Aftab H. Saikia, J.@mdashWhether the "Melt number" given in an article of food namely Ghee can be accepted as ''distinguishing prefix'' within the definition of ''distinguishing prefix'' instead of "Batch number", "Lot number" or "Code number" as has been mandated in Rule 32(e) of the Prevention of Food Adulteration Rules, 1955 (for short, ''the Rules'') framed under the Prevention of Food Adulteration Act, 1954 (for short, ''the Act'') is the basic issue needs to be answered in the instant criminal revision under reference Rule 32(e) reads as under:
32(e) A distinctive batch number or lot number or code number either in numerical or alphabets or in combination, the numerical or alphabets or their combination, representing the batch number or lot number or code number being preceded by the words "Batch No" or "Batch" or "Lot No" or "Lot" or any distinguishing prefix:
Provided that in case of canned food, the batch number may be given at the bottom, or on the lid of the container, but the words "Batch No" given at the bottom or on the lid shall appear on the body of the container.
2. The present criminal revision has been placed before this Division Bench in terms of the order dated 27.6.2006 and 19.9.2007 of the Hon''ble the Chief Justice as the learned Single Judge while entertaining the criminal revision at hand held that if an article of food namely Ghee contained only Melt number, it would not be a distinguishing prefix in lieu of words "Batch No" or "Batch" or "Lot No" or "Lot" or any distinguishing prefix come within the purview of Rule 32(e) of the Rules. Such finding was in apparent conflict with and different from the law laid down in the case of Deepak Sharma Tamuli and Anr. v. State of Assam rendered in Criminal Revision No. 134/2000 disposed of on 2.9.2004 reported in 2006 Supp. (1) GLT 699, by a Single Bench of this Court wherein it was held that Melt number given in the sample would come under the definition of ''distinguishing prefix'' for which the sample in question i.e. Ghee Milk Food could not be termed to be misbranded under Rule 32(e) of the Rules. Under such circumstances, the learned Single Judge entertaining the instant revision petition felt that in the interest of justice the matter needed to be referred to a larger Bench for examination and consideration of the matter in its entirety and decision thereof.
3. The factual matrix in short compass necessary to answer the issue referred to herein may be projected. The Food Inspector (Senior) Kamrup, Nalbari-Barpeta District with Head quarter with Guwahati on 7.7.99 collected a sample of Ghee, sold under the brand name of ''Milk Food'', manufactured by M/s Milk Food Ltd., from the shop premises of the Petitioner No. 2 who kept the said good for human consumption. The said sample (sealed tin) in its Label contained the following information:
Milk Food
Pure Ghee
500g Net 0.56 Litre
Government of India
C.A. No. A.O. 20037
Agmark
Regd. Office & Factory
Milk Food Limited
Bahadurgarh-147021
Patiala, Punjab
Melt 030
Date of Mgf. 08 Apr. 99.
4. One of the samples so collected was sent to Public Analyst, Guwahati who in turn submitted its report on 11.8.99 opining that the sample of Ghee was misbranded as per Rule 32(e) of the Rules. On the basis of the report of the Public Analyst as noticed above and having received sanction for prosecution, the Food Inspector lodged a complaint for prosecution of the Petitioners u/s 16 read with Section 7of the Act. The Petitioners have challenged their prosecution in the revision at hand for quashment of the entire criminal proceeding in Case No. 3424/99 pending in the Court of Additional Chief Judicial Magistrate, Guwahati.
5. The term ''Misbranded'' is defined u/s 2(ix)(a) to (k) of the Act. Section 2(ix)(k) is reproduced herein below.
2(ix) ''misbranded''--an article of food shall be deemed to be misbranded--
(a)....
(b)....
(k) If it is not labelled in accordance with the requirements of this Act or rules made thereunder.
6. In the instant case, the misbranding is alleged on account of Section 2(ix)(k), because of violation of Rule 32(e) of the Rules as quoted hereinabove.
7. The admitted position in the instant case is that Batch number, Lot number or Code number was not printed in the label. However, only Melt number was mentioned in the label itself as noticed above.
8. In Criminal Revision No. 134/2000 Deepak Sharma Tamuli and Anr. v. State of Assam reported on 2006 1 GLT 699, this Court had taken a view that melt number given in the sample would come within the purview of the definition of "distinguishing prefix" as has been found place in Rule 32(e) of the Rules.
9. However, a Coordinate Bench of this Hon''ble Court while considering instant Criminal Revision came to a conclusion that if a manufacturer of Ghee did not print on the package of Ghee batch number, code number or lot number in terms of the requirement of Rule 32(e) of the Rules, this would amount to contravention of Rule 32(e) of the Rules exposing such manufacturer to prosecution for offence committed under the Act.
10. At this juncture, it would be necessary and appropriate to take note of four sets of Rules, namely, General (Grading and Marketing) Rules, 1937, Ghee (Grading and Marking) Rules, 1938, General (Grading and Marking) Rules, 1988 and General (Grading and Marking) Amendment Rules, 1991.
11. The aforesaid Rules have been framed in exercise of powers conferred by Section 3 of the Agricultural Produce (Grading and Marking) Act, 1937 (for short ''the Act of 1937'').
12. A manufacturer of Ghee or any articles of food may choose to register himself under the Act of 1937 for getting his manufactured articles of food graded and certified as graded articles of food.
13. Under Ghee (Grading and Marking) Rules, 1938 (for short, ''the Ghee Rules'') it has been provided under Rule 5(1C) that apart from the grade designation mark, each container shall be clearly marked with the following particulars, namely,
(i) Name of Packer,
(ii) Place of Packing,
(iii) Melt No.,
(iv) Date of Packing,
(v) Net Weight,
(vi) Sale Price.
14. Schedule (IV) under Rule 7 of the Ghee Rules in Clause (d) provides that a sample from each melt shall be forwarded to such Central Control Laboratory as may be notified from time to time.
15. The General (Grading and Marking) Rules, 1937 has been superceded by the General (Grading and Marketing) Rules, 1988 (for short, "the Rules of 1988") Rule 10 of the Rules of 1988 providing for Grade designation Marks, provides for Agmark labels of different types carrying letter indicating series and number. Rule 11 deals with packing and marking of a graded article. Rule 11(2) of the Rules of 1988 is relevant and the same is quoted herein below:
Rule 11(2)--Every package containing Agmark graded article will in addition to the grade designation mark, carry such details like certificate of authorization, number, lot batch number, date of packing, place of packing, net weight etc. as prescribed for the said article.
16. The Hon''ble Judge while deciding the case of Deepak Sharma Tamuli (supra) had recorded a finding that the Ghee Rules being a special Rule in respect of the item of Ghee, would definitely override the general Rules under Rule 32(e) of the Rules. Referring to Explanation IV to Rule 32(i) of the Rules which reads--
A batch number or code number or lot number is a mark of identification by which the food can be traced in manufacture and identified in distribution.
It was held that the purpose of providing the batch number or lot number etc. was meant to identify the manufacturing process and distribution and hence, the Melt number, required to be given under the Ghee Rules, satisfied the purpose.
17. However, in the instant Criminal Revision No. 100/2000, the Hon''ble Judge has taken the view that it would be incorrect to hold that the Ghee Rules overrides the General Rules under Rule 32(e) of the Rules and the Melt number cannot be described as a distinguishing prefix in respect of lot number, batch number or code number.
18. As regards question of overriding the provision of Rule 32(e) of the Rules by the Ghee Rules, having considered the observation made in Deepak Sharma Tamuli''s case and taking note of the reasons recorded in Criminal Revision No. 100/2000, we are of the considered opinion that perhaps, it would be stretching too far to say that Ghee Rules overrides the provisions of the Rules.
19. The other aspect of the matter is whether Melt number can be construed to come within the ambit of ''any distinguishing prefix'' as appearing in Rule 32(e) of the Rules. Explanation (IV) to Rule 32(i) of the Rules'' as has been extracted above, provides that a Batch Number of Code Number or Lot Number is mark of identification by which the food can be traced in manufacture and identified in distribution. Clause (d) of Schedule IV of Ghee Rules would perhaps go to show that Melt number is sufficient to enable anyone to trace the Ghee in the manufacturing process or identify the same in the distribution. Even if that be so, unless Rule 32(e) of the Rules is complied with, the same cannot, perhaps, be taken as defence and for contravention of Rule 32(e) of the Rules, penal consequences would automatically follow.
20. We are of the view that the accused Petitioners would be entitled to relief, only if it is established that Melt number comes within the fold of the term ''any distinguishing prefix'' as finding place in Rule 32(e) of the Rules.
21. The language employed in Rule 32(e) of the Rules would indicate that (i) there is an enumeration of specific words like Batch No. or Batch or Lot No. or Lot; (ii) the subject of the enumeration constitute a class or category; (iii) the class or category is not exhausted by the enumeration; (iv) the General term, namely ''any distinguishing prefix'' follows the enumeration. There is no indication of a different legislative intent in the other provisions of the Rules. In view of the aforesaid position, the rule of ejusdem generis, in our considered opinion, would apply. The basic tenet of the rule of ejusdem generis is that general words are to be construed as limited to things of the same kind as those specified.
22. At paragraph 30 of the judgment in the Criminal Revision No. 100/2000, it has been held that--applying the principles of ejusdem generis, it is clear that the distinguishing prefix shall be restricted to mean that it has to be a prefix meant to signify the Batch number, Lot number or Code number. The Melt number can, in no case, be said to signify the Batch number, Lot number or Code number and hence, it cannot be said that Melt number, in itself is a distinguishing prefix for the purpose of Rule 32(e) of the Rules.
23. In our opinion, with all respect, perhaps, the same is not a correct proposition. Having regard to the purpose for which Melt number is given and the same being in tune with the purpose for which Batch number, Lot number, etc. are to be printed in a label as well as bearing in mind the relevant provisions of the Ghee Rules as discussed above, we are of the firm view that Melt number is of the same kind as that of Batch number, Lot number being ''any distinguishing prefix''. Consequently we are in full agreement with the view taken in the case of Deepak Sharma Tamuli.
24. In view of what has been stated, discussed and observed, we hold that Melt number is also ''any distinguishing prefix'' in addition to Batch number, Lot number etc.
25. The reference is answered accordingly.
26. Before parting with the judgment, we would like to put on record our appreciation to Mr. A.K. Goswami, the learned Sr. Counsel who has been appointed as Amicus Curiae for his valuable assistance in arriving at the above conclusion.
