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The United Cereal Products Ltd. and ors. Vs. Union of India and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Food Adulteration
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 213 of 1971
Judge
Reported in1971CriLJ1605; ILR1971Delhi607; 1971RLR17
ActsPrevention of Food Adulteration Act, 1954 - Sections 23(1); General Clauses Act, 1897 - Sections 23(4)
AppellantThe United Cereal Products Ltd. and ors.
RespondentUnion of India and anr.
Advocates: R.N. Das,; Ajit Singh,; Narinder Singh,;
Cases ReferredChandra Mohan v. State of Uttar Pradesh and
Excerpt:
.....clauses act (act 10 of 1897) - section 23(4)--final rules prescribing maximum moisture content in corn flakes--no specification of moisture content in the draft rules--draft rules, however, mentioning crisp flakes--final rules published without consultation of the central committee for food standards--effect of.; the appellant are manufacturers of corn flakes. a sample of their product was taken by a food inspector and sent for analysis. the public analyst reported the same to be adulterated inasmuch as it contained moisture contents 5.77% by weight as, against the maximum moisture content of 5% by weight prescribed under the standards fixed under the prevention of food adulteration rules 1955. it was admitted by the appellants that the process of manufacture of corn flakes resulted in..........made.'(6) the draft rule which was published on 19-11-1966 is in the following terms:- 18.09 - cornflakes means the product obtained from dehulled, degermed and cook corn (zea mays l) by flaking, partially drying and toasting. it shall be in the form of crisp flakes of reasonably uniform size and golden brown in colour. it shall be free from dirt, insects, larva's and impurities and any other extraneous matter. it shall conform to the following standards : total ash excluding salt not more than 1.0% on dry basis. ash insoluble in dilute nci not more than o.1% on dry basis. alcoholic acidity with 90% alcohol). shall be equivalent to not more than 2.0 ml of nnaoh per 100g of dried substance.'the final rule which was actually made and which was published on 24-8-1968 prescribed the.....
Judgment:

M.R.A. Ansari, J.

(1) This is a Letters Patent Appeal against the judgment of a Single Bench of this Court in C.W. No. 464/70. The first appellant herein is a Company engaged in the manufacture and sale of corn flakes and the second appellant is its Managing Director. The, corn flakes manufactured by the first appellant are sold under the brand 'Bingo Corn Flakes'. M/s. Lipton (India) Limited are the sole distributors of the corn flakes manufactured by the first appellant. On 61-1970, a food inspector of the Municipal Corporation of Delhi purchased three packets of Bingo Corn Flakes from the shop of one Shri Madan Gopal, situated at 78, Ansari Market, Daryaganj, Delhi. One of these packets was sent to the Public Analyst for examination and the Public Analyst sent a report to the effect that the corn flakes contained in this packet were adulterated inasmuch as they contained 5.77% moisture by weight as against the maximum moisture content of 5% by weight prescribed under the standards fixed under the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the Rules). A complaint was, thereforee, filed by the Municipal Corporation, Delhi, in the court of the Judicial Magistrate, 1st Class. Delhi, against the appellants herein as well as against M/s. Lipton (India) Limited and Shri Madan Gopal under section 16 read with section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act). The appellants thereupon filed a writ petition in this Court challenging the validity of the standard fixed by the Central Government under the Rules so far as corn flakes were concerned and also challenging the validity of the prosecution launched by the Municipal Corporation of Delhi on the basis of the said Rules.

(2) Before the learned Single Judge, the appellants challenged the impugned Rule on the following grounds :-

(1)that the specification in the final rules published in the Gazette Notification dated August 24, 1968, prescribing that moisture content in the corn flakes shall not be more than 5% is a wholly foreign element introduced for the first time in the final Rules which had not been mentioned by the Central Government in the draft Rules and which the Government thereforee, had no right to incorporate in the finalised Rules as this was repugnant to the condition of pre-publication laid down in section 23 of the General Clauses Act; (2) that the Central Government, in framing these amended Rules, did not consult the Central Committee for Food Standards as enjoined by Subsection (1) of Se.ction 23 of the Act; and (3) that the specification prescribed in the final amended Rules was vague inasmuch as it did not mention whether it was applicable at the stage of manufacture or sale.'

(3) The learned Judge held that inasmuch as the appellants had themselves admitted in their writ petition that the moisture content was a necessary ingredient in the manufacture of corn flakes, the prescription of a maximum moisture content in the final rules was not an entirely foreign element to the draft rules but was only ancillary to them. The learned Single Judge also held that there was no violation of section 23(1) of the Act in view of the statement in the notification published on 24-8-1968 that the rule was made after consulting the Committee. The learned Single Judge finally held that there was no vagueness in the standard fixed by the Government in respect of corn flakes. He, thereforee, dismissed the petition but left the parties to bear their own costs.

(4) Before considering the various contentions urged before us on behalf of the appellants, we would like to refer to one significant fact appearing from the records, namely, that the appellants admittedly started the manufacture of corn flakes only in July, 1969. In para 1 of the writ petition, they have specifically stated that 'petitioner No. 1 started production of corn flakes in its factory situated in Calcutta since July, 1969 and is now one of the leading manufacturers of corn flakes.' That the month and the year in which the appellants started to manufacture corn flakes is not a mistake can be gathered from similar averments made by the appellants in the applications filed by them both before the learned Single Judge as well as before us. In their application C. M. No. 1025/70 under Order 39, Rules 1 and 2 and section 151 Civil Procedure Code filed before the learned Single Judge on 26-5-1970, the appellants had again stated that they had started production of corn flakes in their factory situated in Calcutta since July, 1969. Then again in their application C.M. 1548/70 in L.P.A. No. 213/71 filed under section 151 Civil Procedure Code also, they have stated that they had started production of corn flakes in their factory situated in Calcutta since July, 1969. thereforee, by the time the appellants had started manufacturing corn flakes, the final rules which were published on 24-8-1968, were already in force to the knowledge of the appellants. The appellants, thereforee, started to manufacture corn flakes with full knowledge of the standards prescribed by the Government for corn flakes. They cannot, thereforee, make a grievance out of the fact, as they 'have attempted to do in their writ petition, that they had no opportunity of expressing their objections to the prescription of a maximum moisture content in the standards and that they had no knowledge that the Government was going to prescribe such a maximum moisture content when there was no indication in the draft rules published by the Government.

(5) The first contention urged on behalf of the appellants is that the maximum moisture content prescribed under the rules which were published on 24-8-1968 was wholly foreign to the draft rules published on 19-11-1966 and that, thereforee, the said rule did not satisfy the condition of previous publication laid down in section 23(1) of the Act read with section 23 of the General Clauses Act. Under section 23(1) of the Act, 'the Central Government may, after consultation with the Committee and subject to the condition of previous publication, make rules. ....................... (b) defining the standards of quality for, and fixing the limits of variability permissible in respect of, any article of food.' It is not disputed that the previous publication required under section 23(1) of the Act has to be made in accordance with section 23 of the General Clauses Act which reads as follows :-

'23. Where, by any Central Act or Regulation, power to make rules or bye-laws is expressed to be given subject to the condition of the rules or bye-laws being made after previous publication, then the following provisions shall apply, namely:- '(1) the authority having power to make the rules or bye-laws shall, before making them. publish a draft of the proposed rules or bye-laws for the information of persons likely to be affected thereby; (2) the publication shall be made in such manner as that authority .deems to be sufficient, or, if the condition with respect to previous publication so requires, in such manner as the Government concerned prescribes; (3) there shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration; (4) the authority having power to make the rules or bye-laws, and, where the rules or bye-laws are to be made with the sanction, approval or concurrence of another authority, that authority also. shall consider any objection or suggestion which may be received by the authority having power to make the rules or bye-laws from any person with respect to the draft before the date so specified; (5) the publication in the Official Gazette of a rule or bye-law purporting to have been made in exercise of a power to make rules or bye-laws after previous publication shall be conclusive proof that the rule or bye-law has been duly made.'

(6) The draft rule which was published on 19-11-1966 is in the following terms:-

18.09 - Cornflakes means the product obtained from dehulled, degermed and cook corn (Zea Mays L) by flaking, partially drying and toasting. It shall be in the form of crisp flakes of reasonably uniform size and golden brown in colour. It shall be free from dirt, insects, larva's and impurities and any other extraneous matter. It shall conform to the following standards : Total ash excluding salt Not more than 1.0% on dry basis. Ash insoluble in dilute Nci Not more than O.1% on dry basis. Alcoholic acidity with 90% alcohol). Shall be equivalent to not more than 2.0 ml of NNaOH per 100g of dried substance.'

The final rule which was actually made and which was published on 24-8-1968 prescribed the following standard for corn flakes :-

'A.18.09 - Corn Flakes means the product obtained from dehulled, degermed and cook corn (Zea Mays L) by flaking, partially drying and toasting. It shall be in the form of crisp flakes of reasonably uniform size and golden brown in colour. It shall be free from dirt, insects, larva's and impurities and any other extraneous matter. It shall conform to the following standards : Moisture Not more than 5.0% Total ash excluding salt Not more than 1% on dry basis, 'Ash insoluble in dilutee Nci Not more than O.1% on dry basis. Alcoholic acidity (with 90% alcohol). Shall be equivalent to not more than 2-0 ml of NaOH per 100 g of dried substance'

It will, thus, be seen that while the draft rule made no reference at all to any moisture content, the final rule prescribed a maximum moisture content of 5%. Two questions arise for consideration. namely,-

(I) whether the maximum moisture content prescribed under the final rule was wholly foreign to the draft rule or only ancillary to it and (ii) if the maximum moisture content prescribed under the final rule was wholly foreign to the draft rule, whether the final rule contravenes the provisions of section 23(1) of the Act read with section 23 of the General Clauses Act ?

(7) It is no doubt true that no maximum moisture content was prescribed in the draft rule published on 19-11-1966. According to the counter-affidavit of the respondents, a maximum moisture content was prescribed at the suggestion of the Indian Standards Institution which was a member of the Committee set up by the Central Government under section 3 of the Act. It is admitted by the appellants in the writ petition that the process of manufacture of corn flakes did result in the existence of a certain percentage of moisture content in the corn flakes. According to the appellants, the corn flakes would necessarily have a moisture content between 3.5% and 4.5% just before the flakes are poured in polythene bags and sealed. If the draft rule had prescribed the maximum moisture content of 3.5% or B 4.5% and the final rule prescribed a maximum moisture content of 5%, then, even according to the appellants, the increase of moisture content in the final rules would not amount to introducing a wholly foreign ingredient. Similarly, if the draft rules had prescribed a maximum moisture content of, say, 7% and had reduced this maximum in the final rule to 5%, even then it does not amount to introducing a wholly foreign ingredient. But we find no logic in the argument advanced on behalf of the appellants that when admittedly the corn flakes would have some percentage of moisture content, the fixation of the percentage of the moisture content in the final rule would amount to introducing a wholly foreign element in the said rule. No manufacture of corn flakes could have expected that the Government would not put any maximum limit to the moisture content in the corn flakes manufactured by them and that they would be permitted to sell to the public corn flakes having any amount of moisture content. In our view, there was sufficient indication even in the draft rule that Government would prescribe a maximum moisture content when the draft rule referred to the corn flakes being in the form of crisp flakes. We cannot have crisp flakes if there is no restriction placed on the moisture content in the corn flakes. We, thereforee, agree with the view of the learned Single Judge that the prescription of a maximum moisture content in the final rule was not wholly foreign to the draft rule.

(8) The second question, referred to supra, thereforee, does not arise for consideration and we do not wish to express our considered views on this question. The contention advanced on behalf of the appellants that the standards prescribed in the final rule should not be wholly foreign to the standard prescribed in the draft rule is no doubt supported by a decision of Rajas than High Court in Mania Bux and others v. The Appellate Tribunal of State Transport Authority (A.I .R. 1966 Rajasthan 19)(i) where it was held that-

'THE powers of rule making under section 86 of the Motor Vehicles Act are subject to the condition of previous publication only and after a draft of the amendment of rules is published as required by section 23, it is open to the authority to make rules with or without changes in the previously published draft, subject however to the condition that the rule so made is not absolutely foreign to the draft.'

(9) The underlining is ours. We, however, do not find any authority in the reported judgment upon which the view expressed in the underlined portion is based. Under sub-section (4) of section 23 of the General Clauses Act, the authority having power to make the rules shall consider any objection or suggestion which may be received by the authority from any person with respect to the draft. If a suggestion is made by any person that the proposed rule should contain something which was not included in the draft, then, the authority having the power to make the rules will have to consider such a suggestion. It follows, in our opinion, that if the authority finds such a suggestion acceptable, it may incorporate it in the rule and it need not again publish a draft rule incorporating the suggestion. It is, however, not necessary to express our dissent with the view expressed by the Rajasthan High Court contained in the underlined portion, as we have held that the moisture content prescribed under the final rule was not wholly foreign to the draft rule.

(10) The next contention advanced on behalf of the appellants is that there was no consultation with the Committee as required under section 23(1) of the Act read with section 23 of the General Clauses Act. It is not disputed by the appellants that before the draft rule was published, the Committee was consulted by the Government. It was, however, alleged by them that the Committee was not consulted after the receipt of the objections and suggestions and before the publication of the final rule. This allegation was not specifically denied by the respondents in their counter-affidavit and the learned counsel for the respondents, Shri T. C. B. M. Lal, conceded before us that the Committee was only consulted once, namely, before the publication of the draft rule and not at any time afterwards. In view of this concession, we cannot rely upon the statement contained in the notification published on 24-8-1968 that the Government had made the rule after consultation with the Central Committee for Food Standards, for holding that the Committee was in fact consulted by the Government a second time. The question is whether the rule prescribing the maximum moisture content is illegal by reason of the fact that the Committee was not consulted a second time, i.e., after the receipt of the objections and suggestion and before the publication of the final rule. The learned counsel for the appellants seeks to rely upon the decision of the Supreme Court in Chandra Mohan v. State of Uttar Pradesh and others A.I.R. 1966 S.C. 1987 in support of his contention that the rule is invalid for the reason stated above. In that case, the Supreme Court was testing the U.P. Higher Judicial Service Rules in the light of Article 233 of the Constitution. Under the said Article, 'appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.' The U.P. Higher Judicial Service Rules were struck down by the Supreme Court on the ground that whereas under Article 233 of the Constitution, the Governor had to make the appointment of district Judges in consultation only with the High Court, the U.P. Higher Judicial Service Rules provided for the appointment of district judges by the Governor in consultation with the High Court as well as the Selection Committee. We do not see how the rule laid down by the Supreme Court in this case can have any application to the facts of the case before us. Even if we read the word 'may' in section 23(1) of the Act as 'shall', the condition of previous publication prescribed under section 23(1) of the Act read with section 23(4) of the General Clauses Act does not mean that the Government is bound to consult the Committee at every stage. On the other hand, the Government is enjoined under subsection (4) of section 23 of the General Clauses Act to consider any objection or suggestion which- may be received by it from any person. It is not necessary for the Government to refer these objections or suggestions to the Committee under sub-section (4) of section 23 of the' General Clauses Act, because the rules are not to be made with the sanction, approval or concurrence of the Committee. Although it, may be desirable for the Government to consult the Committee even as regards the objections or suggestions received by it with respect to the draft rule before making the final rule, the Government is not bound to do so and the final rule cannot be struck down merely on the ground that the Committee was not consulted by the Government after the receipt of the objections or suggestions.

(11) The next contention advanced on behalf of the appellants is that the rule prescribing the maximum moisture content of 5% is arbitrary because it is impossible of achievement and, thereforee, puts an unreasonable restriction on the fundamental right of the appellants to Carry on their trade and thus violates Article 19(l)(g) of the Constitution. But apart from describing the process of manufacture of corn flakes, no material was placed either before the learned Single Judge or before us to support this contention. Our attention has been drawn to certain proceeding? of the Indian Standards Institution recommending to the Government to raise the maximum content to 6%. These proceedings are, however, of a date subsequent to the publication of the impugned rule and this recommendation has not yet been accepted by the Government. On the material on record, it is not possible for us to say that the maximum moisture content of 5% prescribed by the Government is impossible of achievement. We cannot, thereforee, hold that the impugned rule is arbitrary or violates Article 19(l)(g) of the Constitution.

(12) The learned counsel for the appellants wanted to advance another ground against the validity of the impugned rule, namely, that the rule was not laid before Parliament as required under section 23(2) of the Act. Although an allegation had been made in the writ petition that the rule was not laid before Parliament as required under section 23(2) of the Act, this allegation was refuted by the respondents in their counter-affidavit. The appellants do not appear to have pressed this allegation before the learned Single Judge probably in view of the assertion made in the counter-affidavit of the respondents. This ground was, thereforee, not considered by the learned Single Judge. Even. in the grounds of appeal before us, the appellants have not pleaded this ground. We, thereforee, do not propose to permit the appellants to raise this contention at this stage.

(13) We, thereforee, find no merit in this appeal and the same is dismissed with costs.


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