Lekh Raj vs The State

S.S. Sandhawalia, C.J.—Whether ''fruit-cream'' is a commodity identical with ice-cream and therefore, within the ambit of standard prescribed for its purity by item A 1 02.0(sic) of Appendix ''B'' of the Prevention of Food Adulteration Rules, 1955, is the somewhat interesting questions which falls for consideration in this criminal revision.

At would be evident the issue is primarily legal and the facts would therefore, pale into relative insignificance, nevertheless reference albeit briefly is inevitable. In July 23, 1975 Dr Satya Nand, the Food Inspector of the Municipal Committee, Amritsar, visited the Hyderabad Sindh Hotel, Hall Bazar, Amritsar, where the Petitioner representing himself as the Manager of the concern was present. About 2/1/2 Kgs. of fruit dream contained in a brass vessel was found lying in the refrigerator, out of which the Food Inspector purchased 900 grams as a sample for analysis on payment of Rs. 10/- vide receipt Ex. PB. In the relevant documents executed in accordance with the rules with regard to tat purchase etc. therefore the commodity was expressly described as fruit cream Even when the sample was forwarded to the Public Analysts, it was so described However, Public Analyst, in performing its analysis applied thereto the standard preserved for ice-cream, kulfi and chocolate-ice-cream in item A 11.02.08 of Appendix ''B'' of the Prevention of Food Adulteration Rules, 1955 and as the same did not conform arictly(sic) thereto, be opined that it was adulterated. In the complaint filed by the Food Inspector at a consequence of the aforesaid opinion of the Public Analyst it was again in terms specified therein that what had been purchased, where he carried on the business of selling fruit cream etc.

It appears that even though the specific case of the prosecution was that what has been purchased from him was fruit cream and indeed in the framing of the charge, it was expressly mentioned that the Petitioner was in possession of fruit-cream, (as also in putting the prosecution allegations to him in the statement u/s 313 of the Criminal Procedure Code. 1973), yet the learned trial court failed to advert to this meaningful aspect of the case. Applying the standards prescribed for ice cream, kulfi and chocolate ice-cream by item A.11. 02, 08(sic) to the fruit-cream purchased from the Petitioner, he was held guilty u/s 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 and sentenced to nine months'' rigorous imprisonment and a fine of Rs. 1, 00/-(sic).

In appeal, however, the argument that what was taken as a sample from the Petitioner was of fruit-cream only, was specifically raised and it was contended that since no standard in terms was prescribe for this commodity in the Act or the Rules, the Petitioner could not the convicted and in any case item A. 11.02.08 had no application to his case and could not be foisted upon fruit cream to maintain the conviction. The learned Additional Sessions Judge, however, did not accept this contention and took the view that fruit cream could well be brought within the ambit, of item A 11.02.08 by conveniently labeling it as fruit-cream. He concluded as follows:-

It will thus appear that the term ''fruit cream'' is specifically covered by A.11.02.08 of Appendix (sic). The contention of Shri Sharma, therefore, carried no substance.

Before adverting to the legal aspect of the aase,(sic) it deserves highlighting that the factual position is more than amply clear and very fairly has not been contested on behalf of the Respondent State Reference to the documents prescribed by law, for taking the sample etc. and the subsequent despatch of the same to the Public Analyst makes it manifestly clear that what was purchased by the Food Inspector was in terms ''fruit cream'' and nothing else. Indeed this aspect is concluded by the admission of P.W. 1 Dr. Satya Nand himself in his cross-examination in the following terms:-

It is correct that sample taken by me was of fruit-cream and it was not of ice-cream or mixed ice cream.As has already been noticed earlier even in the charge and in the statement u/s 31(sic) of the Criminal Procedure Code, 1973, specifically the possession of Fruit cream has been recorded. It must, therefore, he concluded that what the Petitioner was offering for sale was fruit cream and nothing else.

In order to fully appreciate the argument, it is first necessary to notice the provisions of item A. 11.02.08, which read as under:-

Ice cream, Kulfi, Kulfa and Chocolate Ice cream mean the frozen product obtained from cow or buffalo milk or a combination thereof from cream and/or a combination thereof or from cream and/or other milk products, with or without the addition of cane sugar, eggs, fruit justice, preserved fruits, nuts, chocolate, edible flavours, permitted food colours. It may contain permitted stabilizers and emulsifters(sic) not exceeding 0.5 per cent by weight. The mixture shall be suitably heated before freezing. The product shall contain not less than 1000(sic) per cent milk fat, 3 5 per cent. Protein and 300(sic) per cent, total solids, except that when any of the afore-said preparations contains fruits or nuts or both, the content of milk fat may be proportionately reduced but shall not be less than 0(sic) per cent by weight (Starch may be added to a maximum extent of (sic) per cent, under a declaration, on a label as specified in sub rule (2) of Rule 43. The standards for ice cream shall also apply to sofety ice cream.

The very heading of the aforesaid item would first show that it is to apply only to ice cream. Kulfi and chocolate-ice-cream. This apart, the language implies that the same is to be given the frozen product obtained from cow and buffalo milk with or without the addition of other ingredients mentioned in the item. It is then specified therein that the mixture shall be suitably heated before freezing. Another indication that the description of commodities in the item aforesaid is not to be easily extended, appears from the amendment introduced in the item by notification No. G.S.R. 205 dated February 13, 1974. Therein inter alia it has been stated that the standards for ice-cream shall apply to sofety ice-cream. This would make it evident that perhaps sofety ice cream which obviously is a species of genus of ice-cream, was beyond the pale of ice-cream and it, therefore, had to be expresly included.

On the other hand, fruit cream prima facie does not come within the description of ice cream, Kulfi chocolate ice-cream not can it be basically described as a frozen product. In ordinary parlance fruit-cream does not mean merely the admixture of fruit with cream and this would be so irrespective of any element of even cooling fat from freezing. For example, strawberry with cream, or mixed fruit with cream and similar products which may be fairly labelled as fruit cream have no identity with the frozen product implied in the term ice-cream or Kulfi etc. Therefore, there is no warrant to hold that fruit-cream are either identical or interchangeable terms. I am conscious of the fact that food adulteration is a great social menance which deserves to be put down with a heavy hand, yet the known canons of interpretation of a penal statute, namely, that it mutt be strictly construed, cannot he either lost sight(sic) of. It must therefore, be held that fruit cream being not ice cream would not come within the ambit of the standards prescribed in item A 11.02.08 of the Prevention of Food Adulteration Rules, 1955.

In fairness to the learned Counsel for the Respondent State, I must notice that he took the candid stand that though perhaps ice cream and fruit ice-cream may well be covered by the standards prescribed in the item, yet the same cannot be elongated to bring within its ambit what is plainly called and known as ''fruit cream'' which may not necessarily be a frozen product(sic) obtained from cow or buffalo''s milk with or without any ingredients. However, I would make it clear that I am not at all basing myself on this concession and as would appear earlier, have examined the matter on principle

Once it is held that fruit-cream is not covered by item A.11.02.08, it seems to be the common case that the Rules do not prescribe any separate standard for fruit cream. That being so it is plain that under the existing provisions, there is no yard stick by which to judge the purity or otherwise of the product taken from the Petitioner and in the absence of a prescribed standard, no conviction is possible, seems to be manifest both on principle and precedent Reference in this connection to Sri Sita Ram Sugar Mills Ltd., Baitalpur, District Deoria (U.P.) and Deoria Sugar Mills Ltd., Deoria (U.P.) Vs. Their Workmen, Hari Sankar Banerjee Vs. Corporation of Calcutta, and the Division Bench judgment of the Delhi High Court in Municipal Corporation of Delhi v. Kanshi Ram s/o Tola Ram, partner M/s Kanshi Ram Bhim Sen r/o 25 Gagodia Market, Khari Bhaoli, 1972 F.A.C. 41 is instructive.

In view of the above the Petitioner is plainly entitled to an acquittal on the aforesaid ground and it is unnecessary to examine the other submissions raised on his behalf. The revision petition succeeds and sentence of the Petitioner arc hereby set aside.