# • • KISHAN CHAND v. DELHI ADMiNIStRATION AND ANR

- **Citation:** [1979] 3 S.C.R. 313
- **Court:** Supreme Court of India
- **Decided:** 1979
- **Case number:** Criminal Appeal No. 245 of 1975
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kishan-chand-v-delhi-administration-and-anr-7793
- **Pages:** 7

## Headnote

• •
KISHAN CHAND
v.
DELHI ADMiNIStRATION AND ANR.
'February 20, i 979
ts. MURTAzA FAZAL ALi AND A. b. kosiiAL, JJ_]
Prevention of Food Adulteration Rules, 1955- r. 6.i-Scope oi.
313
Ruie 60 of the Prevention of Food Adulteration Rules, 1955 defines "emulsifYing a@-ents" and "stabilising agentS" to mean substances which, when added
tci food, are -capable of facilitating a uniform dispersi6ll of oils and fats
in
acqueous medi:i or vice versa nnd/or stabilising such emulsions. One
of the
agents mentiorted, among others,
in the rule is
brominated
vegetable oils.
Rhles 61 (IeClafes that no emulsifying or ·stabilisin~ agents shall be used in
ahy fMd eicepl Where. they are used as specifically permitted. The proviso to
the rule state& that certain emutsifyiiig or stabilising agents including brominateU vegetable oils shall not be used in riiilk arid cream.
·
A food inspector visited an Jee-cream factory and collected a sample of
chocolate ice ct_eam. In the inventory of the samPie prepared, by him it was
stated that "this is prepared, of covering chocolate, vegetable ghee
and icecream''. The Public Analyst. to whom the sample was sent for analysis, stated
that _the salli,J?Ie was adulte~ated "as the butyro-refractometer reading at 40°C
was fonnd 6.4 in excess and the Baudouin test was found positive
of the
extracted fat."
The factory, its .owner and the employee who sold the ice-cream,
were
prosecut1.1d under the .Prevention of Food Adulteration Act. The trial
court
acquitted the factory but convicted and sentenced both its
owner
and ~e
-employee.
i
On appeal the Additional Sessions Judge acquitted both the accused.
On furl.her appeal the High Court acquitted the factory owner but convicted
the employee (appellant before this Court). The High Court pointed out that
vegetable ghee could not be made to serve as an emulsifying agent because
r. 61 forbids addition of brominated vegetable oil to milk or cream and without
milk and/ or cream manufacture of ice-cream wao:i i.nconceivable and that the
appellruit's stand had been that vegetable ghee had been used and not that any
brominated vegetable oil got into the ice-cream by way of an emulsifying or
-stabilising ager,t.
Allowing tho appeal,
-.
HELD : 1 (a) The sample of ice-cream obtained from the appellant was
not sho'W'.11 to have been adulterated within the meaning of the Act and the
Rules. [3i6 DJ
B
c
D
E
F
G
..
(b) The prohibition contained in the proviso to r. 61 does not apply to iceH
-><
cr~arn,.ku!fi and chocolate ice .cream covered by sub-item A.11.02.08, wherein
iUs clearly stated that these. three milk PJQdui;ts_ J;lllly .con)ain permitted siabi-
A
B
c
D
314
SuPREMB COURT REPORTS
[1979] 3 s.c.tt.
lisers and emul•ifiers not exceeding 0.5 per eent by weight. Clearly, therefor.,,
brominated veaetable oils could have formed a part of the chocolate
ic.,.
cream to the extent of 0.5 per cent by weight, without the article beini treated
as adulterated under the rules. What the provioo to r. 61 prohibits is the use of
certain emulsifying and •tabilising agenta only in milk and one of its products,
namely, c_rcam and not in other milt products such a malai, dahi, cheese, ice~
cream and chocolate ice-cream. Had the intention of the rule been to prohibit
the u•e ol the said agents in all milk products, the expression would have been
"shall not be used in milk and milk products" and not "shall not be used in
milk and cream". [318 C..El
2. It was for the prosecution to prove affirmatively that the •ample contained an inaredient which made it adulterated and any stand taken by
the
accused could hardly be used as evidence, unless its truth wai otherwise established. The prosecution had completely failed to prove that the ingredient objected to by it was a substance other than a brominated vegetable oil or that if
it was oil of that description, its quantity WM in excess of 0.5% by weight.
The analy•t's report did not indicate the presence in the sample of brominated
vegetable oil beyond the p

## Text

• •
KISHAN CHAND
v.
DELHI ADMiNIStRATION AND ANR.
'February 20, i 979
ts. MURTAzA FAZAL ALi AND A. b. kosiiAL, JJ_]
Prevention of Food Adulteration Rules, 1955- r. 6.i-Scope oi.
313
Ruie 60 of the Prevention of Food Adulteration Rules, 1955 defines "emulsifYing a@-ents" and "stabilising agentS" to mean substances which, when added
tci food, are -capable of facilitating a uniform dispersi6ll of oils and fats
in
acqueous medi:i or vice versa nnd/or stabilising such emulsions. One
of the
agents mentiorted, among others,
in the rule is
brominated
vegetable oils.
Rhles 61 (IeClafes that no emulsifying or ·stabilisin~ agents shall be used in
ahy fMd eicepl Where. they are used as specifically permitted. The proviso to
the rule state& that certain emutsifyiiig or stabilising agents including brominateU vegetable oils shall not be used in riiilk arid cream.
·
A food inspector visited an Jee-cream factory and collected a sample of
chocolate ice ct_eam. In the inventory of the samPie prepared, by him it was
stated that "this is prepared, of covering chocolate, vegetable ghee
and icecream''. The Public Analyst. to whom the sample was sent for analysis, stated
that _the salli,J?Ie was adulte~ated "as the butyro-refractometer reading at 40°C
was fonnd 6.4 in excess and the Baudouin test was found positive
of the
extracted fat."
The factory, its .owner and the employee who sold the ice-cream,
were
prosecut1.1d under the .Prevention of Food Adulteration Act. The trial
court
acquitted the factory but convicted and sentenced both its
owner
and ~e
-employee.
i
On appeal the Additional Sessions Judge acquitted both the accused.
On furl.her appeal the High Court acquitted the factory owner but convicted
the employee (appellant before this Court). The High Court pointed out that
vegetable ghee could not be made to serve as an emulsifying agent because
r. 61 forbids addition of brominated vegetable oil to milk or cream and without
milk and/ or cream manufacture of ice-cream wao:i i.nconceivable and that the
appellruit's stand had been that vegetable ghee had been used and not that any
brominated vegetable oil got into the ice-cream by way of an emulsifying or
-stabilising ager,t.
Allowing tho appeal,
-.
HELD : 1 (a) The sample of ice-cream obtained from the appellant was
not sho'W'.11 to have been adulterated within the meaning of the Act and the
Rules. [3i6 DJ
B
c
D
E
F
G
..
(b) The prohibition contained in the proviso to r. 61 does not apply to iceH
-><
cr~arn,.ku!fi and chocolate ice .cream covered by sub-item A.11.02.08, wherein
iUs clearly stated that these. three milk PJQdui;ts_ J;lllly .con)ain permitted siabi-
A
B
c
D
314
SuPREMB COURT REPORTS
[1979] 3 s.c.tt.
lisers and emul•ifiers not exceeding 0.5 per eent by weight. Clearly, therefor.,,
brominated veaetable oils could have formed a part of the chocolate
ic.,.
cream to the extent of 0.5 per cent by weight, without the article beini treated
as adulterated under the rules. What the provioo to r. 61 prohibits is the use of
certain emulsifying and •tabilising agenta only in milk and one of its products,
namely, c_rcam and not in other milt products such a malai, dahi, cheese, ice~
cream and chocolate ice-cream. Had the intention of the rule been to prohibit
the u•e ol the said agents in all milk products, the expression would have been
"shall not be used in milk and milk products" and not "shall not be used in
milk and cream". [318 C..El
2. It was for the prosecution to prove affirmatively that the •ample contained an inaredient which made it adulterated and any stand taken by
the
accused could hardly be used as evidence, unless its truth wai otherwise established. The prosecution had completely failed to prove that the ingredient objected to by it was a substance other than a brominated vegetable oil or that if
it was oil of that description, its quantity WM in excess of 0.5% by weight.
The analy•t's report did not indicate the presence in the sample of brominated
vegetable oil beyond the prescribed maximum of 0.5 % by wei&ht or of unbrominated vegetable,~ oils.
[318G-HJ
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 245
of 1975.
Appeal by Special Leave from the Judgment and Order
dated
25-3-1975 of the Delhi High Court in Criminal Appeal No. 122/72.
E
Harjinder Singh for the Appellant.
F
G
H
'
E. C. A.garwala and R. N. Sachthey for Respondent No. 1
-V. S. Desai, B. P. Maheshwari and Suresh Sethi
dent No. 2.
The Judgment of the Court was delivered by
for Re_spont
KosHAL, J.-This is an appeal by special leave against a judgment of the High Court of Delhi dated 25th March, 1975 convicting
the appellant of an offence under clause (i) of sub-section (1)
of
section 16 read with clause (i) of section 7 of the Prevention of Food
Adulteration Act 1954 (herei"nafter called the Act) and sen~~ncing
him to rigorous imprisonment for six months and a fine of Rs. 1000/-,
the sentence in default of payment of fine being rigorous imprisonment
for three months.
2. The facts giving rise to the appeal may be briefly stated.
Food
Inspector V. P. Anand, (P.W.2)
visited the premises of
Messrs
Mebrose Ice-Cream and Frozen Foqd Co. (which carries on business
in .Greater Kailash No.I, a locality of New Delhi and is hereinafter
,eferred to as the Company) on the 22nd May 1970 and bought for
•,
..
""
•
>-
...
,
•
)
....
•
KISHAN CHAND v. DELHI ADMINISTRATION \Koshal, !.)
315
purposes of analysis a sample of chocolate ice-cream from the appellant
A
who was one of the employeeo of the Company.
An inventory of the
sample was prepared by the Food Inspector and at the foot of the
same the appellant made the following endon;ement:
"A sample of Chocbar Ice-Cream (Chocolate Ice-Cream)
manu.factured by Mebrose Ice-Cream and Frozen Food Co.,
M-67, Greater Kailash, given as per above.
This Ice-Cream
Chocolate is of one lot.
This is prepared
of
covering
Chocolate, vegetable ghee and Ice-Cream."
The sample was forwarded to the Public Analyst who thus details the
conclusions arrived at by him on analysis thereof, in report exhibit
PE:
"Total solids by Weight :-45 per cent.
Protein by weight : 4.4 per cent.
Chocolate :-Present.
c
Bntyro-refractometer reading at 40'C of the fat exD
tracted from ice-cream :-49.4.
Baudouin test of the extracted fat : Positive.
Melting point of the extracted fat :-34'C."
In his report the Public Analyst further stated that in his opinion
lhe sample was adulterated "as the Butyro-refractometer reading at
40'C was round 6.4 in excess and the Baudouin lest wao found positive
of the extracted fat ............ "
A complaint was lodged by the Municipal Corporatio~ of Delhi
against the appellant, the Company and its managing partner Avtar
Singh in respect of an offence under section 7 read with section 16
~·- of the Act.
The trial court acquitted the Company but convicted the
other two accused, sentencing each of them to rigorous imprisonment
for six months and a fine of Rs. 1000/-, the sentence in default of
payment of fine being rigorous imprisonment for four months. Both
the convicts appealed to the Seosions Court and were acquifted by an
order dated 9th March 1972 pa~sed by an Additional Sessions Judge.
The Municipal Corporation of Delhi then knocked at the door of the
High Court which upheld the acquittal of Avtar Singh but convicted
and sentenced the appellant as aforesaid by the impugned judgment,
mainly for the reasons reproduced below :
"It is established Qn the record beyond doubt that this
endorsement was made by Kishan Chand and it contains an
admission that vegetable ghee was used in the preparation of
E
F
G
II
A
B
c
316
SUPREME COURT IUlPORtS
[1979) 3 S.C.R.
the jce-cream sold by him,
The judgment of the learned
Addition;tl Sessions Judge reveals that the corttention of the
defence before him was that Variaspati was nsed in the
preparation of the .relevant ice-cream by way of emulsifier
but the plea was misconceived because vegetable ghee cannot
be made to serve as an emulsifying agent.
A reference to
the Prevention of Food' Adulteration Rules, i955 shows that
as per Rule 60
'brominated' vegetable oil is one of the
recognised emulsifying and stahilffiing agents but Rule 61
forbids addition of brominated vegetable oil to milk or cream
and without milk and/ or cream manufacture of ice-cream
is inconceivable.
Mo.reover, the stand of the accused from
the very start has been that 'vegetable ghee' had been used
in the preparation of ice-cream and not that any 'brominated'
vegetable oil got into the ice-cream by way of an emulsifying
or stabilising agent.
The evidence would not countenance
the contention raised before, us."
U
3. Having heard learned counsel for the parties at length we are
of the opinion that the sample in question is not shown to have been. ,
adulterated within the meaning of the Act.
4. The case is admittedly governed by the Prevention of Food
Adulteration Rules 1955 which have been framed
by th1!
Central
a
Government in exercise of the pqwers conferred on it by section 23
of the Act and which are hereinafter called the Rules.
Rule 6Q
defines "emulsifying agents" and "stabilising agents" to mean sub-•'
stances which, when added to food, are capable of facilitating a uniform dispersion of oils and fats in aqueous media, or vice versa, and/ or
stabilising such emulsions.
The rule then proceeds to specify numeF
rous agents of the type mentioned and they include brominated vegetable oils.
Rule 61 declares that no emulsifying or stabilising agents
shall be used in any food except' where their use
fa
specifically
permitted.
A proviso added to the rule states that certain emulsifying
or stabilising agents, including brominated vegetable oils, shall not be
used in milk and cream.
Appendix B to the Rules
specifies
the
G
standard of quality of various articles of food.
Milk and milk: products are dealt with in that Appendix under Group A.11 which is
divided into various items.
Item A.11.01 which is fnrthe.r dMded
into sub-items A 11.01.01 to A 11.01.11 contains definitions and
standards of purity of various kinds of milk:
HItem A.11.02 defines milk products.thus:
"MILK PRODUCTS means the products obtained froμi
milk snch as cream,
malai,
curd,
skimmed milk curd,
'
'
.,
•
• --
-----·-
. KISHAN CHAND v. DELHI ADMINISTRATION (Koshal, J.)
3 I 1
chhanna, skimmed milk chhanna, cheese, processed cheese,
ice-cream, milk ices, condensed milk sweetened
and
unsweetened,
cond.ensed .skimmed milk sweetened and unsweetened, milk powder,
skimmed milk powder,
partly
skimmed milk powder, khoa, infant milk food, table butter
and deshi bntter."
Then follow definitions of different kinds of milk products in sub-items
A.11.02.01 to A.11.02.21.
"Cream" is Jefined as follows in subitem A.11.02.02 :-
"CREAM excluding sterilised cream means the product
of cow, or buffalo milk or of a combination thereof which
contains not less thap. 25.0 per cent milk fat."
Chocolate ice-cream forms the subject matter of sub-item A.11.02.08
which runs thus :
"ICE-CREAM, KULFI, AND CHOCOLATE ICECREAM mean the frozen product obtained from cow or
buffalo milk or a combination thereof or from cream, and/or
other milk products, with or without the addition of cane
sugar, eggs, fruits, fruit juices, preserved fruits, nuts, choocIate, edible flavours and permitted food colours.
It may
contain permitted stabilizers and emulsifiers not exceeding 0.5
per cent by weight.
The mixture shall be suitably heated
before freezing.
The product shall· contain not less than
10.0 per cent milk fat, 3.5 per cent protein and 36.0 per cent
total solids except that when any of the aforesaid preparations
contain fruits or nuts or both, the content of milk fat may
proportionately reduced but shall not be lesi than 8.0 per
cent by weight.
"Starch may be added to a maximum extent of 5.0 pe.r
cent under a declaration on a label ai specified in sub-rule
(2) of Rulo 43.
·
A
B
c
D
E
F
"The standards for ice-<:ream shall also apply to softy
G
ice cream."
From the abo'l'e examination of the provisions of. Appendix B to
the Rules, it is clearly made out that the standard of purity for each
milk product has been separately laid down and that ice-c.ream, kulfi
-· -..:
and chocolate ice-cream are treated as a clasi by themselves, which
H
is differ_ent, for the purpose of purity from other milk products including cream.
The classification employed leaves no room for doubt that
A
B
c
D
E
F
G
H
318
SUPREME COURT REPORTS
[1979] 3 s.c.R.
wben the proviso to rule 61 states that certain emulsifying and ;tabilising agents shall not be used in milk and cream, it prohibits the use
of those agents only in milk and one of its products, namely, ·cream
and not other milk products such as malai, dahi, cheese, ice-cream and
chocolate ice-cream.
Had the rule-making authO'fity meant by the
proviso to prohibit the use of the said agents iu all milk products,
tlie expression used would have been "shall not be used in milk and
milk products" and not ''!;ball not be used in milk and crean1". The
prohibition contained in the proviso thus does not apply to ice-cream,
kulfi, chocolate ice-cream cove.red by sub-item A.11.02.08, wherein
it is clearly stated" that these three milk products may contain permitted
stabilisas and emulsifiers not exceeding 0.5· per cent by weight.
In
equating the words "mill:: and cream" with milk and all'its products,
the High Court was clearly in error and this is so in spite of the fact
that ice-cream, kulfi and chocolate ice-cream must have milk or cream
as a necessary ingredient. It follows that brominated vegetable, oil~
could have formed a part of the chocolate ice-cream sold by the appellant, to the extent 0.5 per cent by weight, without the article being
treated as adulterated under the Rules.
Before the appellant could be
convic'ed, therefore, it was incumbent on the prosecution to establish
that the sample taken from him contained either brominated vegetable
oils or other permitted stabilisers and emulsifiers exceeding 0.5 per
cent by weight or that it did not conform to the prescribed standard
in some other detail.
Apart from falling into the error of misreading rules 60 and 61,
the High Court considered the sample taken from the appe.Uant to
be adulterated by reason of the stand he had taken from the very
beginning to the effect that he had used
"vegetable ghee''
in the
preparation of the chocolate ice-cream and because, according to the
High Court, "vegetable ghee" was not brominated vegetable oil.
This
is again an erroneous approach to the problem in hand. It was for
the prosecution to prove affirmatively that the sample ini question contained an in!j!'edient which made it adulterated and any stand taken
by the accused could hardly bo used as evidence, unless its truth was
otherwise established which is not the case.
All that was made out
from the evidence before the court was that the Butyro"refractameter
reading at 40° C was higher than the maxinmm prescribed for milk
fat by 6.4 and that the Baudouin test was positive. These two factorn
indicated that either vanaspati or milk fat to which ti! oil had been.
added was one of the ingredients of the sample.
There is not an iota
of evidence on the record to show whether or not such ti! oil was bro-·
minated, which means that the prosecution )lad completely failed to
prove that the ingredient objected to by it was a substance other than
...I. <
.... .
>
'
•
)
KISHAN CHAND v. DELID ADMINISTRATION (Koshal, !. )
31 9
a brominated vegetaJ:ile oil or that if it was oil of that description its
quantity was in excess of 0.5 per cent by weight
The Butyro-refractometer reading did no doubt exceed the maximum of the prescribed
standard by 6.4 and the Baudouin test was also positive but these factors
did not Indicate the presence in the sample of brominated vegetable mI
beyond the prescribed maximum of 0.5 per cent by weight or of unbrominated vegetable· oils.
5. The sample of: chocolate ice-cream obtained by the Food Inspec-
. tor from the appellant not having been shown to be adulterated, the
appeal is accepted, the judgment of the High Court in so far as it relates
to the appellant is reversed, the conviction recorded against and the
sentence imposed upon the appellant by the High Court are set aside
and he is acquitted of the charge. The bail bood executed by him
shall stand cancelled:
P.B.R.
Appeal allowed.
A
B
c