( 1 ) THIS revision petition is directed against order dated 6th July 1984 of a Metropolitan Magistrate, Delhi, whereby he proceeded to framed charge against the petitioners under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act ).

( 2 ) THE facts germane to the decision of this revision petition succinctly are that on I 2th February 1982, Food Inspector Shri P. N. Khatri purchased a sample of lamsa chocolate tea from the shop of M/s. Kallu Mal Suraj Bhan, Khari Baoli, Delhi for analysis in accordance with the provisions of the Act and the Rules made thereunder. The second part of the sample was sent to the Public Analyst who, vide his report dated 16th March 1982, found that it was a case of mis-branding for not using proper label. While observing that from physical appearance the sample was of tea having added flavour of chocolate and prepared tea also gave taste and flavour of chocolate, he remarked:

"no standard of chocolate tea has been prescribed in Appendix B of the P. F. A. Act 1954. In such types of proprietory foods the labels are to be got approved under Rule 37a of P. F. A. Rules 1955. "on the basis of the said report a complaint was instituted by the respondent- Delhi Administration for prosecution of M/s. Kallu Mal Suraj Bhan, and the petitioners etc. for the aforesaid offence.

( 3 ) THE contention of the petitioners counsel precisely is that the food article in question is tea and the mere addition of chocolate thereto does not in any way change or alter its character and transform into a food stuff other than tea. In other words, it can by no stretch of reasoning be termed as a proprietory food or unconventional food for which no standard has been prescribed by the Prevention of Food Adulteration Rules, 1955 (for short the Rules ) as envisaged in Rule 37a. For ready reference the said rule is reproduced below:

"in all types of proprietory foods, where fancy names or trade names are used, the name of the food or category under which it falls in these rules shall also be mentioned on the label. In case it cannot be classified in any of the standards prescribed in Appendix b the names of the ingredients used in the products in descending order of composition shall be indicated on the label subject to approval of the Central Committee for Food Standards. Explanation-Fancy trade name or proprietory name means the nonconventional type of food which has not been standardised under the Prevention of Food Adulteration Act, 1954". On a bare reading of the main body of this rule it is manifest that it consists of two distinct parts. The first part relates to those type of proptictory foods where fancy names or trade names are used but the name of the food or the category under which it falls is given in the Rules. In such a case all that is required is that the manufacturer or the producer etc. must also mention the name of such food on the label. Indeed such type of foods would not strictly speaking be covered by the definition of the expression fancy trade name or proprietory name as contained in the explanation because by its very definition such foods must be non-conventional and must not have been standardised under the Act or the Rules made thereunder. Looked at the matter from this angle it is to be seen whether the sample in question falls in the first part of Rule 37-A or in the second part because the latter situation will arise only if the food article in question cannot be classified in any of the standardised food-stuffs as per provisions of the Act and the Rules made thereunder. Indeed the explanation would govern the food articles falling under the latter part of Rule 37-A rather than the first.

( 4 ) IT may be pertinent to note here that the standard for tea has been prescribed in item A-14 of appendix B. However, no standard seems to have been laid down for chocolate as such. The learned counsel for the petitioner has, therefore, can