MUNICIPAL CORPORATION OF DELHI versus SHIV SHANKAR

MUNICIPAL CORPORATION OF DELfil

smVSHANKAR

February 1, 1971

[S. M. SIKRI, C.J., V. BHARGAVA AND I. D. DUA, JJ.]

Repeal-Implied-Prevention of Food Adulteration Act, 1954--Fruir Products Order, 1955-Sale of adul¢rated Vinegar-Prosecution under Adulteration Act-Competence-If Fruit Products Order impliedly repeals Adulteration Act.

The respondent, who was selling Vinegar under license granted under the Fruit Products Order, 1955, made by the Central Government under s. 3 of the Essential Commodities Act, was prosecuted under the Preven-tion of Food Adulteration Act, 1954, for selling adulterated vinegar. He-pleaded that vinegar, whether brewed or synthetic, being food product and standard specification for such vinegar .being tabulated in Part XIV attached to' the Second Schedule of the Fruit Or.der, prosecution without the previous sanction of the licensing Officer as required by clause 15 of the said order was incompetent. The trial judge rejected the contention. But the High Coun quashed the proceedings. It was observed that the special provisions of the Fruit Order had overriding effect and therefore manufacturer of fruit products could only be prosecuted under the pro-visions of the Fruit Order.

In the appeal to this Court it was contended for the respondent -Olat there was an ilTeconcilable conflict between the two statutory provisions, and the Fruit Order being, not only of Jate later than the Adulterati~ Act but also having, by virtue of s. 3(6) of the Essential Commodities Act overriding effect over all other laws, it must prevail over the Adulteration Act and the rules. On the question whether the Fruit Order impliedly repeals the Adulteration Act,

HELD : The plea of implied repeal must fail and. the appeals must be· allowed.

To determine if later statutory provision repeals by implication an· earlier one it is necessary to scrutinise and consider the true meaning and effect both of the earlier and the later statute. If the objects of the two· statutory provisions are different and the language of each statute is res-tricted to its own object or subject, then they are generally intended to-G run in parallel lines without meeting and there would be no real oonftict. though appare)ltly it may appear to be so on surface. [611 D-G]

The provisions of the Adulteration Act and the Fruit Order, for effec-. tuating their respective objects, have imposed, different restrictions in the manufacture and sale of vinegar whether b'rewed or synthetic. In the in-terest of public health the respondent has to comply with the provisions of the Adulteration Act and Rules and in the interests of equitable distribu-tion of essential commodities including the articles of food covered by the Essential Commodities Act and the Fruit Order they have to compry with the provisions of the Fruit Order. Both the provisions are supp lo-

mentary and cumulative in their operation and no proviSion of the Fruit Order 1s shown to be destructive of or fatal to any provision of the Adul-teration Act or the Rules made thereunder 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 ir'respective 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 laticr impossible, nor does ·Compliance with the fdrmer necessarily and automatically involve violation -Of the latter, Even if both statutes .to some extent overlap, section 26 of the General Clauses Act fully protects the guilty parties against doubk aeoparcly or double penalty. (618 C-l!]

Om Prakash Gupta v .. State of U.P., [1957] S.C,R. 423, T, S. Baliah v. T. S. Rengachari, 1969 3 S.C.R. 65, State v. Gurcharan Singh, A.I.R. 1952 Punjab 89, and Paine v, Stater, [1883] 11 Q,B.D. 120, .referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 151 to 158 of 1966.

Appeals from the judgment and order dated December 30. 1964 of the Punjab High Court, Circuit Bench at Delhi in Crimi-nal Revisions Nos. 81-D to 83-D, 107-D and 129-D to 132-D oi 1964.

Bishan Narain, B. P. Maheshwari and N. K. Jain, for the

:appellant (in all the appeals) .

C. K. Daphtary, N. N. Goswami, K. L. Mehta and S. K. Mehta,

for the respondent (in .Cr. A. No. 151/1966).

K. L. Gossain, N. N. Goswami, K. L. Mehta and S. K. Mehta,

:for the respondent (in Cr. As. Nos·. 152 to 158 of 1966).

S. K. Mehta for the intervener.

The Judgment of the Couvt was delivered by

Dua, J.-These eight appeals with certificate (Crl. Appeals 'Nos. 151 to 158 of 1966) raise common question of law and would, therefore, be disposed of by common judgment. In-deed, all the appeals in the Punjab High Court were also dis-posed of by learned single Judge of that Court sitting on cir-·cuit at Delhi by common judgment and another learned single Judge of the same Court similarly certified the cases to be fit for appeal to this Court by common order.

The only question canvassed at the bar requiring determina-tion by us is whether the respondent is liable to be prosecuted ·under the Prevention of Food Adulteration Act, 37 of 1954 (hereafter called the Adulteration Act) for selling adulterated ·vinegar when the vinegar is being sold under licence granted under the Fruit Products Ord;;r, 1955 (hereafter called the Frui~ -Order) made by the Central Government under s. 3 of the Essen-

tial Commodities Act. The High Court has relying on an un-reported Bench decision of the Punjab High Court in State v. Raj Kumar (Crl. A. 996 of 1961 decided on October 29, 1962) held that they cannot be prosecuted. It was argued in the High Court that the rules made under the Adulteration Act had come into force after the enforcement of the Fruit Order and vinegar being mentioned as an article of food in those ruies, prosecution under both the provisions of law was permissible. Reliance in support of this argument was also placed on s. 26 of the General Clauses Act. This argument was not accepted and it was observ-ed that the special provisions of the Fruit Order had overriding effect and, therefore, manufacturer of Fruit Products coul4 only be prosecuted under the provisions of the Fruit Order. Prayer for reference to larger Bench for reconsideation of Raj Kumar's case (supra) did not find favour with the learned single Judge.In this Court the view taken in Raj Kumar's case (supra) was sought to be supported by the learned counsel for the respondent. The provissions of the Fruit Order and of the Adulteration Act, it was contended, could not harmoniously co-exist on the statute book, as complaince with one would, in certain contingtmciei;, result in violation of the other some respects. With respect to the particular charges tried in the cases in appeal, however, no attempt was made on behalf of the respondents to show that there was any fatal conflict or inconsistency between th~ two provi-sions. The question before us accordingly lies within very nar-row compass. The appellant urged that there is no implied repeal of the Adulteration Act by the Fruit Order in so far as the sale of vinegar is concerned, whereas the case of the respondent is that there is an implied repeal and the respondents are not liable to be prosecuted under the Adulteration Act for violating its provisions. Shri Bishan Narain sought support for his submission from. Om Prakash Gupta v. State of U.P.(1) and T. S. Baiiah v. T. S. Rangachari([2]). In the former cases. S(l)(c) of the Pre-vention of Corruption Act was held not to repeal s. 409 I.P.C. The d~cision of the Punjab High Court (Khosla and Falshaw JJ.) in State v. Gurcharan Singh(") holding to the contrary was 'over-G ruled. In the latter case s. 52 of the Income tax Act, 1922 was held not to repeal s. 177, I.P.C.

It is unnecessary to refer in detail to the facts of all the eight cases separately as no such reference was made by either. side at the bar. Shri Bishan Narain for the appellant, by way of illustra-

(1) [1957] S.C.R. 423 (2) (1969] 3 S.C.R. 65.

(3) A.I.R. 1952 Punjab 8~.

tion made passing reference to the facts of Cr!. Appeal No. 155 of 1966. From the record of that appeal we tjnd that samples of (i) sugar cane juice vinegar, (ii) vine (pure) vinegar and (iii) pure jaman vinegar, were takein by Food Inspector from the sho~ of the respondeint on dctober 17, 1960 and on the same haVlllg been found highly -adulterated and unfit fur human con-sumption because of the presence of sulphuric acid which is prohi-bited, complaints under ss. 7/16 of the Adulteration Act were instituted by the Muqicipal Prosecutor in December, 1960. After the prosecu.tion evidence was recorded, the 'respondent Shiv Sh_an-ke.r applied' td the trial magistrate in October, 1963 praying that the prosecuti<;>n be droppe\I. In this application. it was admitted that the prosecution had arisen out of raid dated October '17, 1960 at the premises of tile accused "when allegedly samples of vmegar were taken which are stated to be adulterated because of the presence of sulphuric acid". It was pleaded that the petition-ing accused had secured in 1960 licenee under the Emit Order and vinegar whether brewed or synthetic being food product and standard specification for such vinegar being tabulated in Part XIV attached to the Second Schedule ·Of the Fruit .Order, pros·ecution without the previous sanction of tile Licensing Officer as required by cl.. 15 of the said Order was unauthorised. Prose-cution under the Adulteration Act was on this ground pleaded to be incompetent. In the application reliance ·in support oi . this plea was placed on the unrep9rted Bench decision of the Punjab High Court in Raj Kumar's case in which according to the accuse(). it had been held that licensee under the. Fruit Order could not be prosecuted for any contravention 6f that Order or of the Adul-teration Act without the previous sanction of the Licensing Autho- . rity appointed under the Fruit Order. The trial magistrate basing himself on an unreported single Bench decision of the Punjab High Court and on s. 26 of the General Clauses Act rejected this appii-cation. On revision, the Additional Sessions Judge relying on the decision in Raj Kumar's. case (supra) made reference to the High Court recommending that the proceediings be quashed. J. S. Bedl, J., relying on Raj Kumar's case (supra) quashed the pro-ceedings. S. K. Kapur J ., who cemifiecl the case to be fit for appeal after quoting passage from Raj Kumar's case (supra) considered the question raised to be important enough for appeal to this Court.

The general principles governing implied repeal appear to us to have long since been settled. The difficulty is normally experi-enced in their application to given: case. From the passage quoted by Kapur J., from the unreported Bench decision in Raj Kum:U·s case (supra) upholding the implied repeal of the Adul-teration Act by the Fruit Order it seems to us that the Division Bench did not correctly and fully grasp them. We accordingly

.. ,;_.I

consider it proper to broadly restate the general rule. It was laid ln Paine v. Stater([1]) that when two Acts are inconsistent or repug-nant the later will be read as having impliedly repealed the earlier. As the legislature must be presumed in deference to the rule of law to intend to enact consistent and harmonious body of laws, subse-quent legislation may not be too readily presumed to effectuate repeal of existing statutory laws in the absence. of express or at least clear and unambiguous indication to that effect. This is essential in the interest of certainty and consislllncy . in the laws which the ctizens are enjoined and expected to obey. The legis• lature, which may generally be presumed to know the existing law, is not expected to intend to create coµl'usion by its omission to express its intent to repeal in clear terms. The courts, therefore, as rule, lean against implying repeal unless the two provisions are so plainly rep.ugnant to each other that they cannot stand together and it is not possible on any reasonable hypothesis to give effect to both at the same time. The repeal must, if not express, flow from necessary implication as · the only intendmeait. The provisions must be wholly incompatible with each other so that the two provisions operating together would lead to absurd conse-quences, which intention could not rea:ionably .be imputed to the legislature. It is Qnly when consistent body of law cannot be maintained without abrogation of the previous law that the plea of implied repeal should be sustained. To determine if later statutory provision repeals by implication an earlier one it is accordingly necessary to closely scrutinise and consider the true meaning ~nd effect both of the earlier and the later statute. Until this is done it cannot be satisfactorily ascertained if any fatal in-consistency exists between them. The meaning, scope and effect of the two statutes, as discovered on scrutiny, determines the legislative intent as to whether the .. earlier law shal! cease or shall only be supplemented. If the objects of the two statutory provi-sions are different and the language of each statute is restricted to its own objects or subject, then they are generally intended to run in parallel lines without meeting and there would be no real conflict though apparently it may appear to be so on the surface. Statutes in pari materia although in apparent conflict should also so far as r~asonably possible, be construed to be in harmony with each other and it is onl)twhen there is an irreconcilable conflict betwee:n the new provision and the prior statute relating to the same subject matter, that the former, being the later expression of the legislature,. may be held to prevail, the prior law yielding to the extent of the conflict. The same rule of irreconcilable repugnancy controls impl!e? repeal. of general by special statute. The subsequent provmon treatmg phase of the same general subject matter in more minute way may be intended to imply repeal pro-tanto of the

repugnant general provision with which it cannot reasonabjy co-exist. When 1Uiere is no mconsistency be~ween the general and the special statute the latte( may well be construed as supplemep-tary.

In the light of ihese broad guidelines we may now examine the :two statutes as they stood in 1960 because the cases with which we are concerned relate to that year. The history and the schem~ of the two statutory provisions would be helpful in discovering the legislative intent on the question of implied repeal. Turning first to the Adulteration Act, it was enacted by the Parliameuit to make provision for the prevention of adulteration of food and it came into force on June l, 1955. Previously corresponding laws on adulteration of foodstuffs were in force in different Stlltes, hav-ing been enacted by their respective legislatures. All those laws were repealed by s. 25 of the Adulieration Act. It may be pointed ·OUt that under the Government of India Act, 1935 "adulteration of foodstuffs and other goods" was provincial subject whereas lllllder the Constitution it is· included in the Concurrent List. Section 2(i) of this Act which defines the word "adulterated" con-sists of several sub-clauses. One of these sub-claW:es is ( 1) accbrdin,g to which "an article of food shall be deemed to be adulterated if the quality or purity of the article falls below the prescribed sta,ndard or its constituents are present in quantities which are in excess of the prescribed limits of variability". Clause ( v) of s. 2 defines "food" to mean "any article used as food or dripik for human consumption other than drugs·· and water and .includes : (a) any article which ordinarily enters into or is used in the composition or preparation of human food, and (b) any flavouring matter or condiments. According to cl. (ix) an article of food shall be deemed to be "misbr31Ilded" if it falls within any one of the sub-clauses (a) to (k). It is· not necessary to reproduce all these sub-clauses. "Package" has been defined in cl. (x) to mean "a box, bottle, casket, tin, barrel, case, receptacle, sack, bag. wrapper or other thing in which an article of food is placed or packed". We have referred to the definitions of "rnisbran<fod" and ·"package'' because one of the cases before us (Cr!. A. 154 of 1966) is case of alleged misbranding, the remaining seven cases being of alleged adulteration. Set:tion 5 prohibits import of, inter alia. adulterated and misbranded food and all articles of food in contra-vention of any provision of the Act or of any rules made there-under. Section·? prohibits manufacture for sale or store and also sale and distribution of, inter a/ia, adulterated and misbranded food ::ind of articles of food in contravention of the Adulteration Act and the Rules. made th~reunder. SectiQD. 8 provides for appoint-ment of Public Analy>ts and s. 9 for the appointment of Food Inspectors. The powers of Food Inspectors are contained ins. 10. He possesses very wide powers for the purpose of effectively achiev-

ing the statutory object of preventing 1the manufacture, sale and distribution etc., of adulterated articles of food. The procedure for taking samples of food by the Food Inspector for analysis is praicribed in s. 11 and the repon of llhe Public Analyst is made admissible by s. 13. The proviso to sub-s. (5) of s. 15 makes the certificate signed by the Director of Central Food Laboratory final and conclusive proof of the facts stated therein. The Cent-ral Food Laboratory is established by the Central Government under s. 4 for the purpose of carrying on functions entrusted to it by the Adulteration Act or by the Rules made thereunder. Section 16 provides for pe~alties for offences unde10 the Adultera· Ilion Act and cl. (a) of sub-s. (1) makes it an offence for any person, whether by himself or by any person on his behalf ~o im • pott into India or manufacture for sale or to store, sell or distribute any article of food in contravention of any of the provisions of the Act or of any rules made thereunder. In the prose.:ution for an offence pertaining to the sale of an adulterated or misbranded article of food s. 19 makes impermissible the defence that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the . purchaser having purchased an article for analysis was not preiudiced by the sale. Section 20 prohibits cognizance and trial of offences under the Act except when prosecution is instituted by or with the written consent of the State Government or local authority or person authorized in this behalf by such Government or authority. Under the proviso to this section purchaser referred to ins. 12, is, however, empowered to institute prosecution if he produces in court copy of the report of the Public Analyst along with the complaint. Section 21 overrides s. 32, Cr.P.C. in the matter of sentence to be passed under this Act by the Presidency Magistrates or Magistrates of I Class. trying offences under the Act. Section 23 confers on the Central Government wide powers to make rules under the Act after consult-ing the Central Comniittee for Food Standards appointed by the Central Government under s. 3. Section 24 empowers the State Governmeait, (after consultation with the Central Committee for Food Standards and with previous publication) to make rules for gMng effect to the provisions of the Act in matters not covered by s. 23. Various States have actually framed rnles ·under this section.

We may now briefly refer to the Prevention of Food Adultera-tion Rules, 1955 (hereafter called the Adulteration Rules). These rules were made by the Central Government under s. 4(2) and s. 23{1) of the Adulteration Act and were published in the Official Gazette as per notification dated September 12, 1955. The rules other than those contained in Part Ill-Appendix B-ltem A.12 Margarine, Part VI and Part VII came into force on the date. of

their publication .iilll the Official Gazette : the rules contained in Part III, AppendixB, Item A.12 Margarine came into force on June 1, 1956 and the rules contained in Part VI and Part VII came into force on December 1, 1956: vide r. 1(3). Under s. 23(2) (prior to its amendment in 1964) all rules made under sub-s. ( 1) had to be laid as soon as possible before both Houses of Parliament. By Act 49 of 1964 sub-s. (2) was amended so as to provide for every rule made under sub-s. ( 1) to be laid before each House of Parliament while in session, for total period' of 30 days in order to afford an opp9rtunity to the two Houses to study and to modify or annul it for future if both Houses so agree. We have referred to this amendment as some of the rules w.ere amended thereafter, The effect of the subsequeint amendment of some of the rules will be noticed later. The Adul-teration Rules clearly brlng out the anxiety of their authors to see that wholesome food is sold to the citizens. The duties and powers of Food Inspectors as contained, inter alia, in rr. 9· and 13, broadly illustrate this anxiety. These rules also i!lldicate that the framers of the Rules were not unaware of the different provisions of the Fruit Order. By way of illustration reference may be made tor. 50 which prescribes conditions of licence to manufacture, sell, s1ock, distribute or exhibit certain articles of food. In cl. (1) of sub-r. (1) of this rule the fruit-products covered under the Fruit Order .and some other articles have been excluded from the operation of this rule. This clause was amended twice, once in November, ·1956 and again in April, 1960. Had the Adulteration Act been intended to be impliedly repealed by the Fruit Order (which would also mean implied repeal of the rules) .it would have been unneces-sary to expressly exclude such fruit-products from the. operaticm of this rule. Rule 5 ano Appendix of these Rules came into force on December 1, 1956 after the promulgation of the Fruit Order. According to r. 5 the standard of quality of the various articles of food specified in Appendix are as specified therein. In Appendix item at sl. no. A.16 deals with "fruit products". But the articles of fruit products dealt with in A.16.01 to A.16.12 clearly show that vinegar is i!lOt included in the expression "fruit products". Vinegar is dealt with in A.20 and syn•hetic vinegar in A.20.01. Both these items were added in April, 1960.

We may now turn to the Essential Commodities Act, 10 of 1955 and the Fruit Order. The Essential Commodities Act was enacted in 1955 with the object of providi,ng, in the interests of the general public, for the control of the pr<1duction, supply and distribution of, and ~rade and commerce in, certain commodities. It came into force on April 1, 1956 repealing the Essential Commodities Ordi-

nance No. 1 of 1955 which had beein promulgated with the same object and en.lorced on January 26, 1955, the date of the expiry of the Essential Supplies (Temporary) Powers Act 26 of 1946. The last named Act had repJaced the Essential Supplies (Temporary Powers) Ordinance No. XVIII of1946 which had come into force on October 1, 1946. That Ordinance was promulgated with the object of CO\lltinuillg, during limited period, powers lo control the production, supply and distribution of, and trade and commerce in, foodstuffs and certain other commodities. To empower the Indian Legislature to enact law on this subject matter the British Parlia-ment had passed India (Central Goveroment and LegislatiQn) Act, 1946 (9 .and 10 Geo, VI, c. 39). The Indian Legislature not being in session the Ordinance was promulgated to meet the emergency and this was replaced by Act 26 of 1946. Reference has been made by us to this past history for the purpose of indicating the different objects and purposes intended to be achieved by the two legislative measures. Section 2 of the Essential Commodities Act which is the definition section defines in cl. (a) "essential commo-dity to mean any of the classes Of commodities stated in Sub-els. (i) to (xi). Sub-clause (v) refers to "foodstuffs, including edible oil-seeds and oils" and cl. (xi) confers power on the Central Gov-er,nment to declare by notified order any other class of commo-dity to be an essential commodity for the purposes of the Act, being commodity with respect to which Parliament has power to make laws by virtue of Entry 33 in List III in the 7th Schedule to the Constitution. Section 3 of the Act confers on the Central Govern-ment power to cQlltrol production, supply, distribution etc., of essential commodities by providing, by an order, for regulating or prohibiting the production, supply and distribution of those com-modities and trade and commerce therein. Every order made under this section has to be. laid before both Houses ot Parliament as soon as may be after it is made. By virtue of s. 6 Orders niade under s. 3 have effect notwithstanding anythi,ng inconsistent there-with contained in any enactment other than the Essential Commo-dities Act. Section 7 provides for penalties for cqntravention of orders made under s. '3. Under s. 11 courts are prohibited from taking cognizance of offences pu.nishable under this Act except on report in writing of the facts constituting such 3111 offence made by person who is public servant as defined in s .. 21, I.P.C. Section 12 of this Act vests ill, the Presidency Magistrates and Magistrates of I Class power to pass sentences of fines exceeding -Rs. 1, 000 I on convicted persons notwithstanding the restriction in this respect imposed on their pdwers by s. 32, Cr.P.C. As alrea<ly noticed earlier, an ordinance called the Essential Com-H modifii;s Ordinance, 1of1955 had been promulgated on the expiry of the Essential Commodities (Temporary Powers) Act and the present Act was passed to replace that Ordinance.

· It may appropriately be pointed out at this stage that it was not the respondemt's case that the Essential Commodities Act had the effect of impliedly repealing the Adulteration Act for the pur-poses of these cases. The only argument urged was that the Fruit Order had that effect and its overriding effect by virtue of s. 3 of the Act was strongly emphasised. We may now tum to the Fruit Order (S.R.0. 1052 dated 3rd May, 1955 published in the G~ctte pf India dated 14th May. 1955) which was made by the Centra Govemmqnt in exercise of the powers conferred on it by s. 3. of the Essential Commodities Act. Clause (2) of this Order, which js . the def4tltion clause, defines the expression "fruit product" in sub-cl. (d) and "vinegar, another brewed or synthetic" is included in this expression as per item (ii) of this sub-clause. "Licensiing Officer" as defined in sub-cl. (g) means the Agricultural Marketin11: AdViser to the Government of India and it includes any other Officer empowered in thi.s behalf by him with the approval of the Central Government. "Manufacturer" as defined in sqb-cl. (h) means licensee engaged in the business of manufacturing in fruit products for sale and includes person purchasing such fruit products in bulk and repacking them for sale either by himself or through some-qne else. Clause 4 prohibits all persons from carrying on busine~s of manufacture except and in accordance with the terms of an effective licence granted to him ur.der this Order in J:;orm "B". Clause 5 prescribes procedure for applications for the grant of licence under cl. 4. Clause 7 enjoins the mainufacturers to manu-facture .fruit products in conformity with the sanitary requirements and the appropriate standard ol' quality and composition specified in. the Second Schedule to the Order and cl. 8 lays dov:~1 the requirements to be complied with by the manufacturers in . regard to the p11cking, marketing and labelling of containers, of fruit prOducts. Clause 10 prohibits sale, exposure for sale, despatch or delivery to any agent or broker for the purpose of sale, any fruit products which do not conform to the standard of quality and composition specified in the second Schedule or which are not packed, marked and labelled in the manner laid down in the Order: 'the proviso to this clause contains directions for fruit products imported int(} India. Clause 12 contains. mandate for every manufacturer to comply with the directions and orders issued to him and failure fo do so is to be deemed to be contravention of the provisions of the Order. According to cl. 15 no prosecution for contravention of any of the provisions of this Order is to be instituted without the previous sanction of the Licensing Officer.

"Licensiing Officer"

The object and purpose of the Adulteration Act is to eliminate the danger to human life ~d health from the sale of unwholesome articles of food. It is covered by Entry 18, List m of the 7th Schedule to the. Constitution. The Essential Commodi~

ties 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 3 3 oi List Ill. In spite of this difference in their main objects, control of productiQ!l and distribution of essential commodities may, to an extent from broader point of view include controt of the quality of the essential articles of food and, thus considered, it may reas0111ably 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, therefore, have within these narrow limits co-terminus fields of operation. On this premise we have to see if the two provisions can stand together having cumulative effect aind 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. At the bar Shri Daphtary in his usual persuasive manner argued that there is an irreconcilable conflict between the two statutory provisions and the Fruit Order being, not only of date later than the Adulteration Act but also ha\ing, by virtue of s. 3 ( 6) of the Essential Commodities Act, overriding effect over all other laws, it must prevail over the Adulteration Act and Rules. He pointed out that under the Fruit Order the prosecution can be instituted only with the previous sanction of the Licensing Officer whereas 1'l<ler the Adulteration Act even purchaser may, without any such sane· ti.on, institute prosecution merely by producing along with his complaint certificate from the Public Analyst. He also drew Gnr attention to s. 20-A of the Adulteration Act according to which, unlike the Fruit Order, the Court trying an offence under that Act is empowered to implead the manufacturer, distributor or deal~ of any artiCle of food, i~ it is satisfied that he is also concerned with that offence, and groceed against him as though 1the prosecution had been instituted against him under s. 20. We do not think this section in any way reflects the legislative intention of implied repeal of the Adulteration Act by the Fruit Order. The two statutory provisions can operate within their respective spheres without giving rise to any absurdity or such grave inconvenience as would impel the court to sustain the plea of implied repeal. Incidentally it may als<;> be point~ out that this section was added by Act 49 of 1964 which came mto force on MarC:1 1, 1965 long after 1960 when the present cases were started. Shri Daphtary developed his argu-ment by adding .that if !he respondents have manufactured for sale and have sold vmegar m accordance with the terms N the licence gran!e<! to them under the Fruit Order then imposition of further restrictions under the Adulteration Act and Rules with threat of severe penal consequences for violation of those provisions would

[1971] 3 S.C.R.

be in direct conflict with the mandate or directions under the Fruit Order. The counsel contended that at least the freedom to manu-facture and sell vinegar as pem1itted by ~he Fruit Ord.er is curtailed . or further circumscribed by the Adulteration Act aqd Rules and this must necessarily cut across the provisions of the f<)::uit Order. He illustrated his point by submitting that under the Fruit Order .use of colouring matter is more liberal than under the Adulteration Act and Rules. In view of these conflicting provisions the Adul-teration Act and Rules, according to Shri Daphtary must be held to have been impliedly repealed by the Fruit Order. We are unable tu agree with this submission. The two statutory provisions, for ihe purpose of effectuating their respective objects, have imposed . different restrictions on the respondents when they manufacture and .sell vinegar whether brewed or synthetic. We are, however, ·.informed at the bar that in the present case the disputed vinegar is synthetic. In the interest of public health the respondents have to comply with the provisions of Adulteration Act and Rules and .in the interests of equitable distribution of essential commodites induding the articles of food covered by Essential Commodities Act and the Fruit Order they have to comply with the provisions of the Fruit Order. 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 thereunder so as oto compel tl)e court to hold that they cannot stand together. If the Adulteration Act or Rules impose some restrictions QJl 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 compliance with the former necessarily lljlld automatically'. . involve violation of the latter. Indeed, our attention was not drawn to any provision of the Adulteration Act and Rules, come pliance with which Wol!!ll result in breach of any mandate, whether affirmative or negative; of the Fruit Order. We are, therefore, unable tQ finq any cogent or convincing reason for holding that the Parliame.nt intended by enactip:ig the Essential Commodities Act or the Fruit O_rder to impliedly repeal the provisiqJlS of the Adultera· tion 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 e;ittent to overlap, s. 26 of the General Clall'ses 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 :a.nd punished under either or any of those enactments but shall not

be liable to be· punished twice for the same offence. If, therefore,

the provisions of the Adulteration Act and those of Fruit Order happen to constitute offences covering the same Rf:ts or omissions then it would be open to the prosecutiJ:tg authorities to punish the offender under· either of them subject to the only condition that guilty person should not be punished twice over.

Th_!lre is also another aspect which has to be kept in view. Both the Adulteration Act and the Essential Commodities Act have been amended from time to time after their enactment. Being governed by Entries in.List III of the 7th Schedule even the States have power to amend these enactments apd indeed they have been The~~ent iunenc;lments of the [so ]Adulteration Act [amended· ][in ][some· ]aDd [States. ]of ihe ~tral d>mtn<idines Act by the Parliam~t and the amendment:,of:.theAdulteration Rules would also tend to negative any legislative intendment of implied repeal of the Adulteration Act by the Essential Comm<idities Act or the Fruit Order. It may be recalled that cl. ( 1) of sub-r. (I) of r. 50 of the Adulteration Rules was amended in 1956 and again in 1960 I> and the am~ded clause is indicative of the rule making authority being conscious of both the statutory provisions being operative in their·respective fields at the same time, thereby negativing implied repeal. A.20 dealing with "vinegar" was also added in Appendix of the Adulteration Rules in 1956 and A. 20.01 dealing with "synthetic vinegar" was added in April, 1960. passing reference may also. be .made to some of the relevant amendments in.J;ome rules made subsequent to the enforcement of the amended .section 23(2). In r. 55 in items at sl. nos. 19 and 20, dealing with pickles 'lllld chutnies made from fruit or vegetables and with tomato and other sauces, respectively, the preservatives mentioned in cl. 2 were amended. Similarly in r. 57(2) the table cOllltaining articles like fruit and vegetable juices including tomato-juice was amended. Both the above amendments .were made in December, 1965. It may here be pointed out that pickles,. chutnies, tomato products, kutchups, sauces and also other unspecified items relating to fruits or vegetables are included m the definition of "fruit product" under the Fruit Products Order. These amendments, though made after 1960, do seem to further negative the intendment of implied repeal as argu~ on behalf of the respondent. Ia view of the foregoing discussion it seems to us that the two statUtory provisions can harmQniously operate with.out causing confusion or resulting in absurd consequences and the scheme of the Adulteration Act and Rules can without difficulty fit into the scheme of the Fruit Order under the Essential Commodities Act. The challenge on the· R ground of implied repeal must, therefore, be rejected.

Incidentally we may note that the view taken by the learned single Judge in this case was later overruled by Full Bench of the 1~18 Sup. CJ.j11

.:.,,"' ..

Delhi High Court in Municipal Corporation v. Harnarain (Crl. A. No. 163 of 1967 decided in May, 1969).

Shri Daphtary, as last resort, tried to press into service Art. 14 in his challenge to the prosecution of the respondent. Accord· ing to him the prosecuting authorities have an unguided licence to prosecute his clients under one or the other statute and since the penalty under the Adulteration. Act is more severe than that ~der the Fruit Order the principle of equality before the law is violated. As this point was not taken in any of the courts below we did not permit him to raise it in this Court. It would, however, ,be open to the respondent, if so advised, to raise this po~t in accordance with law in the court below, because the cases have not yet been finally disposed of. The competence of the prosecution having been challenged at an intermediate stage, the cases will have to go back to the trial court. As these cases have been pending since 1962 the trial coUrt should dispose them of with due dispatch and without any further avoidable delay.

The appeals are accordingly allowed and the cases remitted to the trial court fqr further proceedings according to law in ihe light of the observations made above.

R.K.P.S.

Appeals allowed.