1999 PLP 1443 (CLC)

5. Mr. Zahid Hamid, Advocate while summing up the 'arguments submitted that the letter was in direct conflict with the law and rules. He added that India the field is covered by The Prevention of Foods Adulteration Act, 1954 and Prevention of Food Adulteration Rules, 1955 framed thereunder. The same are para meteria to our Ordinance and Rules. He particularly referred to section 2(1‑a & m) read with section 7 and Rule 5 to argue that the counterpart of the respondent No‑5 is using the words "Frozen Desert" only for the reason that its product is not covered by the definition of ice cream. It was explained with reference to page 9 of the written statement that licensing policy in India has been changed w.e.f. 3‑4‑1997 but still the product prepared with vegetable fat is sold as Frozen Desert, therefore, the argument that it was being sold as Frozen Desert on account of licensing policy was a false pretext. The correct position is that since it is not covered by the definition of ice cream as given in the Indian law and rules, therefore, the respondent is not using the word ice cream. It was argued that it is clear case of public deception and respondents Nos.4 and 5 were guilty of adulteration because an ice cream which is not manufactured in accordance with the definition in para. 19 of Appendix II would be covered by the definition of adulteration, therefore, the respondents are liable to be proceeded under Rule 23 of Rules, 1965. It was argued that the countries all over the world are very careful while granting permission to brand different products in order to avoid confusion leading to deception of citizen. He in this behalf also referred to Rules 25 pertaining to vegetable oils. It was argued that the letter, Annexure "B", was not addressed to the petitioner. It came to know of the same later on. It proceeded to make representations appended with the writ petition but respondents Nos. l to 3 did not have the courtesy even to send a reply to the same, therefore, there was no question of laches, estoppel, acquiescence and waiver. It was argued that the order being void, therefore, the same could be challenged any moment by anybody. In this behalf reliance was placed on Pakistan Post Office v. Settlement Commissioner and others 1987 SCMR 1119, Province of Punjab through Secretary, Irrigation and Power Department, Lahore v. Deputy Settlement Commissioner, Lahore and others 1991 SCMR 1592, Ardeshir Cowasjee v. Multiline Associate PLD 1993 Kar.

237. It was argued that such type of departmental instructions, letters and memos. cannot take place the properly framed rules, moreso when they run counter to the law and rules on the point. It was added that .the judgment referred to by the learned counsel for respondents Nos.4 and 5 in this behalf are not at all relevant to the present controversy. Learned counsel in this behalf has referred to Government of West Pakistan through Secretary Irrigation, Communication and Works Department, Lahore v. Nasir M. Khan and others PLD 1965 SC 106, Muhammad Riaz Akhtar v. Sub‑Registrar and 7 others PLD 1996 Lah. 180, Ardeshir Cowasjee (supra) and Ahmad Saeed Awan v. Muhammad Shafi and others 1989 ALD

99. It was argued that all concerned including respondents Nos.l to 3 were fully conscious of the fact that until and unless definition of ice cream was changed a product not prepared in accordance with the definition could not be manufactured, marketed and sold to public as ice cream. In order to overcome this difficulty temporarily letter Annexure "B" was issued, which was at no stage was treated as final. In this behalf he has referred to Annexures "H" and "I" with the petition. It was argued that the allegations that the petition is mala fide are false on the face of it. It was argued that the statement prepared: by respondents Nos.4 and 5 to show that the sale of the petitioner has decreased is falsified by the official documents as to the payment of excise duty etc. The same would prove that the sale of the petitioner had increased with the passage of time. In this behalf a certificate has been placed on record. It was argued that there was no merit in the preliminary objections pertaining to laches, estoppel, acquiescence, locus standi, locus poenitentiae and conduct of the petitioner. The letter being only an interim arrangement, therefore, the respondents installed the plant and started the same with open?? eyes. They are guilty of deceiving public and by printing non‑dairy ice cream at an irrelevant and that too in a very small and hardly eligible print. This amounted to robbing the people especially the children, who are the main consumers. This was no safeguard against deception because of a low literacy rate in the country. It was added that the allegation that the ice cream of the petitioner is full of bacteria is false on the face of it as at no time any official agency has given any such report. It was added that the Nation is spending huge amount on foreign currency on the import of vegetable oils, which are used by the respondent No.4 for manufacturing of vegetable fat. On the other hand, milk fat is dairy product, which is available from the domestic sources. Moreover, 'milk fat has more nutrition value, therefore, best suited for the health especially for children, who were main consumers of the ice cream. It was added that the vegetable fat is not good for the children, both from food and health point of view. It was added that 9 cash memos. for purchase of vegetable fat have been mala fide multiplied into 108 documents. The purpose was just to prejudice the Court: It was explained that this vegetable fat was purchased only for four months during 1990 for the preparation of Chocolate products and not for the use in the ice cream as alleged. The petitioner has a quality control system in the factory to jealousy guarded quality. It was argued that throughout the world the ice cream is understood as milk product. In this behalf he has referred to book Ice Cream third Edition by W.S. Arbuckle printed in United States of America. In the end it was argued that the writ is liable to be accepted even on the basis of the arguments of the learned counsel for respondents Nos.4 and 5 to the effect that the product of his client is not covered by the rules which should be either included in the vegetable oil categorically or fruits and vegetable as it is not milk candid product.

6. Kh. Saeed‑uz‑Zafar, learned Deputy Attorney‑General appearing on behalf of respondents Nos.2 and 3 argued that the P.S. reconstituted Pakistan Standards and Quality Control Authority Act, 1966 could not start functioning due to the dispute about the appointment of the Chairman, therefore, this issue remained unattended. It was added that this Court is competent to issue any direction. In this behalf reliance was placed on Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341.

7. I have given my anxious consideration to the arguments and gone through the record, relevant provisions of Pure Food Ordinance and Rules framed thereunder as well as the precedent relied on behalf of the parties. I would first to deal with the preliminary objections raised on behalf of respondents Nos.4 and 5 as to the competency of the writ petition and conduct of the petitioner. The first objection was that the petition suffered from laches, therefore, liable to be dismissed. The other objection was that the petitioner was estopped by its conduct and the petition was bad for waives 1 acquiescence. In the same series preliminary objection to the effect that the petitioner has lost locus poenitentiae was raised. The objections are without any merit for the reasons that the petitioner at no stage made any representation whereby the respondents Nos.4 and 5 were prompted to start their business of manufacturing of ice cream. Secondly, the impugned letter was issued by respondent No.2 copy thereof was not endorsed to the petitioner, therefore, it would naturally not come to know of this letter immediately. Thirdly, letter as is clear from paras. 1 and 2 reproduced above, made only an interim arrangement, therefore, when it was realised that respondents Nos.l to 3 have no intention to make permanent arrangement then the writ petition was filed. Fourthly, the petitioner made representations to the concerned officials and departments but nobody had the A courtesy to reply to the same. This is covered by probono publico litigation and anybody could have sought direction to respondents Nos. l to 3 to perform their duties under the Ordinance, 1960 and Rules, 1965. Fifthly, the order being void could be challenged any moment. The question of estoppel, waiver and acquiescence would not' arise. Lastly, statutory rules cannot be modified, supplemented or amended by administrative instructions, letters or circulars. IC Moreover, with corruption wide spread it would be against public interest, suicidal and detriment of the rights of citizen to arm the bureaucracy with such powers. Reference in this behalf can be made to the case of Muhammad Riaz Akhtar (supra). In laches, waiver, estoppel and acquiescence all the dictates of justice, equity and balance of legitimate rights are to be considered. The same cannot be equated with statutory bar of limitation. In this behalf reference can be made to the case of Province of Punjab (supra). Strictly speaking these preliminary objections were misconceived and irrelevant.

8. Learned counsel for respondents Nos.4 and 5, as noted above, on merits argued that the product of his clients could not be adjudged on the standard fixed in para. 19 of the Rules, 1965 as the same deals with the milk and milk products. The product of his clients are, therefore, to be categorized either in the vegetable or fruits or in some other part of the Appendix II. On the other hand, the grievance of the petitioner was that since the products of respondents Nos.4 and 5 were not in accordance with the formula or recipe or definition contained in para. 19 of the Rules, 1965, therefore, the same could not be legally marketed as ice cream. In order to properly appreciate the controversy we have to refer to para. 19 of Appendix II of Rules, 1965 which reads as under:‑‑

"

19. Ice Cream Fruit Ice Cream Malai‑ki‑Baraf, Khoa‑ki‑Baraf,Malai‑ki-?Kulfi, Khoa‑ki‑Kulfi, means the pure cream frozen product made from a combination of milk or cream or other milk products, with or without eggs, but with water, sugar and harmless flavouring and harmless colouring, and with or without added stabiliser, and with or without fruit, fruit juices, nuts, coffee, cocoa or chocolate syrup, cakes of confections. Ice cream by whatever name it is called, shall contain not less than 10.00 per cent by weight of milk fat, not less than 36 per cent. of total solids and not more than 0.5 per cent. of stabiliser. Provided that when the ice cream contains fruits or nuts or both, the contents milk fat may be reduced proportionately but not less than 8.00 per cent. of milk fat. Provided further that ice cream shall not weigh less than 4.5 Ibs. net per gallon." Only the products which are in accordance with the above definition could be marketed and sold as ice cream and none else. The other relevant provision is definition of adulterated Food' as contained in section 1(1) and (vi) of Ordinance, 1960. The relevant part of which reads as under:‑‑ "2(1 )adulterated food "means an article of food‑‑ (i)

. (ii)

(iii)?

(iv).

(v)

(vi) the quality or purity of which does not conform to the prescribed standard, or (vii)

The other relevant provision is section 6 of Ordinance, 1960 which also reads as under:‑‑ "

6. Prohibition of sale or manufacture for sale of food which is adulterated or misbranded or not of the nature substance or quality demanded.‑?(1) No person shall directly, or indirectly, himself or by any other person, prepare. manufacture, keep or store for sale, or sell or offer to sell any food‑.. (a) which is adulterated‑ (b) which is misbrand; (c) which is not of the nature, substance or quality demanded, or which it purports or in represented to be; (d) for the sale of which a licence is required otherwise than' in accordance with the conditions of the licence; (e) in contravention of any other provision of this Ordinance or the rules. (2) No person shall directly or indirectly, himself or by any other person, manufacture, sell, offer to sell, keep or store for sale any food notified in this behalf by Government, unless it is coloured in the manner prescribed. (3) Government may, by notification in the Official Gazette, prohibit or regulate the keeping, in any factory or wholesale business premises in which such articles of food as are specified in the notification are manufactured or stored, or any substances likely to be used as adulterants so as specified."

9. Now when the act of manufacturing and sale of the product of respondents Nos.4 and 5 containing vegetable fat is examined in the light of the above provisions then the said respondents are prima facie guilty of offence of? adulteration while the respondents Nos.l to 3 have failed to take action against them under law, therefore, guilty of dereliction of their statutory duty. In the circumstances the petitioner was constrained to file this Constitutional petition.

10. The admitted position is that respondents Nos.4. and 5 are not manufacturing most of their products to accordance with the above description The justification rendered is that they are permitted by letter, dated 17‑9‑1992 therefore, next question for examination would be what is the legal status of this letter and before examining the legal position it is worthwhile to refer to the letter. The relevant portion reads as under:‑‑ "The Government of the Punjab, Health Department, concurs as an interim arrangement, the use of vegetable fat in the ice cream with the below given conditions:‑‑ (1) Ice cream with vegetable fat shall be labelled and sold under the name non‑dairy ice cream'. The words 'Non‑dairy' shall be conspicuously prefixed with the word 'Ice cream'. (2) Non‑dairy ice cream shall not be prepared in combination with vegetable fat and milk fat. Both types of ice cream i.e. Dairy Ice Cream and non‑dairy ice cream will be manufactured separately and labelled accordingly." It is clear from the tenure of the letter that the same was introduced just as stop gap measure because all concerned were fully conscious of the fact that any preparation or product not in accordance with para. 19 of Appendix II of Rules, 1965 could not be manufactured and marketed as ice cream under the existing rules. The letter being in direct conflict with the law and rules therefore, is void. The respondents Nos. l to 3 are fully conscious of the fact that any preparation not in accordance with para. 19 cannot be sold as ice cream without the change of the above definition but they did not take effective steps probably for the reasons that according to international standard it was not possible to call products of respondents Nos.4 and 5 prepared with vegetable fat as ice cream. It may be clarified here that preparation of respondents Nos.4 and 5 in accordance with para. 19 are not in dispute in this writ petition. It is difficult to subscribe to the argument that the such letters and departmental instructions have the force of statutory rules mainly for the reason of wide spread corruption in the administration. Where now the honesty is an exception. The purpose of the law would be defeated by administrative instructions and orders as it has been done in the present case. Such a general rule, therefore, would rock the foundation of the Society completely. It is matter of common knowledge that it is not difficult to manoeuvre such type of letters. Moreover, the Bureaucracy would be too happy to usurp legislative powers. In fact this was no solution of the problem. The respondents were not conscious of the fact that the general rule is that different products should be packed, labelled and marketed in a manner that ordinary person is not misled and deceived by identity, name wrapper and packing. He should clearly understand what he was purchasing. In this behalf reference can be made to Rule 35 which defines "Banaspati" and the use of Ghee has not been permitted alongwith the word "Banaspati". Similarly the product prepared with vegetable fat should not be permitted to be branded as ice cream. Such a rule is need of the time because' otherwise people would continue to be deceived.

11. It is noteworthy that respondents Nos.4 and 5 did not even label, pack and market their products in accordance with the letter, dated 17‑9‑1992 and particularly in accordance with para. 1 of letter produced above, which clearly provided that the word "non‑dairy" shall be at conspicuously prefixed with the word "ice cream". It is a matter of great regret that the respondents Nos. l to 3 failed to take notice that respondents Nos.4 and 5 were not even adhering to this letter. They have written the word "non‑dairy" in a very small print and that too at an irrelevant place namely under the heading "ingredients". The deception is manifest from Annexures "Q" and "R", which are the huge sign boards of the respondents fixed at public places. This misconduct is very serious. The word "non‑dairy" is missing and most disgusting fact is that one cannot expect multi?national companies indulging in such deceptive and illegal actions.

12. The preparation of ice cream with vegetable fat is an offence under, sections 6 and 8 read with section 23 of Ordinance, 1960. The local authorities as well as respondents Nos. l to 3 have failed to discharge their statutory duty under the Ordinance, 1960. The learned Additional Advocate‑General after obtaining instructions could not refer to even a single occasion when the samples of the products sold by the petitioner and respondents Nos.4 and 5 were taken and sent to the analyst. Are these companies scared cows? Whether they are exempt from the provisions of Ordinance, 1960 and Rules, 1965? If the answer is in negative, then it is everybody's guess as to why the State functionaries failed to have a close check on the quality of these products. This observation was deemed necessary because learned counsel for respondents ‑Nos.4 and 5 argued that the product of .the petitioner was full of bacteria and at one time it was also guilty of adulteration as the ice cream of it was prepared with vegetable fat while on the other hand the case of the petitioner is that the product of respondents Nos.4 and 5 prepared with vegetable fat cannot be manufactured marketed and sold as ice‑cream as it amounted to selling of adulterated product which is an offence under Ordinance, 1960 and Rules, 1965.

13. It has been observed that the two types of products must have different names quite distinguishable for the reasons that the literacy rate in the country is very low and the main consumer of these products are the children, therefore, the word "ice cream" not prepared as per para. 19 above should not be allowed to be used for any product. The respondent No.3 should take stock of the situation. At the moment it has failed to name preparation with vegetable fat in spite of the fact that this is not unique situation in Pakistan. The other countries have overcome this difficulty. The possibility of synthetic fat coming into existing in near future cannot be overruled, therefore, respondent No.3 should plan today to cater for all the situations. When the margarine is not being allowed to be sold as vegetable butter or "Banaspati" as vegetable Ghee then why ice cream prepared with vegetable fat should be allowed to be marketed non‑dairy ice cream. The rationale seems to be that since butter and Ghee are the common items and used by all, therefore, the Legislature in its own wisdom has taken all care to exclude the possibility of deception or confusion. The ice cream is also from the same category of the products in which some rather more care should be taken because the main consumer are the children.

14. Now coming to the main argument that due to, this letter the respondents Nos.4 and 5 were induced to make huge investment. Suffice, it is to record here that the letter itself made it clear that it was only an interim arrangement, therefore, whatever the respondents invested was with open eyes. This is no legal ground to permit illegal production and sale by respondents Nos.4 and 5 of their products which do not conform to the standard laid down in Rules, 1965.

15. The upshot of this discussion is that the letter, dated 17‑9‑1992 is declared ultra vires and illegal by accepting this writ petition with costs. The result is that respondent No.l is directed to ensure that the products of respondents Nos.4 and 5 which are not prepared in accordance with para. 19 of Appendix II of Rules, 1965 should not be allowed to be manufactured, marketed and sold as per provisions of section 6 of Ordinance, 1960. The respondents No. l also to ensure that the ice creams sold in the market are manufactured and marketed strictly in accordance with its definition and in a most hygienic conditions. Q.M.H./M.A.K./Y‑12/L????????????????????????????????????????????????????????????????????????????????? Petition allowed.