# SUPRE:'.JE COURT REPORTS M. V. JOSHI v. M. U. SHIMPI AND ANOTHER

- **Citation:** [1961] 3 S.C.R. 986
- **Court:** Supreme Court of India
- **Decided:** 1959-07-23
- **Case number:** Criminal Appeal No. 155 of 1959
- **Bench:** K. SuBBA RAO, Raghubar Dayal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supre-je-court-reports-m-v-joshi-v-m-u-shimpi-and-another-1960
- **Pages:** 13

## Headnote

Food A'dulteration-Ritlter-If includes butter mode from curd
-No foreign article mixed but below standard prescribed-· If ad11lc
terated-Prevcntion of Food Adulteration Act, I954 137 of r954),
. ss. z(i)(a), 7(i), I6(r)(a)·-Prevention of Food Adulteration Hules,
1955, Appendix B, r. A-II, 0. 5.
The appellant was selling butter which was found to be
below the standard prescribed. He was convicted under s. 16(1)
read withs. 7(i) of the Prevention of Fo:id Adulteration Act,
1954, and sentenced to undPrgo rigorous imprisonment for two
months and to pay a fine of l~s. 25oi-.
He contended (i) that
butter prepared from curd was not butter within the meaning of
r. A-II, 0. 5 of Appendix B to the Rules which defined butter
to mean •the product prepared exclusively from milk or
cream ..•. ', and (ii) that the butter was not adulterated as no
foreign article had been added to it.
Held, that the appellant had been rightly convicted.
Butter prepared from curd also came within the definition
of "butter" in r. A-n, 0. 5 of Appendix B to the Rules. The
plain meaning of the words user! in the rule indicated that
butter prepared from milk or cream, by whatever process, was
comprehended by the definition. Even where milk was first
converted into curd and then butter prepared the.efrom, the
butter was still".prepared from milk.
Sadashiv v. P. V. Bhalerao, I.LR. [1959] Born. rSoo, approved.
Section 2(i)(l) lays down that an article of food shall be
deemed to be adulterated if its quality or purity falls below the
prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability.
If the prescribed standard is not attained, the statute treats
such article, by fiction, as adulterated food though in fact no
foreign article is added to it. Selling butter below the prescribed standard amounted to selling adulterated butter.
Hunt v. Richardson, [1916] 2 K.B. 446, distinguished.
CRIMINAL
APPELLATE
JuRISDICTION :
Criminal
Appeal No. 155 of 1959.
Appeal by special leave from the judgmenj; order
dated July 23, 1959, of the Bombay High Court in
Criminal Appeal No. 165 of 1959.
H. J. Umrigar, S. N. Andley, J. B. Dadrichanji,
Rameshwar Nath
and
Ravindei· Narain,
for the
appell>111 t.
••
3 S.C.R.
SUPREME COURT REPORTS
987
Naunit Lal, for respondent No. 1.
B. K. Khanna and R. H. Dhebar, for respondent
No. 2.
1961. February 27. The Judgment of the Court was
delivered by
SuBBA RAO, J.-This appeal by special leave is
directed against the judgment of the High Court of
Judicature at Bombay allowing the appeal filed by
respondent No. 1 against the acquittal of the appellant by the Judicial Magistrate, First Class, Thana,
and convicting him unrler s. 16(1), read with s. 7(i), of
the Prevention of Food Adulteration Act,
1954
(hereinafter called the Act), and sentencing him to
undergo rigorous imprisonment for two months and to
pay a fine of Rs. 250/-.
The appellant is the proprietor of a shop at Thana
known as the Cottage Industries. He is a dealer in
butter. On June 27, 1957, the Food Inspector of the
Thana Borough Municipality visited the shop of the
appellant and purchased from him some quantity of
Khandeshi butter. After purchasing the butter, the
Food Inspector notified his intention to the appellant
that he was going to get the butter analysed. He
divided the butter into three equal parts, put them iri
three separate bottles and duly sealed the bottles in
the presence of two panchas.
He gave one of those
bottles to the appellant, sent one to the Public Analyst
and kept the third with himself. The appellant signed
the labels on the bottles and also passed a receipt in
favour of the Food Inspector in token of the receipt
of one of the bottles and that receipt was signed by
the appellant and counter-signed by two panch
witnesses.
The Public Analyst analysed the butter sent to him
· and sent his report in due course. In the report it
was stated that the butter contained 18·:J2% foreign
fat, 19·57% moisture an

## Text

February 27.
986
SUPRE:'.JE COURT REPORTS
M. V. JOSHI
v.
M. U. SHIMP! AND ANOTHER.
ll961]
(K. SuBBA RAO and RAGHUBAR DAYAL, JJ.)
Food A'dulteration-Ritlter-If includes butter mode from curd
-No foreign article mixed but below standard prescribed-· If ad11lc
terated-Prevcntion of Food Adulteration Act, I954 137 of r954),
. ss. z(i)(a), 7(i), I6(r)(a)·-Prevention of Food Adulteration Hules,
1955, Appendix B, r. A-II, 0. 5.
The appellant was selling butter which was found to be
below the standard prescribed. He was convicted under s. 16(1)
read withs. 7(i) of the Prevention of Fo:id Adulteration Act,
1954, and sentenced to undPrgo rigorous imprisonment for two
months and to pay a fine of l~s. 25oi-.
He contended (i) that
butter prepared from curd was not butter within the meaning of
r. A-II, 0. 5 of Appendix B to the Rules which defined butter
to mean •the product prepared exclusively from milk or
cream ..•. ', and (ii) that the butter was not adulterated as no
foreign article had been added to it.
Held, that the appellant had been rightly convicted.
Butter prepared from curd also came within the definition
of "butter" in r. A-n, 0. 5 of Appendix B to the Rules. The
plain meaning of the words user! in the rule indicated that
butter prepared from milk or cream, by whatever process, was
comprehended by the definition. Even where milk was first
converted into curd and then butter prepared the.efrom, the
butter was still".prepared from milk.
Sadashiv v. P. V. Bhalerao, I.LR. [1959] Born. rSoo, approved.
Section 2(i)(l) lays down that an article of food shall be
deemed to be adulterated if its quality or purity falls below the
prescribed standard or its constituents are present in quantities which are in excess of the prescribed limits of variability.
If the prescribed standard is not attained, the statute treats
such article, by fiction, as adulterated food though in fact no
foreign article is added to it. Selling butter below the prescribed standard amounted to selling adulterated butter.
Hunt v. Richardson, [1916] 2 K.B. 446, distinguished.
CRIMINAL
APPELLATE
JuRISDICTION :
Criminal
Appeal No. 155 of 1959.
Appeal by special leave from the judgmenj; order
dated July 23, 1959, of the Bombay High Court in
Criminal Appeal No. 165 of 1959.
H. J. Umrigar, S. N. Andley, J. B. Dadrichanji,
Rameshwar Nath
and
Ravindei· Narain,
for the
appell>111 t.
••
3 S.C.R.
SUPREME COURT REPORTS
987
Naunit Lal, for respondent No. 1.
B. K. Khanna and R. H. Dhebar, for respondent
No. 2.
1961. February 27. The Judgment of the Court was
delivered by
SuBBA RAO, J.-This appeal by special leave is
directed against the judgment of the High Court of
Judicature at Bombay allowing the appeal filed by
respondent No. 1 against the acquittal of the appellant by the Judicial Magistrate, First Class, Thana,
and convicting him unrler s. 16(1), read with s. 7(i), of
the Prevention of Food Adulteration Act,
1954
(hereinafter called the Act), and sentencing him to
undergo rigorous imprisonment for two months and to
pay a fine of Rs. 250/-.
The appellant is the proprietor of a shop at Thana
known as the Cottage Industries. He is a dealer in
butter. On June 27, 1957, the Food Inspector of the
Thana Borough Municipality visited the shop of the
appellant and purchased from him some quantity of
Khandeshi butter. After purchasing the butter, the
Food Inspector notified his intention to the appellant
that he was going to get the butter analysed. He
divided the butter into three equal parts, put them iri
three separate bottles and duly sealed the bottles in
the presence of two panchas.
He gave one of those
bottles to the appellant, sent one to the Public Analyst
and kept the third with himself. The appellant signed
the labels on the bottles and also passed a receipt in
favour of the Food Inspector in token of the receipt
of one of the bottles and that receipt was signed by
the appellant and counter-signed by two panch
witnesses.
The Public Analyst analysed the butter sent to him
· and sent his report in due course. In the report it
was stated that the butter contained 18·:J2% foreign
fat, 19·57% moisture and 64·67% milk fat.
On October 5, 1957, the Food Inspector filed a co111plaint jn the Court of the Judicial Magistrate, First
Class, Thana, against the appdlant. It was 11-lle~ed
u6
Joshi
v.
Shimpi
Subba Rao].
Joshi
v.
Shimpi
SvbbaRao ].
988
SUPREME COURT REPORTS
[1961]
..
therein that the said butter was found to be "adulte.
rated" as defined in s. 2(1) (a) of the Act and that the
appellant had committed an offence under s. 16 (1) (a)
of the Act by selling the adulterated article of food in
contravention of s. 7(i) of the Act and the rules made
thereunder. The Judicial Magistrate acquitted the
appellant on the ground that it had not been proved
beyond reasonable doubt that the butter which was
purchased from the shop of the appellant was the
very same butter which was sent to the Public
Analyst and also for the reason that butter prepared
out of curd did not come within the mischief of the
definition of the word " butter" in rule A.11.05 of
Appendix B to the Pre\•ention of Food Adulteration
Rules, 1955 (hereinafter called the Rules). The Food
Inspector preferred an appeal against that order of
acquittal to the High Court. The High Court held
that the conclusion of the learned Judicial Magistrate
that the buttet' purchased from the appellant might
have been tampered with before it was sent to the
Public Analyst was not based on any evidence on· the
record. It further held that butter prepared from
curds was covered by the definition of the word
" butter " given in the relevant rule. It further held
that even if the butter prepared out of curds was not
butter as defined in the said rule, the appellant would
still be liable under s. 2 (1) (a) of the Act as it contained foreign fat an~, therefore, was an adulterated
article of food within the meaning of the said sec.tion.
In the result it set aside the order of acquittal, convicted the appellant under the Act and sentenced him
to rigorous imprisonment for two months and to pay
a fiire of Rs. 250/ ·. Hence this appeal.
Learned counsel for the appellant raised before us
the followiug points; (1) the High Court went wrong
in holding that the appellant had committed an
offence under the Act, even though the butter in
question was not butter within the meaning of the
Rules. (2) Butter prepared from curds is not butter
·within the meaning ofr. A.11.05 of Appendix B to the
Rules. (3) Butter sent to the Public Analyst was not
the same butter seized from the appellant. (4) Th\l
-<
3 S.C.R.
SUPREME COUR'f l~EPORTS
989
report of the Public Analyst was vague and, therefore, no conviction could be based on it.
For the purpose of this appeal we are assuming in
favour of the appellant that he would not be liable
for conviction unless the butter seized from him was
butter within the meaning of the rule.
We shall proceed to consider the appeal on that basis. In this
view, nothing further need be said on the first question
raised by learned counsel.
At the outset it would be convenient to consider
the ingredients of the offence alleged to have been
cotLmitted by the appellant. Section 2(i) of the Act
defil)es the word " adulterated " and it says that an
article of food shall be deemed to be ad u!Lerated if it ·
satisfies one or other of the conditions prescribed in
sub-els. (a.) to (1).
We a.re concerned in this appeal
with sub-cl. (1) whereunder a.n article of food shall be
deemed to be adulterated if the quality or purity of the
article falls below the prescribed standard or its
constituents a.re present in quantities which a.re in
excess of the prescribed limits of variability. Section
2(xii) defines " prescribed " to mean " prescribed by
rules ma.de under this Act." In exerciae of the powers
conferred by sub-s. (2) of s. 4 and sub-s. (1) of s. 23 of
the Act, the Central Government ma.de rules prescribing, inter alia, the standards of quality of different
a.rticl.es of food. Rule 5 says that standards of quality
of the various articles of food specified in Appendix B
to the Rules a.re as defined in that appendix. Rule
A.11.05 of Appendix B to the Rules defines "butter"
t·o mean " the product prepared exclusively from the
milk or cream of cow or buffalo, or both, or without
the addition of salt and anna.tto and shall contain
not less than 80 per cent. of milk fat and not more
than 16 per cent. of moisture" and no preservative
is permissible in butter. Therefore, if the quality or
purity of butter falls below th~ standard prescribed
by the said rule or its constituents a.re in excess of the
prescribed limits of variability, it shall be deemed to
be adulterated within the meaning of ~. 2 of the
Act. If the prescribed standard is not attained,
Joshi
v,
S/iimpi
Sttbba Rao J.
I96I
Joshi
v.
Slt.inipi
Subba Rao J.
990
SUPREME cotJR'r R.El>OR'l'S
[1961]
the statute treats such butter, by fiction, as an adulterated food, though in fact it is not adulterated. To
pnt it in other words, by reason of the fiction, it is not
permissible for an accused to prove that, though the
standard prescribed is not attained, the article of
food is in fact not adulterated. The non-conformity
with the standard prescribed makes such butter an
adulterated food.
Section 7 of the Act prohibits the
manufacture, sale, storage, or distribution of s1:rh
food.
Section 16 provides a penalty for the contravention of the provisions of s. 7. The first question,
therefore, that falls for consideration is whether the,
butter seized from the appellaritwa~ butter as defined
by rule A.11.05 of Appendix B to the Rules.
Learned counsel for the appellant argues that butter
prepared from curd is not butter as defined in the Act
for the following reasons: (1) the definition of the word
"butter" . does not include the product which is
obtained from curd, as it refers only to a product
which is prepared from milk or cream; (2) the three
words," milk"," cream" and" curd", are separately
and exhaustively defined in the Rules and, therefore,
the omission of the word "curd" in the said rule is a
clear legislative indication that butter prepared from
curd is not butter within the meaning of that rule;
and (3) the word "exclusively" found in the rule
emphasizes the fact that butter to come under the
definition in the Act should have been prepared from
milk or cream and from no other product.
Before considering the argument advanced, it would
be necessary to notice how butter is made. In England
butter is made as follows:
" ... as quickly as the milk is separated the cream
is cooled. The cream is delivered to the creamery,
where it is graded according to at least two classes,
sweet and sour ......... Then it is pasteurized, and if
ripened cream butter is to be made a pure cultu_re
of Streptococcus lactis is introduced to start th~ desirable souring process. If sweet cream butter 1s to be
made no starter is added. The best storage butter
is made from unripened or sweet cruam.
After
·.
I
<1
3 S.0.R.
SUPREME COURT REPORTS
991
pasteurization and ripening the cream is held overnight, when it is churned, washed, salted and worked
in the combined churn and worker."
(See Encyolopaedia Britannica, Vol. 4, p. 469.)
In India butter is prepared in the rural areas by the
indigenous process out of soured milk and cream, i.e.,
curd. In some cities butter is also made directly out
of milk and cream; but tbe percentage of the said
production is insignificant compared with the indigenous system obtaining throughout India. Whatever
process is adopted, whether butter is taken directly
out of milk or taken out of soured milk or cream, it is
prepared only from milk. The only difference between
the two is that in the case of butter prepared from
curd there is an intervening souring process which is
not necessary in the case of butter directly prepared
from milk or cream. Shortly stated, butter, by whatever process it is prepared, is a product prepared from
milk.
Now let us look at the relevant rules to consider
whether they provide any reasonable basis for sustaining the argument advanced by learned counsel for
the appellant. We shall now read the relevant rules
of Appendix B to the Rules.
A. 11.01. Milk means the normal clean and fresh
secretion obtained by complete milking of the udder
of a healthy cow, buffalo, goat or sheep during the
period following at least 72 hours after calving or
until colostrum free whether such secretion has been
proc{,ssed or not.
A. 11.05.
Butter means the product prepared
exclusively from the milk or cream of cow or buffalo,
or both, or without the addition of salt and annatto
and shall contain not less than 80 per cent. of milk
fat and not more than 16 per cent. of moisture. No
preservative is permissible in butter.
A. 11.06. Dahi or curd: (a) Whole milk dahi or
curd means the product obtained from fresh whole
milk either of cow or buffalo by souring. It shall
not contain any ingredient not found in milk.
A. 11.10. Cream means the portion of milk rich
in milk fat which has risen to the surface of milk on
Jodi
v.
SAimP•
Subba Rao J.
Jo.shi
v.
$AiMpi
Suhb• Rao J.
992
SUPREME COURT REPORTS
[1961]
standing and ha.s been removed or which.has been
separated from milk by centriiugal force. It shall
contain not less than 40 per cent. of milk fat and
shall not contain any added substance. The fat
separated from cream shall conform to the specification prescribed for ghee.
A. 11.14. Ghee means the pure clarified fat
derived solely from milk or from milk curds or from
cream to which no colouring matter or preservatiYe
has been added.
It wa.s asked with some plausibility that if the rule
ma.king authority did not intend to make a. distinction, in the context of making butter, .between milk,
cream and curd, why did it define the said three products separately, a.nd why, in the case of butter, curd
wa.s not shown as one of the products from which it
could be prepared, while in the case of ghee, it was
shown a.s a separate produce from which ghee could be
prepared. The first criticism ca.n easily be answered.
Milk, cream a.nd butter have got to be sepa.ra.tely
defined, for they a.re sold in those three different forms,
a.nd the question ofadulteration of the said products
would have to be considered separately in regard to
the standards prescribed for them. There is also no
force in the second criticism. The original rules were
framed on September 12, 1955, and the definition of
ghee was introduced therein in 1956. The authority
making the subsequent rule might have thought of
clarifying the definition of ghee to steer clear of the
difficulties raised in the case of the definition of butter.
Putting aside the general argument, let us now look
a.t the relevant provisions. The following words in the
definition stand out prominently: "product prepared
exclusively from milk or cream of cow or buff a.lo, or
both."
To be butter it should comply with the
following conditions: (i) it shall be a. product from
milk or cream ; (ii) the said milk or cream shall be
the,t of cow or buffalo, or of both ; (iii) the product
sha.11 be prepared from the said milk; a.nd (iv) it shall
be prepared exclusively from the said milk. "Product"
means " a. thing produced by nature or a. na.tura.l process or manufacture." What is the meaning of the
,.
'
...
..
3 S.C.R.
SUPREME COURT REPORTS
993
word "prepared" ? The Rules use different words for
different milk products. In the case of butter, milk
and curd, the word used is "obtained"; and in the
case of ghee the word used is "derived ". The
dictionary meaning of the word " prepare " is, "to
bring into proper state for use by some special or tech,
nice.I process, to manufacture, to make or compound ":
(see The Shorter Oxford Dictionary, 3rd edn., at
ii. 1571). The word has a comprehensive meaning and
t><kes in different processes involved in making a thing
ready for use or consumption in a particular form.
Butter is a product prepared by a process out of milk,
whether the process involved is a simple or a complicated one, aad, therefore, butter drawn from curd
is a product prepared from milk.
The word " exclusively", in our view, refers to the milk or cream of cow
or buffalo. " Milk " has been defined as secretion
obtained by milking of the udder of a healthy cow,
buffalo, goat or sheep, whereas the definition of
" butter " is confined exclusively to the milk of cow or
buffalo. The word "exclusively ", thPrefore, has no
relation to other milk products. The plain meaning
of the words used in the section indicates that butter
prepared from miik or cream, by whatever process, is
comprehended by the definition.
Learned counsel for the appellant contends that the
rule being a part of a pena]statute, it should be construed in favour of the accused.
When it is said that
all penal statutes are to be construed strictly it only
means that the court must see that the thing charged
is an offence within the plain meaning of the words .
used and must not strain the words. To put it in other
words, the rule of. strict construction requires that the
language of a statute should be so construed that no
case shall be held to fall within it which does not
come within the reasonable interpretation of the
statute. It has also been held that in construing a
penal statute it is a cardinal principle that in case of
doubt, the construction favourable to the subject
should be preferred. But these rules do not in any
way affect the fundamental principles of interpretation,
namely, that the primary test is the language
J-0shi
v.
SlliMJ>i
Subba Rao].
1961
Joshi
v.
Slimpi
Subb• Roo ].
SUPREME COURT REPORTS
r1M11
employed in the Act and when the words are clear and
plain the court is bound to accept the expressed intention of the Legislature.
The latest view on the relevant rule of construction
is found in "Maxwell on'the Interpretation of Statutes",
10th edn., at p. 262, which reads,
" ......... it is now recognized that the paramount
duty of the judicial interpreter is to put upon the
language of the Legislature, honestly and faithfully,
its plain and rational meaning and to promote its
object. "
Adverting to Acts against adulteration, the learned
author quotes Day, J., in Newby v. Sims(•) as follows:
"I cannot concur in the contention that because
these acts (against adulteration) impose penalties,
therefore, their construction should, necessarily, be
strict. I think that neither greater nor less strict.
ness should be applied to those than to other
statutes."
So judged, we have no doubt that the butter prepared
out of curd falls within the plain meaning of the
words in the said rule.
Reliance is placed by learned counsel for the appellant on the decision of Miabhoy, J., i11 Narshir!ha
Bhaskar v. State of Bombay(•). The decision is certainly in favour of the appellant. But a full bench of
the same High Court in Sarlashiv v. P. V. Bhalerao (3)
overruled the said decision. In the latter decision
Chainani, C. J., after considering the arguments,
observed at p. 1804 thus :
" The emphasis is, therefore, on the basic material
from which butter is prepared and not on the
process by which it is made. Dahi is prepared from
milk by souring it. Butter prepared from De.hi
can, therefore, be said to be butter prepared from
milk itself, after it has undergone the process of
souring ................... ,..... There is also a third
method, which is used in some dairies and that is
produce butter directly from milk itself. In a.II these
three oases, the basic material from which butter is
!•> [•89tl 63.L.J.M:c. 229.
(2) I.L.R. [1958] Bom. 63?,
<3) I.L.R. [1959] Bom. 1800.
(
.
-
•
3 S.C.R.
SUPREME COURT REPORTS
995
made is milk. Only the processes adopted for
making it are different. In one case it is produced
from milk directly. In the other two cases, cream
and curd are first prepared and these aru then
churned to obtain butter. The preparation of cream
or curd is only an intermediate process in the manufacture of butter from milk. Butter made from
Dahi or curd, is therefore also butter made from
milk."
We entirely agree with these observations.
Reliance is then placed upon a decision in Hunt v.
Richardson(1) in support of the argument· that if the
standard prescribed was not maintained, the appellant did not commit any offence, as there was no
adulteration of milk fat with other products. In the
above case, by s. 6 of the Sale of Food and Drugs
Act, 1875, " no person shall sell t.o the prejudice of
the purchaser any article of food which is not of the
nature, substance, and quality of the article demanded
by the purchaser, under a penalty." By s. 4 of the
said Act, the Board of Agriculture were empowered
to make regulations for determining what deficiency
in any of the normal constituents of genuine milk
should for the purposes of the Sale of Food and Drugs
Acts raise a presumption, until the contrary was
proved, that the milk was not genuine. In exercise
of their power, the Boa.rd of Agriculture made a
regulation prescribing that where a sample of milk
contained less than 3 per cent. of milk fat it was to be
presumed that the milk was not genuine by reason of
the abstraction therefrom of milk fat or the addition
thereto of water. A dealer in milk sold pure milk and
the deficiency in the milk fat was not due to any
abstraction from the milk or addition thereto, but
because of the herbage on which the cows were fed.
The court, by a majority, held that no offence was
committed by the dealer. The reason given for the
decision is found at p. 452 and it is,
" This section does not authorize the Boa.rd of
Agriculture to define what is milk, or to fix a
standard of the normal constituents below which
(1) (1916] 2 K.B. 446.
"7
Joshi
v.
Shim pi
Subba llao J.
Joshi
v.
Shim pi
St4bba Rao].
996
SUPREME COURT REPORTS
[1961]
an article shall be deemed not to be milk, . and the
regulation providing that where a sample of milk
contains less then 3 per cent. of milk fat it shall be
presumed, until the contrary is proved, not to be
genuine of necessity implies that it may be proved
to be genuine although it contains less than 3 per
cent. of milk fat. It is to be observed that s. 1 of
the same Act of 1899, which deals with the import·
ation of adulterated or impoverished milk, provides
in sub-s. 7 that for the purposes of that section
milk shall be deemed to be adulterated or impoverished if it has been mixed with any other substance,
or if any part of it has been abstracted so as in
either case to affect injuriously its quality, substance, or nature. This, I think, confirms the view
implied in the regulation that milk which has not
been so treated although it be deficient in milk fat
is none the less deemed to be milk for the purposes
of s. 6 of the Sale of Food and Drugs Act, 1875."
It is, therefore, obvious that under the English Act
selling milk below a particular standard is not an
offence. The gist of the offence is mixing with milk
any other substance or abstracting any part from it
so as to affect injuriously the quality, substance, or
nature of the milk. The regulation prescribing that
milk shall contain not less than 3 per cent. of milk
fat raises only a rebuttable presumption, and the
dealer, notwithstanding such deficiency, can prove
that the milk has not been adulterated or impoveri·
shed within the meaning of the said Act. But in the
Indian Act selling butter below the prescribed standard is deemed to be adulteration. If the standard is
not maintained, the butter, by a fiction, becomes an
11.dulterated food.
A dealer in such butter cannot
adduce evidence to prove that notwithstanding the
deficiency in the standard, it is not adulterated.
The conclusion we have arrived at is not only
supported by the plain words of the rule, but also
carries out the clear intention of the Legislature. The
Act was passed to make provis10ns for the prevention
of adulteration of food.
Butter is a favourite edible
fat and is consumed in different ways by innumerable
.
-
3 S.C.R.
SUPREME COURT REPORTS
997
persons in this country. As we have already pointed
out, butter is prepared in the rural areas throughout
this country by the indigenous process of churning
soured milk, whereas only ·in a few cities butter is
prepared directly from milk. The interpretation
suggested by learned counsel for the appellant, if
accepted, would make the rule a dead-letter, for all
practical purposes, and the object of the Legislature
would be defeated. In our view, the intention of the
Legislature has been clearly expressed in the rule.
We, therefore, hold that butter prepared from curd
comes within the definition of "butter" in r. A.11.05
of Appendix B to the Rules.
The second contention turns upon a question of
fact., The High Court considered the entire evidence
and accepting the evidence of the Food Inspector and
the Health Officer, held that the bottle sent to the
Public Analyst was the sample seized from the appellant. There are no permissible grounds for allowing
the appellant to canvass the correctness of this
finding. We, therefore, accept the finding.
'
The last contention is that the report of the Public
Analyst is ambiguous and, therefore, the benefit of
doubt should be given to the appellant. What is
stated is that in the report it is stated that the butter
contained 19·57% of moisture, 64·67% of milk fat and
18'32% of foreign fat, totalling 102·56% i.e., more
than 100%. It is, therefore, argued that the report
on the face of it is incorrect and therefore should not
be acted upon. There is an obvious fallacy underlying this argument. 18·32 per cent. of foreign fat is
not a percentage in relation to the milk· but only in
relation to the fat. ·Out of the fat in the milk, the
analyst says that 18·32 per cent. is foreign fat. In
his own words, ".The butter fat in the sample contains 18·32% foreign fat." If that be so, there is no
mistake on the face of the report. The report clearly
indicates that the butter sold by the appellant was
below the standard prescribed under the rule. If so,
it follows that the appellant is guilty of the offence
with which he was charged.
Joshi
v.
Shim pi
Subba Rao].
joslu
v.
Shimpi
Subba Ilao ] .
I96I
February :i7.
998
SUPREME COURT REPORTS
[1961]
The High Court sentenced the accused to undergo
rigorous imprisonment for two months and also to
pay a fine of Rs. 250/-. We agree with the High
Court that the offence committed by the appellant is
a serious one and that ordinarily the punishment
should be deterrent. In mqst of the cases of this kind
imprisonment would certainly be a suitable sentence.
But in this case, there was a conflict of view even in
the Bombay High Court as regards the question whether butter made from curd would be butter within
the meaning of the rule. Indeed, it was brought to
our notice that on April 16, 1960, the Central Government made another rule amending rule {\-11.05 by
inserting the word " curd " in the definition of butter
and the amended definition reads, " butter means the
product prepared exclusively from milk, cream or
curd of cow or buffalo ......... " This must have been
made to clarify the position in view of the conflicting
decisions: In the circumstances, we think that a
sentence of fine would meet the ends of justice in the
present case. We, therefore, set aside ·the sentence of
two months' rigorous imprisonment and a fine of
Rs. 250/- and instead sentence the appellant to pay a
fine of Rs. 500/·.
With this modification, the appeal is dismissed.
A.JYPeal di81nissed.
KARUMUTHU THIAGARAJAN CHETTIAR
AND ANOTHER
v.
E. M. MUTHAPP A CHETTIAR.
(P. B. GAJENDRAGADKAR and K. N. WANcnoo, JJ.)
Part1'ership-Duration not expressly provided-When can be
implied~Terminatien of partnership by notice-Partnership Act,
I9J2 (IX of 1932). ss. 7, IO, r3(g).
The appellant and the respondent entered into a written
partnership with respect to the managing agency business of two
mills, the terms of which were, inter alia, that the management
shall be carried on in rotation once in four years, the appellant to
manage for the first four years and thereafter the respondent to
manage for the next four years and in the same way thereafter,
l
)