(1) This is a reference made to this Court by the learned Second Additional Sessions Judge, Poona, recommending that the order of conviction and sentence passed on the accused in respect of an offence under the Prevention of Food Adulteration Act, 1954 be set aside and the accused be set at liberty. It appears that the Food Inspector in the employment of the Poona Corporation visited the shop of the accused on 21st July 1959 at about 9-30 a. m. and purchased 12 ounces of butter (Gavathi Loni) from the accused informing him that he was a Food Inspector and he wanted to sent a sample of that butter for analysis. The butter was then divided into three equal parts and each of the parts was filled in a separate bottle duly sealed and labelled in the presence of the accused and the witnesses. One of the sealed bottles was given to the accused. Out of the remaining two bottles one was sent up to the public analyst for analysis and the butter contained in that bottles was found to be sub-standard. The Food Inspector thereafter filed a complaint in the Court of the Special Judicial Magistrate, 1st Class at Poona against the accused charging him with an offence punishable under S. 16(1)(a)(1) read with S. 7(1) of the Prevention of Food Adulteration Act 1954. The learned Magistrate after recording the evidence convicted the accused of the offence charged against him and sentenced him to pay a fine of Rs. 40/- in default to suffer simple imprisonment for one month. The accused being aggrieved by the said order of conviction and sentence filed a revision application in the Sessions Court at Poona. The learned Judge after hearing the contentions of the parties held the view that on account of the accused having complied with Rule 43 framed under the Prevention of Food Adulteration Act, 1954 by notifying on the label of each package of butter the amount of moisture and fat contained in the butter, he could not be held guilty of the offence charged against him. The learned Judge, in course of his judgment also relied upon Rule 44 which prohibits sale of certain admixtures specified therein. The learned Judge was of the view that butter was not among the admixtures mentioned in Rule 44, and, therefore, the sale 'of butter in adulterated form' was not at all prohibited. The learned Judge accordingly has made a reference to this Court recommending that the order of conviction and sentence passed by the learned Magistrate be set aside, as being one untenable in law.
(2) The learned Assistant Government Pleader opposed the reference stating that the approach of the learned Judge to the case was entirely erroneous. It was contended that the learned Judge had overlooked the imperative provisions of S. 7 of the Act itself and erroneously relied upon Rules 43 and 44 made under the Act which as a matter of fact had no bearing upon the question as to whether or not the butter which was purchased from the accused was adulterated butted and the accused had said adulterated butter to the Food Inspector. On the other hand it was urged by Mr. Khare, the learned advocate for the accused that the learned Judge was perfectly right in his approach to the case and that he was perfectly justified in relying upon the two rules mentioned above fort purpose of coming to the conclusion that the accused was not guilty of the offence charged against him. I have carefully considered the arguments of both sides and have come to the conclusion that the reference made by the learned Sessions Judge should be rejected. It must be borne in mind that rules made under any Act could ever be intended to override the specific provisions of the Act itself. The purpose of the rules is to provide for procedural matters or matters which are subsidiary to the provisions of the Act. They may in some cases explain the provisions of the Act and it might in certain cases be legitimate to read the rules along with the provisions of the Act in order to find out the true intention of the Legislature in enacting the latter, but no rules can never be construed to override the specific provisions of the Act itself. I am afraid, the learned Judge in this case, while relying upon Rules 43 and 44 made under the Act has completely overlooked the provisions of Section 7 of the Act which in terms prohibits the sale inter alia of 'any adulterated food'. The expression 'adulterated' is defined in several clauses of sub-section (1) of Section 2 of the Act. Reading this subsection with clause (1) thereof, the expression 'adulterated' means as follows:
'An article of food shall be deemed to be adulterated (I) 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.'
If an article in respect of which any standard is prescribed or limits of variability of quantities of its constituents are prescribed either by the Act or the Rules made thereunder, according to this definition it shall be deemed to be adulterated if it does not conform to the standard so prescribed or the quantities of its constituents are in excess of the limits of variability so prescribed. Then, with regard to butter, its constituents are prescribed in Appendix B to the Rules made under the Act which deal with definitions and standards of quality. Under No. 11.05 it is stated as follows:-
'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.'
(3) This provision prescribes the standard of pure and unadulterated butter. It follows, therefore, that butter whether Gavathi or otherwise, containing more than 16 per cent of moisture and less than 80 per cent of milk fat must be deemed to be 'adulterated' within the meaning of the expression 'adulterated' as defined in clause (1) of sub-section (1) of Section 2 of the Act. If the butter is thus found to be adulterated and it cannot be disputed that butter is an article of food, Section 7 immediately comes into operation and the person who is in possession of such kind of butter is prohibited from selling it altogether. If, in spite of this prohibition, that person sells such butter, he comes under the penal Section 16 of the Act and becomes liable to be convicted and sentenced in respect of that offence.
(4) This is the plain method in which really the case should have been dealt with by the learned Judge, once having found that the butter in the case could not be described as pure butter but that it could be described only as 'adulterated article' under S. 2(i)(1) of the Act. He, however, somehow appears to have been intrigued by Rules 43 and 44 made under the Act to which his attention seems to have been invited by the Advocate appearing for the accused. What these rules, however, provide has in my opinion, no bearing at all on the question as to whether a person has sold an article of food which is 'Adulterated' in view of the standard prescribed by the Act or the Rules made thereunder in respect of such article. Rule 43 which falls under Part VII entitled 'Packing and labelling of foods' with 'Notice of addition, admixture or deficiency in food' and it runs as follows:
'Every advertisement and every price or trade list or label for an article of food which contains an addition, admixture or deficiency shall describe the food as containing such addition, admixture or deficiency and shall also specify the nature and quantity of such addition, admixture or deficiency. No such advertisement or price or trade list or label attached to the container of the food shall contain any words which might imply that the food is pure:
Provided that for the purpose of this rule the following shall not be deemed as an admixture or an addition namely:
(a) Salt in butter or margarine,
(b) Vitamins in food.'
The rule further provides that in cases to which the aforesaid provision applies a declaration shall be made and printed upon label specifying the quantity and name of the admixture in case . . . . of admixture which might be present in the article or the name and quantity of the ingredient in case of any deficiency in the article. The learned Judge seems to have though that Rule 43 would apply even in cases where the article concerned does not conform to the standard prescribed by the Act or the Rules in respect thereof and that the vendor of that article could escape punishment if on the package containing that article he affixed a declaration stating the name and quantity of the admixture present in the article or the name and quantity of the ingredient which is deficient. To my mind, that is not the rue interpretation of the rule. It may be noted that the rule does not apply in cases of articles which are pure in themselves and which are required by the Act or the Rules to be sold in pure condition. It applies only in cases of an article to which something has been added or with which something has been mixed with a view to either enhance the taste of the article or the nutritive value of that article. Nevertheless, such article must initially conform to the standard prescribed by the Act or the Rules and the addition of any ingredient or admixture contained in that article as also the deficient ingredient, if any, are required to be specified on the label attached to the package containing the article, so that the purchaser might know that the article that he is buying conforms to the standard prescribed by the Act or the Rules, as the case may be, and that, without affecting that standard in any way, the article contains certain kind and quantity of addition or admixture or is deficient in a certain ingredient to a certain extent. The rule can never mean that the vendor of the article can make a declaration on the label of the package containing article specifying the amount of addition, admixture etc., regardless of the standard laid down by the Act or the Rules in respect of that article and contend that having be held bound by the provisions of Section 7 of the Act, and that be can sell even an 'Adulterated' article to any one he liked. If this contention were to be accepted, the result to my mind, would be preposterous because, in every case where such a declaration is made by a vendor of an adulterated article he can always claim to be entitled to sell such article with impunity and the consequence that would necessarily follow therefrom would be that the public health would considerably suffer from consumption of such article and the object of the Act would be entirely frustrated. I am afraid, Rule 43 does not bear the meaning which the learned Judges seems to put upon it and to the extent that he has relied upon that rule for the purpose of recommending that the order of conviction and sentence should be set aside, he has been in error.
(5) Likewise, his reliance upon Rule 44 is also erroneous. Rule 44 figured in Part VIII headed 'Prohibition and regulating of sales' The learned Judge seems to have relied upon the act that butter was not one of the articles mentioned in that rule and that, therefore, if a person complied with the provisions of Rule 43 he could sell even 'adulterated' butter. This again, to my mind, is not the proper construction of Rule 44. The true interpretation of this rule, in my opinion, seems to be that even in case of an article of food in which any addition or admixture is present and has been notified on the label affixed to the package containing the article, that article cannot be sold if it falls within the list of articles of food given in that rule and the addition or admixture is of the kind specified in that rule in reference to that article. For instance, in case of milk, there is a standard prescribed in Appendix B under No. A 11.01 Milk confirming to that standard would by no means be regarded as 'adulterated' and a person in possession of such milk would be entitled to sell it freely. If, however, any water is added to it, Rule 44 prohibits the sale thereof despite the declaration as to the quantity of the added water on the label affixed on the container thereof in pursuance of the requirement of Rule 43 and any person who sells such admixture in contravention of that rule would invite the penalty provided for Section 16 of the Act by virtue of clause (a) of sub-section (1) of that section. Accordingly, in my opinion, just because 'butter' is not mentioned in the list of articles under Rule 44, it does not mean that by complying with the provisions of Rule 43 a person can sell 'adulterated' butter with impunity and thereby contravene the express provisions of Section 7 of the Act. The learned Judge in his reference has observed that 'the Act or the Rules do not prohibit a sale of adulterated better'. In my opinion this observation of the learned Judge would be justified only if he though that butter was not an article of food. There is no indication, however, of his having so thought in any part of his reference or judgment. In that event, his observation can only be attributed to his ignorance or disregard of the express provisions of Section 7 of the Act which in terms provides 'No person shall . . . . sell . . . . . .(1) any adulterated food;'.
(6) For all these reasons, I do not think I should accept the Reference made by the learned Judge. Accordingly, the reference is rejected and the order of conviction and sentence passed by the learned Magistrate is confirmed.
(8) Reference rejected.