O.N. Vohra, J.
(1) Brief facts leading to this appeal against acquittal are these. On July 9, 1970 at 7.30 a.m. Food Inspector 0. P. Khurana purchased 660 millilitres cow's milk on payment of 75 P. from Sunder Dass, hereinafter referred to as the respondent. who was carrying on Halwai shop at 1150, Teliwara Chowk, Kishan Ganj, Delhi. This was dene after disclosing the identity and intimating the respondent that the purchase was for the purpose of analysis. The Public Analyst to whom one of the three samples, which were prepared in. conformity with the provisions of the Prevention of Food Adulteration Act. 1954. hereinafter referred to as the Act. and the Prevention of Food Adulteration Rules. 1955. hereinafter referred to as the Rules, was delivered on the same date for analysis. found that milk fat was 3.8 per cent and milk solids not fat 8.713 per cent against minimum of 3.5 per cent and 8.5 per cent respectively, as prescribed by Rule A. 11.01.11 of Appendix B of the Rules which lays down the standard for cow's milk. He further found presence of cane sugar (sucrose) to the extent of O.817 ..per cent. Accordingly, he declared that the sample was adulterated. On receipt of the report, complaint under Section 16 read with Section 7 of the Act was filed by Delhi Municipal Corporation through its Assistant Municipal Prosecutor, Shri R. N. Gujral, alleging adulteration. Miss S. Saini, Judicial Magistrate 1st Class, Delhi, framed the following charge on October 5, 1970 :
"THATyou on 9th July, 1970 at about 7.30 a.m. were selling cow's milk at your shop No. 1150, Teliwara Chowk, Kishan. Ganj, Delhi when, a sample thereof was purchased from you by Shri O. P. Khurana, Food Inspector, and which on analysis was found to be adulterated, and thereby committed an offence punishable u/s 7/16 of the Prevention of Food Adulteration Act of 1954............".
(2) During the trial the respondent took the stand that the cow's milk which he was selling was not adulterated and the sample that was lifted conformed to the standard prescribed for cow's milk. He further took the stand that sugar had been added in order to save the milk from early decomposition. In' defense, two witnesses were examined. Ram Sarup Khurana (DWI), who claimed to be doing dairy business for twenty years, stated that milk de-composes early in summer and in order to prolong the life by about three hours 25 grams of cane sugar is added to milk in a can containing 20 litres of milk or so. S. Ray, ex-Public Analyst, Municipal Corporation of Delhi, examined as DW2 stated on the basis of his experience of about 34 years in the matter of analysis of food articles that addition of I per cent cane sugar to raw milk before it actually starts curdling extends the life. In cross-examination and again in re-examination he made it clear that addition of cane sugar to milk would not add to n,on fat solids of milk in as much as according to the standard it is milk fat and milk solids non-fats which are reckoned and that separate test for cane sugar (which is a different solid) is performed to detect its presence.
(3) Shri S. P. Sabharwal, Judicial Magistrate 1st Class, Delhi took the view that the sample of milk sold by the respondent was adulterated within the meaning of Section, 2(i)(a) of the Act as what had been sold was not of "the nature, substance or quality" demanded by the purchaser and was to his prejudice or was not of "the nature, substance or quality" which it purported or was represented to be The basis for this conclusion was that the milk was contained in a Bhagena which bore the inscription "Gayai Ka Doodh" but what was sold was cow's milk to which sugar had been added and thus the nature, substance or quality of the article of food stood affected. As a result of this finding, the charge against the respondent was held as established and the respondent was convicted under Section 16 read with Section' 7 of the Act and was sentenced to rigorous imprisonment for six months and a fine of Rs. l,000.00 and, in default of payment of fine, further rigorous imprisonment for three months on the view that the case was not covered by the proviso to Section 16(1) of the Act under which sub-minimum sentence could be possible.
(4) Feeling aggrieved by the judgment dated January 21, 1972 of the trial Court, the respondent went up in appeal which was heard by Shri R. N. Aggarwal, Sessions Judge, Delhi (as he then. was.). The first appellate Court took the view that according to Rule 53 of the Rules, cane sugar was a Class I preservative addition whereof in any food article was not restricted, unless otherwise provided in the Rules and according to clause (1) of Rule 44 no person shall sell milk or milk product specified in Appendix B containing a substance not found in milk, except as provided in' the Rules and, therefore, in .the absence of any Rule which restricted addition of sugar to milk it was not possible to hold that the act of the-respondent amounted to an offence in law. The result was that conviction and sentence of the respondent were set aside and the appeal was allowed vide the impugned judgment dated February 18, 1972.
(5) Shri P. R. Monga, learned counsel for the Municipal Corporation of Delhi, has submitted that it is true that sugar falls under the heading "Class I Preservatives" and its addition, is not restricted to any food "unless otherwise provided in the rules" and, that being so, sugar, though not a substance found in milk, could be added as a preservative, there is certainly violation' of Rule 43 which requires that notice of addition, admixture or deficiency, in an article of food shall be given to a customer. On the other hand, the contention of Shri D. R. Sethi, learned counsel for the respondent, is that Rule 43 falls in Part Vii which bears the caption "Picking and Labelling of Foods" while Rule 53 falls in Part X which bears the caption "Preservatives" and the reading of the various Rules which comprise in these Parts would unmistakably show that Rule 43 is attracted to cases where an article of food is sold in closed packages and not in loose form as was done in, this case by sale in small quantities after taking out the same from an open container. In order to appreciate the respective contentions it would be expedient to reproduce Rule 43. It says : "43. Noticc of addition', admixture or deficiency in food___
(1)Every advertisement an.d every price or trade lists or label for an article of food which contains an addition, admixture or deficiency shall describe the food as containing such addition, admixture or deficiency and shall also specify the nature and quantity of such addition., admixture or deficiency. No such advertisement or price or trade list or label attached to the container of the food shall contain any word which might imply that the food is pure :
(PROVIDED that for the purpose of this rule the following shall not be deemed as an admixture or an addition, namely
(a) salt in butter or margarine ; (b) vitamins in food).
(2)Every package, containing a food which is not pure by reason of any addition, admixture or deficiency shall be labelled with an adhesive label, which shall have the following declaration:
___________________________________________________________________ Declaration This (a) Contains In ADMIXTURE/ADDITION Of Not More Than (b) Per Cent Of l(***) (c) ________________________ 1(***).). ________________________________________ ___________________________
(A)Here insert the name of food. (b) Here insert the quantity of admixture which may be present.
(C)Here insert the name of the admixture or the name of the ingredient which is deficient. Where the context demands it, the words "contains an admixture of shall be replaced by the words 'contains an addition of or 'is deficient in'.
(3)Unless the vendor of a food containing an addition, admixture or deficiency, has reason to believe that the purchaser is able to read and understand the declaratory fabel, be shall give the purchaser, if asked, the information contained in the declaratory label by words of mouth at the time of sale.
(4)Nothing contained in this rule shall be deemed to authorise any person to sell any article of food required under the Act or these rules to be sold in pure condition, otherwise than in its pure condition.
(5)Nothing contained in the rule shall apply in the case of sweets, confectionary, biscuits, bakery products, processed fruits, (aerated waters, vegetables and flavouring agents)."
(6) The word "package" as defined in Section 2(x) means a box, bottle, casket, tin, barrel case, receptacle, sack, bag, wrapper or other thing in which an article of food is placed or packed. This definition is wide enough to take within its sweep an open container like a Bhagona , in our view, it is futile to argue that Rules contained in Part Vii are applicable to such food stuff as is contained in closed packets. The absence of word "closed" or "sealed" is by itself enough to repel such interpretation.
(7) Coming now to the contention of Shri P. R. Monga, the precise argument is that the words "addition, admixture or deficiency'' appearing in Rule 43 are of wide aroplitude and addition of a preservative which is a permitted preservative for a particular article of food remains an addition notice whereof has to be given in every advertisement, price or trade list or label unless the case falls in the provison It is urged that the proviso which creates exemption speaks of salt in butter or margarine and vitamins in food and, therefore, it follows as a necessary logical conclusion that addition of cane sugar to cow's milk is an addition of a foreign substance to cow's milk and would amount to adulteration within the meaning of Section 2(i)(a) of the Act. Reliance has been placed on two judgments of this Court, the first being Criminal Revision No. 453 of 1971, Municipal Corporation of Delhi v. Ganpat Ram, decided by R. N. Aggarwal, J. on November 3 1972 (1972 F.A.C. 736) and the other being Criminal Revision No. 275 of 1974, Madan Gopal v. State, decided by Vyas Dev Misra, J. on February 3, 1976 (1976(1) F.A.C. 73). In the last mentioned case, Vyas Dev Misra, J. dismissed the contention that sugar being a preservative, its addition cannot be said to be an addition or an admixture within the meaning of Rule 43 in these words :
"Iam afraid I cannot accept this contention. Rule 53, which classifies preservatives, itself talks of "addition of Class I Preservatives............". It is thus plain that even when any preservative is added to food, it amounts to an addition or admixture, as the case may be, in terms of rule 43. It is for this reason that an addition, or admixture of salt, which is a Class I Preservative, in butter or margarine had to be specifically exempted from the operation of this rule. Therefore, simply because the word "Pre servative" has not been used in rule 43, it does not follow that whenever preservative is added to any article of food, rule 43 is not attracted."
(8) For proper appreciation and correct determination as to how far this conclusion is correct, it would be expedient to examine certain provisions of the Act. Section 7 which imposes prohibition on manufacture, sale etc. on certain articles of food says :
"7.Prohibition of manufacture, sale etc of certain articles of food No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute
(I)any adulterated food ;
(II)-ANYmisbranded food ;
(III)any article of food for the sale of which a license is prescribed, except in accordance with conditions of the license ;
(IV)any article of food the sale of which is for the time being prohibited by the Food (Health) Authority (in the interest of public health) ;
(v) any article of food in contravention of any other provision of this Act or of any rule made hereunder, (or)
(EXPLANATION.For the purposes of this section, a, person shall be deemed to store any adulterated food or misbranded food or any article of food referred to in clause (iii) or clause (iv) or clause (v) if he stores such food for the manufacture there from of any article of food for sale.)"
(9) When the Section is read in conjunction with Section 16 dealing with penalties, it is manifest that the Act is concerned with enforcing prohibition on sale, storage etc. of adulterated food as well as several other matters including contravention of the provisions of the Rules (here clause (iv)).
(10) Term "adulterant" is defined in Section 2(i) to mean any material which is or could be employed for the purposes of adulteration. In order to know what is an adulterated food, one has to turn to Section 2(ia) which has as many as 13 clauses., The two clauses which are relevant for our purpose are (a) and (k). These are :
"2(IA)"adulterated" an article of food shall be deemed to be adulterated
(A)if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which is purports or is represented to be ;
(K)if the article contains any prohibited preservative or permitted preservative in excess of the prescribed limits."
(11) It is an undisputed fact that all these clauses overlap and a case can possibly fall hinder two or more of these clauses. Accordingly, for proper appreciation as to which of the two clauses (a) and (k) would be relevant, recapitulation of essential facts would be necessary. The first appellate Court found as a fact, and rightly so, on the basis of evidence that was produced, that less than I per cent of cane sugar had been added to raw milk and that this addition was as preservative which has been defined in Rule 52 to mean a substance which when added to food, is capable of inhibiting, retarding or arresting the process of fermentation, acidification or other decomposition of food. According to Rule 53, as described not be article food the and behalf this in notified purchaser that is manddate limits permissible within flavours material coloring preservatives, permitted of addition to refers it Menifestly, prohibited. fact has what approve should etc. label on mentioning by admixture or notifying for provision making legislature inconceivable something It adulterant- refer mean cannot 43(1) Rule mentioned The preservative. thereto added been had sugar container attached mention fails vendor if violation amount does but Act 2(ia) Section under adulteration milk preservative I Clause cane conclusion lead would 53 44(1) 43(1), Rules reading combined a apply, which statute interpretation harmonious rule well-established with accordance Accordingly, therein. given deficiency addition, notice says namely, Rule, another still there conscious are We goes. far so other supplements one side stand can 44 (1) clause contained food, any allows itself Inasmuch stood found substance said perhaps could rules? provided ?except words Had Rules. except milk, containing sale prohibition clause, per As 44. view vative preser (supra) Rai Ganpat case J. Aggarwal, N. R. taken agree inability our express we Equally used contain attract cow?s indication Misra, Dev Vyas unable respect great With adulterant. an called circumstaces these Act. (a) bring quality nature, effect user regard objection no was regarding B. Appendix prescribed standard conform were constituents essential since Analyst Public report purported Inspector, Food purchased whereof sample inasmuch attracted too. (a). limit. excess bad nobody?s apply (k) infraction from distinguished applicable only so, being This otherwise unless restricted Preservative,
(12) Shri D. R. Sethi has relied upon Criminal Revision No. 284 of 1967, Shri Puran Chand v. State (3) decided by Hardayal Hardy, J. as he then was, on August 27, 1969. It w,as a case of sale of cow's milk to the Food Inspector. The report of the Public Analyst revealed that it was sub-standard and thus adulterated. The learned Judge found that fat and milk solids non-fat found by the Public Analyst were in excess of the standard prescribed but it was further reported that the sample contained cane sugar which was a foreign matter. On the view that Rule 53 permitted sugar being added to milk as a preservative, it was held that the vendor had not mentioned word "pure" on the label and, therefore, there was no violation of Rule 56 and thus the complaint did not disclose the commission of any offence by the vendor. We may say with respect that there is Rule 43 of which there can be a violation by sale of cow's milk in the absence of indication that sugar as preservative has been added by indicatoin on the label. This aspect, it appears, was not brought to. the notice of the learned Judge.
(13) For the foregoing reasons, we are of the view that the first appellate Court was right in coming to the conclusion that the charge of adulteration framed against the respondent had not been established although we do not agree with the observation that addition of sugar to milk as a preservative would not amount to an offence in any circumstances.
(14) It is found that in the course of evidence stray questions were put in regard to what else was mentioned on the container besides "Gayai Ka Doodh" and the Food Inspector stated that there was nothing else. We are, however, not prepared to record conviction for violation of the provisions of Rule 43 when no such violation was alleged in the complaint nor any such charge was framed against the respondent. We are further of the view that the retrial of the case with the direction to frame fresh charge before proceeding with denovo trial would work great hardship on the respondent. The incident took place as far back as 1970 and the nature of offence is such that it does not involve deceit or lust for profiteering. We, would, therefore, stop at laying down the correct law in terms that addition of cane sugar to cow's milk in this case was not adulteration within the meaning of Section 2(ia) of the Act and that it could amount to violation of Rule 43 if indication in regard to addition of sugar as preservative had not been given on the label of the container or the price list or that word "pure" was used in addition to "Gayai Ka Doodh" on the container or the label attached thereto. In the circumstances the acquittal recorded by the first appellate Court is not interfered with.