PETITIONER: MUNICIPAL CORPORATION OF DELHI Vs. RESPONDENT: SHIV SHANKAR DATE OF JUDGMENT01/02/1971 BENCH: DUA, I.D. BENCH: DUA, I.D. SIKRI, S.M. (CJ) BHARGAVA, VISHISHTHA CITATION: 1971 AIR 815 1971 SCR (3) 607 1971 SCC (1) 442 ACT: Repeal-Implied-Prevention of Food Adulteration Act, 1954- Fruit Products Order, 1955-Sale of adulterated Vinegar- Prosecution under Adulteration Act-Competence-If Fruit Products Order impliedly repeals Adulteration Act. HEADNOTE: The respondent, who was selling Vinegar under a license granted under the Fruit Products Order, 1955, made by the Central Government under s. 3 of the Essential Commodities Act, was prosecuted under the Prevention of Food Adulteration Act. 1954, for selling adulterated vinegar. He pleaded that vinegar, whether brewed or synthetic, being a food product and standard specification for such vinegar being tabulated in Part XIV attached to the Second Schedule of the Fruit Order, persecution without the previous sanction of the licensing Officer as required by clause 15 of the said order was incompetent. The trial judge rejected the contention. But the High Court quashed the proceedings. It was observed that the special provisions of the Fruit Order had overriding effect and therefore a manufacturer of fruit products could only be prosecuted under the provisions of the Fruit Order. In the appeal to this Court it was contended for the respondent that there was an irreconcilable conflict between the two statutory provisions, and the Fruit Order being, not only of a date later than the Adulteration. Act but also having, by virtue of s. 3(6) of the Essential Commodities Act overriding effect over all other laws, it must prevail over the Adulteration Act and the rules. On the question whether the Fruit Order impliedly repeals the Adulteration Act, HELD : The plea of implied repeal must fail and the appeals must be allowed. To determine if a later statutory provision repeals by implication an earlier one it is necessary to scrutinise and consider the true meaning and effect both of the earlier and the later statute. If the objects of the two statutory provisions are different and the language of each statute is restricted to its own object or subject, then they are generally intended to run in parallel lines without meeting and there would be no real conflict though apparently it may appear to be so on surface. [611 D-G] The provisions of the Adulteration Act and the Fruit Order, for effectuating their respective objects, have imposed, different restrictions in the manufacture and sale of vinegar whether brewed or synthetic. in the interest of public health the respondent has to comply with the provisions of the Adulteration Act and Rules and in the interests of equitable distribution of essential commodities including the articles of food covered by the Essential Commodities Act and the Fruit Order they have to comply with the provisions of the fruit Order. Both the provisions are supple- 608 mentary and cumulative in their operation and no provision of the Fruit Order is shown to be destructive of or fatal to any provision of the Adulteration Act or the Rules made thereunder so as to compel the court to hold that they cannot stand together. If the Adulteration Act or Rules impose some restrictions on the manufacturer, dealer and seller of vinegar, then they have to comply with them irrespective of the fact that the Fruit ,Order imposes lesser number of restrictions in respect of these matters. The former do not render compliance with the latter impossible, nor does compliance with the former necessarily and automatically involve violation ,of the latter. Even if both 'statutes to some extent overlap, section 26 of the General Clauses Act fully protects the guilty parties against double jeopardy or double penalty. [618 C-H] Om Prakash Gupta V., State of U.P., [1957] S.C.R. 423, T. S. Baliali v. T. S. Rengachari, 1969 3 S.C.R. 65, State v. Gurcharan Singh, A.I.R. 1952 Punjab 89, and Paine v. Stater, [1883] 11 Q.B.D. 120. ,referred to. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION:, Criminal Appeals Nos. 151
to 158 of 1966.
Appeals from the judgment and order dated December 30. 1964
of the Punjab High Court, Circuit Bench at Delhi in Criminal
Revisions Nos. 81-D to 83-D, 107-D and 129-D to 132-D of
1964.
Bishan Narain, B. P. Maheshwari and N. K. Jain, for the
appellant (in all the appeals).
C. K. Daphtary, N. N. Goswami, K. L. Mehta and S. K. Mehta,
the respondent (in Cr. A. No. 151/1966).
K. L. Gossain, N. N. Goswami, K. L. Mehta and S. K. Mehta,
the respondent (in Cr. As. Nos. 152 to 158 of 1966).
S. K. Mehta for the intervener.
The Judgment of the Court was delivered by
Dua, J.-These eight appeals with certificate (Crl. Al)-
peals Nos. 151 to 158 of 1966) raise a common question of
law and would, therefore, be disposed of by a common
judgment. In-deed, all the appeals in the Punjab High Court
were also disposed of by a learned single Judge of that
Court sitting on circuit at Delhi by a common judgment and
another learned single Judge of the same Court similarly
certified the cases to be fit for ,appeal to this Court by a
common order.
The only question canvassed at the bar requiring determina-
tion by us is whether the respondent is liable to be
prosecuted under the Prevention of Food Adulteration Act, 37
of 1954 (hereafter called the Adulteration Act) for selling
adulterated vinegar when the vinegar is being sold under a
licence granted under the Fruit Products Order, 1955
(hereafter called the Fruit Order) made by the Central
Government under s. 3 of the Essen-
609
tial Commodities Act. The High Court has relying on an un-
reported Bench decision of the Punjab High Court in State v.
RaJ Kumar (Crl. A. 996 f 1961 decided on October 29, 1962)
held that they cannot be prosecuted. It was argued in the
High Court that the rules made under the Adulteration Act
had come into force after the enforcement of the Fruit Order
and vinegar being mentioned as an article of food in those
rules, prosecution under both the provisions of law was
permissible. Reliance in support of this argument was also
placed on s. 26 of the General Clauses Act. This argument
was not accepted and it was observed that the special
provisions of the Fruit Order had overriding effect and,
therefore, a manufacturer of Fruit Products could only be
prosecuted under the provisions of the Fruit Order. Prayer
for reference to a larger Bench for reconsideration of Raj
Kumar’s case (supra) did not find favour with the learned
single Judge.
In this Court the view taken in Raj Kumar’s case (supra) was
sought to be supported by the learned counsel for the,
respondent. The provisions of the Fruit Order and of the
Adulteration Act, it was contended, could not harmoniously
co-exist on the statute book, as compliance with one would,
in certain contingencies, result in violation of the other
some respects. With respect to the particular charges tried
in the cases in appeal, however, no attempt was made on
behalf of the respondents to show that there was any fatal
conflict or inconsistency between the two provisions. The
question before us accordingly lies within a very narrow
compass. The appellant urged that there is no implied
repeal of the Adulteration Act by the Fruit Order in so far
as the sale of vinegar is concerned, whereas the case of the
respondent is that there is an implied repeal and the
respondents are not liable to be prosecuted under the
Adulteration Act for violating its provisions. Shri Bishan
Narain sought support for his submission from Om Prakash
Gupta v. State of U.P. (1) and T. S. Baliah v. T. S.
Rangachari (2). In the former case S. 5 (1 ) (c) of the
Prevention of Corruption Act was held not to repeal s. 409
I.P.C. The decision of the Punjab High Court (Khosla and
Falshaw, JJ.) in State v. Gurcharan Singh(3) holding to the
contrary was overruled. In the latter case s. 52 of the
Income tax Act, 1922 was held not to repeal s. 177, T.P.C.
It is unnecessary to refer in detail to the facts of all the
eight cases separately as no such reference was made by
either side at the bar. Shri Bishan Narain for the
appellant, by way of illustra-
(1) [1957] S.C.R. 423 (2) [1969] 3 S.C.R. 65.
(3) A.I.R. 1952 Punjab 89.
610
tion made a passing reference to the facts of Crl. Appeal
No. 155 of 1966. From the record of that appeal we find
that samples of (i) sugar cane juice vinegar, (ii) vine
(pure) vinegar and (iii) pure jaman vinegar, were takes by a
Food Inspector from the shop of the respondent on October
17, 1960 and on the ‘same having been found highly
adulterated and unfit for human consumption because of the
presence of sulphuric acid which is prohibited, complaints
under ss. 7/16 of the Adulteration Act were instituted by
the Municipal Prosecutor in December, 1960. After the
prosecution evidence was recorded, the respondent Shiv Shan-
ker applied to the trial magistrate in October, 1963 praying
that the prosecution be dropped. In this application it was
admitted that the prosecution had arisen out of a raid dated
October 17, 1960 at the promises of the accused “when
allegedly samples of vinegar were taken which are stated to
be adulterated because of the presence of sulphuric acid”.
It was pleaded that-the petitioning accused had secured in
1960 a licence under the Fruit Order and vinegar whether
brewed or synthetic being a food product and standard
specification for such vinegar being tabulated in Part XIV
attached to the Second Schedule of the Fruit Order,
prosecution without the, previous sanction of the Licensing
Officer as required by cl. 15 of the said Order was
unauthorised. Prosecution under the Adulteration Act was on
this ground pleaded to be incompetent. In the application
reliance in support of this plea was placed on the
unreported Bench decision of the Punjab High Court in Raj
Kumar’s case in which according to the accused it had been
held that a licensee under the Fruit Order could not be
prosecuted for any contravention of that Order or of the
Adulteration Act without the previous sanction of the
Licensing Authority appointed under the Fruit Order. The
trial magistrate basing himself on an unreported single
Bench decision of the Punjab High Court and on s. 26 of the
General Clauses Act rejected this application. On revision,
the Additional Sessions Judge relying on the decision in Raj
Kumar’s, case (supra) made a reference to the High Court
recommending that the proceedings be quashed. J. S. Bedi,
J., relying on Raj Kumar’s case (supra) quashed the pro-
ceedings. S. K. Kapur J., who certified the case to be fit
for appeal after quoting a passage from Raj Kumar’s case
(supra) considered the question raised to be important
enough for appeal to this Court.
The general principles governing implied repeal appear to us
to have long since been settled. The difficulty is normally
experienced in their application to a given case. From the
passage quoted by Kapur J., from the unreported Bench
decision in Raj’ Kumar’s case (supra) upholding the implied
repeal of the Adulteration Act by the Fruit Order it seems
to us that the Division Bench did not correctly and fully
grasp them. We accordingly,
611
consider it proper to broadly restate the general rule. It
was laid in Paine v. Stater(1) that when two Acts are
inconsistent or repugnant the later will be read as having
impliedly repealed the earlier. As the legislature must be
presumed in deference to the rule of law to intend to enact
consistent and harmonious body of laws, a subsequent
legislation may not be too readily presumed to effectuate a
repeal of existing statutory laws in the absence of express
or at least clear and unambiguous indication to that effect.
This is essential in the interest of certainty and
consistency in the laws which the citizens are enjoined and
expected to. obey. The legislature, which may generally be
presumed to know the existing law, is not expected to intend
to create confusion by its omission to express its intent to
repeal in. clear terms. The courts, therefore, as a rule,
lean against implying a repeal unless the two provisions are
so plainly repugnant to each other that they cannot stand
together and it is not possible on any reasonable hypothesis
to give effect to both at the same time. The repeal must,
if not express, flow from necessary implication as the only
intendment. The provisions must be wholly incompatible with
each other so that the two provisions operating together
would lead to absurd consequences, which intention could not
reasonably be imputed to the legislature. It is only when a
consistent body of law cannot be maintained without
abrogation of the previous law that the plea of implied
repeal should be sustained. To determine if a later
statutory provision repeals by implication an earlier one it
is accordingly necessary to closely scrutinise and consider
the true meaning and effect both of the earlier and the
later statute. Until this is done it cannot be
satisfactorily ascertained if any fatal inconsistency exists
between them. The meaning, scope and effect of the two
statutes, as discovered on scrutiny, determines the
legislative intent as to whether the earlier law shall cease
or shall only be supplemented. If the objects of the two
statutory provisions are different and the language of each
statute is restricted to its own objects or subject, then
they are generally intended to run in parallel lines without
meeting and there would be no real conflict though
apparently it may appear to be so on the surface. Statutes
in pari materia although in apparent conflict should also so
far ,is reasonably possible, be construed to be in harmony
with each other and it is only when there is an
irreconcilable conflict between the new provision and the
prior statute relating to the same subject matter, that the
former, being the later expression of the legislature, may
be held to prevail, the prior law yielding to the extent of
the conflict. The same rule of irreconcilable repugnancy
controls implied repeal of ‘a general by a special statute.
The subsequent provision treating a phase of the same genera
subject matter in a more minute way may be intended to imply
repeal pro-tanto of the
(1) [1883] 11 Q.B.D. 120.
612
Repugnant general provision with which it cannot reasonably
co,exist. When there is no inconsistency between the
general and the special statute the latter may well be
construed as supplementary.
In the light of these broad guidelines we may now examine
the two statutes as they stood in 1960 because the cases
with which we are concerned relate to that year. The
history and the scheme of the two statutory provisions would
be helpful in discovering the legislative intent on the
question of implied repeal. Turning first to the
Adulteration Act, it was enacted by the Parliament to make
provision for the prevention of adulteration of food and it
came into force on June 1, 1955. Previously corresponding
laws on adulteration of foodstuffs were in force in
different States, having been enacted by their respective
legislatures. All those laws were repealed by s. 25 of the
Adulteration Act. It may be pointed ,out that under the
Government of India Act, 1935 “adulteration of foodstuffs
and other goods” was a provincial subject whereas under the
Constitution it is included in the Concurrent List. Section
2(i) of this Act which defines the word “adulterated” con-
sists of several sub-clauses. One of these sub-clauses is
(1) according to which “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
present in quantities Which are in excess of the prescribed
limits of variability”. Clause (v) of s. 2 defines “food”
to mean “any article used as food or drink for human
consumption other than drugs and water and includes : (a)
any article which ordinarily enters into or is used in the
composition or preparation of human food, and (b) any
flavouring matter or condiments. According to cl. (ix) an
article of food shall be deemed to be “misbranded” if it
falls within an) one of the sub-clauses (a) to (k). It is
not necessary to reproduce all these sub-clauses. “Pack-
age” has’ been defined in cl. (X) to mean “a box, bottle,
casket, tin, barrel, case, receptacle, sack, bag, wrapper or
other thing in which an article of food is placed or
packed”. We have referred to the definitions of
“misbranded” and ” package” because one of the cases before
us (Crl. A. 154 of 1966) is a case of alleged misbranding,
the remaining seven cases being ,of alleged adulteration.
Section 5 prohibits import of, inter alia, adulterated and
misbranded food and all articles of food in contravention of
any provision of the Act or of any rules made thereunder.
Section 7 prohibits manufacture for sale or store and also
sale and distribution of, inter alia, adulterated and
misbranded food land of articles of food, in contravention
of the Adulteration Act and the Rules made thereunder.
Section 8 provides for appointment of Public Analysts and s.
9 for the appointment of Food Inspectors. The powers of
Food Inspectors are contained in S. 10. He possesses very
wide powers for the purpose of effectively achiev-
613
ing the statutory object of preventing the manufacture, sale
and distribution etc., of adulterated articles of food. The
procedure for taking samples of food by the Food Inspector
for analysis is prescribed in s. 11 and the report of the
Public Analyst is made admissible by s. 13. The proviso to
sub-s. (5) of s. 15 makes the certificate signed by the
Director of Central Food Laboratory final and conclusive
proof of the facts stated therein. The Central Food
Laboratory is established by the Central Government under s.
4 for the purpose of carrying on functions entrusted to it
by the Adulteration Act or by the Rules made thereunder.
Section 16 provides for penalties for offences under the
Adulteration Act and cl. (a) of sub-s. (1) makes it an
offence for any person, whether by himself or by any person
on his behalf to import into India or manufacture for sale
or to store, sell or distribute any article of food in
contravention of any of the provisions of the Act or of any
rules made thereunder. In the prosecution for an offence
pertaining to the sale of an adulterated or misbranded
article of food s. 19 makes impermissible the defence that
the vendor was ignorant of the nature, substance or quality
of the food sold by him or that the purchaser having
purchased an article for analysis was not prejudiced by the
sale. Section 20 prohibits cognizance and trial of offences
under the Act except when prosecution is instituted by or
with the written consent of the State Government or a local
authority or a person authorized in this behalf by such
Government or authority. Under the proviso to this section
a purchaser referred to in s. 12, is, however, empowered to
institute a prosecution if he produces in court a copy of
the report of the Public Analyst along with the complaint.
Section 21 overrides s. 32, Cr.P.C. in the matter of
sentence to be passed under this Act by the Presidency
Magistrates or Magistrates of 1 Class, trying offences under
the Act. Section 23 confers on the Central Government wide
powers to make rules under the Act after consulting the
Central Committee for Food Standards appointed by the
Central Government under s. 3. Section 24 empowers the State
Government, (after consultation with the Central Committee
for Food Standards and with previous publication) to make
rules for giving effect to the provisions of the Act in
matters not covered by s. 23. Various States have actually
framed rules under this section.
We may now briefly refer to the Prevention of Food Adultera-
tion Rules, 1955 (hereafter called the Adulteration.Rules).
These rules were made by the Central Government under s.
4(2) and s. 23(1) of the Adulteration Act and were published
in the Official Gazette as per notification dated September
12, 1955. The rules other than those contained in Part III-
Appendix B-Item A.12 Margarine, Part VI and Part VII came
into force on the date of
614
their publication in the Official Gazette : the rules
contained in Part III, Appendix B, Item A.12 Margarine came
into force on June 1, 1956 and the rules contained in Part
VI and Part VII came into force on December 1, 1956-: vide
r. 1(3). Under S. 23(2) (prior to its amendment in 1964)
all rules made under sub-s. (1) had to be laid as soon as
possible before both Houses of Parliament. By Act 49 of 1964
sub-s. (2) was amended so as to provide for every rule made
under sub-s. (1) to be laid before each House of Parliament
while in session, for a total period of 30 days in order to
afford an opportunity to the two Houses to study and to
modify or annul it for, future if both Houses so agree. We
have referred to this amendment as some of the rules were
amended thereafter. The effect of the subsequent amendment
of some of the rules will be noticed later. The Adul-
teration Rules clearly bring out the anxiety of their
authors to see that wholesome food is sold to the citizens.
The duties and powers of Food Inspectors as contained, inter
alia, in rr. 9 and 1 3, broadly illustrate this anxiety.
These rules also indicate that the framers of the Rules were
not unaware of the different provisions of the Fruit Order.
By way of illustration reference may be made to r. 50 which
prescribes conditions of licence to manufacture, sell,
stock, distribute or exhibit certain articles of food. In
cl. (1) of sub-r. (1) of this rule the fruit-products
covered under the Fruit Order and some other articles have
been excluded from the operation of this rule. This clause
was amended twice, once in November, 1956 and again in
April, 1960. Had the Adulteration Act been intended to be
impliedly repealed by the Fruit Order (which would also mean
implied repeal of the rules) it would have been unnecessary
to expressly exclude such fruit-products from the operation
of this rule. Rule 5 and Appendix B of these Rules came
into force on December 1, 1956 after the promulgation of the
Fruit Order. According to r. 5 the standard of quality of
the various articles of food specified in Appendix B are as
specified therein. In Appendix B item at sl. no. A.16
deals with “fruit products”. But the articles of fruit
products dealt with in A. 16.01 to A. 16.12 clearly show
that vinegar is not included in the expression “fruit
products”. Vinegar is dealt with in A.20 and synthetic
vinegar in A.20.01. Both these items were added in April,
1960.
We may now turn to the Essential Commodities Act, 10 of 1955
and the Fruit Order. The Essential Commodities Act was
enacted in 1955 with the object of providing, in the
interests of the general public, for the control of the
production, supply and distribution of, and trade and
commerce in, certain commodities. It came into force on
April 1, 1956 repealing the Essential Commodities Ordi-
615
nance No. 1 of 1955 which had been promulgated with the same
object and enforced on January 26,1955, the date of the
expiry of the Essential Supplies (Temporary) Powers Act 26
of 1946. The last named Act had replaced the Essential
Supplies (Temporary Powers) Ordinance No. XVIII of 1946
which had come into force on October 1, 1946. That
Ordinance was promulgated with the object of continuing,
during a limited period, powers to control the production,
supply and distribution of, and trade and commerce in,
foodstuffs and certain other commodities. To empower the
Indian Legislature to enact law on this subject matter the
British Parliament had passed India (Central Government and
Legislation) Act, 1946(9 and 10 Geo. Vl, c.39). The lndian
Legislature not being in session the Ordinance was
promulgated to meet the emergency and this was replaced by
Act 26 of 1946. Reference has been made by us to this past
history for the purpose of indicating the different objects
and purposes intended to be achieved by the two legislative
measures. Section 2 of the Essential Commodities Act which
is the definition section defines in cl. (a) “essential
commodity to mean any of the classes of commodities stated
in sub-cls. (i) to (xi). Sub-clause (v) refers to
“foodstuffs, including edible oil-seeds and oils” and cl.
(xi) confers power on the Central Government to declare by a
notified order any other class of commodity to be an
essential commodity for the purposes of the Act, being a
commodity with respect to which Parliament has power to make
laws by virtue of Entry 33 in List III in the 7th Schedule
to the Constitution. Section 3 of the Act confers on the
Central Government power to control production, supply,
distribution etc., of essential commodities by providing, by
an order, for regulating or prohibiting the production,
supply and distribution of those commodities and trade and
commerce therein. Every order made under this section has
to be laid before both Houses of Parliament as soon as may
be after it is made. By virtue of s. 6 Orders made under s.
3 have effect notwithstanding anything inconsistent there-
,with contained in any enactment other than the Essential
Commodities Act. Section 7 provides for penalties for
contravention of orders made under s. 3. Under s. 11 courts
are prohibited from taking cognizance of offences punishable
under this Act except on a report in writing of the facts
constituting such an offence made by a person who is a
public servant as defined in s. 21, I.P.C. Section 12 of
this Act vests in the Presidency Magistrates and Magistrates
of 1 Class power to pass sentences of fines exceeding Rs.
1,000/- on convicted persons notwithstanding the restriction
in this respect imposed on their powers by s. 32, Cr.P.C. As
already noticed earlier, an ordinance called the, Essential
Corn modifies Ordinance, 1 of 1955 had been promulgated on
the expiry of the Essential Commodities (Temporary Powers)
Act and the present Act was passed to replace that
Ordinance.
6 16
It may appropriately be pointed out at this stage that it
was not the respondent’s case that the Essential Commodities
Act had the effect of impliedly repealing the Adulteration
Act for the purposes of these cases. The only argument
urged was that the Fruit Order had that effect and its
overriding effect by virtue of S. 3 of the Act was strongly
emphasised. We may now turn to the Fruit Order (S.R.O. 1052
dated 3rd May, 1955 published in the Gazette of India dated
14th May, 1955) which was made by the Central Government in
exercise of the powers, conferred on it by s. 3 of the
Essential Commodities Act. Clause (2) of this Order, which
is the definition clause, defines the expression “fruit
product” in sub-cl. (d) and “vinegar, another brewed or
synthetic” is included in this expression as per item (ii)
of this sub-clause. “Licensing Officer” as defined in sub-
cl. (g) means the Agricultural Marketing Adviser to the
Government of India and it includes any other Officer
empowered in this behalf by him with the approval of the
Central Government. “Manufacturer” as defined in sub-cl.
(h) means a licensee engaged in the business of
manufacturing in fruit products for sale and includes a
person purchasing such fruit products in bulk and repacking
them for sale either by himself or through someone else.
Clause 4 prohibits all persons from carrying on business of
manufacture except and in accordance with the terms of an
effective licence granted to him under this Order in Form
“B”. Clause 5 prescribes procedure for applications for the
grant of a licence under cl. 4. Clause 7 enjoins the
manufacturers to manufacture fruit products in conformity
with the sanitary requirements and the appropriate standard
of quality and composition specified in the Second Schedule
to the Order and cl. 8 lays down the requirements to be
complied with by the manufacturers in regard to the packing,
marketing and labelling of containers, of fruit products.
Clause 10 prohibits sale, exposure for sale, despatch or
delivery to any agent or broker for the purpose of sale, any
fruit products which do not conform to the standard of
quality and composition specified in the Second Schedule or
which are not ,packed, marked and labelled in the manner
laid down in the Order: ,the proviso to this clause contains
directions for fruit products imported into India. Clause
12 contains a mandate for every manufacturer to comply with
the directions and orders issued to him and failure to do so
is to be deemed to be a contravention of the provisions of
the Order. According to cl. 15 no prosecution for
contravention of any of the provisions of this Order is to
be instituted without the previous sanction of the Licensing
Officer.
The object and purpose of the Adulteration Apt is to
eliminate the danger to human life and health from the sale
of unwholesome articles of food. It is covered by Entry 18,
List III of the 7th Schedule to the Constitution. The
Essential Commodi-
617
ties Act on the other hand has for its object the, control
of the production, supply and distribution of, and trade and
commerce in,. essential commodities and is covered by Entry
33 of List III. In spite of this difference in their main
objects, control of production and distribution of essential
commodities may, to an extent from a. broader point of view
include control of the quality of the essential articles of
food and, thus considered, it may reasonably be urged that
to some extent it covers the same field as is covered by the
provisions of the Adulteration Act. The two provisions may,
therefore, have within these narrow limits co-terminus
fields of operation. On this premise we have to see if the
two provisions can stand together having cumulative effect
and in case they cannot, which provision has the overriding
or controlling effect. It is needless to point out that
they can stand together if the powers are intended to be
exercised for different purposes without fatal inconsistency
or repugnancy.
At the bar Shri Daphtary in his usual persuasive manner
argued that there is an irreconcilable conflict between the
two statutory provisions and the Fruit Order being, not only
of a date later than the Adulteration Act but also having,
by virtue of s. 3(6) of the Essential Commodities Act,
overriding effect over all other laws, it must prevail over
the Adulteration Act and Rules. He pointed out that under
the Fruit Order the prosecution can be instituted only with
the previous sanction of the Licensing Officer whereas under
the Adulteration Act even a purchaser may, without any such
sanction, institute a prosecution merely by producing along
with his complaint a certificate from the Public Analyst.
He also drew our attention to s. 20-A of the Adulteration
Act according to which, unlike the Fruit Order, the Court
trying an offence under that Act is empowered to implead the
manufacturer, distributor or dealer of any article of food,
it is satisfied that he is also concerned with, that
offence, and proceed against him as though the prosecution
had been instituted-against him under s. 20. We do not
think this section in any way reflects the legislative
intention of implied repeal of the Adulteration Act by the
Fruit Order. The two statutory provisions can operate
within their respective spheres without giving rise to any
absurdity or such grave inconvenience as would impel the
court to sustain the plea of implied repeal., Incidentally
it may also be pointed out that this section was added by
Act 49 of 1964 which came into force on March 1, 1965 long
after 1960 when the present cases were started. Shri
Daphtary developed his argument by adding that if the
respondents have manufactured for sale and have sold vinegar
in accordance with the terms of the licence granted to them
under the Fruit Order then imposition of further
restrictions under the Adulteration Act and Rules with a
threat of severe penal consequences for violation of those
provisions would
618
be in direct conflict with the mandate or directions under
the Fruit Order. The counsel contended that at least the
freedom to manufacture and sell vinegar as permitted by the
Fruit Order is curtailed or further circumscribed by the
Adulteration Act and Rules and this must necessarily cut
across the provisions of the Fruit Order. He illustrated
his point by submitting that under the Fruit Order use of
colouring matter is more liberal than under the Adulteration
Act and Rules. In view of these conflicting provisions the
Adulteration Act and Rules, according to Shri Daphtary must
be held to have been impliedly repealed by the Fruit Order.
We are unable to agree with this submission. The two
statutory provisions, for the purpose of effectuating their
respective objects, have imposed ,different restrictions on
the respondents when they manufacture and sell vinegar
whether brewed or synthetic. We are, however, ‘.Informed at
the bar that in the present case the disputed vinegar is
synthetic. In the interest of public health the respondents
have to comply with the provisions of Adulteration Act and
Rules and in the interests of equitable distribution of
essential commodities including the articles of food covered
by Essential Commodities Act and the Fruit Order they have
to comply with the provisions of the Fruit Order. The
provisions of the Adulteration Act and of the Fruit Order to
which our attention was drawn seem to be supplementary and
cumulative in their operation and no provision of the Fruit
Order is shown to be destructive of or fatal to any
,provision of the Adulteration Act or the Rules made
thereunder So as to compel the court to hold that they
cannot stand together. If the Adulteration Act or Rules
impose some restrictions on. the manufacturer, dealer and
seller of vinegar then they have to comply with them
irrespective of the fact that the Fruit Order imposes lesser
number of restrictions in respect of these matters. The
former do not render compliance with. the latter impossible,
nor does compliance with the former necessarily and
automatically involve violation of the latter. Indeed, our
attention was not drawn to any provision of the Adulteration
Act and Rules, compliance with which would result in breach
of any mandate, whether affirmative or negative, of the
Fruit Order. We are, therefore, unable to find any cogent
or convincing reason for holding that the Parliament
intended by enacting the Essential Commodities Act or the
Fruit Order to implidely repeal the provisions of the
adulteration Act and the Rules in respect the statutes can
function with full the provisions of the Adultera of the
vinegar in dispute. Both vigour side by side in their own
parallel channels. Even if they happen to some extent to
overlap. s. 26 of the General Clauses Act fully protects the
guilty parties against double jeopardy or double penalty.
This section lays down that where an Act or omission
constitutes an,’ offence under two or more enactments then
the offender shall be liable to be prosecuted and punished
under either or any of those enactments but shall not
619
be liable to be punished twice for the same offence. If,
therefore, the provisions of the Adulteration Act and those
of Fruit Order happen to constitute offences covering the
same acts or omissions then it would be, open to the
prosecuting authorities to punish the offender under either
of them subject to the only condition that a guilty person
should not be punished twice over.
There is also another aspect which has to be kept in view.
Both the Adulteration Act and the Essential Commodities Act
have been amended from time to time after their enactment.
Being governed by Entries in List III of the 7th Schedule
even the States have power to amend these enactments and
indeed they have been so amended in some States. The
subsequent amendments of the Adulteration Act and of the
Essential Commodities Act by the Parliament and the
amendment of the Adulteration Rules would also tend to
negative any legislative intendment of implied repeal of the
Adulteration Act by the Essential Commodities Act or the
Fruit Order. It may be recalled that cl. (1) of sub-r. (1)
of r. 50 of the Adulteration Rules was amended in 1956 and
again in 1960 and the amended clause is indicative of the
rule making authority being conscious of both the statutory
provisions being operative in their respective fields at the
same time, thereby negativing implied repeal. A.20 dealing
with “vinegar” was also added in Appendix B of the
Adulteration Rules in 1956 and A. 20.01 dealing with ”
synthetic vinegar” was added in April, 1960. A passing
reference may also be made to some of the relevant
amendments in some rules made subsequent to the enforcement
of the amended section 23 (2). In r. 55 in items at sl.
nos. 19 and 20, dealing with pickles and chutnies made from
fruit or vegetables and with tomato and other sauces,
respectively, the preservatives mentioned in cl. 2 were
amended. Similarly in r. 51(2) the table containing
articles like fruit and vegetable juices including tomato-
juice was amended. Both the above amendments were made in
December, 1965. It may here be pointed out that pickles,
chutnies, tomato products, kutchups, sauces and also other
unspecified items relating to fruits or vegetables are
included in the definition of “fruit product” under the
Fruit Products Order. These amendments, though made after
1960, do seem to further negative the intendment of implied
repeal as argued on behalf of the respondent. In view of
the foregoing discussion it seems to us that the two
statutory provisions can harmoniously operate without
causing confusion or resulting in absurd consequences’ and
the scheme of the Adulteration Act and Rules can without
difficulty fit into the scheme of the Fruit Order under the
Essential Commodities Act. The challenge on the ground of
implied repeal must, therefore, be rejected.
Incidentally we may note that the view taken by the learned
single Judge in this case was later overruled by a Full
Bench of the
918 Sup. C.I./71
620
Delhi High Court in Municipal corporation v. Harnarain (Crl.
A. No. 163 of 1967 decided in May, 1969).
Shri Daphtary, as a last resort, tried to press into service
Art. 14 in his challenge to the prosecution of the
respondent. According to him the prosecuting authorities
have an unguided licence to prosecute his clients under one
or the other statute and since the penalty under the
Adulteration Act is more severe than that under the Fruit
Order the principle of equality before the law is violated
As this point was not taken in any of the courts below we
did not permit him to raise it in this Court. It would,
however, be open to the respondent, if so advised, to raise
this point in accordance with law in the court below,
because the cases have not yet been finally disposed of.
The competence of the prosecution having been challenged at
an intermediate stage, the cases will have to go back to the
trial court. As these cases have been pending since 1962
the trial court should dispose them of with due dispatch and
without any further avoidable delay.
The appeals are accordingly allowed and the cases remitted
to the trial court for further proceedings according. to law
in the light of the observations made above.
R.K.P.S. Appeals allowed.
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