1. The two appellants, the Hamdard Dawakhana (Wakf), Delhi, and itsMutawalli Haji Hakim Hameed, represent the Hamdard Dawakhana institution whichwas initially established in or about 1906 as a dawakhana and was subsequentlydeclared and founded as a Wakf. Since its inception, the institution has beenrunning dispensaries and clinics for the treatment of patients and has beenmanufacturing and supplying medicines and medicinal products according toAyurvedic and Unani Systems of medicines. Appellant No. 1 also manufacturesmedicated syrups which contain some fruit juices for medicinal use and they areprepared according to a certain formula devised by it. 'Sharbat RoohAfza' which is a medicated syrup manufactured by appellant No. 1 is madeof the following ingredients :-
'Kasni seeds, Khus, Pumpkin Juice, Water melonJuice, Chharila, Ripe grapes, Spinach, Nilofar, Sandal, Gul Gaozaban,Coriandar, Carrot, Mint, Kulfa, Keora, Rose, Citrus flower, Orange Juice,Pine-apple Juice, Water, Sugar'.
2. The formula determining the ratio and proportion in which each one of theingredients has to be used, has been evolved by appellant No. 1 as a result ofvarious experiments spread over a long period. The manufacture of this Sharbatbegan in 1920. It is intended to be used for common ailments during hot season,particularly for ailments like loss of appetite, sun stroke, nausea,sleeplessness, etc. This Sharbat Rooh Afza is not a foodstuff, and cannot beregarded as an essential commodity under section 2 of the Essential CommoditiesAct, 1955 (No. 10 of 1955) (hereinafter called 'the Act'). In substance, thisis the case as set out by the appellants in their petition.
3. Purporting to act under section 3 of the Act the Central Government madean Order called the Fruit Products Order, 1955 (hereinafter called 'the FruitOrder') under Notification No. S.R.O. 1052 dated May 3, 1955. Under clause 3 ofthe Order, respondent No. 4, the Central Fruit Products Advisory Committee, hasbeen constituted. It appears that on the 22nd September, 1956, the CentralGovernment purporting to act under section 3 of the Act, made certainamendments in the Fruit Order. The result of one of the amendments thus madewas to direct that the minimum percentage of fruit juice in the final productof a fruit syrup as indicated in Part II of the Second Schedule to the FruitOrder should be raised from 10% to 25%. The change so made was notified to theappellants by respondent No. 2, the Marketing Development Officer, FruitProducts, Central Zone, Delhi, on January 29, 1957. As a result of thisintimation, certain correspondence followed between the appellants andrespondent No. 2. The appellants had urged in the course of this correspondencethat Sharbat Rooh Afza did not fall within the scope of the Act and the FruitOrder.
4. On March 25, 1957, respondent No. 3, the Agricultural Marketing Adviserto the Government of India, New Delhi, invited a representative of theappellants for discussions, and as a result of the said discussion, Mr. Sood,the Marketing Development Officer, Delhi, inspected the factory of theappellants and watched the process of manufacture of Sharbat Rooh Afza on April29, 1957. Thereafter, on May 10, 1957, the appellants received a communicationfrom Mr. Sood ordering the appellants to stop further manufacture and sale ofSharbat Rooh Afza forthwith on the ground that it did not contain the minimumpercentage of fruit juice prescribed by the relevant clause of the Fruit Order.This communication mentioned the fact that the appellants had been specificallyasked to prepare fruit syrups strictly in accordance with the specificationsprescribed, but in utter disregard of the said instructions, the appellants hadwilfully continued to contravene the provisions of the Fruit Order. That is whyby virtue of the powers conferred on him by clause 13(f) of the Fruit Order,the present order was served on the appellants. It is this order which waschallenged by the appellants by their writ petition filed before the PunjabHigh Court on the 18th May, 1957 (No. 258-D of 1957).
5. By their writ petition, the appellants prayed that the impugned order aswell as the several orders passed preceding it, should be quashed and a writ ofmandamus should be issued against the respondents restraining them from seekingto enforce the material provisions of the Fruit Order in respect of theappellants' product 'Sharbat Rooh Afza'. The appellants urged that the saidSharbat is not a foodstuff, but a medicinal product and as such, its productioncannot be regulated under the provisions of section 3 of the Act. According tothem, the said Sharbat was not an essential commodity, nor was it a fruitproduct' as defined by clause 2(d) of the fruit Order. They also urged that theimpugned order was invalid, because it contravened the fundamental rights ofthe appellants under Art. 19(1)(f) & (g) of the Constitution; the Sharbatin question was in fact a medicinal product and as such, the impugned order wasinconsistent with clause 16(i)(c) of the Fruit Order. It is on these groundsthat the appellants sought relief by way of an appropriate writ or orderquashing the impugned order issued against them on May 10, 1957. To thispetition, the appellants impleaded the Union of India as respondent No. 1.
6. This petition was resisted by the respondents on several grounds. It wasalleged that the Sharbat in question fell within the scope of the Act and theFruit Order. The respondents referred to the fact that the Hamdard Dawakhanahad duly applied and was granted a licence in 1955 as a manufacturer engaged inthe business of manufacturing fruit products for sale. The Dawakhana is holdingthis licence since 1955. The bottles in which the Sharbat in question is soldby the appellants do not bear labels containing the words 'for medicinaluse only'. It appears that the Dawakhana obtained a licence for the year1952 under the Fruit Products Order 1948 for the manufacture of the Sharbat inquestion. On analysis, it was found that the said Sharbat did not contain fruitjuice, though it was sold as fruit juice. The label on the bottle of theSharbat depicts pictures of fruits. Under the said Order of 1948 the syntheticsyrups containing no fruit juice were required to be clearly marked as 'synthetic'and to abstain from using labels with pictures of fruits. In 1954 when it wasfound that the Dawakhana did not get the licence renewed, the appellants wereasked either to get their licence renewed or to get exemption by complying withthe necessary conditions. When the appellants did not comply with thesedirections, some of the bottles of the Sharbat were detained in the market.That led to a writ petition filed by the appellants in 1954 (No. 11-D/1954) inthe Punjab High Court. When the petition, however, came for final hearing, itwas not pressed, and so, was dismissed on June 5, 1954. The Dawakhana thenfiled a suit for injunction, but the said suit became infructuous with theexpiry of the Fruit Products Order, 1948 on January 25, 1955. The present FruitOrder came into force on May 3, 1955; and the Dawakhana filed another suit forinjunction, but pending the suit, the appellants applied for and obtained alicence under the Fruit Order and in consequence, the suit was withdrawn onOctober 18, 1955. Even after obtaining the licence, the requirements of therelevant provisions of the Fruit Order as to the minimum percentage of fruitjuice were not complied with by the appellants; and that led to the impugnedorder. That is the background of the present writ petition.
7. In the present writ petition, the respondents urged that the Sharbat inquestion is not sold for medicinal purpose; it is manufactured by theappellants as a fruit product and sold as such. No exemption was claimed by theappellants under clause 16 of the Fruit Order. The Sharbat in question isfoodstuff within the meaning of section 2 of the Act and it falls within thepurview of the Fruit Order. The impugned order is not is not unconstitutional,because the restriction imposed by it is consistent with the relevantprovisions of the Act and the Fruit Order, and the said provisions areperfectly valid, because they impose a reasonable restriction in the interestof general public.
8. This writ petition came on for final disposal before the Punjab HighCourt on January 13, 1964. The High Court has rejected the pleas raised by theappellants and dismissed their writ petition. The High Court has held thatthere was no substance in the appellants' grievance that the Fruit Order wasinvalid. In support of this conclusion, the High Court has relied upon adecision of this Court in M/s. Amrit Banaspati Co., Ltd. v. The State of UttarPradesh (Criminal Appeal No. 141 of 1959 decided on 30-11-1960.). The HighCourt negatived the appellants' argument that the Sharbat in question waseither prepared or sold as a medicinal product. In this connection the HighCourt has commented on the fact that the label borne by the bottles containingthe Sharbat did not show that it was for medicinal use only as required byclause 16(i)(c) of the Fruit Order. According to the High Court, clause 11 ofthe Fruit Order covered the case of the Sharbat prepared by the appellants, andso, the impugned order was justified. The High Court also found that there wasno substance in the grievance made by the appellants that as a result of thisimpugned order, their registered trade-mark label had been affected.
9. The High Court then examined the question as to whether the provisions ofthe Fruit Order could be said to be invalid, and it held that the saidprovisions were perfectly valid inasmuch as the restrictions imposed by themwere reasonable and in the interests of the general public. It is on thesegrounds that the High Court dismissed the appellants' petition.
10. Thereafter, the appellants applied for and obtained a certificate fromthe High Court to come to this Court in appeal. This certificate was granted onJuly 22, 1964. After the appeal was admitted in due course, the appellantsmoved this Court on October 26, 1964 for stay; in fact, during all the sevenyears that the writ petition was pending before the High Court, the appellantshad obtained stay and they wanted the stay to continue pending the finaldisposal of this appeal. When we found that the writ petition had taken anunusually long time in the Punjab High Court, we directed that the stay shouldcontinue in favour of the appellants, but that the appeal should be heard onNovember 9, 1964. That is how the hearing of this appeal has been speciallyexpedited.
11. Before we deal with the points which have been raised before us by Mr.Pathak, we would refer very briefly to the scheme and the relevant provisionsof the Act and the Fruit Order. The Act was passed in 1955 for the purpose ofcontrolling the production, supply and distribution of, and trade and commercein, certain commodities in the interests of the general public. The commoditieswhich were intended to be brought within the purview of the Act were essentialcommodities as defined by section 2(a) of the Act. Amongst them are includedfoodstuffs, including edible oilseeds and oils covered by section 2(a)(v), andany other class of commodity which the Central Government may, by notifiedorder, declare to be an essential commodity for the purposes of this Act, beinga commodity with respect to which Parliament has power to make laws by virtueof entry 33 in List III of the Seventh Schedule to the Constitution; this isincluded in the definition by section 2(a)(xi). Section 3(1) provides that ifthe Central Government is of opinion that it is necessary or expedient so to dofor maintaining or increasing supplies of any essential commodity or forsecuring their equitable distribution and availability at fair prices, it may,by order, provide for regulating or prohibiting the production, supply anddistribution thereof and trade and commerce therein. Sub-section (2) by clauses(a) to (h) provides for different categories of orders which may be passed bythe Central Government without prejudice to the generality of the powersconferred on it by sub-section (1), It would thus be clear that the Act conferspower on the Central Government to regulate the production, supply anddistribution of essential commodities. This power is conferred in a verygeneral and wide sense by section 3(1)., There can be little doubt that thepower to regulate the production of an essential commodity will include thepower to regulate the production of essential commodities which may operateeither qualitatively or quantitatively. In other words, in regard to essentialcommodities, the Central Government is given the power to direct how certainessential commodities should be produced and in what quantity. This power, ofcourse, can be exercised only if the condition precedent prescribed by section3(1) is satisfied, and that is that the Central Government should be of opinionthat it is necessary or expedient to regulate the production of any essentialcommodity for one of the purposes mentioned by it. This position cannot be, andis not, disputed before us. In fact in M/s. Amrit Banaspati Co., Ltd. (CriminalAppeal No. 141 of 1959 decided on 30-11-1960.) this Court whilst dealing withthe provisions of the Vegetable Oil Products Control Order, 1947, issued undersection 3(1) of the Act, has definitely ruled that a qualitative regulation inrespect of the production of an essential commodity is permissible undersection 3(1) of the Act.
12. That takes us to the Fruit Products Order which was issued by theCentral Government on May 3, 1955, in exercise of the powers conferred on it bysection 3 of the Act. Clause 2 of the Fruit Order defines 'fruit product'.Clause 2(d)(i) takes in synthetic beverages, syrups and sharbats; clause2(d)(v) takes in squashes, crushes, cordials, barely water, barreled juice andready-to-serve beverages or any other beverages containing fruit juices orfruit pulp. Clause 2(d)(xiv) takes in any other unspecified items relating tofruits or vegetables. Clause 2(j) defines 'sharbat' as meaning anynon-alcoholic sweetened beverage or syrup containing non-fruit juice orflavoured with non-fruit flavours, such as rose, khus, kewra, etc; and clause2(k) defines 'synthetic beverage' as meaning any non-alcoholicbeverage or syrups, other than aerated waters, containing no fruit juice buthaving an artificial flavour or colour resembling as fruit, Clause 7 of theFruit Order prescribes that every manufacturer shall manufacture fruit productsin conformity with the sanitary requirements and the appropriate standard ofquality and composition specified in the Second Schedule to this Order; it addsthat every other fruit and vegetable product not so specified shall bemanufactured in accordance with the standard of quality and composition laiddown in this behalf by the Licensing Officer.
13. That takes us to clause 11; it is necessary to read this clause fully :-
(1) Any beverage which does notcontain at least 25 per centum of fruit juice in its composition shall not bedescribed as a fruit syrup, fruit juice, squash or cordial or crush and shallbe described as a synthetic syrup.
(2) Every synthetic syrup shallbe clearly and conspicuously marked on the label as a 'SYNTHETIC' product, andno container containing such product shall have a label, whether attachedthereto or printed on the wrapper of such container or, otherwise, which maylead the consumer into believing that it is a fruit product. Neither the word'FRUIT' shall be used in describing such a product, nor shall it be sold underthe cover of a label, which carries the picture of any fruit. Aerated watercontaining no fruit juice or pulp shall not have a label which leads theconsumer into believing that it is a fruit product.
14. Part II of the Second Schedule to the Fruit Order prescribes thespecifications for fruit juice and other beverages. In regard to fruit syrup, itprovides, inter alia, that the minimum percentage of fruit juice in the finalproduct must be 25%. The respondents' contention is that since the Sharbat inquestion produced by the appellants does not comply with this specification, itcontravenes the mandatory provision of clause 11(1). Part IV of the SecondSchedule prescribes the specifications for synthetic syrups and sharbats. Underthis Part, there is no requirement as to any minimum of fruit juice in the saidsyrups and sharbats.
15. Clause 16 of the Fruit Order provides for cases to which the Order doesnot apply, Clause 16(i)(c) provides that nothing in this Order shall be deemedto apply to any syrups which are sold in bottles bearing a label containing thewords 'For medicinal use only' which does not exhibit any picture offruits. It is common ground that the appellants do not sell the Sharbat inquestion in bottles bearing a label containing the words 'For medicinaluse only' and so, clause 16(i)(c) does not apply and the appellants canclaim no exemption on that account.
16. Mr. Pathak no doubt attempted to argue that the Sharbat in question isnot an essential commodity and as such, it does not fall within the purview ofthe Act or within the purview of the Fruit Order. It appears that this plea wasnot urged by the appellants before the Punjab High Court. It was argued by thembefore the High Court that the Sharbat in question was a medicinal product; andthat point had been considered and rejected by the High Court; and so, it hasassumed that the Sharbat in question is an essential commodity within themeaning of section 2 of the Act; that question cannot now be allowed to beargued for the first time before this Court.
17. Mr. Pathak wanted to suggest that the Sharbat in question is not a fruitproduct and as such, is outside the purview of the Fruit Order. We are notimpressed by this argument. We have already referred to clause 2(d)(v) of theFruit Order which refers to several beverages, and the residuary part of thisclause takes in any other beverages containing fruit juices or fruit pulp. Thesuggestion that this clause should be read ejusdem generis with the previouscategories of beverages cannot obviously be accepted because an examination ofthe said beverages will disclose the fact that there is no genus by referenceto which the rule of ejusdem generis can be properly invoked. Besides, thecontext of the clause clearly suggests that it is intended to take in allbeverages other than those earlier specified, provided they contain fruitjuices or fruit pulp. Therefore, we feel no difficulty in holding that theSharbat in question falls within the purview of clause 2(d)(v) of the FruitOrder and as such, its production can be controlled by its relevant provisions.
18. Then it is urged by Mr. Pathak that the Fruit Order itself is invalid,because it does not purport to say that before it was issued, the CentralGovernment had formed the opinion that it was necessary or expedient to issuethe Order for maintaining or increasing supplies of the commodity in question.Mr. Pathak contends, and rightly, that the condition prescribed by the firstpart of section 3(1) of the Act is a condition precedent and it is only whenand after the said condition is satisfied that the power to issue a regulatoryorder can be exercised by the Central Government. This contention again cannotbe allowed to be raised for the first time in appeal, because if it had beenraised before the High Court, the respondents would have had a chance to meetit. It is true, as Mr. Pathak contends, that in the absence of any specificaverment made by the Fruit Order that the Central Government had formed thenecessary opinion, no presumption can be drawn that such opinion had beenformed at the relevant time; but it would have been open to the respondents toprove that such an opinion had been formed at the relevant time; and it cannotbe suggested that the failure to mention that fact expressly in the Fruit Orderitself would preclude the respondents from proving the said fact independently.That is why we think Mr. Pathak cannot be permitted to urge this contention atthis stage.
19. Mr. Pathak, has, however, strenuously argued before us that the FruitOrder is invalid, because its relevant provisions indicate that it is in Orderwhich could have been appropriately issued under the Prevention of FoodAdulteration Act, 1954 (No. 37 of 1954). In support of this argument, Mr.Pathak has relied on the fact that Act 37 of 1954 is relateable to thelegislative power conferred by Entry 18 in List III of the Seventh Schedule tothe Constitution which refers to adulteration of foodstuffs and other goods;and so, the material provisions of the Fruit Order which really prevent theadulteration of fruit products could be legitimately enacted under this Act. Onthe other hand, the Essential Commodities Act, 1955 is relateable to Entry 33in List III and the Fruit Order issued under it would, therefore, beinappropriate, having regard to the object which this Order is intended toachieve. He argues that the two powers are distinct and separate, and the FruitOrder with which we are concerned, cannot be said properly to have been issuedunder the Act. It is true that the Prevention of Food Adulteration Act doesdeal with the problem of preventing adulteration of food; but it is not easy toaccept Mr. Pathak's assumption that the regulatory Order of the kind with whichwe are concerned which imposes regulations of a qualitative character in theproduction of essential goods, could have been issued under this Act. But quiteapart from this consideration if section 3(1) of the Act authorises the CentralGovernment to regulate the qualitative and quantitative production of essentialcommodities, it is idle to contend that the regulations imposed by the FruitOrder in respect of fruit products are outside the purview of section 3(1). Thepith and substance of the relevant provisions of the Fruit Order clearly is toregulate the qualitative production of fruit products covered by it. Thisobject is illustrated by the specification with which we are concerned. Part IIof the Second Schedule to the Fruit Order which has imposed the obligation onthe manufacturers of fruit syrups to include at least 25% of fruit juice in thefinal product of the fruit syrup produced by them, shows that by virtue of itspowers under section 3(1) of the Act, the Central Government thought itnecessary to require that a particular quality of fruit syrup should be put onthe market as fruit syrup and no other. This object plainly falls within thepurview of section 3(1), and so, the contention that the Fruit Order is invalidinasmuch as it purports to tackle the problem of adulteration of fruit product,cannot be accepted.
20. Then Mr. Pathak suggested that there was some inconsistency between thedefinition of 'synthetic beverage' prescribed by clause 2(k) and the provisionsof clause 11(2) of the Fruit Order. We have already read clause 11. The effectof clause 11(1) is that if any beverage does not contain at least 25 per cent.of fruit juice, it shall not be described, inter alia, as 'fruit syrup', butshall be described as a 'synthetic syrup', and sub-clause (2) of clause 11therefore provides that if any syrup that has to be described as a 'syntheticsyrup' by virtue of the provisions of sub-clause (1) is put on the market, itwould be necessary to describe it as a 'Synthetic' product clearly andconspicuously. It is with the object of bringing it to the notice of thecustomers at large that the synthetic product does not contain the minimumfruit juice prescribed by the Fruit Order that sub-clause (2) imposes anobligation that whoever puts the synthetic product in the market shall mark itwith a label 'Synthetic' and no attempt would be made to describe theproduct as though it was a fruit product. That is why a specific provision ismade by sub-clause (2) that neither the word 'Fruit' shall be used indescribing such a product, nor will it bear a label which carries the pictureof any fruit. From this provision aerated waters are exempted, because it wasthought that no customer would ever mistake aerated water for fruit juice. Now,if we bear in mind this scheme of clause 11, it is difficult to see where theinconsistency lies between clause 11 and the definition of a 'syntheticbeverage' as prescribed by clause 2(k). The definition of synthetic beverageindicates that it is a beverage which contains no fruit juice, and clause 11which contains a positive provision that beverages containing less than 25 percent. fruit juice should be shown as a 'synthetic' product. The definition of'synthetic beverage' cannot be said to conflict with the requirement that theproducts falling under cl., 11(2) should be sold as 'synthetic' products.Besides, clause 11 contains a positive provision and the validity of themandatory requirements of clause 11 cannot be said to be impaired by anyalleged inconsistency between the said provision and the definition of'synthetic beverage' prescribed by clause 2(k) of the Fruit Order.
21. The last contention which Mr. Pathak urged before us is that theimpugned order is invalid, because it affects the appellants' trade mark right.It is not easy to appreciate this argument. We have already held that the Actand the Fruit Order issued by the Central Government by virtue of its powersconferred by section 3(1) of the Act are valid. If that be so, the impugnedorder which is fully justified by the provisions of the Act and the Fruit Ordercannot be challenged as being invalid. The conclusion that the Act and FruitOrder issued under it are constitutionally valid proceeds on the basis that therestrictions imposed by them are reasonable and in the interests of generalpublic. What the impugned order purports to do is to require the appellants tocomply with the reasonable restrictions imposed by the Fruit Order. The factthat incidentally compliance with Fruit Order may tend to affect theirtrade-mark right cannot, in our opinion, render the impugned order invalid. Inthis connection, it is necessary to bear in mind that appellant No. 1 would notbe justified in contending that the registered trade-mark which is usuallyintended to distinguish one manufactured article from another can be used by iteven though it is likely to mislead the customers, or its use would mean abreach of some other law. Besides, it is significant that the impugned orderdoes not really compel the appellants to change their trade-mark. If theappellants desire that the sharbat in question should be put on the marketwithout complying with the requirements of clause 11(1), all that they to do isto comply with clause 11(2) of the Fruit Order. In the process of complyingwith clause 11(2), if their trade-mark right is likely to be affected, thatwould not render the impugned order invalid, because the restriction which issought to be enforced against them is found to be reasonable and in theinterests of the general public. Besides, we would like to add that if theappellants wanted to urge this point seriously, they should have placed beforethe Court more material in respect of their alleged trade-mark right. Theappellants had alleged in their writ petition that they are putting the Sharbaton the market as a medicinal product. In that case, they may claim exemption bycomplying with clause 16(i)(c) of the Fruit Order. We are, therefore satisfiedthat the Punjab High Court was right in holding that no case had been made outby the appellants for quashing the impugned order.
22. Before we part with this appeal, we would like to refer to oneunfortunate aspect of the present proceedings. We have already indicated thatthe present writ petition was filed by the appellants in the Punjab High Courton May 18, 1957, and it was finally decided on January 13, 1964. It is verymuch to be regretted that the final disposal of this writ petition should havebeen taken such an unusually long period. The appellants have been agitatingthis matter since 1957 and as a result of the long duration of the present writpetition in the High Court, they have had the benefit of the stay order allthis time, though ultimately it was found that there was no substance in thepetition. It is hardly necessary to add that writ petitions in which orders ofstay and injunction are passed, should be decided as expeditiously as possible.That is why when it came to the notice of this Court that this writ petitionhas taken an unusually long period in the High Court, we directed that itshould be set down for hearing within a fortnight after it was brought to us ona notice of motion for stay.
23. The result is, the appeal fails and is dismissed with costs.
24. Appeal dismissed.