TMI Blog1964 (11) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... grapes, Spinach, Nilofar, Sandal, Gul Gaozaban, Coriandar, Carrot, Mint, Kulfa, Keora, Rose, Citrus flower, Orange Juice, Pine-apple Juice, Water, Sugar .The formula determining the ratio and proportion in which each one of the ingredients has to be used, has been evolved by appellant No. 1 as a result of various experiments spread over a long period. The manufacture of this Sharbat began in 1920. It is intended to be used for common ailments during hot season, particularly for ailments like loss of appetite, sun stroke, nausea, sleeplessness, etc. This Sharbat Rooh Afza is not a foodstuff, and cannot be regarded as an essential commodity under section 2 of the Essential Commodities Act, 1955 (No. 10 of 1955) (hereinafter called 'the Act'). In substance, this is the case as set out by the appellants in their petition. 3. Purporting to act under section 3 of the Act the Central Government made an Order called the Fruit Products Order, 1955 (hereinafter called 'the Fruit Order') under Notification No. S.R.O. 1052 dated May 3, 1955. Under clause 3 of the Order, respondent No. 4, the Central Fruit Products Advisory Committee, has been constituted. It appears that on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellants' product 'Sharbat Rooh Afza'. The appellants urged that the said Sharbat is not a foodstuff, but a medicinal product and as such, its production cannot be regulated under the provisions of section 3 of the Act. According to them, the said Sharbat was not an essential commodity, nor was it a fruit product' as defined by clause 2(d) of the fruit Order. They also urged that the impugned order was invalid, because it contravened the fundamental rights of the appellants under Art. 19(1)(f) (g) of the Constitution; the Sharbat in question was in fact a medicinal product and as such, the impugned order was inconsistent with clause 16(i)(c) of the Fruit Order. It is on these grounds that the appellants sought relief by way of an appropriate writ or order quashing the impugned order issued against them on May 10, 1957. To this petition, the appellants impleaded the Union of India as respondent No. 1. 6. This petition was resisted by the respondents on several grounds. It was alleged that the Sharbat in question fell within the scope of the Act and the Fruit Order. The respondents referred to the fact that the Hamdard Dawakhana had duly applied and was gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and it falls within the purview of the Fruit Order. The impugned order is not is not unconstitutional, because the restriction imposed by it is consistent with the relevant provisions of the Act and the Fruit Order, and the said provisions are perfectly valid, because they impose a reasonable restriction in the interest of general public. 8. This writ petition came on for final disposal before the Punjab High Court on January 13, 1964. The High Court has rejected the pleas raised by the appellants and dismissed their writ petition. The High Court has held that there was no substance in the appellants' grievance that the Fruit Order was invalid. In support of this conclusion, the High Court has relied upon a decision of this Court in M/s. Amrit Banaspati Co., Ltd. v. The State of Uttar Pradesh (Criminal Appeal No. 141 of 1959 decided on 30-11-1960.). The High Court negatived the appellants' argument that the Sharbat in question was either prepared or sold as a medicinal product. In this connection the High Court has commented on the fact that the label borne by the bottles containing the Sharbat did not show that it was for medicinal use only as required by clause 16( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... List III of the Seventh Schedule to the Constitution; this is included in the definition by section 2(a)(xi). Section 3(1) provides that if the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. Sub-section (2) by clauses (a) to (h) provides for different categories of orders which may be passed by the Central Government without prejudice to the generality of the powers conferred on it by sub-section (1), It would thus be clear that the Act confers power on the Central Government to regulate the production, supply and distribution of essential commodities. This power is conferred in a very general and wide sense by section 3(1)., There can be little doubt that the power to regulate the production of an essential commodity will include the power to regulate the production of essential commodities which may operate either qualitatively or quantitatively. In other words, in regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which does not contain at least 25 per centum of fruit juice in its composition shall not be described as a fruit syrup, fruit juice, squash or cordial or crush and shall be described as a synthetic syrup. (2) Every synthetic syrup shall be clearly and conspicuously marked on the label as a 'SYNTHETIC' product, and no container containing such product shall have a label, whether attached thereto or printed on the wrapper of such container or, otherwise, which may lead the consumer into believing that it is a fruit product. Neither the word 'FRUIT' shall be used in describing such a product, nor shall it be sold under the cover of a label, which carries the picture of any fruit. Aerated water containing no fruit juice or pulp shall not have a label which leads the consumer into believing that it is a fruit product. 14. Part II of the Second Schedule to the Fruit Order prescribes the specifications for fruit juice and other beverages. In regard to fruit syrup, it provides, inter alia, that the minimum percentage of fruit juice in the final product must be 25%. The respondents' contention is that since the Sharbat in question produced by the appellants does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, we feel no difficulty in holding that the Sharbat in question falls within the purview of clause 2(d)(v) of the Fruit Order and as such, its production can be controlled by its relevant provisions. 18. Then it is urged by Mr. Pathak that the Fruit Order itself is invalid, because it does not purport to say that before it was issued, the Central Government had formed the opinion that it was necessary or expedient to issue the Order for maintaining or increasing supplies of the commodity in question. Mr. Pathak contends, and rightly, that the condition prescribed by the first part of section 3(1) of the Act is a condition precedent and it is only when and after the said condition is satisfied that the power to issue a regulatory order can be exercised by the Central Government. This contention again cannot be allowed to be raised for the first time in appeal, because if it had been raised before the High Court, the respondents would have had a chance to meet it. It is true, as Mr. Pathak contends, that in the absence of any specific averment made by the Fruit Order that the Central Government had formed the necessary opinion, no presumption can be drawn that such opinion had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we are concerned. Part II of the Second Schedule to the Fruit Order which has imposed the obligation on the manufacturers of fruit syrups to include at least 25% of fruit juice in the final product of the fruit syrup produced by them, shows that by virtue of its powers under section 3(1) of the Act, the Central Government thought it necessary to require that a particular quality of fruit syrup should be put on the market as fruit syrup and no other. This object plainly falls within the purview of section 3(1), and so, the contention that the Fruit Order is invalid inasmuch as it purports to tackle the problem of adulteration of fruit product, cannot be accepted. 20. Then Mr. Pathak suggested that there was some inconsistency between the definition of 'synthetic beverage' prescribed by clause 2(k) and the provisions of clause 11(2) of the Fruit Order. We have already read clause 11. The effect of clause 11(1) is that if any beverage does not contain at least 25 per cent of fruit juice, it shall not be described, inter alia, as 'fruit syrup', but shall be described as a 'synthetic syrup', and sub-clause (2) of clause 11 therefore provides that if any syrup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The conclusion that the Act and Fruit Order issued under it are constitutionally valid proceeds on the basis that the restrictions imposed by them are reasonable and in the interests of general public. What the impugned order purports to do is to require the appellants to comply with the reasonable restrictions imposed by the Fruit Order. The fact that incidentally compliance with Fruit Order may tend to affect their trade-mark right cannot, in our opinion, render the impugned order invalid. In this connection, it is necessary to bear in mind that appellant No. 1 would not be justified in contending that the registered trade-mark which is usually intended to distinguish one manufactured article from another can be used by it even though it is likely to mislead the customers, or its use would mean a breach of some other law. Besides, it is significant that the impugned order does not really compel the appellants to change their trade-mark. If the appellants desire that the sharbat in question should be put on the market without complying with the requirements of clause 11(1), all that they to do is to comply with clause 11(2) of the Fruit Order. In the process of complying with c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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