MESSRS R B MILLS PRIVATE LTD Vs. SECRETARY TO THE GOVT OF ASSAM HEALTH DEPARTMENT, SHILLONG AND OTHERS
LAWS(GAU)-1973-8-2
HIGH COURT OF GAUHATI
Decided on August 23,1973

Messrs R B Mills Private Ltd Appellant
VERSUS
Secretary To The Govt Of Assam Health Department, Shillong Respondents

JUDGEMENT

GOSWAMI .J. - (1.) THIS application under Article 226 of the Constitution of India Is filed with a prayer for striking down Rule 44 -A of the Prevention of Food Adulteration Rules, 1955 (Central Rules), hereinafter referred to as 'the Rules', and for quashing the notification of the State Government No. MPH. 332/61/152 dated 10.3.1966. which has been made in - pursuance of Rule 44 -A of the Rules with regard to "khesari gram".
(2.) THE petitioner No. 2 is the Accountant of Messrs,. R. B. Mills Private Limited. Barpeta Road (Petitioner No. 1} and he along with the Managing Director of the said firm were prosecuted before the Sub -Divisional Magistrate (Judicial), Banpeta. in Case No. 343 -C of 1973 under Section 16 of the Prevention of Food Adulteration Act read with Rule 44 -A of the Rules. The petitioners aver in paragraph 13 of the application as follows : "That it is most respectfully submitted that the particular gram, namely. Khesari gram is mainly used not only by the poor class of the society, but is one of the most important fodder for cattle. Your petitioners are Hindu by religion and are filing this application as persons belonging to the Hindu religion. Your petitioners belong to Hindu community who worship cattle and maintain them and if by virtue of the said Rule 44 -A and/or the impugned Notification of the State Government of Assam, the possession or sale for all practical purposes if prohibited, it has 'been done on the face of it, the same is violative of the fundamental right of the petitioners guaranteed under Article 19(f)(g) of the Constitution, inasmuch as it affects his or their fundamental right to acquire, hold and dispose of such gram and to deal and/or carry on with the trade or 'business in the said gram in question. Your petitioners further submit that the total prohibition and/or prevention imposed by Rule 44 -A as aforesaid, as also the Notification is violative of Articles 25 and 26 of the Constitution of India inasmuch as the said prohibition directly interferes with the profession, practice and propagation of religion and the management of the petitioners in their own affairs in respect of their religion." When the case was called for hearing Mr. Lahiri. the learned Counsel for the petitioners, has not challenged the vires of Rule 44 -A nor its constitutionality as violative of any provisions of the Constitution. He however, confines his argument to the notification of the State Government made in pursuance of Rule 44 -A which we may assume to be valid for the purpose of this application. We may, therefore, set out the notification : "In pursuance of Rule 44 -A of the Prevention of Food Adulteration Rules. 1955 (Central Rules), the Governor of Assain is pleased to ban cultivation of Kesari gram and possession and sale of Khesari gram. Khesari dial. Khesari dal flour, and a mixture of Khesari gram and dal and their products throughout the entire State of Assam with effect from 1st April, 1966." Since the notification is made in pursuance of Rule 44 -A. that rule may be also quoted : 44 -A. No person in any State shall, with effect from such date as the State Government concerned may by notification in the official Gazette, specify in this behalf, sell or offer or expose for sale, or have in his possession for the purpose of sale, under any description or for use as an ingredient in the preparation of any article of food intended for sale : - (a) Kesari gram (Lathyrus Sativus) and its products. (b) Kesari dal (Lathyrus sativus) and its products. (c) Kesari dal flour (Lathyrus Sativus) and its products. (d) a mixture of Kesari gram (Lathy -rus Sativus) and Bengal gram (Cicer Arietinum) or any other gram. (e) a mixture of Kesari dal (Lathyrus Sativus) flour and Bengal gram dal Cicer Arietinum) or any other dal. (f) a mixture of Kesari dal (Lathyrus Sativus) flour and Bengal gram (Cicer Arietinum) flour or any other flour. X X X X X". Rule 44 -A prohibits selling or offering or exposing for sale or having in one's possession for the purpose of sale under any description or having for use as an ingredient in the preparation of any article of food intended for sale of Khesari gram, etc., mentioned in clauses (a) to (f) of that rule. The Explanation to that rule has given the equivalents of kesari gram in some of the Indian languages.'If any person violates Rule 44 -A. he will be punishable under Section 16 read with the rule or Section 7 of the Prevention of Food Adulteration Act as the case maybe. The impugned notification of the State Government cannot add to the offences which are already mentioned in the Act and those read with the Rules. Rule 44 -A authorises the State Government to appoint a particular date for enforcement of Rule 44 -A in the State. Beyond this Rule 44 -A does not authorise the State Government to make any other rule banning cultivation of Khesari gram or creating some offences which are not already known to the Act and the Rules. This notification is. therefore, not in conformity with Rule 44 -A and no offence will be committed by any person if any terms of this notification are violated when there is no violation of the provisions of the Act and/ or the Rules. That would, however, not vitiate the notification to enable us to strike it down wholly as ultra vires Rule 44 -A. It is clear from the aforesaid notification that Rule 44 -A has been enforced by the Governor with effect from 1.4.1966 and by the notification that purpose is achieved by the State Government. It is, therefore, not necessary to strike down this notification since we have explained the entire purpose behind the notification which is to enforce Rule 44 -A in the State of Assam. As we have already observed, there will be no offence committed for violation of any terms mentioned in the notification which will only be utilised to show that Rule 44 -A has been enforced and any violation of Rule 44 -A with effect from 1.4.1966 will be an offence in the State of Assam.
(3.) IN the result, the application is dismissed in the light of the observations made hereinabove and the Rule 1 discharged. We will, however, make no order as to costs.;


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