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1979 Supreme(SC) 143
SUPREME COURT OF INDIA
S. Murtaza Fazal Ali, A.D. Koshal, JJ.
Kishan Chand – Appellant
Versus
Delhi Administration and another – Respondent
Criminal Appeal No. 245 of 1975
Decided On : 20-02-1979
Mr. Harjinder Singh Advocate, for Appellants Mr. E. C. Agarwal and R. N. Sachthey Advocates (for No. 1), Mr. V.S. Desai, Sr. Advocate (M/s. B. P. Maheshwari and Suresh Sethi Advocates (for No. 2), for Respondents.
Headnote:
Prevention of Food Adulteration Act 1954 – Sections 23, 7, 16 – Adulterated Food – This is an appeal by special leave against a judgment of the High Court of Delhi convicting the appellant of an offence under cl. (I) of sub-section (1) of Section 16 read with cl. (i) of Section 7 of the Prevention of Food Adulteration Act 1954 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 – Food Inspector V. P. visited the premises of Messrs Mebrose Ice-Cream and Frozen Food Co. and bought for 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 endorsement – Held, 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 40oC 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 a brominated vegetable oil or that if it was oil of that description its quantity was in excess of 0.5 percent by weight – Butyro-refractometer reading did no doubt exceed the maximum of the prescribed standard by 6.4 and the 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 percent by weight or of unbrominated vegetable oils. – 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 – Appeal Accepted
Judgment
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 cl. (I) of sub-section (1) of Section 16 read with cl. (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 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 Chocobar 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 of, in report exhibit PE.
"Total solids by Weight - 45 per cent. Protein by weight : 4.4 percent.
Chocolate : - Present,
Butyro-refractometer reading at 40oC of the fat extracted from ice-cream is :-
49.4
Baudouin test of the extracted fat, Positive.
Melting point of the extracted fat, 34oC."
In his report the Public Analyst further stated that in his opinion the sample was adulterated "as the Butyro-refractometer reading at 40oC was found 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 the ice-cream sold by him. The judgment of the learned Additional Sessions Judge reveal 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 R. 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."
3. Having heard leaned counsel for the parties at length we are
