PETITIONER: M. V. KRISHNAN NAMBISSAN Vs. RESPONDENT: STATE OF KERALA DATE OF JUDGMENT: 18/01/1966 BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. HIDAYATULLAH, M. BACHAWAT, R.S. CITATION: 1966 AIR 1676 1966 SCR (3) 373 ACT: Prevention of Food Adulteration Act (37 of 1954), ss. 7 and 16(1) (a) (i) and Prevention of Food Adulteration Rules, rr. 5, 44 and Appendix B--Butter-milk--Standard of quality whether specified. HEADNOTE: The appellant was the manager of a dairy farm. He was charged with an offence under ss. 7 and 16(1) (a) (i) of the Prevention of Food Adulteration Act, 1954, read with r. 44 of the Prevention of Food Adulteration Rules, 1955, in that, he exposed for sale skimmed thick buttermilk, which to analysis, was found to be adulterated with water to the extent of 11 per cent, and had thus not maintained the standard prescribed for butter-milk. The trial Court acquitted him on the ground that no standard of quality was prescribed for buttermilk. On appeal, the High Court convicted him, on the view that, the standard for milk has been fixed by the Rules, that the same standard was made applicable to curd and that, as butter-milk was in essence curd from which butter has been extracted, butter-milk should contain the same quantity of solids-notfat as curd should contain. In appeal to this Court, HELD. Appendix B to the Prevention of Food Adulteration Rules, which specifies the standards of quality of various articles of food, shows that it is not an ingredient of the definition of butter-milk that it should contain any particular percentage of solids-not-fat. Wherever the rule making authority intended to prescribe a specific standard for the contents of a product, it definitely stated so, but in the case of butter-milk, no standard. for 'contents either specifically or with reference to other items is prescribed. The only requirement is that it shall be a product obtained after removal of butter from curd by churning or otherwise. Therefore, the appellant had not committed the offence with which he was charged. [377 C, F- H] JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 93 of
1964.
Appeal from the judgment and order dated October 11, 1963 of
the Kerala High Court in Criminal Appeal No. 153 of 1962.
R. Ganapathy Iyer, for the appellant.
P. Govinda Menon and M. R. K. Pillai, for the respondent.
The judgment of the Court was delivered by
Subba Rao, J. The appellant is the manager of the Palghat
Depot of Messrs. Nambissan’s D. V. Dairy Farm. On July 20,
1961, one of the Food Inspectors visited his depot and
purchased from the second accused, the salesman in charge of
the depot, two
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nazhies of “skimmed thick butter-milk” out of the stock
exposed for sale in the depot. He sent a sample of it for
analysis to the Public Analyst. The Analyst reported that
the solids-not-fat content in the said sample was 7.5 per
cent, as against 8.5 per cent. prescribed for curd: he was
of the opinion that the sample contained not less than II
per cent. of added water. When the sample was analysed a
few months later by the Central Food Analyst, he reported
that the solids-not-fat content in the sample was only 6-4
per cent. Thereupon a complaint was filed in the Court of
the District Magistrate (Judicial), Palghat, against the
appellant and his sales-man-we are not concerned in this
appeal with the charge against the sales-man. The charge
against the appellant was that he committed an offence under
s. 16(1)(a)(i) and s. 7 of the Prevention of Food
Adulteration Act, 1954 (37 of 1954) hereinafter called the
Act, read with r. 44 of the Prevention of Food Adulteration
Rules, 1955, hereinafter called the Rules. The charge
against him was that he exposed for sale “skimmed thick
butter-milk” which on analysis was found to be adulterated
with water to the extent of II per cent. The learned
District Magistrate, on a consideration of the entire
evidence placed before him, came to the conclusion that the
appellant was not guilty of the offence with which he was
charged: he held that no standard of quality was prescribed
for butter-milk and, therefore, the accused could not be
convicted for the offence under the Act and the Rules. On
appeal, the High Court took the view that the standard for
milk had been fixed by the Rules, that the same standard was
made applicable to curd and that, as butter-milk was in
essence curd from which butter had been extracted, the
butter-milk should contain the same quantity of solids-not-
fat as curd should contain. On this reasoning, the High
Court held that, as the sample showed only 6.4 per cent. of
solids-not-fat content while it should have contained 8.5
per cent. of it, the accused had committed the offence under
the said provisions and sentenced him to pay a fine of Rs.
100/-, in default to suffer simple imprisonment for one
month. Hence the present appeal, by certificate.
Mr. R. Ganapathy Iyer, learned counsel for the appellant,
contended that the appellant was prosecuted for not
maintaining the standard prescribed for butter-milk and
that, as no standard ,”,as in fact prescribed for the said
product, the High Court went wrong in convicting him.
To appreciate this contention it is necessary to notice the
relevant provisions of the Act and the Rules.
Section 2(i)(1). An article of food shall be
deemed to be adulterated if the quality or
purity of the article falls below the
prescribed standard or its constituents are
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present in quantities which are in excess of
the prescribed limits of variability.
Section 7. No person shall himself or by any
person on his behalf manufacture for sale, or
store, sell or distribute:
(i) any adulterated food:
(ii) any misbranded food;
(V) any article of food in contravention of
any other provision of this Act or of any rule
made thereunder.
Section 16. (i) If any person-
(a) whether by himself or by any person on
his behalf imports into India or manufactures
for sale, or stores, or distributes, any
article of food in contravention of any of the
provisions of this Act or of any rule made
thereunder.
he shall, in addition to the penalty to which
he may be liable under the provisions of s. 6,
be punishable….
In exercise of the power conferred under s. 23 of the Act,
the Central Government made rules defining the standard of
quality for, and fixing the limits of variability
permissible in respect of, any article of food. Rule 5
reads:
“Standards of quality of the various articles
of food specified in Appendix B to these Rules
are as defined in that Appendix.”
APPENDIX B
A.11.01.Milk means the normal clean and fresh
secretion obtained by complete milking of the
udder of a healthy cow, buffalo, goat or sheep
during the period following at least 72 hours
after calving or until colostrum free whether
such secretion has been processed or not.
A.11.01.01.Cow milk shall contain not less
than 3.5 per cent of milk fat, except in
Orissa, where it shall be not less than 3 per
cent and in Punjab and PEPSU where it shall be
not less then 4.0 per cent. The milk solids
other than milk fat shall be not less than 8.5
percent.
A.11.01.02.Buffalo milk shall contain not less
than 5.0 per cent of milk fat except in Delhi,
Punjab, PEPSU, Uttar Pradesh, Bihar, West
Bengal, Assam, Bombay and Saurashtra where it
shall not be less than 6 per cent. The
Sup. CI/66-11
376
.lm15
milk solids other than milk fat shall not be less than 9 per
cent.
A.11.01.03.Goat or sheep milk shall contain not less
than 3.0 per cent of milk fat except in Madhya Pradesh,
Punjab, PEPSU, Bombay, Uttar Pradesh and TravancoreCochin
where it shall be not less than 3.5 per cent. The milk
solids other than milk fat, shall be not less than 9 per
cent.
Where milk, other than skimmed milk is sold or offered for
sale without any indication as to whether it is derived from
cow, buffalo, goat, or sheep the standard prescribed for
buffalo milk shall apply.
A.11.02.Skimmed milk, either fresh or reconstituted, means
milk from which all or most of the milk fat has been removed
by mechanical or any other process and includes “separated
milk” or “machine skimmed milk”. The milk solids other than
milk fat shall be not less than 8.5 per cent.
A.11.03.Butter-milk means the product obtained after removal
of butter from curds by churning or otherwise.
A.11.05.(a) Table (creamery) butter means the product
prepared exclusively from milk, cream or curd of cow or
buffalo or a combination thereof with or without the
addition of salt and coloured with annatto and shall contain
not less than 80 per cent of milk fat and not more than 16
per cent of moisture. No preservative is permissible in
table butter. Diacetyl may be added for flavour but shall
not exceed 4 parts per million.
(b)Deshi (cooking) butter means the product prepared
exclusively from milk, cream or curd of cow or buffalo or a
combination thereof, without the addition of any salt or any
colour or any preservative and intended exclusively for use
in cooking or for preparation of ghee. It shall contain not
more than 20 per cent of moisture and not less than 76 per
cent of milk fat. Where butter is sold or offered for sale
without any indication as to whether it is table butter or
deshi butter, the standards of quality prescribed for table
butter shall apply.
A.11.06.Dahi or curd-(a) Whole milk dahi or curd means the
product obtained from fresh whole milk either of cow or
buffalo by souring. It shall not contain any ingredient not
found in Milk except sucrose and/or gur.
377
(b)Skimmed milk dahi or curd means the product obtainedfrom
skimmed milk either of cow or buffalo by souring. It
shall not contain any ingredient not found in milk,except
sucrose and/or gur.
The standard of purity of dahi or curd shall be the same as
prescribed for the milk from which it is derived-
Where dahi or curd, other than skimmed milk dahi is sold or
offered for sale without any indication as to whether it is
derived from cow or buffalo milk, the standards prescribed
for dahi prepared from buffalo milk shall apply.
It will be seen from the said provisions that it is not an
ingredient of the definition of butter-milk that it should
contain any particular percentage of solids-not-fat.
Indeed, no standard in regard to its contents is prescribed.
The only standard, if it may be described as one, is that it
shall be a product obtained after removal of butter from
curd by churning or otherwise. It is not suggested that the
butter-milk in question was not a product obtained in the
manner described thereunder. Prime facie, therefore, it
follows that the appellant has not committed any offence
with which he: was charged, namely, that he had added water
to the extent of II per cent to the butter-milk.
Mr. Govinda Menon, learned counsel for the State, contended
that a fair reading of the definition of the various milk
products in Appendix B leads to an irresistible conclusion
that for buttermilk the same standard of solids-not-fat
prescribed for curds would apply. It was said that butter-
milk was nothing more than curd from which fat had been
removed and, therefore, there was no reason why, apart from
fat, the other contents should be different from those found
in the milk.
It will be seen from the definitions of the various products
in Appendix B to the Rules, which we have already extracted,
that wherever the rule-making authority intended to
prescribe a specific standard for the contents of a product,
it definitely states so. The standards of solids-not-fat
are fixed for the milk of cow, buffalo, goat or sheep.
Though standards are, fixed for the said milk products, in
defining “skimmed milk”, “deshi (cooking) butter”, and ”
skimmed milk dahi or curd” the standard of quality is
prescribed with reference to other products. But when we
come to buttermilk, no standard for its contents either
specifically or with reference to other items is prescribed.
A comparative study of the said items leaves no room for
doubt that the rule making authority, for reasons, which, we
think, are obvious has not thought fit or feasible to
prescribe any such standard in regard to the contents of
butter-milk. We cannot by inference read some thing in the
definition of butter-milk which is not there. The reason
for this omis-
378
sion is presumably due to the fact that it is not possible
to maintain in butter-milk the same percentage of
solids-not-fat content as is found in curds or milk, for
water will be added in the process of making butter-milk
owing to the fact that butter grains in the churn .are
washed with cold water which will run off into the butter-
milk. Anyhow, we would prefer to rest our judgment on the
absence of fixation of any standard in respect of butter-
milk rather than on the process of conversion of curds into
butter-milk. We should not be understood to have expressed
any view on the question whether a prosecution could be
launched for adulteration of butter-milk under some other
clauses of the definition of “adulterated” in s. 2 of the
Act, for in the present case the prosecution was only for
not maintaining the standard.
In the result, the order of the High Court is set aside and
that -of the District Magistrate is restored. The fine, if
it had already been collected, shall be refunded
Appeal allowed.
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