M. V. JOSHI versus M. U. SHIMP! AND ANOTHER

February 27.

986 SUPRE:'.JE COURT REPORTS

M. V. JOSHI v.

M. U. SHIMP! AND ANOTHER.

(K. SuBBA RAO and RAGHUBAR DAYAL, JJ.)

Food A'dulteration-Ritlter-If includes butter mode from curd -No foreign article mixed but below standard prescribed-· If ad11lc terated-Prevcntion of Food Adulteration Act, I954 137 of r954), . ss. z(i)(a), 7(i), I6(r)(a)·-Prevention of Food Adulteration Hules, 1955, Appendix B, r. A-II, 0. 5.

The appellant was selling butter which was found to be below the standard prescribed. He was convicted under s. 16(1) read withs. 7(i) of the Prevention of Fo:id Adulteration Act, 1954, and sentenced to undPrgo rigorous imprisonment for two months and to pay fine of l~s. 25oi-. He contended (i) that butter prepared from curd was not butter within the meaning of r. A-II, 0. 5 of Appendix to the Rules which defined butter to mean •the product prepared exclusively from milk or cream ..•. ', and (ii) that the butter was not adulterated as no foreign article had been added to it.

Held, that the appellant had been rightly convicted.

Butter prepared from curd also came within the definition of "butter" in r. A-n, 0. 5 of Appendix to the Rules. The plain meaning of the words user! in the rule indicated that butter prepared from milk or cream, by whatever process, was comprehended by the definition. Even where milk was first converted into curd and then butter prepared the.efrom, the butter was still".prepared from milk.

Sadashiv v. P. V. Bhalerao, I.LR. [1959] Born. rSoo, approved.

Section 2(i)(l) lays down that an article of food shall be deemed to be adulterated if its quality or purity falls below the prescribed standard or its constituents are present in quanti-ties which are in excess of the prescribed limits of variability. If the prescribed standard is not attained, the statute treats such article, by fiction, as adulterated food though in fact no foreign article is added to it. Selling butter below the pres-cribed standard amounted to selling adulterated butter.

Hunt v. Richardson, [1916] 2 K.B. 446, distinguished.

CRIMINAL APPELLATE JuRISDICTION : Criminal Appeal No. 155 of 1959.

Appeal by special leave from the judgmenj; order dated July 23, 1959, of the Bombay High Court in Criminal Appeal No. 165 of 1959.

H. J. Umrigar, S. N. Andley, J. B. Dadrichanji, Rameshwar Nath and Ravindei· Narain, for the appell>111 t.

Naunit Lal, for respondent No. 1.

B. K. Khanna and R. H. Dhebar, for respondent No. 2.

1961. February 27. The Judgment of the Court was

delivered by

SuBBA RAO, J.-This appeal by special leave is directed against the judgment of the High Court of Judicature at Bombay allowing the appeal filed by respondent No. 1 against the acquittal of the appel-lant by the Judicial Magistrate, First Class, Thana, and convicting him unrler s. 16(1), read with s. 7(i), of the Prevention of Food Adulteration Act, 1954 (hereinafter called the Act), and sentencing him to undergo rigorous imprisonment for two months and to pay fine of Rs. 250/-.

The appellant is the proprietor of shop at Thana known as the Cottage Industries. He is dealer in butter. On June 27, 1957, the Food Inspector of the Thana Borough Municipality visited the shop of the appellant and purchased from him some quantity of Khandeshi butter. After purchasing the butter, the Food Inspector notified his intention to the appellant that he was going to get the butter analysed. He divided the butter into three equal parts, put them iri three separate bottles and duly sealed the bottles in the presence of two panchas. He gave one of those bottles to the appellant, sent one to the Public Analyst and kept the third with himself. The appellant signed the labels on the bottles and also passed receipt in favour of the Food Inspector in token of the receipt of one of the bottles and that receipt was signed by the appellant and counter-signed by two panch witnesses.The Public Analyst analysed the butter sent to him · and sent his report in due course. In the report it was stated that the butter contained 18·:J2% foreign fat, 19·57% moisture and 64·67% milk fat.

On October 5, 1957, the Food Inspector filed co111-plaint jn the Court of the Judicial Magistrate, First Class, Thana, against the appdlant. It was 11-lle~ed

Joshi v. Shimpi

Subba Rao].

Joshi v. Shimpi

SvbbaRao ].

therein that the said butter was found to be "adulte. rated" as defined in s. 2(1) (a) of the Act and that the appellant had committed an offence under s. 16 (1) (a) of the Act by selling the adulterated article of food in contravention of s. 7(i) of the Act and the rules made thereunder. The Judicial Magistrate acquitted the appellant on the ground that it had not been proved beyond reasonable doubt that the butter which was purchased from the shop of the appellant was the very same butter which was sent to the Public Analyst and also for the reason that butter prepared out of curd did not come within the mischief of the definition of the word " butter" in rule A.11.05 of Appendix to the Pre\•ention of Food Adulteration Rules, 1955 (hereinafter called the Rules). The Food Inspector preferred an appeal against that order of acquittal to the High Court. The High Court held that the conclusion of the learned Judicial Magistrate that the buttet' purchased from the appellant might have been tampered with before it was sent to the Public Analyst was not based on any evidence on· the record. It further held that butter prepared from curds was covered by the definition of the word " butter " given in the relevant rule. It further held that even if the butter prepared out of curds was not butter as defined in the said rule, the appellant would still be liable under s. 2 (1) (a) of the Act as it contain-ed foreign fat an~, therefore, was an adulterated article of food within the meaning of the said sec.tion. In the result it set aside the order of acquittal, con-victed the appellant under the Act and sentenced him to rigorous imprisonment for two months and to pay fiire of Rs. 250/ ·. Hence this appeal.

Learned counsel for the appellant raised before us the followiug points; (1) the High Court went wrong in holding that the appellant had committed an offence under the Act, even though the butter in question was not butter within the meaning of the Rules. (2) Butter prepared from curds is not butter ·within the meaning ofr. A.11.05 of Appendix to the Rules. (3) Butter sent to the Public Analyst was not the same butter seized from the appellant. (4) Th\l

-< 3 S.C.R.

report of the Public Analyst was vague and, there-

fore, no conviction could be based on it.

For the purpose of this appeal we are assuming in favour of the appellant that he would not be liable for conviction unless the butter seized from him was butter within the meaning of the rule. We shall pro-ceed to consider the appeal on that basis. In this view, nothing further need be said on the first question raised by learned counsel.

At the outset it would be convenient to consider the ingredients of the offence alleged to have been cotLmitted by the appellant. Section 2(i) of the Act defil)es the word " adulterated " and it says that an article of food shall be deemed to be ad u!Lerated if it · satisfies one or other of the conditions prescribed in sub-els. (a.) to (1). We a.re concerned in this appeal with sub-cl. (1) whereunder a.n article of food shall be deemed to be adulterated if the quality or purity of the article falls below the prescribed standard or its constituents a.re present in quantities which a.re in excess of the prescribed limits of variability. Section 2(xii) defines " prescribed " to mean " prescribed by rules ma.de under this Act." In exerciae of the powers conferred by sub-s. (2) of s. 4 and sub-s. (1) of s. 23 of the Act, the Central Government ma.de rules pres-cribing, inter alia, the standards of quality of different a.rticl.es of food. Rule 5 says that standards of quality of the various articles of food specified in Appendix to the Rules a.re as defined in that appendix. Rule A.11.05 of Appendix to the Rules defines "butter" t·o mean " the product prepared exclusively from the milk or cream of cow or buffalo, or both, or without the addition of salt and anna.tto and shall contain not less than 80 per cent. of milk fat and not more than 16 per cent. of moisture" and no preservative is permissible in butter. Therefore, if the quality or purity of butter falls below th~ standard prescribed by the said rule or its constituents a.re in excess of the prescribed limits of variability, it shall be deemed to be adulterated within the meaning of ~. 2 of the Act. If the prescribed standard is not attained,

Joshi v, S/iimpi

Sttbba Rao J.

Joshi v. Slt.inipi

Subba Rao J.

990 SUPREME cotJR'r R.El>OR'l'S

the statute treats such butter, by fiction, as an adul-terated food, though in fact it is not adulterated. To pnt it in other words, by reason of the fiction, it is not permissible for an accused to prove that, though the standard prescribed is not attained, the article of food is in fact not adulterated. The non-conformity with the standard prescribed makes such butter an adulterated food. Section 7 of the Act prohibits the manufacture, sale, storage, or distribution of s1:rh food. Section 16 provides penalty for the contra-vention of the provisions of s. 7. The first question, therefore, that falls for consideration is whether the, butter seized from the appellaritwa~ butter as defined by rule A.11.05 of Appendix to the Rules.

Learned counsel for the appellant argues that butter prepared from curd is not butter as defined in the Act for the following reasons: (1) the definition of the word "butter" . does not include the product which is obtained from curd, as it refers only to product which is prepared from milk or cream; (2) the three words," milk"," cream" and" curd", are separately and exhaustively defined in the Rules and, therefore, the omission of the word "curd" in the said rule is clear legislative indication that butter prepared from curd is not butter within the meaning of that rule; and (3) the word "exclusively" found in the rule emphasizes the fact that butter to come under the definition in the Act should have been prepared from milk or cream and from no other product.

Before considering the argument advanced, it would be necessary to notice how butter is made. In England butter is made as follows:

" ... as quickly as the milk is separated the cream is cooled. The cream is delivered to the creamery, where it is graded according to at least two classes, sweet and sour ......... Then it is pasteurized, and if ripened cream butter is to be made pure cultu_re of Streptococcus lactis is introduced to start th~ desir-able souring process. If sweet cream butter 1s to be made no starter is added. The best storage butter is made from unripened or sweet cruam. After

pasteurization and ripening the cream is held over-night, when it is churned, washed, salted and worked in the combined churn and worker."

(See Encyolopaedia Britannica, Vol. 4, p. 469.)

In India butter is prepared in the rural areas by the indigenous process out of soured milk and cream, i.e., curd. In some cities butter is also made directly out of milk and cream; but tbe percentage of the said production is insignificant compared with the indi-genous system obtaining throughout India. Whatever process is adopted, whether butter is taken directly out of milk or taken out of soured milk or cream, it is prepared only from milk. The only difference between the two is that in the case of butter prepared from curd there is an intervening souring process which is not necessary in the case of butter directly prepared from milk or cream. Shortly stated, butter, by what-ever process it is prepared, is product prepared from milk.

Now let us look at the relevant rules to consider whether they provide any reasonable basis for sus-taining the argument advanced by learned counsel for the appellant. We shall now read the relevant rules of Appendix to the Rules.

A. 11.01. Milk means the normal clean and fresh

secretion obtained by complete milking of the udder of healthy cow, buffalo, goat or sheep during the period following at least 72 hours after calving or until colostrum free whether such secretion has been proc{,ssed or not.

Butter means the product prepared

A. 11.05.

exclusively from the milk or cream of cow or buffalo, or both, or without the addition of salt and annatto and shall contain not less than 80 per cent. of milk fat and not more than 16 per cent. of moisture. No preservative is permissible in butter.

A. 11.06. Dahi or curd: (a) Whole milk dahi or curd means the product obtained from fresh whole milk either of cow or buffalo by souring. It shall not contain any ingredient not found in milk.

A. 11.10. Cream means the portion of milk rich

in milk fat which has risen to the surface of milk on

Jodi v. SAimP•

Subba Rao J.

Jo.shi v. $AiMpi

Suhb• Rao J.

standing and ha.s been removed or which.has been

separated from milk by centriiugal force. It shall contain not less than 40 per cent. of milk fat and shall not contain any added substance. The fat separated from cream shall conform to the specifica-tion prescribed for ghee.

A. 11.14. Ghee means the pure clarified fat

derived solely from milk or from milk curds or from cream to which no colouring matter or preservatiYe has been added.

It wa.s asked with some plausibility that if the rule

ma.king authority did not intend to make a. distinc-tion, in the context of making butter, .between milk, cream and curd, why did it define the said three pro-ducts separately, a.nd why, in the case of butter, curd wa.s not shown as one of the products from which it could be prepared, while in the case of ghee, it was shown a.s separate produce from which ghee could be prepared. The first criticism ca.n easily be answered. Milk, cream a.nd butter have got to be sepa.ra.tely defined, for they a.re sold in those three different forms, a.nd the question ofadulteration of the said products would have to be considered separately in regard to the standards prescribed for them. There is also no force in the second criticism. The original rules were framed on September 12, 1955, and the definition of ghee was introduced therein in 1956. The authority making the subsequent rule might have thought of clarifying the definition of ghee to steer clear of the difficulties raised in the case of the definition of butter. Putting aside the general argument, let us now look a.t the relevant provisions. The following words in the definition stand out prominently: "product prepared exclusively from milk or cream of cow or buff a.lo, or both." To be butter it should comply with the following conditions: (i) it shall be a. product from milk or cream ; (ii) the said milk or cream shall be the,t of cow or buffalo, or of both ; (iii) the product sha.11 be prepared from the said milk; a.nd (iv) it shall be prepared exclusively from the said milk. "Product" means " a. thing produced by nature or a. na.tura.l pro-cess or manufacture." What is the meaning of the

3 S.C.R.

word "prepared" ? The Rules use different words for different milk products. In the case of butter, milk and curd, the word used is "obtained"; and in the case of ghee the word used is "derived ". The dictionary meaning of the word " prepare " is, "to bring into proper state for use by some special or tech, nice.I process, to manufacture, to make or compound ": (see The Shorter Oxford Dictionary, 3rd edn., at ii. 1571). The word has comprehensive meaning and t><kes in different processes involved in making thing ready for use or consumption in particular form. Butter is product prepared by process out of milk, whether the process involved is simple or com-plicated one, aad, therefore, butter drawn from curd is product prepared from milk. The word " exclusi-vely", in our view, refers to the milk or cream of cow or buffalo. " Milk " has been defined as secretion obtained by milking of the udder of healthy cow, buffalo, goat or sheep, whereas the definition of " butter " is confined exclusively to the milk of cow or buffalo. The word "exclusively ", thPrefore, has no relation to other milk products. The plain meaning of the words used in the section indicates that butter prepared from miik or cream, by whatever process, is comprehended by the definition.Learned counsel for the appellant contends that the rule being part of pena]statute, it should be con-strued in favour of the accused. When it is said that all penal statutes are to be construed strictly it only means that the court must see that the thing charged is an offence within the plain meaning of the words . used and must not strain the words. To put it in other words, the rule of. strict construction requires that the language of statute should be so construed that no case shall be held to fall within it which does not come within the reasonable interpretation of the statute. It has also been held that in construing penal statute it is cardinal principle that in case of doubt, the construction favourable to the subject should be preferred. But these rules do not in any way affect the fundamental principles of interpretation, namely, that the primary test is the language

J-0shi v. SlliMJ>i

Subba Rao].

Joshi v. Slimpi

Subb• Roo ].

employed in the Act and when the words are clear and

plain the court is bound to accept the expressed inten-tion of the Legislature.

The latest view on the relevant rule of construction

is found in "Maxwell on'the Interpretation of Statutes",

10th edn., at p. 262, which reads,

" ......... it is now recognized that the paramount duty of the judicial interpreter is to put upon the language of the Legislature, honestly and faithfully, its plain and rational meaning and to promote its object. "

Adverting to Acts against adulteration, the learned

author quotes Day, J., in Newby v. Sims(•) as follows: "I cannot concur in the contention that because these acts (against adulteration) impose penalties, therefore, their construction should, necessarily, be strict. I think that neither greater nor less strict. ness should be applied to those than to other statutes."

So judged, we have no doubt that the butter prepared out of curd falls within the plain meaning of the words in the said rule.

Reliance is placed by learned counsel for the appel-

lant on the decision of Miabhoy, J., i11 Narshir!ha Bhaskar v. State of Bombay(•). The decision is cer-tainly in favour of the appellant. But full bench of the same High Court in Sarlashiv v. P. V. Bhalerao ([3]) overruled the said decision. In the latter decision Chainani, C. J., after considering the arguments, observed at p. 1804 thus :

" The emphasis is, therefore, on the basic material from which butter is prepared and not on the process by which it is made. Dahi is prepared from milk by souring it. Butter prepared from De.hi can, therefore, be said to be butter prepared from milk itself, after it has undergone the process of souring ................... ,..... There is also third method, which is used in some dairies and that is produce butter directly from milk itself. In a.II these three oases, the basic material from which butter is !•> [•89tl 63.L.J.M:c. 229. (2) I.L.R. [1958] Bom. 63?, <3) I.L.R. [1959] Bom. 1800.

made is milk. Only the processes adopted for

making it are different. In one case it is produced from milk directly. In the other two cases, cream and curd are first prepared and these aru then churned to obtain butter. The preparation of cream or curd is only an intermediate process in the manu-facture of butter from milk. Butter made from Dahi or curd, is therefore also butter made from milk."

We entirely agree with these observations.

Reliance is then placed upon decision in Hunt v. Richardson([1]) in support of the argument· that if the standard prescribed was not maintained, the appel-lant did not commit any offence, as there was no adulteration of milk fat with other products. In the above case, by s. 6 of the Sale of Food and Drugs Act, 1875, " no person shall sell t.o the prejudice of the purchaser any article of food which is not of the nature, substance, and quality of the article demanded by the purchaser, under penalty." By s. 4 of the said Act, the Board of Agriculture were empowered to make regulations for determining what deficiency in any of the normal constituents of genuine milk should for the purposes of the Sale of Food and Drugs Acts raise presumption, until the contrary was proved, that the milk was not genuine. In exercise of their power, the Boa.rd of Agriculture made regulation prescribing that where sample of milk contained less than 3 per cent. of milk fat it was to be presumed that the milk was not genuine by reason of the abstraction therefrom of milk fat or the addition thereto of water. dealer in milk sold pure milk and the deficiency in the milk fat was not due to any abstraction from the milk or addition thereto, but because of the herbage on which the cows were fed. The court, by majority, held that no offence was committed by the dealer. The reason given for the decision is found at p. 452 and it is,

" This section does not authorize the Boa.rd of Agriculture to define what is milk, or to fix standard of the normal constituents below which (1) (1916] 2 K.B. 446.

Joshi v. Shim pi

Subba llao J.

Joshi v. Shim pi

St4bba Rao].

an article shall be deemed not to be milk, . and the regulation providing that where sample of milk contains less then 3 per cent. of milk fat it shall be presumed, until the contrary is proved, not to be genuine of necessity implies that it may be proved to be genuine although it contains less than 3 per cent. of milk fat. It is to be observed that s. 1 of the same Act of 1899, which deals with the import· ation of adulterated or impoverished milk, provides in sub-s. 7 that for the purposes of that section milk shall be deemed to be adulterated or impoveri-shed if it has been mixed with any other substance, or if any part of it has been abstracted so as in either case to affect injuriously its quality, sub-stance, or nature. This, I think, confirms the view implied in the regulation that milk which has not been so treated although it be deficient in milk fat is none the less deemed to be milk for the purposes of s. 6 of the Sale of Food and Drugs Act, 1875."It is, therefore, obvious that under the English Act selling milk below particular standard is not an offence. The gist of the offence is mixing with milk any other substance or abstracting any part from it so as to affect injuriously the quality, substance, or nature of the milk. The regulation prescribing that milk shall contain not less than 3 per cent. of milk fat raises only rebuttable presumption, and the dealer, notwithstanding such deficiency, can prove that the milk has not been adulterated or impoveri· shed within the meaning of the said Act. But in the Indian Act selling butter below the prescribed stand-ard is deemed to be adulteration. If the standard is not maintained, the butter, by fiction, becomes an 11.dulterated food. dealer in such butter cannot adduce evidence to prove that notwithstanding the deficiency in the standard, it is not adulterated. The conclusion we have arrived at is not only supported by the plain words of the rule, but also carries out the clear intention of the Legislature. The Act was passed to make provis10ns for the prevention of adulteration of food. Butter is favourite edible fat and is consumed in different ways by innumerable

persons in this country. As we have already pointed out, butter is prepared in the rural areas throughout this country by the indigenous process of churning soured milk, whereas only ·in few cities butter is prepared directly from milk. The interpretation suggested by learned counsel for the appellant, if accepted, would make the rule dead-letter, for all practical purposes, and the object of the Legislature would be defeated. In our view, the intention of the Legislature has been clearly expressed in the rule.

We, therefore, hold that butter prepared from curd comes within the definition of "butter" in r. A.11.05 of Appendix to the Rules.

The second contention turns upon question of fact., The High Court considered the entire evidence and accepting the evidence of the Food Inspector and the Health Officer, held that the bottle sent to the Public Analyst was the sample seized from the appel-lant. There are no permissible grounds for allowing the appellant to canvass the correctness of this finding. We, therefore, accept the finding. ' The last contention is that the report of the Public Analyst is ambiguous and, therefore, the benefit of doubt should be given to the appellant. What is stated is that in the report it is stated that the butter contained 19·57% of moisture, 64·67% of milk fat and 18'32% of foreign fat, totalling 102·56% i.e., more than 100%. It is, therefore, argued that the report on the face of it is incorrect and therefore should not be acted upon. There is an obvious fallacy underly-ing this argument. 18·32 per cent. of foreign fat is not percentage in relation to the milk· but only in relation to the fat. ·Out of the fat in the milk, the analyst says that 18·32 per cent. is foreign fat. In his own words, ".The butter fat in the sample con-tains 18·32% foreign fat." If that be so, there is no mistake on the face of the report. The report clearly indicates that the butter sold by the appellant was below the standard prescribed under the rule. If so, it follows that the appellant is guilty of the offence with which he was charged.

Joshi v. Shim pi

Subba Rao].

joslu v. Shimpi

Subba Ilao ] .

February :i7.

The High Court sentenced the accused to undergo rigorous imprisonment for two months and also to pay fine of Rs. 250/-. We agree with the High Court that the offence committed by the appellant is serious one and that ordinarily the punishment should be deterrent. In mqst of the cases of this kind imprisonment would certainly be suitable sentence. But in this case, there was conflict of view even in the Bombay High Court as regards the question whe-ther butter made from curd would be butter within the meaning of the rule. Indeed, it was brought to our notice that on April 16, 1960, the Central Govern-ment made another rule amending rule {\-11.05 by inserting the word " curd " in the definition of butter and the amended definition reads, " butter means the product prepared exclusively from milk, cream or curd of cow or buffalo ......... " This must have been made to clarify the position in view of the conflicting decisions: In the circumstances, we think that sentence of fine would meet the ends of justice in the present case. We, therefore, set aside ·the sentence of two months' rigorous imprisonment and fine of Rs. 250/- and instead sentence the appellant to pay fine of Rs. 500/·.

With this modification, the appeal is dismissed.

A.JYPeal di81nissed.

KARUMUTHU THIAGARAJAN CHETTIAR AND ANOTHER

v. E. M. MUTHAPP CHETTIAR.

(P. B. GAJENDRAGADKAR and K. N. WANcnoo, JJ.)

Part1'ership-Duration not expressly provided-When can be implied~Terminatien of partnership by notice-Partnership Act, I9J2 (IX of 1932). ss. 7, IO, r3(g).

The appellant and the respondent entered into written partnership with respect to the managing agency business of two mills, the terms of which were, inter alia, that the management shall be carried on in rotation once in four years, the appellant to manage for the first four years and thereafter the respondent to manage for the next four years and in the same way thereafter,