M.R.A. Ansari, J.
1. The Municipal Corporation of Delhi filed a complaint against the petitioners herein for an offence under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act). The prosecution case against the petitioner was that on 2-12-1969 at about 11.15 A. M., the Food Inspector of the Corporation went to the Bombay Restaurant at No. 1198, Chandni Chowk, Delhi, of which Mr. H.K. Mehta and Mr.V.K. Mehta were proprietors and purchased three bottles of sauce in original packing for Rs. 1.50 paise from Mr. H. K. Mehta who was present in the Restaurant at that time. After following the procedure prescribed under the Act, the Food Inspector sent one of the bottles to the Public Analyst and the latter reported that the sample was adulterated due to the presence of coal tar dye which was prohibited under the Rules framed under the Act. The sauce was manufactured by M/s. F. C. Food Products, Krishan Nagar, Delhi of which petitioner Sham Lai Kapur was the proprietor. thereforee, M. K. Mehta and V. K. Mehta as the vendors and the proprietors respectively and Sham Lai Kapur as the manufacturer of the food article were guilty of an offence under Sees. 7/16 of the Act.
2. The prosecution examined 4 witnesses in the Trial Court and on a consideration of this evidence, the learned Trial Court framed charges against the three petitioners under Sections 7/16 of the Act. The petitioners thereupon filed revision petitions in the Court of Session and the learned Additional Sessions Judge, who heard these revision petitions, has submitted a report to this Court with a recommendation that the charges framed against the petitioners should be quashed and that they should be discharged.
3. The main contention urged on behalf of the petitioners is that the sauce conformed to the specifications under the Fruit Products Order, 1955 under which petitioner Sham Lai Kapur held a valid license to manufacture the sauce and that, thereforee, no prosecution lies under the Act on the ground that the sauce did not conform to the specifications under the Act or the Rules framed there under. In support of this contention, reference is made to a decision of the Punjab & Haryana High Court in Chint Ram v. State of Punjab AIR 1971 Pun & Har 310 : . This contention has been accepted by the learned Additional Sessions Judge and following the decision of the Punjab and Haryana High Court, the learned Additional Sessions Judge has expressed his view that the petitioners cannot be prosecuted for an offence under Sections 7/16 of the Act.
4. The fact that petitioner Sham Lai Kapur holds a valid license under the Fruit Products Order, 1955 is not in dispute. The said order was passed under Section 3 of the Essential Commodities Act, 1955. Part XIII (A) of the Second Schedule of the said Order prescribes the following specifications for sauce:-
The product shall be derived from wholesome fruits and vegetables which shall be practically free from insect or fungal attack or blemishes affecting the quality of the fruit. The only substances that may be added are fruit, vegetable pulp, juice, dried fruits, sugar, spices, salt, vinegar, citric acid, acetic acid, malic acid, onion, garlic, flavouring materials, permitted colours preservatives. The finished product shall have good flavour and shall be free from burnt or other objectionable flavours. It shall be of good keeping quality and shall show no sign of fermentation when incubated at 370 C.
5. Sauce being an article of food, certain standards are prescribed in respect of sauce under the Prevention of Food Adulteration Rules, 1955 framed under the Act and the standards are prescribed under Rule A. 16.12 which reads as follows:-
Sauce shall be the product derived from any suitable kind and variety of fruit and vegetable which are wholesome and which shall be practically free from insect or fungal attack or blemish affecting the quality of the fruit or vegetable. The only substances that may be added are fruit, vegetable, their pulp, juice, dried fruit, sugar, spices, salt, vinegar, acetic acid, citric acid, malic acid, onion, garlic, flavouring material and permitted preservatives. It shall not contain any coal tar dye.
The material difference between the specifications for sauce under the Fruit Products Order and the specifications under the Rules farmed under the Act is that whereas under the former, the use of permitted colours is permitted, under the latter, the use of coal tar dye is prohibited. The question, thereforee, is whether the petitioners can be prosecuted under Sections 7/16 of the Act for violation of the standards prescribed under the Act when the food article in question, namely, sauce, conforms to the specifications prescribed under the Fruit Products Order.
6. The decision of the Punjab and Haryana High Court relied upon by the petitioners does support their contention. This is a decision by a Full Bench of that Court. The article of food in that case also was sauce and it was found to be coloured with coal tar dye. The manufacturer of the sauce was prosecuted for an offence under Sections 7/16 of the Act for manufacturing for sale an article of food which was adulterated inasmuch as it contained coal tar dye the use of which was prohibited by the Rules framed under the Act. The plea of the manufacturer was that he held a valid license under the Fruit Products Order and that Schedule II of the said Order permitted the use of coal tar dye in the manufacture of sauce. It was, further, contended that by virtue of Section 6 of the Essential Commodities Act, 1955 the provisions of the Fruit Products Order have an overriding effect over the provisions of the Act and the Rules framed there under and that, thereforee, he could not be prosecuted for an offence under Sections 7/16 of the Act. This contention was upheld by the Full Bench and the prosecution of the manufacturer under the Act Was quashed.
In considering whether the rule laid down by the Full Bench of the Punjab and Haryana High Court is applicable to the facts of the present case, two factors have to be noticed. Firstly, on the date on which the offence is said to have been committed by the manufacturer in that case, there was no material difference between the specifications in respect of sauce under both the Fruit Products Order and the Rules framed under the Act. This was a material circumstance which weighed with the Full Bench, as is apparent from the following observations in paragraph 8 of the reported judgment:-
Now adverting to the Prevention of Food Adulteration Act, 1954, it is interesting to note that the Rules framed there under permit the use of certain coal tar dyes, x' x x x x x It provides that any permitted coal tar colours or mixture of coal tar colours which may be added to any food shall not exceed 1,5 grains per pound of the final food or beverage for consumption. The only difference between the provisions of the Fruit Products Order and the Prevention of Food Adulteration Act is in the quantum of the coal tar dye that can be used in a fruit product and that difference too is very nominal.
But on the date on which the petitioners in the present case are said to have committed the offence, there was a material difference between the specifications under the Fruit Products Order and the specifications under the Act by the amendment of standard A. 16.12 by the addition of the following Words:-
It shall not contain any coal tar dye.
This amendment was made on 8-7-1968. The Full Bench had, thereforee, no occasion to consider the effect of this amendment of the standard for sauce under the Act. Secondly, the Full Bench was merely following the decision of the same Court in an unreported case Cr. Appeal No. 996 of 1961, State of Punjab y. Rajkumar decided on 29-10-1962. The decision in that case was not approved by the Supreme Court in Municipal Corporation of Delhi v. Shiv Shanker : 1971CriLJ680 and by implication, the Supreme Court must be deemed to have disapproved of the rule laid down by the Full Bench of the Punjab and Haryana High Court in Chint Ram's case AIR 1971 Punj 310 : . As a matter of fact the decision of the Supreme Court in the case of Municipal Corporation of Delhi is complete answer to the contention of the petitioners. In this case also, the Supreme Court was considering the effect of the Fruit Products Order as well as Section 6 of the Essential Commodities Act, 1955 on the provisions of the Act and the Rules framed there under. The contention was urged before the Supreme Court also that in view of the provisions of Section 6 of the Essential Commodities Act, the provisions of the Act to the extent that they were inconsistent with the provisions of the Fruit Products Order must be deemed to have been impliedly repealed. This contention was rejected by the Supreme Court and after considering the scheme and the objects of the Essential Commodities Act, 1955 and the Fruit Products Order on the one hand and the Act on the other, it Was held that both sets of statutes could exist side by side.
The following observations of the Supreme Court may be usefully reproduced:-
The object and purpose of the Adulteration Act 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 Commodities 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, thereforee, have within these narrow limits conterminous 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.
The Supreme Court further observed as Under:-
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 there under 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 comliance 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, thereforee, 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 impliedly repeal the provisions of the Adulteration Act and the Rules in respect of the vinegar in dispute. Both the statutes can function with full vigour side by side in their own parallel channels. Even if they happen to some extent to overlap, Section 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 be liable to be punished twice for the same offence. If, thereforee, 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.
7. Although the article of food in that case was vinegar and not sauce, the principles enunciated by the Supreme Court will fully apply to articles of food like sauce also. What has to be borne in mind is that even after the amendment of standard A. 16.12 in 1968, there is no real conflict between the provisions of the Fruit Products Order and those of the Act inasmuch as the Fruit Products Order merely permits the use of coal tar dye in the manufacture of sauce. It does not make it compulsory for the manufacturer to use coal tar dye in the manufacture of sauce and, thereforee, compliance with the amended standard under the Act will not involve any violation of the provisions of the Fruit Products Order.
8. The learned Additional Sessions Judge has obviously failed to take into consideration this decision of the Supreme Court in spite of the fact that the order of the learned Magistrate framing the charges against the petitioners refers to this decision of the Supreme Court and the revision petition held by petitioner Sham Lai Kapur also specifically refers to this decision of the Supreme Court and the citation has also been given in the said revision petition. It is regrettable that the learned Additional Sessions Judge should not have thought it necessary to look up this decision of the Supreme Court before deciding to make the reference to this Court, If the learned Additional Sessions Judge had cared to peruse the reported judgment of the Supreme Court, then his attention would also have been drawn to a Full Bench decision of this Court in Cr. A. No. 163/67 (Municipal Corporation of Delhi v. Har Narain) decided on 30-5-1969 (Delhi) (FB) which was referred to with approval by the Supreme Court in that case. The Full Bench of this Court also had taken a view which was quite different from the view taken by the Full Bench of the Punjab & Haryana High Court and the learned Additional Sessions Judge was bound to follow the decision of this Court. thereforee, the provisions of the Fruit Products Order will not give any protection to the petitioners against their prosecution for an offence under Section 7/16 of the Act.
9. The learned Counsel for the petitioners H. K. Mehta and V. K. Mehta has contended that no offence was committed by these petitioners under the Act inasmuch as admittedly the sauce was not sold as such to the customers and that it was only served along with the food to the customers and in support of this contention, he has referred to a Full Bench decision of this Court: in Municipal Corporation of Delhi v. Laxmi Narain Tandon : AIR1970Delhi244 . This contention was advanced before the learned Additional Sessions Judge also and the learned Judge accepted the contention, as in his view it was supported by the Full Bench decision of this Court. The true import of the rule laid down in the said Full Bench decision was considered by another Full Bench of this Court in Cr. Rev. No. 305 of 1967 Madan Lai v. State, decided on 27-9-1971 (FB) to which I was a party and referring to the following observations of the Full Bench in the earlier case, namely,-
It may, however, be added that if a residential hotel permits non-residents to have meals against payment or undertakes catering for outsiders, it would not be possible to say which particular portion of any article of food is meant for the use of residents and which is meant for outsiders. In that case the articles of food kept in the hotel may be regarded for sale.
it was held that these observations would simply mean that if there was no consolidated charge by the hotelier for the room and other amenities including food and there was a separate charge for the food served to a guest, then, that would amount to a sale of food. It was further held that if a person who was not a dealer of an article of food as such and who kept it only for the preparation of another article of food meant for sale, sold such an article to the Food Inspctor for the purposes of analysis and if the sample was found to be adulterated, he was guilty of an offence under the Act. Whether or not the sauce was sold as such to the customers, the fact remains that the sauce was purchased by the Food Inspector for the purpose of analysis and the sauce being undoubtedly an article of food, it would amount to a sale of an article of food within the meaning of Section 7 of the Act. In a recent case, namely, Food Inspector v. Che-rukattil Gopalan, : 1971CriLJ1277 disapproving of the decision of the Madras High Court in Public Prosecutor v. Kandasamy Reddiar : AIR1959Mad333 and that of the Andhra Pradesh High Court In re: Govindara : AIR1960AP366 , the Supreme Court observed that these two decisions had not considered the legal effect of a sale to a Food Inspector under the Act and that there was no indication in the Act that when a Food Inspector purchased an article of food from a person, the latter must be a dealer in that article as such. Since in this case the Food Inspector had purchased the three bottles of sauce after payment of a price to petitioner H. K. Mehta and since admittedly the latter had also accepted this payment from the Food Inspector, the transaction amounted to a sale of an article of food within the meaning of Section 2 (xiii) of the Act
10. In addition to the above grounds on which the learned Additional Sessions Judge has made his recommendation for the discharge of the petitioners, certain other grounds are also urged before me by petitioners H. K. Mehta and V. K. Mehta. It was contended firstly that these petitioners are fully protected by Section 19 (2) of the Act inasmuch as even according to the evidence of the Food Inspector, the sauce was purchased in its original packing which bore the name of the manufacturer. In order to seek the protection of Section 19 (2) of the Act, a vendor has to prove-
(a) that he purchased the article of food-
(i) in a case where a license is prescribed for the sale, thereof, from a duly licensed manufacturer, distributor or dealer;
(ii) in any other case, from any manufacturer, distributor or dealer;
with a written warranty in the prescribed form; and
(b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it.
The evidence on record is not sufficient to bring the case of the petitioners under Sub-section (2) of Section 19 of the Act. Some more evidence has to be adduced. Such evidence may be forthcoming even from the prosecution side or it may have to be adduced by the petitioners. It is only when this evidence proves the existence of the necessary conditions under Sub-section (2) that the vendor can claim the protection of the said sub-section.
11. The last contention urged on behalf of petitioners Nos. 1 and 2 is that one of them, namely, V. K. Mehta, resides in Bombay and the control of the business of the partnership in Delhi vests entirely in petitioner H. K. Mehta and that, thereforee, V. K. Mehta would not come within the mischief of Section 17 of the Act. This plea again is premature and is not substantiated by the evidence so far recorded.
12. thereforee, there are no valid grounds for discharging any of the petitioners at this stage. The reference is, thereforee, rejected and the revision petitions are dismiss-Order accordingly.