KISHAN CHAND versus DELHI ADMINISTRATION AND ANR.

Citation: [1979] 3 S.C.R. 313 · Decided: 20-02-1979 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Appeal(s) allowed

Judgment (excerpt)

• • 
KISHAN CHAND 
v. 
DELHI ADMiNIStRATION AND ANR. 
'February 20, i 979 
ts. MURTAzA FAZAL ALi AND A. b. kosiiAL, JJ_] 
Prevention of Food Adulteration Rules, 1955- r. 6.i-Scope oi. 
313 
Ruie 60 of the Prevention of Food Adulteration Rules, 1955 defines "emulsi-
fYing a@-ents" and "stabilising agentS" to mean substances which, when added 
tci food, are -capable of facilitating a uniform dispersi6ll of oils and fats 
in 
acqueous medi:i or vice versa nnd/or stabilising such emulsions. One 
of the 
agents mentiorted, among others, 
in the rule is 
brominated 
vegetable oils. 
Rhles 61 (IeClafes that no emulsifying or ·stabilisin~ agents shall be used in 
ahy fMd eicepl Where. they are used as specifically permitted. The proviso to 
the rule state& that certain emutsifyiiig or stabilising agents including bromi-
nateU vegetable oils shall not be used in riiilk arid cream. 
· 
A food inspector visited an Jee-cream factory and collected a sample of 
chocolate ice ct_eam. In the inventory of the samPie prepared, by him it was 
stated that "this is prepared, of covering chocolate, vegetable ghee 
and ice-
cream''. The Public Analyst. to whom the sample was sent for analysis, stated 
that _the salli,J?Ie was adulte~ated "as the butyro-refractometer reading at 40°C 
was fonnd 6.4 in excess and the Baudouin test was found positive 
of the 
extracted fat." 
The factory, its .owner and the employee who sold the ice-cream, 
were 
prosecut1.1d under the .Prevention of Food Adulteration Act. The trial 
court 
acquitted the factory but convicted and sentenced both its 
owner 
and ~e 
-employee. 
i 
On appeal the Additional Sessions Judge acquitted both the accused. 
On furl.her appeal the High Court acquitted the factory owner but convicted 
the employee (appellant before this Court). The High Court pointed out that 
vegetable ghee could not be made to serve as an emulsifying agent because 
r. 61 forbids addition of brominated vegetable oil to milk or cream and without 
milk and/ or cream manufacture of ice-cream wao:i i.nconceivable and that the 
appellruit's stand had been that vegetable ghee had been used and not that any 
brominated vegetable oil got into the ice-cream by way of an emulsifying or 
-stabilising ager,t. 
Allowing tho appeal, 
-. 
HELD : 1 (a) The sample of ice-cream obtained from the appellant was 
not sho'W'.11 to have been adulterated within the meaning of the Act and the 
Rules. [3i6 DJ 
B 
c 
D 
E 
F 
G 
.. 
(b) The prohibition contained in the proviso to r. 61 does not apply to ice-
H 
->< 
cr~arn,.ku!fi and chocolate ice .cream covered by sub-item A.11.02.08, wherein 
iUs clearly stated that these. three milk PJQdui;ts_ J;lllly .con)ain permitted siabi-
A 
B 
c 
D 
314 
SuPREMB COURT REPORTS 
[1979] 3 s.c.tt. 
lisers and emul•ifiers not exceeding 0.5 per eent by weight. Clearly, therefor.,, 
brominated veaetable oils could have formed a part of the chocolate 
ic.,. 
cream to the extent of 0.5 per cent by weight, without the article beini treated 
as adulterated under the rules. What the provioo to r. 61 prohibits is the use of 
certain emulsifying and •tabilising agenta only in milk and one of its products, 
namely, c_rcam and not in other milt products such a malai, dahi, cheese, ice~ 
cream and chocolate ice-cream. Had the intention of the rule been to prohibit 
the u•e ol the said agents in all milk products, the expression would have been 
"shall not be used in milk and milk products" and not "shall not be used in 
milk and cream". [318 C..El 
2. It was for the prosecution to prove affirmatively that the •ample con-
tained an inaredient which made it adulterated and any stand taken by 
the 
accused could hardly be used as evidence, unless its truth wai otherwise esta-
blished. The prosecution had completely failed to prove that the ingredient objec-
ted to by it was a substance other than a brominated vegetable oil or that if 
it was oil of that description, its quantity WM in excess of 0.5% by weight. 
The analy•t's report did not indicate the presence in the sample of brominated 
vegetable oil beyond the prescribed maximum of 0.5 % by wei&ht or of un-
brominated vegetable,~ oils. 
[318G-HJ 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 245 
of 1975. 
Appeal by Special Leave from the Judgment and Order 
dated 
25-3-1975 of the Delhi High Court in Criminal Appeal No. 122/72. 
E 
Harjinder Singh for the Appellant. 
F 
G 
H 
' 
E. C. A.garwala and R. N. Sachthey for Respondent No. 1 
-V. S. Desa

Excerpt shown. Read the full judgment & AI analysis in Lexace.