(1) These Criminal appeals have been posted together in a batch as they raise common questions of fact and law, arising under the Prevention of Food Adulteration Act of 1954 (Central). The respondents in all these cases were prosecuted for an offence under S. 2(i)(a) and (1) read with S. 7(1) and 16(i) and Appendix B to the rules, Rule A-04 under the Prevention of Food Adulteration Act (hereinafter referred to as the Act), on the ground that they were found in possession of adulterated compounded asafoetida for sale. The main facts of the case are not in controversy, and the only point that arises for determination is the basis for determining whether there is an infringement of the rules and whether there is adulteration of compounded asafoetida within the meaning of the Act. As regards asafoetida and compounded asafoetida, rule A-04 of appendix B provides what is called the minimum alcoholic extract of the contents of the asafoetida. In the case of asafoetida, the alcoholic extract should be not less than 25 per cent and in the case of compounded asafoetida it shall be not less than ten per cent. In all these appeals we are concerned with compounded asafoetida.
It is familiar knowledge that the component parts of asafoetida are volatile oil, moisture, resin and sugar, while compounded asafoetida comprises of asafoetida, gum and wheat or rice flour (which themselves contain certain percentage of moisture as a necessary ingredient). For the purpose of determining the percentage of alcoholic extract of compounded asafoetida, the process that is resorted to is to take a particular weight of compounded asafoetida, say 5 grams, and a certain quantity of alcohol and dissolve all the component parts which can be dissolved in alcohol. This process has to be continued till one reaches the stage when all the soluble component parts are dissolved in alcohol and the insoluble residue alone is left behind. For illustration, if the quantity that is taken for determination is five grams in weight, and if the soluble components are one gram and the insoluble residue is four grams, the alcoholic extract is determined as 1/1-4. In other words, it is said to be 20 per cent alcoholic extract. The controversy between the prosecution on the one side and the respondents on the other arises this way. Asafoetida in its original condition itself contains moisture. When compounded asafoetida is manufactured, wheat or rice flour and gum are used in the process and these component parts themselves contain moisture, the result being that compounded asafoetida contains a particular percentage of moisture as one of its essential component parts.
The contention on behalf of the prosecution is that when the weight of the soluble contents of compounded asafoetida is determined, out of that weight the weight of the moisture in the compounded asafoetida should be deducted. If this is done, it will be seen that the percentage of alcoholic extract will be lessened. On the other hand, the contention of the respondents is that the entire weight of the soluble contents (including moisture) of compounded asafoetida should be taken into account and no distinction should be made between one soluble content and another soluble content of compounded asafoetida. In other words, if compounded asafoetida could be manufactured by the combination of several ingredients and moisture also is one of them, all the component parts, which are soluble, should be taken together and that weight as a unit should enter into computation of the alcoholic extract of compounded asafoetida. This method, if adopted, of course, would give to a higher percentage of alcoholic extract. I am of the opinion that if the prior history (one may call the legislative background) is taken into account, it must be held that the moisture content should also be included for the determination of the percentage of alcoholic extract of compounded asafoetida when applying the relevant rule A-04.
(2) The United States Pharmacopoeia of the year 1936 contains the formula for determining the percentage of alcoholic extract of compounded asafoetida, and it is expressly stated therein that the moisture content of compounded asafoetida should be excluded. In striking contrast with this, we have the British Pharmacopoeia of the year 1932, pointing out just the other way about. According to the British Pharmacopoeia the percentage of alcoholic extract has to be determined by including the moisture content of compounded asafoetida. The Pharmacopoeia of India, which is the authorised Government of India publication, dealing with asafoetida, contains the formula at page 70 of the book for determining the percentage of the alcoholic extract the relevant portion, viz., at page 70:
'Assay........ Place about 5 g. accurately weighed in a small beaker furnished with a glass rod, and tared; add 50 ml. of alcohol (90 per cent) and boil gently. Filter the hot solution through a tared filter paper, and boil the residue with further quantities of alcohol (90 per cent) until all soluble matter is removed using the glass rod to disintegrate the insoluble matter. Wash the filter paper with hot alcohol (90 per cent), transfer the paper to the beaker, dry at 100.... and weigh. The residue weighs not more than 50 per cent of the original sample taken.'
At page XX in the preamble portion of this book, it is expressly stated that if there should be any doubt or dispute, the methods of analysis of the Pharmacopoeia contained in this book are alone authoritative. From this, it is clear that the formula that is indicated at page 70 must govern the interpretation of the particular rule, rule A-04. It is beyond dispute that if this formula is adopted, the moisture content also has to be necessarily taken into account, in determining the percentage of the alcoholic extract in the compounded asafoetida. It is hardly necessary to mention that the various instructions, formulae, tests and such other matters which are dealt with in the book 'Pharmacopoeia of India' should form the guidance and will have to be followed by the authorities and courts who administer and enforce various legislations, State as well as Centre, on the topic of Adulteration of Food Drug etc.
(3) If the matter had stood there, I have no doubt that in finding out the correct percentage of alcoholic extract of a given quantity of compounded asafoetida, the moisture content has necessarily to be taken into account. I see no justification for not following this formula indicated in page 70 of the book in applying rule A-04. It is one thing if the rule itself contains enough, specific and express data. But, so long as the rule does not contain any such express specific indication and all that it states is merely a particular percentage of alcoholic extract the formula indicated in page 70 of the book mentioned above will necessarily apply.
Otherwise, the purpose of this book will be rendered useless and it would result in chaos and confusion in administering laws of this kind. It must not be forgotten that the laws which deal with the prevention of adulteration of food and drugs are mainly in the pattern of criminal legislation and persons who are sought to be prosecuted should not be left in a state of uncertainty or doubt as to the requirements of the laws in question.
(4) In 1956 a meeting of the Central Committee for Food Standards was set up under S. 3 of the Act and one Mr. Narayana Iyer, who was the then Government Analyst for the State of Madras, was also present at that conference. He has been examined as a witness in Cri App. 689 and 690 of 1964. The result of the deliberations of this Committee was, previously there was no provision relating to compounded asafoetida, but there was only provision for asafoetida, and a special provision was made for determining the percentage of alcoholic extract of compounded asafoetida and ten per cent was fixed as the minimum requirement adopting the formula of I.P. of 1955. This provision was added as a part of Rule A.04 as a result of the notification published in the Gazette of India dated 12-4-1956. Despite the introduction of this provision for compounded asafoetida, curiously enough, public analysts began to apply different standards.
As observed, earlier, the only standard or formula that could, and must have been applied is the one indicated at page 70 of the book 'Pharmacopoeia of India'. In view of this naturally, great confusion arose amongst the trading community, and there was a meeting of the analysts in Hyderabad in November 1960, as evidence by Ex. D. 2. At that meeting they reached the decision that the formula indicated by the Indian Pharmacopoeia of 1955 should be adopted, and on 17-12-1960 the Government of India issued a directive approving the decision taken in the meeting of the Analysts at Hyderabad. In this connection, it may be mentioned that the basis on which the Government issued the directive is that the India Pharmacopoeia did not adopt the formula of the United States Pharmacopoeia and that the moisture content should be taken into account.
(5) The authorities concerned even thereafter were considering whether they could not formulate some other specific formula for determining the percentage of the alcoholic extract in compounded asafoetida and asafoetida in the place of Rule A-04. It appears that in May 1962 some administrative decision was taken to the effect that in compounded asafoetida the minimum percentage of alcoholic extract may be reduced to five per cent from ten per cent, but that the moisture content should be excluded in the computation. It is this administrative direction which has created confusion, leading to several prosecutions in the State. The analyst, who has been examined on the side of the prosecution has, while supporting the case of the prosecution, adopted a rather curious attitude. He relies upon this administrative decision of 1962 in part which supports the case of the prosecution and ignores the other portion which is equally important and an inseparable portion of this administrative decision. This administrative directive proceeds upon the footing that the data, which upto that time governed the determination of the percentage of alcoholic extract included the moisture content in asafoetida, and compounded asafoetida. But, under the administrative directive the scheme was to make a departure by excluding the moisture content, but at the same time, reducing the minimum percentage from ten per cent to five per cent.
The prosecution should either accept the administrative directive in its entirety or ignore it altogether. It is surely not open to the prosecution to dissect it and relay upon the portion which supports them and ignore that portion which is in favour of the accused. It is hardly necessary to observe that this cannot be permitted much less in the administration of penal and criminal laws. Learned counsel who are appearing for the respondents in all the appeals urged that as the administrative directive of the Government (May 1962) was not implemented by the Government by incorporating it as a rule in the rules under the Act, it cannot possibly affect the operation of R. A.04. I agree with this contention. If, before May 1962, the basis was that the percentage of alcoholic extract has to be determined by adopting the formula indicated in the Indian Pharmacopoeia unless the rule is subsequently modified, the prosecution should determine the percentage only in accordance with that formula. If, therefore, the administrative decision of May 1962 is ruled out, it is clear that the moisture content of compounded asafoetida has got to be necessarily taken into account. It is impossible to come to any other conclusion. The authorities concerned themselves have accepted that position and have acted only on that basis. Otherwise, one cannot understand the purpose or meaning of the three Conferences of Analysts which the Government had convened during the period.
(6) Even independently of any other consideration, if one bears in mind the principle underlying
R. A-04, namely, the determination of the percentage of alcoholic extract or the proportion between the soluble components of compounded asafoetida and the insoluble components of compounded asafoetida, I see no justification or reason as to why moisture content, which is as much a soluble component part as any other soluble component part, should be excluded. In other words, taking the rule as it stands, I am of opinion that the moisture content should be taken into account. I am further of opinion that this rule is merely adopting what we find in the Indian Pharmacopoeia. It is, therefore, unnecessary to refer in detail to the evidence that has been given by the analyst on the side of the prosecution and the analyst on the side of the accused in the several cases.
(7) In this view, it must be held that all the respondents are not guilty of the charge of adulteration and the other connected charges.
(8) Mr. Chellaswami, learned counsel appearing in Crl. Ap. Nos. 911 and 912 of 1963, also raised a further point basing his argument upon the admissions of the analyst who has been examined on the side of the prosecution, that is, Mr. Srinivasan. In his evidence he says that the Indian Pharmacopoeia does not contain any method for determining the percentage or alcoholic extract in compounded asafoetida. This means that Rule A-04 does not furnish any data, and it simply fixes that the percentage of alcoholic extract must be a minimum of ten per cent. Learned counsel argues that so long as no definite, precise data had been formulated under the Act or the rules no prosecution should lie for infringement of the rule. It is obvious, that if the prosecution wants to prosecute a person for infringement or violation of any particular provision of this Act or the rules, the particular provision must be precise and capable of enforcement. Surely, it should not be left to the whims and fancies and changing views of the particular analyst whose services may be utilised when prosecution takes place for determining whether or not there is an infringement.
From this point of view also it must be held that the prosecution is incompetent and misconceived. On this portion of the case, the learned Public Prosecutor urged that not much significance should be attached to the statement of the analyst P. W. 1 as it is merely a matter of his opinion about the import what is stated in para 70 I.P. read with Rule A-04 and that the court has to find out whether the Indian Pharmacopoeia does or does not furnish sufficient data to determine the percentage of the alcoholic extract in compounded asafoetida. I have already held that the Indian Pharmacopoeia undoubtedly and clearly furnishes the data. This argument of Mr. Chellaswami is on the alternative footing that if for any reason this Indian Pharmacopoeia should be held as not having furnished any precise data, there cannot be a prosecution unless the Act and the rules themselves provide basis for determining the percentage of the alcoholic extract.
(9) My attention has also been drawn to a decision of my learned brother Ramakrishnan J. in Criminal Appeal, No. 169 of 1964 (Mad) in which he has taken the same view. With respect, I entirely agree with the reasons contained in the judgment for holding that the administrative decision taken by the Government in May 1962 cannot control the operation of Rule A-04 read with the Indian Pharmacopoeia, as the decision reached in May 1962 merely stood in the stage of administrative decision without being implemented by making it a rule or incorporating it in the Act.
(10) As all the cases raise the same point, I have not referred to the facts of the individual cases separately. This judgment covers all the points raised in all these cases. It is common ground and it is not disputed by the prosecution that if the moisture content of the component asafoetida should also be taken into account, the percentage of the alcoholic extract is more than the prescribed percentage ten per cent.
(11) The result is that all these appeals are dismissed.
(12) Appeals dismissed.