# MUNICIPAL CORPORATION OF DELfil v. smVSHANKAR

- **Citation:** [1971] 3 S.C.R. 607
- **Court:** Supreme Court of India
- **Decided:** 1971-02-01
- **Case number:** Criminal Appeals Nos. 151 to 158 of 1966
- **Bench:** S. M. Sikri, V. Bhargava, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/municipal-corporation-of-delfil-v-smvshankar-5210
- **Pages:** 14

## Headnote

607
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 a 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 Prevention of Food Adulteration Act, 1954, for selling adulterated vinegar. Hepleaded that vinegar, whether brewed or synthetic, being a 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
a manufacturer of fruit products could only be prosecuted under the provisions 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 a 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 a 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 restricted to its own object or subject, then they are generally intended torun 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 interest of public health the respondent has to comply with the provisions of
the Adulteration Act and Rules and in the interests of equitable distribution 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-
608
SUPREME COURT REPORTS
[1971] 3 S.C R
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 Adulteration 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.

## Text

_Characters 0–39,744 of 40,217. This is a partial read: ask again with offset=39744 for what follows._

..
A
·~
B
c
D
E
F
G
H
MUNICIPAL CORPORATION OF DELfil
v.
smVSHANKAR
February 1, 1971
[S. M. SIKRI, C.J., V. BHARGAVA AND I. D. DUA, JJ.]
607
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 a 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 Prevention of Food Adulteration Act, 1954, for selling adulterated vinegar. Hepleaded that vinegar, whether brewed or synthetic, being a 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
a manufacturer of fruit products could only be prosecuted under the provisions 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 a 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 a 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 restricted to its own object or subject, then they are generally intended torun 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 interest of public health the respondent has to comply with the provisions of
the Adulteration Act and Rules and in the interests of equitable distribution 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-
608
SUPREME COURT REPORTS
[1971] 3 S.C R
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 Adulteration 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 CrimiA
B
c
nal Revisions Nos. 81-D to 83-D, 107-D and 129-D to 132-D oi
D
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).
E
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 a common question of law and
would, therefore, be disposed of by a common judgment. Indeed, all the appeals in the Punjab High Court were also disposed of by a learned single Judge of that Court sitting on cir-
·cuit at Delhi by a common judgment and another learned single
Judge of the same Court similarly certified the cases to be fit for
appeal to this Court by a common order.
The only question canvassed at the bar requiring determination 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 a licence granted
under the Fruit Products Ord;;r, 1955 (hereafter called the Frui~
-Order) made by the Central Government under s. 3 of the EssenF
G
H
.
'
~-·
A
B
c
D
E
F
G
•
H
MUNICIPAL CORP. DELHI v. SHIV SHANKAR (Dua, I.)
609
tial Commodities Act.
The High Court has relying on an unreported 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 observed that the special provisions of the Fruit Order had overriding
effect and, therefore, a manufacturer of Fruit Products coul4 only
be prosecuted under the provisions of the Fruit Order. Prayer
for reference to a 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 provisions.
The question before us accordingly lies within a very narrow 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 Prevention 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 'overruled.
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~.
610
SUPREME COuRT REPORTS
[1971] 3 S.C.R.
tion made a 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 a 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 consumption because of the presence of sulphuric acid which is prohibited, 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_anke.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 a 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 petitioning accused had secured in 1960 a licenee under the Emit Order
and vinegar whether brewed or synthetic being a 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. Prosecution 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 a licensee under the. Fruit Order could not
c
E
be prosecuted for any contravention 6f that Order or of the Adulteration 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 appiiF
cation.
On revision, the Additional Sessions Judge relying on the
decision in Raj Kumar's. case (supra) made a reference to the
High Court recommending that the proceediings be quashed. J. S.
Bedl, J., relying on Raj Kumar's case (supra) quashed the proceedings.
S. K. Kapur J ., who cemifiecl the case to be fit for
appeal after quoting a passage from Raj Kumar's case (supra)
considered the question raised to be important enough for appeal
G
to this Court.
The general principles governing implied repeal appear to us
to have long since been settled.
The difficulty is normally experienced in their application to a 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 Adulteration Act by the Fruit Order it seems to us that the Division
Bench did not correctly and fully grasp them.
We accordingly
H
..
,;_.I
A
B
c
D
E
F
G
H
MUNICIPAL CORP. DELHI v. SHIV SHANKAR (Dua,/.)
611
consider it proper to broadly restate the general rule.
It was laid
ln Paine v. Stater( 1) that when two Acts are inconsistent or repugnant 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, a subsequent legislation may not be too readily presumed to effectuate a
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 a rule, lean against implying a 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 consequences, which intention could not rea:ionably .be imputed to the
legislature. It is Qnly when a 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 a 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 inconsistency 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 provisions 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 a general by a special statute. The subsequent
provmon treatmg a phase of the same general subject matter in a
more minute way may be intended to imply repeal pro-tanto of the
(I) [1883] lt Q.B.D. 120.
G12
SUPREME COURT REPORTS
[1971] 3 11.c.R.
repugnant general provision with which it cannot reasonabjy coA
exist. When 1Uiere is no mconsistency be~ween the general and
the special statute the latte( may well be construed as supplemeptary.
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, having 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 a provincial subject whereas
lllllder the Constitution it is· included in the Concurrent List.
Section 2(i) of this Act which defines the word "adulterated" consists 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 a 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 contravention of any provision of the Act or of any rules made thereunder.
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 appointment 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 achievB
c
D
E
F
G
H
J
4::::
A
B
c
D
E
F
G
H
MUNICIPAL CORP. DELHI v. SHIV SHANKA!l (Dua, I.)
613
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 Central 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 a local authority or a person authorized in this
behalf by such Government or authority.
Under the proviso to
this section a purchaser referred to ins. 12, is, however, empowered
to institute a prosecution if he produces in court a 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 consulting 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 Adulteration 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
6J4
SUPREME COURT REPORTS
[1971] 3 s.C:R.
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 a
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 Adulteration 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 unnecessary to expressly exclude such fruit-products from the. operaticm
of this rule.
Rule 5 ano Appendix B 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 B are as specified therein.
In Appendix B 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-
\
A
B
c
D
E
F
G
H
A
B
MUNICIPAL CORP. DELHI v. SHIV SHANKAR (Dua,/.)
615
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 a 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 Parliament had passed India (Central Goveroment and LegislatiQn) Act,
1946 (9 .and 10 Geo, VI, c. 39). The Indian Legislature not being
c 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 commodity 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 Gover,nment to declare by a notified order any other class of commodity to be an essential commodity for the purposes of the Act, being
a commodity with respect to which Parliament has power to make
D
E
F
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 Government 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 commodities 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 therewith contained in any enactment other than the Essential Commodities 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
G
a report in writing of the facts constituting such 3111 offence made
by a person who is a 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 ComH
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.
616
SUPREME COURT REPORTS
[1971] 3 s.c.R.
· 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 purposes 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.
A
B
(d) and "vinegar, another brewed or synthetic" is included in this
expression as per item (ii) of this sub-clause.
"Licensiing Officer" c
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 a
licensee engaged in the business of manufacturing in fruit products
for sale and includes a person purchasing such fruit products in
bulk and repacking them for sale either by himself or through someqne 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 a
licence under cl. 4.
Clause 7 enjoins the mainufacturers to manufacture .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. a 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 a 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.
D
E
F
G
The object and purpose of the Adulteration Act is to eliminate
K
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~
MUNICIPAL CORP. DELHI v. SHIV SHANKAR (Dua, J.)
617
A
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 a
broader point of view include controt of the quality of the essential
B
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,
c
which provision has the overriding or _controlling effect.
It is
D
E
F
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 a 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 a purchaser may, without any such sane·
ti.on, institute a prosecution merely by producing along with his
complaint a 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
G
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 argument 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
H
restrictions under the Adulteration Act and Rules with a threat of
severe penal consequences for violation of those provisions would
618
SUPREME COURT REPORTS
[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 manufacture 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 Adulteration 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
A
B
c
D
E
.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'. . F
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
G
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
H
MUJUCIPAL CORP. DELHI v. SHIV SHANKAR (Dua, I.)
619
A
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 a
guilty person should not be punished twice over.
B
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
C so amended· in some· States.
The~~ent iunenc;lments of the
Adulteration Act aDd 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
B of the Adulteration Rules in 1956 and A. 20.01 dealing with
"synthetic vinegar" was added in April, 1960. A passing reference
g
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
F
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
G
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 a Full Bench of the
1~18 Sup. CJ.j11
.:.,,"' ..
'
620
SUPREME COURT REPORTS
(1971] 3 S.C.R.
Delhi High Court in Municipal Corporation v. Harnarain (Crl. A.
A
No. 163 of 1967 decided in May, 1969).
Shri Daphtary, as a 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.