The main legal point established in the judgment is that the choice of articles of food to be regulated by the issue of licences must be made by the Central Government after consultation with the expert committee and previous publication, as required by S.23 of the Prevention of Food Adulteration Act, 1954.

1. As I see it, the only question in this case is whether clause (1) of R.50(1) of the Prevention of Food Adulteration Rules made by the Central Government under S.23 of the Prevention of Food Adulteration Act, 1954, and, with it, the notification dated 11-1-1962 issued thereunder by the State Government, are ultra vires the section. The rule says that no person shall manufacture, sell, stock, distribute or exhibit for sale the articles specified therein except under a licence. Clauses (a) to (k) specify various articles of food; but what the impugned clause, clause (1), does, is to include within the prohibition "any other article of food (x x x x x) which the State Government may by notification specify." It was in pursuance of this authority that the State Government by its notification dated 11-1-1962, published in the Gazette of the 6th February 1962, specified a number of articles of food, tea being one of them, as articles which no person shall manufacture, sell, stock, distribute or exhibit for sale, except under a licence. The petitioner, a travelling salesman of a tea company, was admittedly going about selling tea to the stockists of the company; and, admittedly, he had taken no licence. He has been convicted under S.16 (1) (a) read with S.7 (v) of the Act and sentenced to pay a fine of Rs. 25/-, in default to undergo simple imprisonment for ten days. If the impugned clause and the notification made thereunder are valid the conviction must stand; if not it has to be set aside.

2. S.23 of the Act, so far as is material for the purpose, runs as follows:

"23. (1) The Central Government may, after consultation with the Committee and subject to the condition of previous publication, make rules

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Power of the Central Government to make rules.

(f) prohibiting the sale or defining the conditions of sale of any substance which may be injurious to health when used as food or restricting in any manner its use as an ingredient in the manufacture of any article of food or regulating by the issue of licences the manufacture or sale of any article of food;

(g) defining the conditions of sale or conditions for licence of sale of any article of food in the interest of public health;

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(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."

3. It is under the latter part of clause (f) of sub-section (1) of the section, "regulating by the issue of licences the manufacture or sale of any article of food" and under Cl.(g) that R.50 has been made. The choice of the articles of food the sale of which is to be regulated by the issue of licences, involves the exercise of discretion and judgment and is not a mere ministerial or mechanical act. It is clear from the section that this choice must be made by rule. That involves three things: (1) the choice must be made by the Central Government in the exercise of its judgment; (2) that judgment must be exercised in consultation with the expert committee constituted under S.3 of the Act which would be in a position to advise it as to whether it is necessary or not in the public interest to bring a particular article of food within the regulation; and (3) it can take a final decision only after "previous publication." [There is a fourth, namely, the laying of the rules before both Houses of Parliament enjoined by sub-section (2) of the section. But I am leaving that out of account since failure to do that might not render the rule invalid - see Muthuswamy Kounden v. State of Kerala & Another (1960 KLJ.1319]. But, under the impugned clause, the choice is to be made by the State Government in the exercise of its own judgment, without consulting the committee, and without previous publication. Quite apart from any question of delegation by a delegate - and it is quite clear from the language and from the content of S.23 as also from S.24, which expressly confines the rule-making power of the Stat