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1053
STATE OF MAHARASHTRA
_v._
BABURAO RAVAJI MHARULK:AR & ORS.
_26th October, 1984_
(0. CHINNAPPA REDDY, A.P. SE'l AND E.S.VENKATARAMIAH, JJ.)
_Deemed Adultration Prevention of Food Adulteration Rules 1955 Rule_ 5 _read_
_with paragraph A.11.02.08 of Appendix B there to and sections 2 (ia)_ (i) _and 2(ia)_
_(m)_ _of the Prevention_ _of Food A.duleration_ _Act, 1954-The circumstance that the_
_standard of milk fat for buffalo_ _milk is_ 5% _should not render_ _it_ _impossible for_ _Ice_
_cream to contain milk fat_ _less than 10%lce cream contaitling than 10% must be_
_deemed to be adulterated within the meaning of Sectiolz 2(ia)(m)_ _of the Prevention_
_of Food_ _Adulteration Act, 1954 incurring_ _liability under_ _seCtion_ _16(1)(a} {ii)_ _of_ _the_
### said Act.,
Based on the report or Public Analys"t Which showed that the sample of
ice cream purchased by the Food Inspector, 'E' Ward, Rajarampuri from the
shop of the 4th respondent firm, the partners of which were respondents 1 to 3,
contained 5.95% of milk fat. as against the minimum of 10% prescribed by
paragraph A. 1 J.02.08 of Appendix B of the Prevention of Food Adulteration
Rules 1955, all the respondents were brought to trial before- the Chief Judicial
Magistrate of Kohlapur. The learned Magistrate thought 'that it was impossible to attain the standard of purity prescribed by the rules as ice cream was
but a preparation of milk and (the standard 1 of purity prescribed for
buffalo milk was but a minimum of _5%_ milk fat. He was, therefore, of
the view that Rules ·5 read with paragraph A.11:02.08 of Ai)pendix B was
impossible of compliance and, therefore, bad in law and thus acquitted all the
respondents. On appeal by State, learned Single Judge of the High Court of
Bombay dismissed the appeal _in //mine._ Hence the State appeal under Art. 136 of
the Constitution.
AJJowing the appeal in part, the Court
HELD : 1 :1. The circumstance that the standard of milk fat for buffalo
milk is 5% should not render it impossible for ice cream to contain a minimum
per centage of 10 of milk fat. There are several ways by which the higher per ..
centage of milk fat in ice cream may be attained. The most elementary method
is to heat the milk sufficiently to reduce the per centage of water and increasC
the per centage of milk fat. Another obvious method is to add cream contain
ing a high per centage of milk fat separately to the milk before making ice
cream out of it. [IOSSB-D]
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- I : 2. Rule _5_ of the Prevention of Food Adulteration lRule! 1955 provides II
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that standard and quality of the vari~us articles of food specified in Appendix
B thereto are to be defined in that Appendix. Paragraph A.11.02.08 of Appendix
B prescribes a minimum standard of 10% milk fat in the case of ice cream,
kulfi and chocolate ice C(eam.,Section 2 (ia) (m) provides that an article of
food sha11 be deemed to be. adulterated if the quality or purity of article falls
below the prescribed standard but which does not render it injurious to health.
Therefore, the ice cream sold by the first respondent was adulterated within the
meaning of section 2(ia) (m) of the Prevention of Food Adulteration Act, 1955.
[1055D-GJ
1 : 3. In the circumstanCe, the 1st and the 4th respondents are, therefore,
liable to be convicted under section J6(1)(a)(ii) of the Food Adulteration Act
while respondents 2 and 3 are entitled to acquittal as there is nothing to indicate
that they were in charge of or were in any way responsible for the conduct of
the business of the firm. [1055G·H, !056AJ
1 : 4. As to sentence, in view of the fact that the offence was committed
quite some years ago, the offence happens to be the first offence and the Supreme
Court was now interfering with an order of acquittal, the ends of justice will be
met by th6 imposition of the minimum sentence of three months prescribed by
the proviso section 16(1) of the Act and a fine of Rs. 2,000 each. [1056B·CJ
CRIMINAL APPELLATE JURISDICTION :Criminal Appeal
No. 460 of 1984.
Appeal by Speci~l leave from the Judgment and Order dated
E the 14th September, 1982 of the Bombay High Court in Criminal
Appeal No. 440 of 1982
_M.N. Shroff_ for the AppeJlant.
_V.S._ _Desai,_ and _Mrs._ _J.S._ _Wad_ for the Respondent.
F The Judgement of the Court as delivered by
CHINNAPPA REDDY, J. Special Leave garnted.
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The Food Inspector, 'E' Ward, Rajarampuri, purchased a
sample of ice cream from the shop of the 4th respondent·fi~m, the
partners of which were respondents I to 3. After followmg the
procedure prescribed by statute, one part of the sample was sent to
the Public Analyst for analysis. The report of Public Analyst
showed that the sample . of ice cream contained 5.95% of milk fat
as against the minimum of 103 prescribed by paragrnph A. l 1.02.08
of Appendix B of the Pervention of Food Adulterat10n Rules, 195~.
The learned Chief Judicial Magistrate of Kohlapur thought that 1t
MAHARASHTRA _v._ ll. R MHARULK:AR _(Chinnappa_ _Reddy,_ J.) 1055
was impossible to 'lttain the standard of purity prescribed by
paragraph A.11.02.08 of Appendix B of the Pervention of Food
Adulteration Rules, 1955, as ice cream was but a ·preparation of
milk and the standard of purity prescribed for buffalo milk was but
a minimum of 5% milk fat. The learned Magistrate was, therefore, of the view that Rule 5 read with paragraph A.11.02.08 of
Appendix B was impossible of compliance and, therefore, bad in
law. On ·appeal by the State, a learned Single Judge of the High
Court of Borubay dismissed the appeal _in_ _limine_ The State bas
preferred an appeal to this Court under Art. 136 of the Constitution. We do not have .!he slightest hesitation in allowing the
appea); We are unable to appreciate why the circumstance that
the standard of milk fat for buffalo milk is 5% should render it
impossible for ice cream to contain a minimum per centage of
!0% milk fat. There are several ways by which the higher percentage of milk fat in ice cream be attained. The most elementary method is to heat the milk sufficiently to raduce the percentage of water and increase the percentage of milk fat. Another
obvious method is to add cream containing a high percentage of
milk fat separately to the milk before making ice cream out of it.
We do not have to advise caterers and restaurateurs about how
ice cream containing the minimum prescribed percentage of milk
fat should be prepared. Section 2 (ia) (!) of the Prev.ntion of
Food Adulteration Act, 1954 provides that an article of food
shall be deemed to be adultarated if.the quality of purity of the
article of food falls below the prescribed standard, which renders
it injurious to health. Section 2(ia) (m) provides that an article
of food shall be deemed to be adulterated if the quality or purity
of the article falls below the prescribed standard, but which' does
not render it injurious to health. Jn the case before us, there is nothing to show that the low percentage of milk fat renders the ice cream
injurious to health. Rule 5 of the Prevention of Food Aduleration
Rules, 1955 provides that standard of quality of the various articles
of food specified in Appendix B to these rules are to be as defined
in that Appendix. Paragraph A. 11. 02. 08 of Appendix B prescribed.
a minimum standard of 10% milk fat in. the case of ice cream, kulli
and chocolate ice cream. There cannot be the least doubt that the
ice cream sold by the first "respondent was adulterated within the
meaning of s. 2 (la) (m) of the Prevention of food Adulteration Act, '
1954. The first and the fourth respondents are, therefore, liable to
be convicted under s. 16 (!) (a) (ii) of the Food Adulteration Act,
1954. So far as respondents 2 and 3 are concerned, there is nothing
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#### io56 SUPREME COU!lt REPORTS [1985] 1 s.c.tt.
to indicate that they were incharge of or were in any way responsible for the conduct of the business of the firm. Their acquittal is
confirmed' Respondents 1 and 4 are convicted under s. 16 (I) (a)
(ii) of the Prevention of Food Adulteration Act, 1954 and each of
them is sentenced to suffer imprisonment for a period of three
months and a fine of Rs. 2, 000/· each. In default of paymetn of
fine they shall suffer a imprisonment for a further term of one
month. We are imposing the minimum sentence of imprisonment
prescribed by the proviso to s. 16 (I) as the offence was committed
quite some years ago and we are now interfering with an order of
acquittal and this appears to be a first offenee.
S.R. _Appeal partly allowed._
