Sardar Ali. vs State and Another

Adarsh Sein Anand, J.—Faced with the position that no revision lies against an order of framing a charge, by virtue of amendment to the

Code of Criminal Procedure, barring the maintainability of revision petitions against interlocutory orders, the petitioner has taken recourse to

Section 561-A Cr. p. C. for seeking the quashing of proceedings pending against him before the Municipal Magistrate, Jammu. The charges u/s

7/16 of the Prevention of Food Adulteration Act, have been framed against the petitioner on the allegation that the petitioner sold milk which,

according to the Public Analyst, was adulterated and of sub-standard quality.

Mr. Amrish Kapoor, learned Counsel for the petitioner has raised a seemingly interesting question which, of, course, does not bear close

scrutiny. According to the learned Counsel since in the Prevention of Food Adulteration Rules, 1955 (Central Rules) in so far as the same apply to

the State of Jammu and Kashmir, no standard has been prescribed for buffalo or the cow's milk and as such no prosecution can be initiated against

the petitioner on the allegations that the milk sold by him, was substandard according to the standards prescribed under the State Rules or was

adulterated. The precise argument of Mr. Kapoor is that at the time when the Central Act i. e. Prevention of Food Adulteration Act, 1954, was

extended to the State of Jammu & Kashmir (with effect from 26-1-1972), there were, in force in the State of Jammu & Kashmir a set of rules

called the Jammu & Kashmir Prevention of Food Adulteration Rules, 1963 and in those rules standard for buffalo's milk and cow's milk had been

prescribed, but after the extension of the Prevention of Food Adulteration Rules. 1955 (Central Rules) to the State vide notification No, GSR 436-

E dated 10-10-1972 with effect from 10-10-1972 the State Rules ceased to have any application in the State by virtue of Section 25(2) of the

Prevention of Food Adulteration Act 1954. It is argued that the rules remained in force, even after the extension of the Act to the State only till the

Central Rules were extended. It is on this premise that the learned Counsel has urged that even if the allegations in the complaint are taken on their

face value as true, no prosecution can be initiated against the petitioner and the proceedings need to be quashed. learned Counsel has relied upon

the -judgment Ram Sanehi v. State reported in (1977) 2 FAC 129 (All), in support of his submission.

Mr. S. D. Sharma. learned Addl. Advocate General, appearing for the State and Mr. Nanda, learned Counsel appearing for the Municipality,

have on the other hand, urged that the State Rules oi 1963 continue to remain in force evfen after the extension of the Central Rules and the State

Rules stand repealed only to the extent to which they are inconsistent with or repugnant to the provisions of the Prevention of Food Adulteration

Act 1954 and to no other extent. It is urged that since the Prevention of Food Adulteration Rules, 1955 (Central Rules) do not prescribe any

standard for buffalo's milk or the cow's 1 ilk in so far as the State of Jammu and Kashmir is concerned, the standard prescribed under the State

Rules, 1963, woi>1d continue to govern the field. Learr jd counsel have relied upon Shobhey v. State reported in (1977) 1 FAC 246 (All) The

State Vs. Raja Ram Ram Saran and Another, and Himirika Lokanath and Others Vs. The State, in support of 1heir submissions.

The Prevention of Food Adulteration Act, 1954 has been extended to the State of Jammu and Kashmir with effect from 26-1-1972. The

Central Rules were extended to the State with effect from 10-10-1972. Prior to the extension of the Central Laws, the State had in force its own

set of Rules which were promulgated in 1963. With a view to appreciate the controversy raised in this petition, it would be desirable to first notice

Sec, 25 (1) and (2) of the Prevention of Food Adulteration Act, 1954. The said two Sub-section (s read as under:

Repeal and Savings â€" (1) If immediately before the commencement of this Act, there is in force in any State to which this Act extends any law,

corresponding to this Act, that corresponding law shall upon such commencement stand repealed.

(2) Notwithstanding the repeal by this Act of any corresponding law, all rules, regulations and bye-laws relating to the prevention of adulteration of

food made under such corresponding law in force immediately before the commencement of this Act shall, except where and so far as they are

inconsistent with or repugnant to the provisions of this Act, continue in force until altered, amended or repealed by rules made under this Act.

A plain reading of Sub-section (2) shows that notwithstanding the repeal of any corresponding law or rule relating to prevention of adulteration

of food, which war, in force prior to the commencement of the Act. the same shall continue to remain in force until altered, amended or repealed

by rules made under this Act except ""where and so far as they are inconsistent with or repugnant to the provisions of this Act"". It would thus

appear that the repeal or alteration of the rules would affect only such of the provisions of the State Rules which are inconsistent with or repugnant

to the provisions of this Act,

Thus, rules, regulations, bye-laws relating to the prevention of adulteration of food made under .such corresponding law and in force

immediately before the extension of the Act to the State of Jammu and Kashmir, shall, except where and only so far as they are inconsistent with or

repugnant to the provisions of the Act continue in force until altered, amended or repealed by the rules made under the Act. This provision would,

therefore, save such of the State Rules in force immediately before the extension of the Central Act or the Central Rules which are not inconsistent

with or repugnant to the provisions of the Act.

It is not disputed that the Prevention of Food Adulteration Rules, 1955 (Central Rules) do not prescribe any standard for buffalo's or cow's milk

in so far as 'the State of Jammu and Kashmir is concerned. The State Rules i. e. Jammu and Kashmir Prevention of Food Adulteration Rules,

1963. which were published vide SRO 77 of 1963, however, prescribe the standards for buffalo's milk as well as for cow's milk. Since, the said

standard prescribed under the State Rules is not inconsistent or repugnant to the provisions of the Central Act and has not been altered, amended

or repealed by the Central Rules, the standard laid down in the State Rules would continue to b? applicable. If the contentions of Mr. Kapoor

were to be accepted then it would imply that milk, be it cow's milk or buffalo's mlik, can be sold in the Jammu and Kashmir State adulterated t0

any extent with impunity. That position certainly cannot be countenanced as that interpretation would defeat the very object of the Act itself.

The judgment relied upon by Mr. Kapoor in Ram Sanehi's case 1977 2 FAC 129 (supra) undoubtedly, supports his stand. The learned single

Judge of the Allahabad High Court in that case has opined that by virtue of Sub-section (2) of Section 75 of the Prevention of Food Adulteration

Act, 1954, the provisions of U, P. Pure Food Rules, 1952 were retained only till they were altered, amended or repealed and that by the coming

into force of the prevention of Food Adulteration Rules, 1955, the U. P. Pure Food Rules, 1952 stood repealed. With respect to the learned single

Judge I find myself unable to agree with the conclusions given by the learned Judge. The learned Judge did not take into account the ambit and

scope of the expression ""except where and so far as they are inconsistent with or repugnant to the provisions of this Act continue in force,"" while

giving the judgment. A similar point was raised again in the Allahabad High Court and a Division Bench of that court in Shobhey's case 1977 1

FAC 246 (supra) very clearly laid down that the saving Clause (Sub-section (2) of Section 25 is very explicit in its expression that the provisions

of law with regard to the food adulteration as have existed prior to the commencement of the Act of 1954. would remain unaffected if they were

not inconsistent with or repugnant to the provisions of this Act. The Division Bench overruled a judgment of the single Judge which has taken the

same view as was expressed in Ram Sanehi's case (supra). Thus, the judgment in Ram Sanehi's case (supra) was not considered as good law any

longer by that very court itself, I am in respectful agreement with the law laid down by the Division Bench in Shobhey's case (supra). In The State

Vs. Raja Ram Ram Saran and Another, and Himirika Lokanath and Others Vs. The State, , the learned Judges of the Punjab High Court also

categorically and in unambiguous terms laid down that where the rules framed under the Act, 1954, do not lay down any standard for a particular

article of food, then the relevant part of the existing rules in the State of Punjab which prescribe standard for that article of food, would continue to

apply in the State even after the coming into force of the Central Rules. Thus, the view which I have taken above, finds ample support from the

Division Benches of the Punjab High Court as noticed above. I, therefore, do not find any force in the argument of Mr. Kapoor that the

prosecution of the petitioner, in the facts and circumstances of the case, cannot be allowed to continue. I hold that even after the coming into force

of the Central Rules in the State of Jammu and Kashmir w. e. from 10-10-1972, the provisions of the State Rules of 1963 would continue to apply

in respect of the matter for which the Central Rules do not make any provisions, provided that the relevant provisions of the State Rules are not

inconsistent with or repugnant to the provisions of the Central Act or the Rules framed thereunder and in that view of the matter violation of the

provisions of the State Rules in regard to the standards prescribed therein for cow's milk and buffalo's milk would be punishable u/s 7 16 of the

Central Act, However, nothing said herein-above shall be taken as any expression of opinion on the merits of the case, it shall be for the trial court

to find out whether or not the petitioner is guilty in law.

For all what has been said above, this revision petition fails and is dismissed as such. The parties, through the learned Counsel, are directed to

appear before the trial court on 3rd October, 1981.