JUDGMENT
K.T. Sankaran, J.
1. The question involved in this Original Petition is whether entry A.16.16 in Appendix B of the Prevention of Food Adulteration Rules, 1955, in so far as it prescribes that the pickles of the variety “pickles in oil” shall be covered with oil so as to form a layer of not less than 0.5 cm above the contents or the percentage of oil in pickle shall be not less than 10 per cent, is ultra vires Section 2(ia)(k) of the Prevention of Food Adulteration Act, 1954 and also whether it is ultra vires the rule making authority of the Central Government under Section 23(1-A)(i) of the said Act.
2. Petitioner is a private limited company engaged in the distribution of pickles and other fruit and vegetable products. It is stated that the petitioner company is the main distributor for the fruits and vegetable products manufactured by a firm called Malabar Coast Products, Kottayam, which manufactures pickles under the brand name, namely, “Palat”. It is alleged that the Food Inspector of Manjeri Municipality collected three bottles of Palat lime pickles in edible oil from a dealer of Manjeri. On analysis of the samples it was found that the oil layer above the vegetable matter was nil and that the oil content was only 4.2%. Prosecution was launched against the petitioner and it is pending as S.T.No. 81 of 1995, on the file of the court of the Chief Judicial Magistrate of Manjeri.
3. The constitutional validity of Sub-clause (m) of Clause (ia) of Section 2 of the Act was challenged in George Issac v. Union of India and this Court held that the provision is not in any way unconstitutional. It was held in paragraphs 3 and 4 of the said decision as follows:
3. The challenge against Sub-clause (m) of Clause (ia) of 3-2 of the Act is on the ground that the quality or purity of the food article is not with reference to adulteration of food which shall always be to the prejudice of the consumer. Deterioration in quality or purity does not amount to adulteration as is evident from Sub-clause (a) of Sub-section (ia). So, Sub-clause (m) including within the definition of Adulteration, any food stuffs below the quality or purity of the prescribed standards is unconstitutional, and it is arbitrary.
4. We are not concerned with the grammatical meaning of the word ‘adulterated’ contained in the dictionary. As per Section 2(ia), it has been ascribed a legal meaning taking several situation as dealt with in Clauses (a) to (m). So, the definition has been so construed to include variation in quality and purity as well, when a food article is found below the prescribed standard or constituents thereof are present in quantities not within the prescribed limits of variability. In such circumstances, the variation in quality or purity also will come within the definition of ‘adulterated’. This is a law meant as a protection for the consumers so that their life shall not be endangered while consuming the edible articles sold in shops. So, we are of the view that Sub-clause (m) of Section 2(ia) of the Act is not in any way unconstitutional. The definition is so structured to suit the purpose of the legislation.
Entry A.16.16 in Appendix B of the Prevention of Food Adulteration Rules, 1955 was also challenged in George lssac v. Union of India, which was also negatived by this Court.
4. Sri. V. Giri, learned Counsel appearing for the petitioner submitted that the decision in requires reconsideration. He also raised a contention that the question whether Entry A. 16.16 in Appendix B is ultra vires Section 2(ia)(k) and the rule making authority of the Central Government under Section 23(1-A)(i) of the Act was not considered in George Issac v. Union of India and, therefore, a fresh look into the matter is necessary. We are not impressed with the first submission that the decision in George Issac v. Union of India requires reconsideration. We are in full agreement with the views of the Division Bench in the said decision. However, Sri Giri is right in his submission that this Court in George Issac v. Union of India has not decided the questions mentioned in paragraph (1) above. Therefore, we proceed to consider that question, however, fully relying on the decision in George Issac v. Union of India on other aspects.
5. Sub-clauses (k), (l) and (m)) of Clause (ia) of Section 2 of the Act read as follows:
In this Act, unless the context otherwise requires–
(i) xxx xxx xxx
(ia) "adulterated"-- an article of food shall be deemed to be adulterated --
xxx xxx xxx
(k) If the article contains any prohibited preservative or permitted preservative in excess of the prescribed limits;
(l) If the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, which renders it injurious to health;
(m) If the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health.
xxx xxx xxx
Section 23 provides the rule making power of the Central Government. The relevant portion of Section 23 of the Act is extracted below for the sake of convenience.
23. Power of the Central Government to make rules: (1) The Central Government may, after consultation with the Committee and after previous publication by notification in the Official Gazette, make rules to carry out the provisions of this Act.
xxx xxx xxx
(1-A) In particular and without prejudice to the generality of the foregoing power, such rules may provide all or any of the following matters, namely:
xxx xxx xxx
(b) defining the standards of quality for, and fixing the limits of variability permissible in respect of, any article of food;
xxx xxx xxx
(hh) defining the methods of analysis;
(i) specifying a list of permissible preservatives, other than common salt and sugar, which alone shall be used in preserved fruits, vegetables, or their products or any other article of food as well as the maximum amounts of each preservative:
xxx xxx xxx
6. Rule 52 of the Prevention of Food Adulteration Rules defines 'preservative', thus:
"Preservative" means a substance which when added to food, is capable of inhibiting, retarding or arresting the process of fermentation, acidification or other decomposition of food.
Rule 53 provides for classification of preservatives into two, namely, Class I and Class II preservatives. As per Sub-clause (1) of Clause (i) of Rule 53, ‘edible vegetable oils’ come under Class I preservative. The contention of the petitioner is that oil is a preservative as defined in Rule 52 and as mentioned in Sub-clause (1) of Clause (i) of Rule 53 and that the source of power to prescribe the quantity of oil to be present in “pickles in oil” is traceable to the rule making power under Section 23(1-A)(i), which gives power to the Central Government only to prescribe the maximum amount of preservative in an article of food. In other words, the contention is that the rule making authority has no power to prescribe the minimum quantity of preservative to be present in an article of food. It is contended that Entry A.16.16, in so far as it relates to “pickles in oil”, prescribing the minimum quantity of oil to be present in pickles, is beyond the rule making power of the Central Government. The petitioner raises another contention that as per Section 2(ia)(k), if, the article of food contains any prohibited preservative or permitted preservative in excess of the prescribed limits, then only it can be termed as adulterated within the meaning of Clause (ia) of Section 2. In other words, if the article of food does not contain the minimum quantity of preservative prescribed, it cannot be said that the article of food is adulterated. It is further contended that the requirement of a minimum percentage of oil cannot be treated as a standard for quality.
7. The contention raised by the petitioner is on the footing that prescription of oil content in the pickle is as a preservative. Entry A.16.16, in so far as it relates to “pickles in oil”, does not prescribe oil content as a preservative. On the other hand, it is prescribed as a combination. For the sake of convenience, Entry A.16.16 or Appendix B is extracted below:
A.16.16. — PICKLE means the preparation made from sound, clean, raw or sufficiently mature fruits or vegetables or a combination of both free from insect damage or fungus attack preserved in salt acid, sugar or any combination of the three. The pickle may contain onion, garlic, ginger, sugar, jaggery, edible oils, spices, spice extract or oil of turmeric, pepper, chillies, fenugreek, mustard seed or powder, vegetable ingredients, asafoetida, bengal gram, lime juice, lemon juice, green chillies, vinegar or acetic acid, citric acid, dry fruit including raisins and fruits nuts. Pickles shall be free from added synthetic Food colours.
Combination of pickles may be:
(i) Pickles in citrus juice or brine: The percentage of salt in covering liquid shall not be less than 10 per cent when salt is used as major preserving agent. When packed in citrus juice, acidity of the covering liquid shall be not less than 1.2 percent calculated as citric acid. Soluble calcium salt and permitted preservatives may be used in such type of pickles. Pickles shall be free from copper, alum and
(ii) Pickles in oil: The fruit or vegetable percentage in the final product shall not be less than 60 per cent. The pickle shall be covered with oil so as to form a layer of not less than 0.5 cm above the contents or the percentage of oil in pickle shall be not less than 10 percent.
Pickle shall be free from copper, alum and mineral acid. It may contain rapeseed (rai) ajwain, saunf, black pepper and like spices, etc. Permitted preservatives may be used in Pickles.
(iii) Pickles in vinegar: Pickles in vinegar mean the preparation from sound, clean, raw or sufficiently matured fruits or vegetables free from insect damage or fungus attack, which have been cured in brine or dry salt or salted and dried stock with or without natural fermentation. It shall contain vinegar or acetic acid, and the percentage of acid in the fluid portion shall not be less than 2 per cent w/w calculated as acetic acid. It may contain sugar, whole or ground or semi-ground spices, dried fruits, green and red chillies, ginger, etc., dry fruit. Citric acid may also be added in such type of pickles. Spice extract or essences may also be used. The drained weight of the product shall not be less than 60 per cent. Pickles shall be free from copper, mineral acid, alum synthetic colours and shall show no sign of fermentation. The product shall be reasonably free from sediments. Permitted preservatives may be used in pickles.
8. Three types of pickles are mentioned in Entry A.16.16, namely, “pickles in citrus juice or brine”, “pickles in oil” and “pickles in vinegar”. Entry A.16.16, in so far as it relates to “pickles in citrus juice or brine” or “pickles in ‘vinegar”, does not provide for the presence of any percentage of oil in pickles. On the other hand, the article of food, namely; “pickles in oil” prescribe for the content of oil and the minimum content of oil. The name of the article of food itself indicates that there should be oil in the pickle. Oil constitutes a combination of the pickle. It is one of the ingredients of the “pickles in oil”. It is not provided as a preservative in Entry A.16.16 Clause (ii). If it is not prescribed as a preservative, the argument put forward by the counsel for the petitioner that it is beyond the rule making authority of the Central Government falls to the ground. We have no hesitation to hold that “pickles in oil” should necessarily contain oil and what is prescribed in Entry A.16.16 Clause (ii) is the percentage of oil content compulsorily to be present in the article of food. It is true that edible vegetable oil is also a Class I preservative under Rule 53. “Edible oils” are categorised under Entry A.17 in Appendix B of the Prevention of Food Adulteration Rules. There are various types of edible oils and they are enumerated in Entry A. 17.01 to A. 17.26. The fact that edible vegetable oil is a preservative as well, does not mean that what is prescribed as a combination of pickle in Entry A.16.16 Clause (ii) is only as a preservative and not as a combination. If the rule making authority intended oil as a preservative under Entry A. 16.16(ii), it would have been so mentioned. It is apposite to note here that all the three items in Entry A.16.16 of Appendix 3 mention specifically about preservatives. This is also a sure indication that oil is not treated as a ‘preservative’ in Entry A. 16.16, but it is provided as a ‘combination’, oil being an ingredient of the pickle. In view of the above finding, we are not deciding the question whether the rule making authority has the power to prescribe the minimum amount of preservative invoking the rule making power under Section 23(1-A)(i) and whether the power to prescribe the maximum includes the power to prescribe the minimum.
9. The second limb of the argument that Entry A.16.16 in Appendix B is ultra vires Section 2(ia) of the Act is also unsustainable. An article of food shall be deemed to be adulterated even if the article of food does not render it injurious to health. If the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, though it does not render it injurious to health, then also the article of food shall be deemed to be adulterated within the meaning of Section 2(ia). We have already held that the content of oil in the article of food, namely, “pickles in oil” is not a preservative, but a combination of pickles and that the oil is a constituent of the “pickles in oil”. Therefore, if the percentage of oil as prescribed in Entry A.16.16 falls below the prescribed standard, it shall be deemed to be adulterated, as provided in Section 2(ia)(m). If so, it cannot be said that Clause (k) of Section 2(ia) prohibiting the use of preservative in excess of the limits is attracted in the case. The irresistible conclusion is that Entry A.16.16 is not ultra vires Section 2(ia)(k) of the Act.
10. In George Issac v. Union of India, this Court has taken the view that oil is not mentioned as a preservative in Entry A. 16.16, but it is one among the constituents of the “pickle in oil”. We fully agree with the view taken in George Issac v. Union of India.
11. It is contended by the petitioner that too much of oil content in the pickles is not liked by the customers and that consumption of too much oil is injurious to health. It is further pointed out that in the 38th meeting of the Central Committee for Food Standards, Director (F&V) has raised the point that the specifications of “pickles in oil” are not reasonable, that oil does not work as preservative in “pickle in oil”, that oil works as anti fungal and not as preservative and that excess quantity of oil is not liked by the consumers. Ext.P6 is the copy of the minutes of the 38th meeting of the Central Committee for Food Standards. In this Original Petition, we are not concerned with the opinion expressed by the Director. The impugned Entry A. 16.16 was introduced in 1991 and several substitutions and additions were made to the Prevention of Food Adulteration Rules during the subsequent years. This Court is not expected to act as an expert as to what all ingredients or constituents should be there in an article of food. It is for the experts in the field to decide and the Central Government to implement by making appropriate Rules. Whether consumers like the “pickles in oil” if 10% of it contains oil is not a relevant factor at all. There are three categories of pickles mentioned in Entry A. 16.16, namely, “pickles in citrus juice or brine”, “pickles in oil” and “pickles in vinegar”. The customers/consumers are free to have their choice. The expression “pickles in oil” itself is an indicative of the fact that oil is a constituent of the pickles. It is not as if the manufacturers are unable to manufacture and market pickles. It does not stand to reason that prescription of the minimum percentage of oil content in “pickles in oil” is unreasonable.
12. Sri. Giri further contended that the Central Government has not statutorily prescribed the methods for analysis to establish the contravention of the prescription of standard for “pickles in oil”. In the counter affidavit, this contention is controverted. It is submitted by the petitioner that so long as the method of analysis is not prescribed, the petitioner cannot be found guilty and punished. We do not think that it is necessary to consider this contention raised by the petitioner in this proceeding. Petitioner is free to raise all such contentions before the Criminal Court.
The Writ Petition fails, and it is dismissed without costs.