GANPAT SHANTARAM Vs. LINGAPPA BALAPPA GATADE

JUDGEMENT

(1.) THIS is a reference made to this Court by the learned Second Additional Sessions Judge, Poona, recommending that the order of conviction and sentence passed on the accused in respect of an offence under the Prevention of Food Adulteration Act, 1954 be set aside and the accused be set at liberty. It appears that the Food Inspector in the employment of the Poona Corporation visited the shop of the accused on 21st July 1959 at about 9-30 a. m. and purchased 12 ounces of butter (Gavathi Loni) from the accused informing him that he was a Food Inspector and he wanted to sent a sample of that butter for analysis. The butter was then divided into three equal parts and each of the parts was filled in a separate bottle duly sealed and labelled in the presence of the accused and the witnesses. One of the sealed bottles was given to the accused. Out of the remaining two bottles one was sent up to the public analyst for analysis and the butter contained in that bottles was found to be sub-standard. The Food Inspector thereafter filed a complaint in the Court of the Special Judicial Magistrate, 1st Class at Poona against the accused charging him with an offence punishable under S. 16 (1) (a) (1) read with S. 7 (1) of the Prevention of Food Adulteration Act 1954. The learned Magistrate after recording the evidence convicted the accused of the offence charged against him and sentenced him to pay a fine of Rs. 40/- in default to suffer simple imprisonment for one month. The accused being aggrieved by the said order of conviction and sentence filed a revision application in the Sessions Court at Poona. The learned Judge after hearing the contentions of the parties held the view that on account of the accused having complied with Rule 43 framed under the Prevention of Food Adulteration Act, 1954 by notifying on the label of each package of butter the amount of moisture and fat contained in the butter, he could not be held guilty of the offence charged against him. The learned Judge, in course of his judgment also relied upon Rule 44 which prohibits sale of certain admixtures specified therein. The learned Judge was of the view that butter was not among the admixtures mentioned in Rule 44, and, therefore, the sale "of butter in adulterated form" was not at all prohibited. The learned Judge accordingly has made a reference to this Court recommending that the order of conviction and sentence passed by the learned Magistrate be set aside, as being one untenable in law.

(2.) THE learned Assistant Government Pleader opposed the reference stating that the approach of the learned Judge to the case was entirely erroneous. It was contended that the learned Judge had overlooked the imperative provisions of S. 7 of the Act itself and erroneously relied upon Rules 43 and 44 made under the Act which as a matter of fact had no bearing upon the question as to whether or not the butter which was purchased from the accused was adulterated butted and the accused had said adulterated butter to the Food Inspector. On the other hand it was urged by Mr. Khare, the learned advocate for the accused that the learned Judge was perfectly right in his approach to the case and that he was perfectly justified in relying upon the two rules mentioned above fort purpose of coming to the conclusion that the accused was not guilty of the offence charged against him. I have carefully considered the arguments of both sides and have come to the conclusion that the reference made by the learned Sessions Judge should be rejected. It must be borne in mind that rules made under any Act could ever be intended to override the specific provisions of the Act itself. The purpose of the rules is to provide for procedural matters or matters which are subsidiary to the provisions of the Act. They may in some cases explain the provisions of the Act and it might in certain cases be legitimate to read the rules along with the provisions of the Act in order to find out the true intention of the Legislature in enacting the latter, but no rules can never be construed to override the specific provisions of the Act itself. I am afraid, the learned Judge in this case, while relying upon Rules 43 and 44 made under the Act has completely overlooked the provisions of Section 7 of the Act which in terms prohibits the sale inter alia of "any adulterated food". The expression "adulterated" is defined in several clauses of sub-section (1) of Section 2 of the Act. Reading this subsection with clause (1) thereof, the expression

(3.) THIS provision prescribes the standard of pure and unadulterated butter. It follows, therefore, that butter whether Gavathi or otherwise, containing more than 16 per cent of moisture and less than 80 per cent of milk fat must be deemed to be 'adulterated' within the meaning of the expression 'adulterated' as defined in clause (1) of sub-section (1) of Section 2 of the Act. If the butter is thus found to be adulterated and it cannot be disputed that butter is an article of food, Section 7 immediately comes into operation and the person who is in possession of such kind of butter is prohibited from selling it altogether. If, in spite of this prohibition, that person sells such butter, he comes under the penal Section 16 of the Act and becomes liable to be convicted and sentenced in respect of that offence.