1. The question referred to this Full Bench is whether Rule 6(B) (i) framed by the Government under the Bombay Prevention Of Adulteration Act, 1925, is ultra vires.
2. The accused in the case which gives rise to this Pull Bench was charged under Section 4(1)(a) & (b) of the Bombay Prevention of Adulteration Act and he was convicted by the Special Judicial Magistrate, Surat. On appeal he was acquitted by the learned Sessions Judge and Government came here In appeal against the decision of the learned Sessions Judge, and the Bench dealing with this appeal found it necessary that in view of a certain judgment of this Court the question as to the vires of this rule should be considered by a Pull Bench.
3. The commodity in respect of which the accused was charged is ghee and when we turn to 8. 4 the offence is constituted by selling or causing to be sold or offering for sale to the prejudice of the purchaser any article of food which is not of the nature, substance or quality demanded by or on behalf of the purchaser.
There is an explanation to this section which provides that ghee or butter which contains any substance not exclusively derived from milk shall be deemed to be an article of food not of the nature, substance or quality it purports to be, and the case of the prosecution was that the ghee which the accused was selling or offering for sale contained a substance not exclusively derived from milk.
Section 19 is the section which gives power to the Government to frame rules and the rule in question has been framed under Sub-section (1) (c) which authorises the Government to make rules for determining what deficiency in any of the normal constituents of any article of food or what addition of extraneous matter shall raise a presumption, until the contrary is proved, that such food is injurious to health within the meaning of Section 3 or is not of the nature, substance or quality it purports to be within the meaning of Section 4.
Therefore, the power conferred upon the Government is to raise a statutory presumption. This section alters the rule of evidence which in a criminal trial casts the burden upon the prosecution and the rule would permit a presumption to be raised against the accused which would not be an irrebuttable presumption but which could be rebuttable by him and the presumption would be raised by determining the deficiency in the normal constituents of any article or the addition of extraneous matter in any particular article.
4. The rule in question which has been challenged is Rule 6 (B) (i) & it is to the following effect:
'The following articles of food shall be presumed, until the contrary is proved, to be not of the nature, substance or quality which they purport to be: (i) Ghee which has a Butyro refractometer reading at 40C of less than 40 or move than 44.5 or a Reichert Woollny value of less than 24, or which has an acidity of more than 2.5 per cent calculated as Oleic Acid'.
The contention on behalf of the accused which has been put forward by Mr. Patel is that this rule does not raise the specific presumption which it is alone possible for Government to raise under Section 19 (1) (c). The argument is that the rule does not specify quantitatively either the deficiency in the normal constituents of an article or the addition of extraneous matter and what is urged is that it is only a presumption which quantitatively specifies, either the deficiency or the addition which could be said to fall within the ambit of Section 19(1)(c). What Rule 6(B) (i) does is that instead of specifying the quantity it lays down a well-known and well accepted scientific test, the result of the application of which would be to show that extraneous matter was present in the ghee which was subjected to the test.
It is significant to note that as far as ghee is concerned, the explanation to Section 4 makes it clear that the presence of any foreign matter in ghee or butter would render it an article not of the nature, substance or quality it purports to be. Therefore, it is not necessary for the prosecution in the case of adulteration of ghee or butter to establish that the adulteration was brought about by the presence of any specific quantity of foreign matter.
The rule therefore, to the extent that it does not provide for the presence of any specific quantity of foreign matter, is consistent with the explanation. But what is urged by Mr. Patel is that inasmuch as it does not provide for the determination of the quantity of additional matter, it does not fall within Section 19 (1) (c) and the presumption raised is one which cannot be raised under that subsection.
It seems to us that if it is permissible to Government to frame a rule with regard to the quantityof extraneous matter and raise a presumption in connection therewith, it is equally open to Government to frame a rule with regard to the presence of any extraneous matter without specifying the quantity and raising a presumption in connection therewith. A wider power is given to Government with regard to the raising of presumption than has been exercised under Rule 6 (B).
5. In the question referred to us we have to consider the vires of Rule 6(B) not merely with regard to the facts of this case but with regard to the nature of the rule itself. Section 19(1)(c) permits Government to frame a rule either with regard to the quantity of the deficiency in any of the normal constituents of an article or a rule with regard to the addition of extraneous matter in any I article, and in framing the rule it is open to Government either to specify the quantity of deficiency or the quantity of extraneous matter or to establish that there was any deficiency or that there was any addition of extraneous matter.
We do not agree with Mr. Patel that a rule framed under Section 19(1)(c) must specify both the deficiency in normal constituents and the addition of extraneous matter. The test laid down in Rule 6 (B) (1) may show merely the presence of an extraneous matter; it may not show any deficiency in ghee or butter; even so the rule would be Intra vires and within the ambit of Section 19(1)(c).
6. Rerefence was made to a decision of this Court which had to consider this very rule. In State v. Madan Dhanji 56 Bom LR 128 Mr, Justice Bavdekar and Mr. Justice Vyas were considering this rule particularly with regard to the latter part of it which provides for the presence of acidity of more than 2.5 per cent calculated as Oleic Acid, and the learned Judges came to the conclusion that the rule was intra vires in so far as the words 'which has an acidity of more than 2.5 per cent calculated as Oleic Acid' are concerned, only if the Court is satisfied that whenever there is deficiency in any of the normal constituents of ghee or whenever there is addition of extraneous matter to the normal constituents of ghee, and there is necessarily an excess of acidity in ghee over 2.5 per cent acidity referred to in the rule.
With very great respect to the learned Judges, it is difficult to understand how the vires of a rule can be determined ad hoc by reason of particular evidence being led or not led. Either a rule is intra vires or it is not and that question cannot possibly be decided on the facts of any particular case or on the evidence led in any particular case.
The learned Judges also took the view that the test laid down in that rule did not comply with the provisions of Section 19 (1) (c). What the learned Judges overlooked, with respect, was that the validity of the test could be challenged by the accused, the presumption being rebuttable and not irrebuttable.
The objection to the rule would have been serious if the test laid down in that rule had to be accepted by the accused and he had no right to challenge it. But by making the presumption rebuttable the Legislature has given the right to the accused either to challenge the quantity if laid down by the Government in the rule itself, or the test laid down by the Government which determines the very quantity which the rule postulates.
Therefore, the evidence which Bavdekar J. and Vyas J. were considering does not go to determine the validity of the rule, but it is material and relevant to consider for the purpose of deciding whether the presumption has been rebutted or not.
If the rule raises the presumption that foreign matter is present in the ghee if it has an acidity of more than 2.5 per cent calculated as Oleic Acid, then tt is open to the accused in any particular caseto rebut that presumption, and notwithstanding the test laid down in the rule it will be open to the Court to come to the conclusion that foreign matter was not present in the ghee by reason of the rebuttal of the presumption on the part of the accused.
We are therefore, with respect, unable to agree with the view taken by Mr. Justice Bavdekar and Mr. Justice Vyas that any part of the rule is ultra vires or that any particular part is intra vires dependent upon the evidence led in any particular case.
7. Mr. Patel has also attempted to raise the larger question as to whether Section 19(1)(c) constitutes delegated legislation. We should have thought it is rather late in the day in view of the recent elaborate judgment of the Supreme Court to raise that contention. The point has not been seriously pressed and it is unnecessary for us to decide it.
8. The result is that we must hold Rule 6(B) (i) framed under the Act as intra vires and valid.
9. Answer accordingly.