in  the different areas, some pointing to  a  higher Reichert   value  and  others  neutralising  it  and   after extensive  survey  conducted  from  samples  collected   and analysed  during various seasons, that the country has  been divided  into zones under the rule in Appendix ’B’  and  the minimum Reichert value ascertained and prescribed for  each. From  the  fact that certain areas included in some  of  the zones are hilly, it does not automatically follow that   was the  potent factor or the only factor which was  taken  into consideration for prescribing the standard for that  region. Without appreciating the several factors which bear upon the Reichert  value of the ghee produced in a locality  and  the



value attributed to each of these several relevant  factors, it  would not be possible to pronounce upon the  reasonable- ness  or correctness of the classification of the areas  and the prescription of different standards to each of them. In State v. Malik Ram (1) a Division Bench of the High Court held that because certain areas of Uttar Pradesh were hilly, the Reichert value prescribed for the hilly areas like those in Himachal Pradesh should be adopted and be given effect to notwithstanding  there  was  no ambiguity in  the  rules  as regards  the area where the prescribed standards  should  be applicable.  Except a principle which the Court deduced from the rules themselves there was no material before the  Court that  the minimum standard prescribed for Uttar Pradesh  was defective  in  any  respect.  The approach  adopted  by  the learned  Judges  in Malik Ram’s case appears to us to  be  a reversal  of  the well-recognised principle that it  is  for those who challenge the constitutionality of a statute or  a statutory rule to allege and prove the grounds of invalidity and  the  adoption of the contrary rule that  when  a  party makes  such a challenge it is for those who seek to  support it to sustain it by positive evidence of its  reasonableness and legality.  The Court evolved from a reading of the rules a  principle that the standards vary with the  elevation  of the place, without having before it any materials for such a conclusion  save  what  it  considered  was  the   rationale underlying  the division into zones.  As already  explained, even in Himachal Pradesh the elevation of every place is not the same and there are areas which (1) A.I.R. 1962 All. 156. 134-159 S.C.-44 690 are higher than others and so the test adopted does not even satisfy  logic.   We  do not consider  that  the  Court  was justified  in practically legislating and laying  down  what the  rules should be rather than give effect to the  law  by adherence to the rules as framed. In  the  case now under appeal the learned  Judge  took  the matter  a  step further and he adopted the  lowest  Reichert value  prescribed for any area in the country as that  which he  would adopt for every other area in the  country  disre- garding the rules.  We find no justification for this either and,  in fact, if the learned Judges in Malik Ram’s  case(1) were  in  error in applying the Himachal standard  to  hilly areas  of  Uttar  Pradesh, the  judgment  now  under  appeal discloses  even more error.  We might add that if one  could legitimately  discard the standard prescribed in the  rules, as  the learned Judge has done, we do not see any  principle in holding, as he seems to indicate, that where the Reichert value is below 21 the ghee should be treated as adulterated. We, therefore, hold that the learned Judge was not justified in  allowing the revision of the respondent  and  acquitting him. The  result is that the appeal is allowed, the acquittal  of the respondent is set aside and his conviction restored. It was stated to us on behalf of the respondent that of  the imprisonment  for one month to which the sentence passed  on him by the Magistrate was modified by the Sessions Judge, he had already undergone a sentence of 18 days.  He has been on bail  practically  since  the  admission  of  his   Revision Petition  in  the  High Court.   In  the  circumstances,  we consider  that  the sentence of imprisonment passed  on  him might  be  reduced  to the period  already  undergone.   The sentence of fine imposed will, however, stand. Appeal allowed. 1)   A.I.R. 1962 All. 156.