IN THE
HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD
CIVIL MISC. WRIT PETITION NO. 62161 OF 2009
(Under Article 226 of
the Constitution of India)
DISTRICT:
BAREILLY
Khoya –Paneer –Cream-Milk Vikreta Welfare Society
(Registered Society bearing No.633)through its Secretary Sri Santosh kumar
Gupta Kutub khan Khoya Mandi Bareilly ……..Petitioner
Versus
1.
Union of India, through Secretary, Food
and Civil Supply, Government Of India, New Delhi
2.
State of U.P. through Principal Secretary,
Medical Health and
Family
Planning, Government of U.P., Lucknow
3.
District Magistrate, Bareilly
4.
Senior Superindent of Police, Bareilly
5.
Nagar Swasthya Adhikari, Nagar Nigam
Bareilly.
6.
Food Inspector, Bareilly,
7.
Public Analyst Laboratory U.P.,
Lucknow.
8.
Param Dairy Limited, Param Nagar, G.T.
Road Khurja, Bulandshahr.
9.
Mother Dairy Fruit & Vegetable Pvt.
Ltd., ‘Mother Dairy’, at Pilkhuwa Dairy,
18 KM Stone, Hapur Road,Pilkhuwa, District Ghaziabad 201 313 U.P.
10. Parag Milk ,Allahabad Dugdh Utpadak Sahkari Sangh Ltd. (
Allahabad Milk Production Cooperative Fedration Ltd.) , Allahabad
11. Shyam Dairy ( Skimmed Milk )Product , Shyam Enterprises,
Shyam House, 44, Thornhill Road , Allahabad
12. Amul cool milk shake, Banaskantha,
District Cooperative Milk producer, Palanpur, Gujrat PIN 385001
13. Vimal ( Table Morgarine), (a skimmed milk production ) Vimal
oils and Foods Ltd. Near Palabasana, Railway Crossing High Way, Mehsana, Gujrat
PIN 384003 ------------..Respondent
To,
The
Hon’ble the Chief Justice and his other companion Judges of the aforesaid
court.
The
humble writ petition of the above named petitioners most respectfully showeth
as under: -
1.
That by means of the present writ
petition the petitioner Society is seeking the relief against the arbitrary misutilisation
of the power pertaining to the authorities meant for prevention of the food
adulteration especially milk products namely Khoya, Paneer, Milk and Cream by examination
of the sample of the food articles as synthetic milk products without its examine
in the laboratory, as together the consumption of these articles is injurious
to its consumer but instead of the same the genuine venders dealing in the milk
products are subjected to face unlawful distraction by the officials of the
Health Department which is causing the scarcity
and deficiency of the genuine produce of the milk to the public at large and resulting in vanishing of the animal husbandry farming the
village life and hamlet and no other writ petition is filed in relation to the
same controversy by the petitioner. The
petitioner has not received any caveat application, nor has the same been
served to them by any one of the respondents.
2.
That the Petitioner society has been
registered with an objective to provide every short of the help against the oppression and exploitation of
the milk venders dealing in the products of Khoya, Paneer, Milk and Cream and
for the aforesaid purposes to resolve their disputes and to negotiate the same
to the officials dealing with the subject. The Registration of the society has
been done under the Society Registration Act and the registration no. of the
society is 633 of 2009-10 which is valid up to 22.10.2014. The members of the
society are the poor farmers having cows and buffalos in the village and
helmets for earning their livelihood and the seller of the natural milk
products prepared from the milk of Cows, buffalo brought in the containers from
the village by these Milk producers in their containers. The true copy of the Registration
of Society and it’s bylaws is being file and marked herewith Annexure no.1 to this writ
petition.
3.
That at the very outset it is submitted
that the petitioner society is strictly against such individuals who are
indulged in adulteration by introducing injurious substance being mixed up in
the food products and they categories such individuals as not only enemy of the
business community but they are also the enemy of the nation. It has been
resolved by members of the society to provide every short of the assistance to
the administration dealing with the adulteration of food articles.
4.
That a panic to the public consuming
milk and its product has been created by the media and through the channel by
showing the preparation of the synthetic milk from the paint/oil by pouring the
fertilizer and caustic soda and thereafter the essence of the milk as one may
consume it under the notion of consuming the milk. On the other hand if the
genuine product of the milk are intermixed with the milk of the cow and the
buffalo or the preparation of the milk is being done from the condensed milk
available in the market by having the water being mixed up therein, the
authorities empowered to check the adulteration under the Food Adulteration Act
and within the power of Section 272 and 273 IPC i.e. the adulteration of the
Food or Drink intended for sale and sale of noxious food or drink, the articles
recovered by the police are destroyed even prior to sending its sample to the
public analysts. Thus by means of the present writ petition the petitioner have
come forward for enunciation of the guidelines provided by this Hon’ble Court
as to dealt with the menace of milk adulteration.
5.
That the provisions of the Prevention
of the Food Adulteration Act, 1954 have
been enacted by the parliament in furtherance of entry 18 in union list of the
seventh schedule of our Constitution of India. It has gone many amendments both
by parliament and State Legislature.
6.
That the provisions in Part IV enable
the Legislatures to impose various duties on the citizens. The mandate of our Constitution is to build a
welfare society and that object may be achieved to the extent the Directive
principles are implemented by legislation.” If so, in determining the
constitutionality of such laws, when enacted, the Court should have regard to
the Directives as well as the fundamental duties along with the fundamental
rights. The Courts may also look at the
duties while interpreting equivocal status which, admit of two constructions
and also uphold the constitutionality of a statute the object of which is in
consonance with a provision in Article 51 A
of the Constitution of India.
7.
That in this regard the definition
under the Prevention of the Food and Adulteration Act, 1954 on account of
permitting the use of Recombined Milk, Toned Milk, Skimmed Milk, Condensed Milk
,Milk Powder, Skimmed Milk powder, Infant Milk food to its citizen, as defined
in A.11.01.02 to A. 11.02.18 in Appendix B under rule 5 Prevention of the Food
and Adulteration Rules, 1955 vide amendments up to 29.5.2000, in context
of the definition of the Milk under
A.11.01.01 and the provisions of Rule 44
of Prevention of the Food and
Adulteration Rules, 1955 as ultra virus,
obsolete, redundant and non existent to the implications on account of
the whole sale and production of the skimmed, condensed milk powder within the
definition of the adulterated milk for the consumption of the citizens.
8.
That similarly if the milk of the cow
is mixed with that of the milk of the buffalo and is being sold in the marked
the same is adulterated milk. Thus a
delicate balance is required to check the misuse of the police power and to
prevent the injurious product having the manufacture of the artificial milk on
one hand while on the other hand a poor vendor having a cow for survival of his
family from the income of the milk extracted from the cow will be punished from
the same yardstick of the adulteration under the provisions of the Prevention
of the Food Adulteration Act, 1954.
9.
That the condense milk is supplied by
the multinational company in order to prepare the products of the milk produce like
Khoya, Paneer and cream resulting in lesser production of these product s from
animal husbandry which is the source of livelihood to the formers. In the Algerian
society of our traditional heritage, the farmers are subjected to undergo a lot
of the economical crises and thereby in the zone of the competitive business,
the monopoly of the multinational company supplying the condense milk from the
foreign nation is eroding the vary foundation, on which the ecological cycle of
the environment is dependent upon.
10. That there is the monsters inflation, and the steep fall in
the value of the money by virtue of the same the prices of the agriculture
products have risen up to the extent of non availability of the vegetables to
the poor people and the enhancement of the value of the seed and the crop
during the harvesting period.
11. The unproductively in the cost escalation at the time of sowing
of the crop is further deteriorating the system of cultivation and as such the
straw and other feeding products being supplied to the milk generating animals
in the form of their food is proportionately enhancement in respect of the cost
structure and as such there has been an increase in the cost of the milk and as
such the condense milk supplied by the manufacturing unit of the milk products
like Parag, Amul and the production of Respondent No. 8 to 13 are comparatively cheaper than that of the
actual milk taken from the milk producing animals, like Buffalo, Cow and Goat etc. Thus there has been an alarming
no production of the milk in the village and hamlets.
12. Those, as the immediate out come of these problems are dealt
with further degenerations of the ecological cycle resulting into the global
warming by the ruthless killing of these milk producing animals, but the butchers
in the slaughter house and at every public place even during the festivals in
the village. It is commonly understood that 71.4 % of population of our country
resides in the village, and the source of income to the former living in
village is either the cultivation, or the animal husbandry business, for
providing nourishments to the people living in urban area. There has been a disproportionate
increase in the cost of the transportation and the vehicle owners are reluctant
to carry on the containers carrying the milk generated through the animal
husbandry in the village by the farmer.
13. That in this manner, the farmers are not getting the adulate
production to their business of milk production, while the other company
dealing with the condense milk as that of their business products are having
overriding effect upon the entire business of milk production. There is the conceal
sympathy of the officials provided to get the prevention from the adulteration
as the owner of the company manufacturing the condense milk are much more
prosperous in the comparison of the income of the former generate through their
animal husbandry. There is no standard prescribed as to when the natural milk
is destroyed by the food inspector and the administration as the owner of the
multinational company are having their political protection but the poor
farmers are dealt with by roughness and toughness of these authorities, who are
empowered to take action against farmers under the provision of Food Adulteration
Act, 1954.
14. That where as customer ask for ‘Milk’ as defined under
provision of A.11.01.01 of Appendix B in the Prevention of the Food and
Adulteration Rules, 1955, he should be understood by the vender dealing in the
milk produce to be desirous of purchasing the pure milk, but he supplied the
skimmed milk by its seller, then the seller is guilty of offence under the
provision of prevention of food adulteration act. For the convenient perusal of
this Hon’ble court the definition of the adulterant means deploying a material
in the produce for the purposes of adulteration under Rule 44 of the Prevention
of the Food and Adulteration Rules, 1955.
15. That by the act no. 34 of 1976 (with effect form
01.04.1976), after the definition of the adulterant, the definition of the
adulterated has been inserted in Section
2 (ia) of the prevention of food adulteration act 1954, which is reproduce
as under:
Adulterated: Clause (ia)
(ia) “Adulterated” – an article of food
shall be deemed to be adulterated –
(a) If the article sold by a vendor is not of the nature,
substance or quality demanded by the purchaser and is to his prejudice, or is
not of the nature, substance or quality which it purports or is represented to
be:
(b) If the article contains
any other substance which affects, or if the article is so processed as
to effect injuriously the nature, substance or quality thereof;
(c) If any inferior or cheaper substance has been substituted
wholly or in part for the article so as to affect injuriously the nature,
substance or quality thereof;
(d) If any constituent of the article has been wholly or in part
abstracted so as to affect injuriously the nature, substance or quality
thereof’
(e) If the article had been prepared, packed or kept under
insanitary conditions whereby it has become contaminated or injurious to
health’
(f) If the article consists wholly or in part of any filthy,
putrid, rotten, decomposed or diseased animal or vegetable substance or is
insect-infested or is otherwise unfit for human consumption;
(g) If the article is obtained from a diseased animal.
(h) If the article contains any poisonous or other ingredient
which renders it injurious to health;
(i) If the container of the article is composed, whether wholly
or in part, of any poisonous or
deleterious substance which renders its contents injurious to health;
(j) If any coloring matter other than that prescribed in respect
thereof is present in the article, or if the amounts of the prescribed coloring
matter which is present in the article are not within the prescribed limits of
variability;
(k) If the article contains any prohibited preservative or
permitted preservative in excess of the prescribed limits;
(l) If the quality or purity of the articles falls below the prescribed standard or its
constituents are present in quantities not within the prescribed limits of
variability, which render it injurious to health:
(m) If the quality or purity of the articles falls below the
prescribed standard or its constituents are present in quantities not within
the prescribed limits of variability, but which does not render it injurious to
health.
Provided that, where the quality or
purity of the article, being primary food, has fallen below the prescribed standards
or its constituents are present in quantities not within the prescribed limits
of variability, in either case, solely due to natural causes and beyond the
control of human agency, then, such article shall not be deemed to be
adulterated within the meaning of this sub-clause.
Explanation: Where two or more articles
of primary food are mixed together and the resultant article of food—
(a) Is stored, sold or distributed under a name which denotes
the ingredients thereof; and
(b) Is not injurious to health,
Then, such resultant article shall not
be deemed to be adulterated within the meaning of this clause.
16. That the legislative history behind the
introduction of the aforesaid definition was on account of the fact that there
were the traders and entrepreneurs, who produce or manufacture adulterants for
sale, the manufacture, sale or distribution of such adulterants has been made
punishable under the act. The standard of the quality or articles of foods are
prescribed in appendix ‘B’ to the rules framed under this act. The aforesaid definition within its sweep may
cover the adulteration by prohibiting coloring, flavoring or sweetening of its
substance of an article of food. There may not be any trading of such articles
which may be employed to adulterate another article of food, and thereby likely
to lead to great mischief. Thus this is the duty of the authorities to provide
the adulate protection to the animal husbandry of the farmers producing the
milk, for its distribution and supplying to the vendor for consumption of the
public in the urban area.
17. That the prejudice can not be confined to the pecuniary
prejudice arising from the consumption of unwholesome food. The prejudice is
the suffering of the ordinary consumer who pays the price of such produce but
get in return the produce of the inferior quality. Thus, there is the immediate
requirements is to vanish such prejudice of the purchaser of the milk and its
products.
18. That if the deficiency in the fatty contents or the non
fatty contents is found in the milk, it will be presume that the milk is
adulterated. The aggregate of the fatty and non fatty solid contents is
marginal, and then the court may not punish such vendor, even after being
analyzed from the laboratory of public analyst.
19. That the cow milk may show the lesser percentage of the
fatty contents in comparison to milk of the buffalo and thus the deficiency of
the non fatty solid matter is not universally be presumed to be the adulterated
milk. In this manner there is no strict guidelines provided under the act and
in the practical situation to deal with the adulteration of the milk produce
except by examination of its contents from the food laboratory, instituted and
established under section 4 of the Food Adulteration Act.
20. That in the State of the Uttar Pradesh vides notification No.10656
(ii)/xvi-(P-H.)722-755 published in Gazette dated 18 Feb 1956 page 245 the
Governor in exercise of the power conferred under clause (VIII) (2) of sub section
II of the prevention food adulteration Act 1954 has been pleased to declare that
the local authority of the various local area which includes rural area and
town area, where in the sub-divisional Magistrate is assigned with the
responsibility of in-charge, while in railway premises divisional medical
officer has been assigned with the responsibility of the local authority in UP.
21. That local Health Authority has been inserted by the Act no
34 of 1976. By notification of the ministry of Railway Board, all Medical
Superintendent /Divisional Medical officers in relation to there respective
jurisdiction became the local Health Authority. Subsequently all medical
officers, In-charge of the primary health centre, and the Nagar Swastha
Adhikari, Senior Nagar Swastha Adhikari in the Nagar Nigam and Kshetra
Panchayat act have been assigned with the power of Local Health Authority. Thus
No of the Authority has been deployed to check the adulteration of the food
articles, including the milk produce.
22. That although manufacture is incidental and ancillary a
process to the manufacture of the article of the food and there has been
prohibition for mis-branded of the food articles, but in the practical spare of
the prevention of such type of the food adulteration, there has been the
advertisement by the media having spontaneous reaction upon the psychology of
the consumer that an individual is consuming the pulp of the mango when, he is
consuming Mazza, slice and frooty. There is no authority having the restriction
upon such misbranded to the consumption by the public.
23. That by the insertion in the definition clause the
definition of 2(da) (db) and (dc) have been inserted w.e.f. 14.09.1997 wherein
the definition of the infant, infant food and the infant milk substitute have been
inserted under the Prevention of Food Adulteration Rules 1955 under this
definition clause of Rule 2(e) Local Authority have also been inserted w.e.f.
27.09.1975 as the Health Officer in respect of the local area and the expansion thereof have been extended
up to sea port, aircraft, railway station and ordinance factory. The food and
Drug Controller U.P. has already been empowered
as Food (Health) Authority in Uttar Pradesh.
24.
That under section 9 the notification
has already been issued having the definition of the Food Inspectors which is
extended up to Local Areas in the State of U.P.
The powers of the Food Inspector have been denied under section 10 of
the Food Adulteration Act. While under section 20 preservative in respect of
the milk, cream {(Dahi) Khoya and Khoya Based and Paneer Based sweets such as
Kala Kand and Barfi, Chutney and Gur prepared coffee and prepared tea including
toned, separated and skimmed milk} standard milk chenna, skimmed milk chenna
have been inserted from the year of 1974 up to the year of 1975 have been
inserted that:-
Milk- In case of cow’s milk to which necessary
quantity of formalin has been added and which had been kept in normal
circumstances the sample retains its character and is capable of being usefully
had been kept in normal circumstances the sample retains its character and is
capable of being usefully analyzed for a period of about ten months. (Babboo v.
State, 1970 Cri LJ 196; AIR 1970 All122; Net Ram v. State, 1968 ALJ 916 not
correctly decided], Where in a case of sample of milk, formalin was not added
to the sample and there was a considerable delay in the analysis, it could not
be presumed that requirements of the rule were satisfied. [1964 MLJ (Cri) 660].
Where the formalin added to the sample of milk was not of the same strength as
prescribed, it was the duty of the prosecution to show that the formalin added
was sufficient to prevent disintegration. [Nandu Ram Kotu Ram v. State, (1962) 2 Cri LJ 579 overruled in AIR
1965 Punj 328].
Curd- It
is the duty of the prosecution to tell the court where and under what
temperature that sample of the curd was kept till it was analyzed
by the Public Analyst. It is also the duty of
the prosecution to indicate the strength of the preservative put in the bottle.
[Babu Ram v. State of Punjab, 1972 Cur LJ 351].
Khoa- Formalin
is required to be mixed with khoa when it is in a liquid or semi-liquid form.
Khoa Barfi is neither in liquid nor in semi-liquid form. Therefore, this rule
will not be applicable to khoa barfi. A similar view has been expressed by the
Delhi High Court in Nand Kishore v. State. [1979(1) FAC 20] therein also it has
been held that khoa Pera is neither liquid nor semi-liquid. No preservative is
separately prescribed under the rules for Khoa Pera… Pera contained sugar which
itself was its preservative. Moreover, what was to be examined by the Public
Analyst or the Central Food Laboratory was the presence of an unpermitted coal
tar dye and certainly no preservative has been prescribed in the rules against
possible disintegration of the dye due to lapse of time… the grievance in
respect of violation of the rules is unfounded. [(1980)] 1 FAC 430].
25. That the Hon’ble Supreme Court in case of Kishan trimbak
oothula Vs State of Maharashtra (1977) 1 SCC pg 300 has dealt with a narrow
point as together ‘Cow’s milk is an
article of the food defer from buffalo’s
milk, and as such whether both the milk may be put under the description of
misbranded. Thus if the ‘skimmed milk’ or the ‘toned milk’ is sold under the
name of cow milk, it is a clear case of mis branding. The sale of the turmeric
powder with the level on the container that it has been meant for pooja held as
constituted the misbranding and it is not necessary for conviction under
section 2(IX) (c) of the Prevention of Food Adulteration act, as together there was any criminal intension
or not.
26. That likewise the ‘sale’ with its grammatical variation and
cognate expression means the transfer, otherwise then in pursuance of the
contact for cash for other valuable consideration, in lieu of the settled a
cost of the product and as such if the product purchased in exchange is for
human consumption, used in the preparation of the human food, the same shall be
subjected to undergone the provision the Food Adulteration Act.
27. That under section 10 of the Food Adulteration Act, there
has been the empowerment to the Food Inspector to take the sample of the food
articles for sending the same for the public analysis, and thus there is the
purchase of such article by the food inspector as per the procedure prescribed
under section 11 of the aforesaid act.
28. That if the milk is used for preparation of the tea, it may
argue that the milk has been sold there and as such the provision of the
prevention of the food Adulteration Act will apply against the tea stall vendor
as he is not the dealer of milk selling. However since the sample of the milk
was purchased by the food inspector for sending it to public analysis and the
same was found to be adulterated, the Supreme Court found that the Tea stall
vendor is guilty of committing an offence under section 7/16 of the Food
Adulteration Act, Food Inspector Vs D Gopalan (1971) Vol-II, SCC Pg 322.
29. That the color is being mixed in the milk along with the
sugar content by keeping it in chili condition inside the refrigerator for
prevention of disintegration and as such the milk is misbranded and sold to the
people by mixing up the color inside there by the reputed Government company
dealing in production, collection and distribution of milk for human
consumption but the sample of such conterminous
milk produce is never send to the public analyst by the food inspector, But
since the sentence of imprisonment can
not be executed against the company, and
thus, there is no conviction of these companies owned or controlled by the
multinational companies of the prosperous nations. That the poor farmer is subjected to
harassment, who is carrying 5-20 liters of the milk in his container for being
sold in the market.
30. That the report of the Public analysis is seldom procured
prior to taking any drastic action of spoiling the milk produce and throwing it
in the drain by the food inspector.
According to section 13 when the reports arise regarding adulteration
the local authority can only destroy the remaining quantity of the milk
article. However despite such procedural safeguards is provided to the producer
of the milk from his animal husbandry to the farmer but the local authority are
destroying their product under the police forces and there is no criminal
action has been taken against such erring
officials if there is no adulteration in the milk produce. Thus the
judicial accountability of the aforesaid misutilisation of the sobering power
and the transgression of the established procedure prescribed under the
statutory provision to the producer of the milk is required to be observed by
the state authority through the specific guidelines enumerated in this regard
in exercise of the power conferred under article 226 of Constitution of India by
this Hon’ble Court.
31. That on one hand there has been the menace of using the
oxytocine injection in the milk giving animals which is a punishable offence
under the drugs and cosmetics Act 1940 as well as under the Drug Control Act
1950. It is also an offence under the provision of the Prevention of the Cruelty in Animals Act 1960 for which the
punishment of two years imprisonment and the fine can be imposed by the court,
however, no effective measurements have been adopted in order to get rid from
the Harmon which is created in posterior
pituitary supraoptic and perpendicular
nucleus eye of hypothalamus for development was pristine hormones as it
provides pressure upon the glands having the storage of milk thus the same is
hazardous substance but in stead of having the prevention of these hazardous
substance used for the purposes of the preparation of the condensed milk, the
administration put its entire energy for registering the cases against the
small farmers indulged into the business of sale of their milk from cows and
buffaloes.
32. That for the purposes of generalize the effect of the use of
oxytocine injection, it is a non appetite hormones having the property of
causing the contraction of smooth muscles of myoepiphelian cells within the
mammary glands which is prepared by the synthesis of the posterior to be of the
pituitary and healthy domestic animals. The said injection is not band for its
use upon the animals and as such the misuse of the oxytocine injection in the
cattle have been found invariably for the manufacturing of the condensed milk
and thus the same can be classified as the synthetic milk.
33. That there have
been the false criminal cases leveled against the farmers carrying milk for
their sale. The police without having any examination of their sample in the
laboratory used to destroy the milk without verifying a to weather the said
milk is having any adulteration which is prohibited under the provision of the
Food and Adulteration Act but they simply throw away the entire milk found to
be in the container under the garb of having the synthetic milk. After the
examination of these samples in the laboratory of Public Analyst U.P. the
sample is found of the pure milk but by the time the testing of the milk is
done in the laboratory at Uttar Pradesh, the entire food articles are destroyed
by the Law Enforcement Agency comprising of the Food Inspector and other police
personnel. The true copy of a report dated 6.2.2008 of the Public Analysts
Laboratory having the testing of the pure milk are being filed herewith and
marked as Annexure No.2 to this writ petition.
34. That the two days seminar was conducted at the State Food
Science Training Center Bareilly under the ministry of Agriculture and Food
Processing Department, U.P. The
aforesaid Seminar was organized apart from other Articles such as use of the
vegetables and spices also on the subject of the quality control upon the
articles prepare for the milk. It has been observed that the milk having the
density of 1.030 to 1.034 is considered to be the pure milk which can be
measured by the use of the lactometer. It has also been said that in case of “Ararote”
is being mixed in the milk then few drops of iodine in the said milk may
convert the entire milk blue in “colour” while the pure milk shall remain of
the “coffee colour”. The true copy of seminar conducted on 31.10.2009 at the
State Food Science Training Center Bareilly under the ministry of Agriculture
and Food Processing Department, U.P is
being filed herewith and marked as Annexure No.3 to this writ
petition.
35. That in case of any extract from the rice “Madh” is being mixed
inside the milk then it will convert into the blue colour and thus a prima
facie testing of these products are required before classifying them as that of
the synthetic milk. That in case of the vegetable ghee is mixed up with the
pure ghee then by mixing one spoon of hydrochloric acid and the sugar in side
there then after 10 minutes the portion below the acid will become yellow and
as such the mixing of the vegetable ghee in the pure ghee can be analyzed from
the aforesaid test. That all these measurements adopted by the administration
in getting the identification of the synthetic milk are not the required
standard of the precaution for which the honest citizens may be subjected to
under gone a ruthless process of sending them to the jail after destroying
their milk products in the drainage by the police. On one hand the poor farmers
are subjected to demoralize by illegal address while on the other hand there
has been the complete violation of the provision of the Prevention of the
Cruelty on Animals Act 1960, Wile Life Protection Act 1962 and the Environmental
(Protection) Act 1986. The municipal law meant for the protection of the
society from obnoxious biodegradable substance created on account of the
ruthless killing of these milk producing animals in the slaughter house is not
having any control in contraventions to the provisions of the Indian Penal Code
while on the other hand poor farmers having their only source of livelihood by
the sale of their products produced
through the milk are being subjected to the harassments by the Food Inspector ,
Police, Nagar Swasthya Adhikari and the official of the Health Department. The
true copy of the questionnaire taken from the Chief Medical Officer, Saharanpur
on 11.1.2008 is being filed herewith and
marked as Annexure No.4 to this writ petition.
36. That there has not been any restrictions upon the
resourceful process who are indulged into the animals which is pregnant or has
offspring less than three months old
inside the slaughter house meant for the production of the meat. There
is no check upon the Drugs and Cosmetic companies playing with the life of the
milk producing animals but on the other hand the poor farmer having their
business upon the income of the animal
husbandry dealing with the product of the milk are being demoralized by the waste of their milk products and as such
the measurements are required to be taken adequately by the authorities in
correct implementation of the law in relations to the prevention of the adulteration
on one hand and proper incentives to the farmers for the protection of the life
of the milk producing animals when their milk products are sold in the market
without having any unreasonable restrictions under the garb of the law
enforcement measurements.
37. That in this manner the provisions of the prevention of the
Food Adulteration Act are being misused by every authority meant for the
Prevention of the Adulteration Act. The victim is only the poor farmers
carrying on their business of the milk products. Their has been number of the
report published in the news paper regarding unlawful arrest of the individual
who dare to get their milk products being examined in the Public Analysts
Laboratory at Lucknow. By the time their sample is passed by the Analysts
Laboratory these persons use to under go the imprisonment even prior to their
conviction for committing any offence under the provisions of the Food and
Adulteration Act. Thus the police power is misused as that of the power to the license
criminals in the society. The true copy of the paper cutting dated 14.10. 2009 indicating
the false cases are leveled by police personnel by S.O. shahpur, Muzzefar Nagar
is
being filed herewith and marked as Annexure No.5 to this writ
petition.
38. The reason for the misutilisation
of the aforesaid power is on account of the reason that on one hand the
government wants to get the people indulged into the adulteration of the Food
Articles within the spear of the rule of law in the society but on the other
hand the innocent vendors are subjected to undergo oppression and
victimization.
39. That the skimmed milk powder is publicly available and is
being sold by the respondents No. 8 to 13 to the public for its consumption and
the milk is produced through such condensed milk. The same may be converted to
the milk product like Khoya, Paneer for being used by the public however when
anybody after getting the condensed milk converted to the milk prepare the milk
products through such milk, the milk products like Khoya, Paneer, Dahi from
such preparation if being sold to the marked are named and classified as that
of the synthetic milk. The questioner were taken from the Chief Food Inspector
Saharanpur by the Chief Medical Officer regarding the use of the schemed milk
powder and a particular question was asked
as to weather this powder may be classified as the synthetic category of
the milk products it has been answered that when this condensed milk is mixed
with the water then the proportionate mixing of the quantity may be called as
the adulteration of the milk products thus no guidelines have been enumerated
in this regard by the State Government for the production of the rights of the
individuals dealing in milk products to the public.
40. That there is always a bargaining power between the seller
of the milk products and the Food Inspector meant for the Prevention of the
Food and Milk Products. There are the instances of the demand of illegal
gratification by these Food Inspectors and in case the aforesaid demand is
fulfilled then even the adulterated milk article are cleared for he sale in the
public. In case of the resentment by the public not to fulfill the demand of
illegal gratification, the false cases are concocted against the innocent
persons and they are being arrested from their home by the police party. The
incident of such arrest has been recorded by the hidden camera projecting the
preparation of the adulterated food articles in the police station itself and
thereafter having the arrest being made at the midnight from the village in
which these police personnel were dealt with against their illegal actions by
the public during the day time. The true copy of the paper cutting dated 8. 11.
2009 indicating demand of illegal
gratification is being filed
herewith and marked as Annexure No.6 to this writ
petition
41. That there has been number of the illegal arrest noticed in the
recent time and whenever the complaint of these illegal arrest were made to the
higher authority then it was found that the Police personnel including the Station
House Officer of the police station were found indulged in corruption. The
cases are registered against these police officers but during the process of
these developments the entire milk products are through away in the drainage.
No body is there to compensate the loss suffer by the individuals selling his
milk products but on the other hand there has been a quota fixed for registering
the case against the innocent citizens by the officials of the respondents Thus
the prevention of these atrocities is required to be done by the Judicial
accountability of the executive power vested with the respondent authority this
Hon’ble Court being the sentinel and guardian of the public at large may issued
the appropriate direction. The petitioner members have recorded the recording
on the C.D indicating the creation of artificial synthetic milk in the police
Station in order to get the arrest of the farmers for illegal gratification.
42. That the Hon’ble Supreme Court in case of Milk Man Colony
Vikas Samiti v. State of Rajasthan (2007) Vol.2 SCC 413 has been pleased apart
from directing the respondents Government to relocate the milk dairy from the
city, has further directed from stopping the dying of the cattle due to
consumption of the plastic bags. It has been held that the owner of the bovine
animals after milching the bovine animals were turning them out of the dairies
so that they could eat whatever was available on the roads. The stray cattle
including the cows, bulls, dogs etc freely roamed in the city area causing
unhygienic, unhealthy and injurious practice of creating considerable nuisance
to the citizens thus the public interest litigation is maintainable to stop
such public nuisance.
43. That the reason for not supplying the adequate fodder to the
milching animals is on account of the fact that on one hand there has been the
completion with the companies dealing in the condensed milk while on the other
hand the individual farmers who are having their livelihood on the income of
the sale of their milk in the market, their products are destroyed simply on
account of the reason that the milk of the cows is being mixed with the milk of
the buffaloes.
44. That the skimmed milk powder is obtained from the skimmed
milk of cows of buffaloes or a combination thereof in which calcium chloride,
citric acid and sodium citrate, sodium salts of ortho phosphoric acid and poly phosphoric
acid (as linear Phosphate) not exceeding 0.3% by weights of the finished
products such addition need not be declared on the level. Skimmed milk powder
shall not contain more than 1.5% milk fat and moisture shall not exceed 5.0%
and the total acidity expressed as lactic acid shall not exceed 1.5%. The plate
count shall not exceed 50,000/- per gram. The process of drawing shall be
mentioned on the level. Similarly the ingredients of partly skimmed milk powder
and infant milk food are prescribed under the provisions of prevention of Food
Adulteration Rules, 1955 in its appendix –B which may be taken note in deciding
the matter.
45. That in this manner on one hand after mixing the solid milk
products named the skimmed milk powder with the water, the preparation of the
milk for consumption by the human being is permissible while on the other hand
the farmer having the milk for being sold in the market is carrying the milk of
the cow and buffalo mixed, he is prosecuted by the law enforcement agency under
the garb of violation of the provisions of the section 7/16 of the Prevention
of Food Adulteration Act.
46. That virtue of the aforesaid discrepancy while dealing with
the standard of the proof required in respect of its permissible parameter of the
statutory provision, on one hand the protection and promotion are provided to
the manufacturer of the skimmed milk powder which is imported from the other
nation and even the World Health Organization are sending them for the purposes
of providing the nutrition to the children on the nominal cost of
transportation. On the other hand the business of the animal husbandry being
the part of the agriculture activities is subjected to under gone a lethal
radiation in respect of its productivity which is ultimately causing the great
economical rider upon the individual having the trade of milching in the remote
village area. The person dealing with the few animals, generally the cows and
buffalo is supposed to carry the milk in the container for being sold it to the public in the market
after traveling the distance of many kilometers and thereafter from the earning
of the milk products, he not only provide the nourishment and feeding to his
own family members but also to the cattle. In absence of not having the outcome
of the prices of the food products there is nothing remains for feeding to the
animals and in such situation the farmer is subjected to leave his cattle
either on the street for roaming inside the market or they are given to the
butcher for being slaughtered in the slaughter house resulting in the crises of
the global warming and other environmental hazards to the citizens.
47. That the petitioners are not only interested for procuring
the milk for its supply to the citizens but they are equally concerned from
protecting the milk producing animals to
be slaughtered on account of economical constituents to the farmers depended
upon the income of the product of the animal husbandry. There is a competition
of a poor farmer with the multinational company dealing in the products of the
milk and on the competitive basis, there are always the disadvantage to the
person having lesser resources then that of the people having the potential to
get the entire system based upon exerting the pressure for political consideration
in the democratic structure of our society. Rampant corruption in the industry
of the milk products is ascending to the alarming extent by having the sale of
synthetic milk in the market and so far its galloping race could not be halted
despite the law enforcement agencies are having number of the statutory
provisions incorporated after the amendment. Thus on one hand, the farmers are
subjected to face the provisions of the Prevention of Food Adulteration Act,
1954 which have lost their relevance in the present socio economical crises and
fast generating mechanism and the industrial growth. The true copy of the
correspondence indicate the synthetic not defined, and no power to destroy the
milk product without being examined in public analyst is being filed herewith and marked as Annexure
No.7 to this writ petition.
48. That the petitioner is filing the photo state copy of the
rappers of the production of the respondents No. 8 to 13 as an exemplars indulged in the sale of Milk produce and
having their complete monopoly in the business of animal husbandry attributable
to the farmers in furtherance of their rights under Section 142 and 144 of U. P. Zamindari and Land Reforms Act, 1952, but the farmers
are always subjected to the atrocities of the food Inspectors having their
Quota prescribed from the high up in the administrations in connivances of the
owners and proprietors of Respondents No. 8 to 13 indulged in complete monopoly
in the trade of Milk and Milk Produce products like Recombined Milk, Toned
Milk, Skimmed Milk, Condensed Milk ,Milk Powder, Skimmed Milk powder, Infant
Milk food as defined in A.11.01.02 to A. 11.02.18 in Appendix B under rule 5
Prevention of the Food and Adulteration Rules, 1955, for which the poor farmers
dealing with their production natural milk from animal husbandry for the
livelihood of their family. The true copy of the filing the photo state copy of
the rappers of the production of the respondents No. 8 to 13 as an
exemplars indulged in the sale of Milk
produce is being filed herewith and
marked as Annexure No.8 to this writ petition.
49. That there is a complete violation of the provisions of The
Prevention of Cruelty Act, 1960, Wild Life Protection Act, 1972, The
Environmental (Protection) Act, 1986, Water (Prevention And Control of
Pollution) Act, 1974 and Municipal Law meant for the protection of the society
from obnoxious biodegradable substance like Caracas and Sewerage problem due to
ruthless killing of the animals by the butchers in discriminatory resulting in
contravention to the provisions of sections
428 and 429 of Indian Penal Code.
Despite the request for the enforcement of the penal provision by the
public at large against the people indulged in the process of degradation of
the sensitivities of the children and people taught for adopting the lesson of
non-violence by the spiritual personalities and also by the Father of our
Nation, the Union of India and the State Government have completely failed to
protect the society against the menace of the violence adopted by the criminals.
The true copy of the correspondences made by the officials of respondent No. 2 in respect of unauthorized of animals without
any check by health department is being filed herewith and marked as Annexure
No.9 to this writ petition.
50. That the provision of laws which are enforceable by the
central government in exercise of their power conferred under the provision of
prevention cruelty on animals act are enunciated as under;- The ministry of social justice and
empowerment exercising its power under sub section (1) of section 38 of the
Prevention of cruelty to animals act 1960 was pleased to promulgate the
provision of the Prevention of cruelty to animals (slaughter house ) Rules
2000. It is provided that the slaughter means the killing Or destruction of
animals for the purposes of food and include all the processes and operation perform on such
animals in order to prepare it for being slaughtered. That under Rule 2 ( c) slaughter house means where in 10 or
more than 10 animals are slaughtered per day and duly licensed or recognized
under a central, state or provincial act or any rules or regulations made there
under. Thus the animals not to be slaughtered except in recognized or licensed houses.
It is contemplated under rule 3 of the aforesaid Rules that no person shall
slaughter any animals within a municipal area except in a slaughter house
recognized or licensed by the concerned authority empowered under the law for
the time being in force to do so. It is submitted that the sub rule (2) of Rule
3 provides that no animal which is pregnant, or has offspring less than three
months old, or is under the age of three months or has not been certified by a
veterinary doctor that it is in a fit condition to be slaughtered shall be slaughtered.
The municipal or other local authority specified the Central Government for
this purpose shall, having regard to the capacity of the slaughter house and
the requirement of the local population of the area in which a slaughter house
is situated, determine the maximum number of animals that may be slaughtered in
a day.
51. That Under sub rule (d) of Rule 2 veterinary doctor is
define as registered person under the Indian Veterinary Council Act,1984. The duties assigned to veterinary doctor are
to examine thoroughly not more than 12 animals
in an hour and not more than 96 animals in a day and thereafter he is
supposed to issue a fitness certificate in the form specified the Central
Government for slaughtering an
animal. The slaughter house shall
have a reception area of adequate size sufficient for livestock of the animal and the corpus of the animal
subject to the inspection by the authorized by a veterinary doctor.
52. That Under Rule 6 it is provided that no animal shall be
slaughtered in a slaughter house in sight of other animals. No animals shall be administered any
chemical, drug or hormone before slaughter except drug for its treatment from
any specific disease or ailment. The
slaughter halls in a slaughter house shall provide separate sections of
adequate dimensions sufficient for
slaughter of individual animals to ensure that the animal to be
slaughtered is not within the sight of other animals. Every slaughter house as soon as possible
shall provide a separate space for
stunning of animals prior to slaughter, bleedings and dressings of the
carcasses.
53. That It is illegal
under the Food and Drug Adulteration Prevention Act to give these injections,
Find out from the milkman and then inform the police and the people buying the milk and have the
dairy closed down. It is illegal for
more than 12 cows / buffaloes per bogey and even then they have to go with an
attendant and have to be milk giving cows only,. However all
old cattle are being overloaded in the hundreds after paying bribes to
the station master . These are sent for with
a connivance of Railway employee so that one can not be informed when such a
things are happening. If these killing of Milk producing Animals are not stopped
immediately, there will be complete extinction of the natural milk for its
consumption by public. Thus the authorities may be empowered to take the cattle
off and register a case against the station master and the owner of the
cattle’s.
54. That “It looks cruel
and adversely affects the tender feeling of thousands of vegetarians .Butchers
will now have to make arrangements for walls or thick curtains to ensure that
suspended skinned goats or limbs of cows or buffaloes are not visible to people. The sensitivity of the
individual is provoked by the preaching of the great scholars and spiritual
identities in every period of the history of our great nations and its
tradition. We cannot put aside the
sermons of Lord Buddha, Lord Mahavira, Swami Vivekanand, Swami Dayanand Sarasvati and of our father of the
nation after getting the independence.There is a need for preservation of
valuable heritage and to provide compassionate attitude under the glorious
fundamental duties caste upon every citizen under article 51-A (g) of the he
constitution of India.
55. That the law exists to serve the needs of the society, which
is governed by it. If the law is to play its allotted role of serving the needs
of the society, it must reflect the ideas and ideologies of that society. It
must keep time with the heartbeats of the society and with the needs and
aspirations of the people. As the society changes, the law cannot remain
immutable. Sydney Smith, said, "When I hear any man talk of an unalterable
law. I am convinced that he is an unalterable fool." The law must,
therefore, in a changing society march in tune with the changed ideas and
ideologies. Legislatures are, however, not best fitted for the role of adapting
the law to the necessities of the time, for the legislative process is too slow
and the legislatures often divided by politics, slowed down by periodic
elections and overburdened with myriad other legislative activities. A
constitutional document is even less suited to this task, for the philosophy
and the ideologies underlying it must of necessity be expressed in broad and
general terms and the process of amending a Constitution is too cumbersome and
consuming to meet the immediate needs. This task must, therefore of necessity
fall upon the courts because the courts can by the process of judicial
interpretation adapt the law to suit the needs of the society.
56. That "It is something to show that the consistency of a
system requires a particular result, but it is not all. The life of the law has
not been logic: it has been experience. The felt necessities of the time, the
prevalent moral and political theories, intuitions of public policy, avowed or
unconscious, even the prejudices which judges share with their fellow-men, have
had a good deal more to do than the syllogism in determining the rules by which
men should be governed. The law embodies the story of a nation's development
through many centuries, and it cannot be dealt with as if it contained only the
axioms and corollaries of a book of mathematics. In order to know what it is,
we must know what it has been. and what it tends to become. We must alternately
consult history and existing theories of legislation. But the most difficult
labor will be to understand the combination of the two into new products at every
stage. The substance of the law at any given time pretty nearly corresponds, so
far as it goes, with what is then understood to be convenient; but its form and
machinery, and the degree to which it is able to work out desired results,
depend very much upon its past."
57. That the framers of our Constitution were men of vision and
ideals, and many of them. had suffered in the cause of freedom. They wanted an
idealistic and philosophic base upon which to raise the administrative superstructure
of the Constitution, They, therefore, headed our Constitution with a preamble
which declared India's goal and inserted Parts III and IV in the
Constitution."It may not be possible to frame an exhaustive definition of
what executive function means and implies. Ordinarily the executive power
connotes the residue of governmental functions that remain after legislative
and judicial functions are taken away. The Indian Constitution has not indeed
recognized the doctrine of separation of powers in its absolute rigidity but
the functions of the different parts or branches of the Government have been
sufficiently differentiated and consequently it can very well be said that our
Constitution does not contemplate assumption, by one organ or part of the
State, of functions that essentially belong to another. The executive indeed
can exercise the powers of departmental or subordinate legislation when such
powers are delegated to it by the legislature. It can also, when so empowered,
exercise judicial functions in a limited way. The executive Government,
however, can never go against the provisions of the Constitution or of any law.
This is clear from the provisions of Article 154 of the Constitution but, as we
have already stated, it does not follow from this that in order to enable the executive
to function there must be a law already in existence and that the powers of the
executive are limited merely to the carrying out of these laws."
58. That the power of Judicial review has been developed to a
stage today when without reiterating any analysis of the steps by which the
development has come about, one can conveniently classify under three heads the
grounds on which administrative action is subject to would call ’illegality’
the second ‘irrationality’ and the third ‘procedural impropriety’ That is not,
to say that further development on a case by case basis may not in course of
time add further grounds. The possible adoption in the future of the principle
of ‘proportionality’ which is recognized in the administrative law of several
of our fellow; but to dispose of the instant case the three already well
established heads that I have mention will surface.”
59. That “No citizen has a fundamental right to trade in killing of milk producing animals whether indigenous or imported from
other State. Assuming trade to be
fundamental right granted under Article 19 (1) (g), the prohibition imposed
thereon by the impugned Act is in public interest and in consonance with the
moral claims embodied in Article 48 A of the Constitution; and the ban on trade
in imported ivory and articles made there from is not violative of Article 14
of the Constitution and does not suffer from the mala fides namely,
unreasonableness, unfairness and arbitrariness.” In the context of our national
dimensions of human rights, right to life, liberty, pollution, free air and
water is guaranteed by the Constitution under Articles 21, 48A and 51 (g), it
is the duty of the State to take effective steps to protect the guaranteed constitutional
rights.
60. That "Democratic and aristocratic States are not in
their own nature free. Political liberty is to be found only in moderate
governments; and even in these it is not always found. It is there only when
there is no abuse of power. But constant experience shows us that every man
invested with power is apt to abuse it, and to carry his authority as far as it
will go. Is it not strange, though true, to say that virtue itself has need of
limits?. In every government there are three sorts of powers : the legislative
the executive in respect of things dependent on the law of nations and the
executive in regard to matters that depend on the civil law..No right is
absolute in a welfare state. Man is a
social animal . He cannot live without
the cooperation of large number of person.
Thus when there is a clash between two fundamental rights, the right
which would advance the public morality or the public interest would alone be
enforced through the process of Court.
Moral consideration can be kept at bay.
Judges are not excepted to sit at mute structures of clay in the hall
known as Court Room, but have to be sense that they must keep their finger
firmly upon the pulse of the accepted morality of the day.
61. That "The
functions of Government under our system are apportioned. The legislative
department has been committed the duty of making laws; to the executive the
duty of executing them : and to the judiciary, the duty of interpreting and
applying them in cases properly brought before the Courts. The general rule is
that neither department may invade the province of the other, and neither may
control, direct, or restrain the action of the others." It is also well to
remember that freedom depends upon the separation of three organs of the State.,,
Each must function within its own domain and remain distinct.
62. That Judicial review of the administrative action
or inaction where there is an obligation for action should be with caution and
not in haste. Its sense of priority it has determined, there may have been
certain lethargy and inaction. It has been said by Adam Smith in his 'Wealth of
Nation' that whenever you see poverty widespread rest assured that either of
the two causes must have operated, either energy has not been applied or energy
has been misapplied. That the judicial system is based on the cooperation of
the administration. It is well settled
preposition of jurisprudence that every right has a corresponding duty upon the
enforcing agencies regulated by the sovereignty of the State Government. Thus
the enforcement of the provisions of the law and statutory provision is not
only the responsibility of the Hon’ble Courts meant for the enforcement of
constitutional right but it is an elementary duty of the official assigned with
the responsibility makes the enforcement of the Public order. There is a comedy of error in our celebrated
principles that those person who are made accountable for the enforcement of
law, are themselves violative the public order for extraneous consideration.
Certainly judicial institutions must reflect the traditions, ideals and
assumptions, and in the end must respond to the needs, claims and expectations
of the social order in which they operate. They must not and ultimately cannot,
move too far ahead or lag too far behind. The problem for the Supreme Court is
one of finding of the proper degree of responsiveness and leadership or perhaps
better, of short-term and long-term responsiveness. Yet, in seeking out this
position the Court should not under-estimate the authority and prestige it has
achieved over the years. Representing the conscience of the community" it
has come to possess a very real power to keep alive and vital the higher values
and goals towards which our society imperfectly strives Given its prestige, it
would appear that the power of the Court to protect freedom of expression is
unlikely to be substantially curtailed unless the whole structure of our
democratic institutions is threatened".
63. That the Court of law has not become the mute spectator of
the melody prevalent in the society in absence of fixing accountability of such
officer who are guilty of violating the law.
There is no fear in the mind of the public. The invasion of law is common
phenomenon. The people have given up
there basic instinct for the enforcement of social obligation and rather they
have now dragged in the process of participating with such person who are the
offender and invaders to the society at large.
Thus the entire society has now become an association of dreaded criminals. There is no frustration in the mind of the public at large even to go behind the bar
of jail if the same is having the attractive venture for the purposes of
getting the predomination in the society.
64. That the Constitution enshrines and guarantees the rule of
law and the power of the High Courts under Art. 226 (which is equally construe
as per the power of Art. 32) is designed to ensure that each and every
authority in the State, including the Government acts bona fide and within the
limits of its powers and that when a Court is satisfied that there is an abuse
or misuse of power and its jurisdiction is invoked, it is incumbent on the
Court to afford justice to the individual. The Court further observed that in
such an event the fact that the authority concerned denies the charge of mala
fide, or asserts the absence of oblique motives or of its having taken into
consideration improper or irrelevant matter, does not preclude the Court from
inquiring into the truth of the allegations made against the authority and
affording appropriate relief to the party aggrieved by such illegality or of
use of power in the event of the allegations being made out.
65. That there is a growing body of authority, attributable in large
part to the efforts of Lord Denning, to the effect that in some circumstances
when public bodies and officers, in their dealings with a citizen, take it upon
themselves to assume authority on a matter concerning him, the citizen is
entitled to rely on their having the authority that they have asserted if he
cannot reasonably be expected to know the limits of that authority; and he
should not be required to suffer for his reliance if they lack the necessary
authority." That the police force which was once being considered to be
the protector of the public at large has now starting acting in a manner as it
has now meant for ruining the society.
There is a fear in the mind of the public even to pass through the police
station as they have their genuine apprehension that they may be booked in some
false cases. This is the reason why the
people has now taken the resort to approach the Hon’ble Court even for the
enforcement for the such rights having the sanctity of law. This representation is given in anticipation
that the higher authority under the benevolent jurisdiction may rise to the
occasion as the applicant may not be enforced to seek the protection against
the redress of their grievance for the enforcement of law of prevention of
cruelty of animal through the court of law.
66. That the humble petitioner
without attributing any aspersion upon the administration is concerned
with the aspect of maintaining any equilibrium in the environment by protecting
the animals who are not only our friend for the ecological cycle of the nature
but the human being is also dependent upon them. The foundation of the country is based on the
principle of non-violence and compassionate attitude towards the life of
defenseless innocent animals. The
slaughter of an animal by the human being shows the aggressive trend of some
irrational tendency of cruelty.
Ultimately such country who have no policy for extracting the meat and
other means of preparing the non-vegetarian dishes for pacifying the appetite
of the taste have faced the desert and other natural calamity. This is not a matter of faith or ideology of
any religion to commit an offense of the slaughter in an unsystematic manner
but ultimately the instinct of killing is a crime. Thus the government is duty bound to respect
the laws prohibiting any such cruelty of the innocent birds and cattle’s on the
public street. There is also a danger of
inviting a trouble of psychological depression in the mind of a child who has
been born in the atmosphere of live and let live based on non-violence. Thus kindly implement the proper application
of the provision of the law just to save the cruelty on animals.
67. That it is submitted that on one hand, the milk of the cows
and buffaloes and even of the goats are mixed up when the same is being brought
to the market for consumption of the public after traveling a long distance
from the remote area of a village to the urban area. It is not worthwhile to
have 3 to 4 container by the milching man in his possession while covering the distance
of more than 10 to 20 kilometers for the sale of their products in the market
but their products are confiscated under the garb of the adulterated milk
simply on account of the reason that the milk of the different cattle are inter
mixed resulting in increase and decrease of fatty contents therein, while on
the other hand, there is no restriction upon the sale of the skimmed milk
powder being used for manufacturing the skimmed condensed milk by pouring the
water by the respondents No. 8 to 13 milk production companies and many others,
which is stated beyond the purview of the legislative competence in absence of
any law regulating to these economical rider in the society.
68. That this Hon’ble Court may declare that the Prevention of
the Food and Adulteration Act, 1954 on account of permitting the use of Recombined
Milk, Toned Milk, Skimmed Milk, Condensed Milk ,Milk Powder, Skimmed Milk
powder, Infant Milk food to its citizen, as defined in A.11.01.02 to A.
11.02.18 in Appendix B under rule 5 Prevention of the Food and Adulteration
Rules, 1955, in context of the
definition of the Milk under A.11.01.01 and the provisions of Rule 44 of
Prevention of the Food and Adulteration Rules, 1955 has become obsolete,
redundant and non existent to the practical implications in its larger extent
on account of the whole sale production of the condensed milk and the sale of
the milk products by the national and multinational company in the form of
condensed milk and thus if the definition of the adulterated milk is determined
simply by having mixing of the water there, the condensed milk cannot be used
as that of the milk for the consumption of the citizens.
69. That this Hon’ble Court may provide that the adequate guide
lines to the respondents for dealing with the menace of the synthetic milk and
discourage the use of skimmed milk powder for the production of the milk
products. There must be the check and balance upon the indiscriminate use of
the skimmed powder milk as it may be disproportionate to the consumption and
thereby providing a complete abrogation and subjugation to the production of
the natural milk in the market otherwise the same may be classified as
irrational classification which is prohibited under Article 14, 19 and 21 of
the Constitution of India. The same is prohibited under the directive
principles of the State Policy and as such this Hon’ble Court may tear the veil
behind such discrimination between the poor farmer and a multinational company.
70. That under these circumstances it is expedient in the
interest of justice that this Hon’ble Court may graciously be pleased to
declare the provision Permitting the sale of skimmed milk powder and the
condense milk as violative of the provision of natural milk in The Prevention
of Adulteration Act,1954 as
unconstitutional and ultra virus to the
constitution of India as the said provisions are redundant, obsolete and based
on irrational classification on account of the fact that now the industry of
the milk product have been commercialized by the use of schemed and condensed
milk sold to the public by the multi national companies and thereby resulting
in to demoralization to the people indulged into business of the animal
husbandry. The effect of these provisions is the ruthless killing of the
animals in the slaughter house as the farmers dealing with the milk producing
animals are not providing the proper nourishment required for their survival
and as such the legislative safe guard are not adequate, which were meant for
the protection of the individual from the adulteration of the food articles are
being misused by the law enforcement agencies having the control to prosecute
the milk vender of the natural milk extracted from the milching animals with
regard the definition under the Prevention of the Food and Adulteration Act,
1954 of Recombined Milk, Toned Milk, Skimmed Milk, Condensed Milk ,Milk Powder,
Skimmed Milk powder, Infant Milk food as defined in A.11.01.02 to A. 11.02.18
in Appendix B under rule 5 Prevention of the Food and Adulteration Rules, 1955,
in context to the definition of the Milk under A.11.01.01 and Rule 44 of Prevention of the Food and Adulteration
Rules, 1955.
71. That under these circumstances it is expedient in the
interest of justice that this Hon’ble Court may graciously be pleased to issue the direction as to prevent the violation
of the provisions of The Prevention of Cruelty Act, 1960, Wild Life Protection
Act, 1972, The Environmental (Protection) Act, 1986, Water (Prevention And
Control of Pollution) Act, 1974 and Municipal Law meant for the protection of
the society from obnoxious biodegradable substance like Caracas and Sewerage
problem due to ruthless killing of the animals by the butchers in
discriminatory resulting in contravention to the provisions of sections 428 and 429 of Indian Penal
Code.
72. That there is no efficacious remedy available to the
petitioner on the following amongst other grounds.
GROUNDS
a.
Because, the Petitioner society has been
registered with an objective to provide every short of the help against the oppression and exploitation of
the milk venders dealing in the products of Khoya, Paneer, Milk and Cream and
for the aforesaid purposes to resolve their disputes and to negotiate the same
to the officials dealing with the subject. The Registration of the society has
been done under the Society Registration Act and the registration no. of the
society is 633 of 2009-10 which is valid up to 22.10.2014.
b.
Because, the petitioner society is
strictly against such individuals who are indulged in adulteration by
introducing injurious substance being mixed up in the food products and they
categories such individuals as not only enemy of the business community but
they are also the enemy of the nation. It has been resolved by members of the
society to provide every short of the assistance to the administration dealing
with the adulteration of food articles.
c.
Because, the public consuming milk and
its product has been created by the media and through the channel by showing
the preparation of the synthetic milk from the paint/oil by pouring the
fertilizer and caustic soda and thereafter the essence of the milk as one may
consume it under the notion of consuming the milk. On the other hand if the
genuine product of the milk are intermixed with the milk of the cow and the
buffalo or the preparation of the milk is being done from the condensed milk
available in the market by having the water being mixed up therein, the
authorities empowered to check the adulteration under the Food Adulteration Act
and within the power of Section 272 and 273 IPC i.e. the adulteration of the
Food or Drink intended for sale and sale of noxious food or drink, the articles
recovered by the police are destroyed even prior to sending its sample to the
public analysts.
d.
Because, as the immediate out come of
these problems are dealt with further degenerations of the ecological cycle
resulting into the global warming by the ruthless killing of these milk
producing animals, but the butchers in the slaughter house and at every public
place even during the festivals in the village. It is commonly understood that
71.4 % of population of our country resides in the village, and the source of
income to the former living in village is either the cultivation, or the animal
husbandry business, for providing nourishments to the people living in urban
area. There has been a disproportionate increase in the cost of the
transportation and the vehicle owners are reluctant to carry on the containers
carrying the milk generated through the animal husbandry in the village by the
farmer.
e.
Because, the farmers are not getting
the adulate production to their business of milk production, while the other
company dealing with the condense milk as that of their business products are
having overriding effect upon the entire business of milk production. There is
the conceal sympathy of the officials provided to get the prevention from the
adulteration as the owner of the company manufacturing the condense milk are
much more prosperous in the comparison of the income of the former generate
through their animal husbandry. There is no scans when the sample of the
condense milk is destroyed by the food inspector and the administration as the
owner of the multinational company are having their political protection but
the poor farmers are dealt with by gruffness and toughness of these
authorities, who are empowered to take action against farmers under the
provision of Food Adulteration Act, 1954.
f.
Because, customer ask for ‘Milk’ as
defined under provision of A.11.01.01 of Appendix B in the Prevention of the
Food and Adulteration Rules, 1955, he should be understood by the vender
dealing in the milk produce to be desirous of purchasing the pure milk, but he
supplied the skimmed milk by its seller, then the seller is guilty of offence
under the provision of prevention of food adulteration act. For the convenient
perusal of this Hon’ble court the definition of the adulterant means deploying
a material in the produce for the purposes of adulteration under Rule 44 of the
Prevention of the Food and Adulteration Rules, 1955.
g.
Because, the manufacture is incidental
and ancillary a process to the manufacture of the article of the food and there
has been prohibition for mis-branded of the food articles, but in the practical
spare of the prevention of such type of the food adulteration, there has been
the advertisement by the media having spontaneous reaction upon the psychology
of the consumer that an individual is consuming the pulp of the mango when, he
is consuming Mazza, slice and frooty. There is no authority having the
restriction upon such misbranded to the consumption by the public.
h.
Because, State of the Uttar Pradesh
vides notification No.10656 (ii)/xvi-(P-H.)722-755 published in Gazette dated
18 Feb 1956 page 245 the Governor in exercise of the power conferred under
clause (VIII) (2) of sub section II of the prevention food adulteration Act
1954 has been pleased to declare that the local authority of the various local area
which includes rural area and town area, where in the sub-divisional Magistrate
is assigned with the responsibility of in-charge, while in railway premises
divisional medical officer has been assigned with the responsibility of the local authority in UP.
i.
Because, the condense milk is supplied
by the multinational company in order to prepare the products of the milk
produce like Khoya, Paneer and cream resulting in lesser production of these
product s from animal husbandry which is the source of livelihood to the
formers. In the Algerian society of our traditional heritage, the farmers are
subjected to undergo a lot of the economical crises and thereby in the zone of
the competitive business, the monopoly of the multinational company supplying
the condense milk from the foreign nation is eroding the vary foundation, on
which the ecological cycle of the environment is dependent upon.
j.
Because, if the milk of the cow is
mixed with that of the milk of the buffalo and is being sold in the marked the
same is adulterated milk. Thus a
delicate balance is required to check the misuse of the police power and to
prevent the injurious product having the manufacture of the artificial milk on
one hand while on the other hand a poor vendor having a cow for survival of his
family from the income of the milk extracted from the cow will be punished from
the same yardstick of the adulteration under the provisions of the Prevention
of the Food Adulteration Act, 1954.
k.
Because, the ‘sale’ with its
grammatical variation and cognate expression means the transfer, otherwise then
in pursuance of the contact for cash for other valuable consideration, in lieu
of the settled a cost of the product and as such if the product purchased in exchange
is for human consumption, used in the preparation of the human food, the same
shall be subjected to undergone the provision the Food Adulteration Act.
l.
Because, the definition under the
Prevention of the Food and Adulteration Act, 1954 on account of permitting the
use of Recombined Milk, Toned Milk, Skimmed Milk, Condensed Milk ,Milk Powder,
Skimmed Milk powder, Infant Milk food to its citizen, as defined in A.11.01.02
to A. 11.02.18 in Appendix B under rule 5 Prevention of the Food and Adulteration
Rules, 1955 vide amendments up to 29.5.2000, in context of the definition of the Milk under A.11.01.01
and the provisions of Rule 44 of Prevention of the Food and Adulteration
Rules, 1955 has become obsolete, redundant and non existent to the practical
implications in its larger extent on account of the whole sale production of
the condensed milk and the sale of the milk products by the national and
multinational company in the form of condensed milk and thus if the definition
of the adulterated milk is determined simply by having mixing of the water
there, the condensed milk cannot be used as that of the milk for the
consumption of the citizens.
m.
Because, In case of cow’s milk to which
necessary quantity of formalin has been added and which had been kept in normal
circumstances the sample retains its character and is capable of being usefully
had been kept in normal circumstances the sample retains its character and is
capable of being usefully analyzed for a period of about ten months. (Babboo v.
State, 1970 Cri LJ 196; AIR 1970 All122; Net Ram v. State, 1968 ALJ 916 not
correctly decided], Where in a case of sample of milk, formalin was not added
to the sample and there was a considerable delay in the analysis, it could not
be presumed that requirements of the rule were satisfied. [1964 MLJ (Cri) 660].
Where the formalin added to the sample of milk was not of the same strength as
prescribed, it was the duty of the prosecution to show that the formalin added
was sufficient to prevent disintegration. [Nandu Ram Kotu Ram v. State, (1962) 2 Cri LJ 579 overruled in AIR
1965 Punj 328].
n.
Because,It is the duty of the
prosecution to tell the court where and under what temperature that sample of
the curd was kept till it was analysed by the Public Analyst. It is also the
duty of the prosecution to indicate the strength of the preservative put in the
bottle. [Babu Ram v. State of Punjab, 1972 Cur LJ 351].
o.
Because, the arbitrary misutilisation
of the power pertaining to the authorities meant for prevention of the food
adulteration especially milk products namely Khoya, Paneer, Milk and Cream by
examination of the sample of the food articles as synthetic milk products
without its examine in the laboratory, as together the consumption of these
articles is injurious to its consumer but instead of the same the genuine
venders dealing in the milk products are subjected to face unlawful distraction
by the officials of the Health Department which is causing the scarcity and deficiency of the genuine produce of the
milk to the public at large and
resulting in vanishing of the animal
husbandry farming the village life and hamlet.
p.
Because, formalin is required to be mixed with
khoa when it is in a liquid or semi-liquid form. Khoa Barfi is neither in
liquid nor in semi-liquid form. Therefore, this rule will not be applicable to
khoa barfi. A similar view has been expressed by the Delhi High Court in Nand
Kishore v. State. [1979(1) FAC 20] therein also it has been held that khoa Pera
is neither liquid nor semi-liquid. No preservative is separately prescribed
under the rules for Khoa Pera… Pera contained sugar which itself was its
preservative. Moreover, what was to be examined by the Public Analyst or the
Central Food Laboratory was the presence of an unpermitted coal tar dye and
certainly no preservative has been prescribed in the rules against possible
disintegration of the dye due to lapse of time… the grievance in respect of
violation of the rules is unfounded. [(1980)] 1 FAC 430].
q.
Because, the milk of the cows and
buffaloes and even of the goats are mixed up when the same is being brought to
the market for consumption of the public after traveling a long distance from
the remote area of a village to the urban area. It is not worthwhile to have 3
to 4 container by the milching man in his possession while covering the
distance of more than 10 to 20 kilometers for the sale of their products in the
market but their products are confiscated under the garb of the adulterated
milk simply on account of the reason that the milk of the different cattle are
inter mixed resulting in increase and decrease of fatty contents therein while
on the other hand, there is no restriction upon the sale of the skimmed milk
powder which is stated beyond the purview of the legislative competence in absence
of any law regulating to these economical rider in the society.
r.
Because, the Hon’ble Supreme Court in
case of Kishan trimbak oothula Vs State of Maharashtra (1977) 1 SCC pg 300 has
dealt with a narrow point as together ‘Cow’s
milk is an article of the food defend from buffalo’s milk, and as such
whether both the milk may be put under the description of misbranded. Thus if
the ‘skimmed milk’ or the ‘toned milk’ is sold under the name of cow milk, it
is a clear case of mis branding. The sale of the turmeric powder with the level
on the container that it has been meant for pooja held as constituted the
misbranding and it is not necessary for conviction under section 2(IX) (c) of
the Prevention of Food Adulteration act,
as together there was any criminal intension or not.
s.
Because, if the milk is used for
preparation of the tea, it may argue that the milk has been sold there and as
such the provision of the prevention of the food Adulteration Act will apply
against the tea stall vendor as he is not the dealer of milk selling. However
since the sample of the milk was purchased by the food inspector for sending it
to public analysis and the same was found to be adulterated, the Supreme Court
found that the Tea stall vendor is guilty of committing an offence under
section 7/16 of the Food Adulteration Act, Food Inspector Vs D Gopalan (1971)
Vol-II, SCC Pg 322.
t.
Because, in case of any extract from
the rice “Madh” is being mixed inside the milk then it will convert into the
blue colour and thus a prima facie testing of these products are required
before classifying them as that of the synthetic milk. That in case of the
vegetable ghee is mixed up with the pure ghee then by mixing one spoon of
hydrochloric acid and the sugar in side there then after 10 minutes the portion
below the acid will become yellow and as such the mixing of the vegetable ghee
in the pure ghee can be analyzed from the aforesaid test. That all these
measurements adopted by the administration in getting the identification of the
synthetic milk are not the required standard of the precaution for which the
honest citizens may be subjected to under gone a ruthless process of sending
them to the jail after destroying their milk products in the drainage by the
police. On one hand the poor farmers are subjected to demoralize by illegal
address while on the other hand there has been the complete violation of the
provision of the Prevention of the Cruelty on Animals Act 1960, Wile Life
Protection Act 1962 and the Environmental (Protection) Act 1986. The municipal
law meant for the protection of the society from obnoxious biodegradable
substance created on account of the ruthless killing of these milk producing
animals in the slaughter house is not having any control in contraventions to
the provisions of the Indian Penal Code while on the other hand poor farmers
having their only source of livelihood by the sale of their products produced through the milk are being subjected
to the harassments by the Food Inspector , Police, Nagar Swasthya Adhikari and
the official of the Health Department.
u.
Because, the Hon’ble Supreme Court in
case of Milk Man Colony Vikas Samiti v. State of Rajasthan (2007) Vol.2 SCC 413
has been pleased apart from directing the respondents Government to relocate
the milk dairy from the city, has further directed from stopping the dying of
the cattle due to consumption of the plastic bags it has been held that the
owner of the bovine animals after milching the bovine animals were turning them
out of the dairies so that they could eat whatever was available on the roads.
The stray cattle including the cows, bulls, dogs etc freely roamed in the city
area causing unhygienic, unhealthy and injurious practice of creating
considerable nuisance to the citizens thus the public interest litigation is
maintainable to stop such public nuisance.
v.
Because, the reason for not supplying
the adequate fodder to the milching animals is on account of the fact that on
one hand there has been the completion with the companies dealing in the
condensed milk while on the other hand the individual farmers who are having
their livelihood on the income of the sale of their milk in the market, their
products are destroyed simply on account of the reason that the milk of the
cows is being mixed with the milk of the buffaloes.
w.
Because, there is a complete violation of
the provisions of The Prevention of Cruelty Act, 1960, Wild Life Protection
Act, 1972, The Environmental (Protection) Act, 1986, Water (Prevention And
Control of Pollution) Act, 1974 and Municipal Law meant for the protection of
the society from obnoxious biodegradable substance like Caracas and Sewerage
problem due to ruthless killing of the animals by the butchers in
discriminatory resulting in contravention to the provisions of sections 428 and 429 of Indian Penal
Code. Despite the request for the enforcement
of the penal provision by the public at large against the people indulged in
the process of degradation of the sensitivities of the children and people
taught for adopting the lesson of non-violence by the spiritual personalities
and also by the Father of our Nation, the Union of India and the State
Government have completely failed to protect the society against the menace of
the violence adopted by the criminals.
x.
Because, the provision of laws which
are enforceable by the central government in exercise of their power conferred
under the provision of prevention cruelty on animals act are enunciated as
under;- The ministry of social
justice and empowerment exercising its power under sub section (1) of section
38 of the Prevention of cruelty to animals act 1960 was pleased to promulgate
the provision of the Prevention of cruelty to animals (slaughter house ) Rules
2000. It is provided that the slaughter means the killing Or destruction of
animals for the purposes of food and include all the processes and operation perform on such
animals in order to prepare it for being slaughtered. That under rule 2 ( c) slaughter house means where in 10 or
more than 10 animals are slaughtered per day and duly licensed or recognized
under a central, state or provincial act or any rules or regulations made there
under. Thus the animals not to be slaughtered except in recognized or licensed
houses. It is contemplated under rule 3 of the aforesaid Rules that no person
shall slaughter any animals within a municipal area except in a slaughter house
recognized or licensed by the concerned authority empowered under the law for
the time being in force to do so. It is submitted that the sub rule (2) of Rule
3 provides that no animal which is pregnant, or has offspring less than three
months old, or is under the age of three months or has not been certified by a
veterinary doctor that it is in a fit condition to be slaughtered shall be
slaughtered. The municipal or other local authority specified the Central
Government for this purpose shall, having regard to the capacity of the
slaughter house and the requirement of the local population of the area in
which a slaughter house is situated, determine the maximum number of animals
that may be slaughtered in a day.
y.
Because, “It looks cruel and adversely
affects the tender feeling of thousands of vegetarians .Butchers will now have
to make arrangements for walls or thick curtains to ensure that suspended
skinned goats or limbs of cows or buffaloes are not visible to people. The sensitivity of the
individual is provoked by the preaching of the great scholars and spiritual
identities in every period of the history of our great nations and its
tradition. We cannot put aside the
sermons of Lord Buddha, Lord Mahavira, Swami Vivekanand, Swami Dayanand Sarasvati and of our father of the
nation after getting the independence. There is a need for preservation of
valuable heritage and to provide compassionate attitude under the glorious
fundamental duties caste upon every citizen under article 51-A (g) of the he
constitution of India.
73. That the law exists to serve the needs of the society, which
is governed by it. If the law is to play its allotted role of serving the needs
of the society, it must reflect the ideas and ideologies of that society. It
must keep time with the heartbeats of the society and with the needs and
aspirations of the people. As the society changes, the law cannot remain
immutable. Sydney Smith, said, "When I hear any man talk of an unalterable
law. I am convinced that he is an unalterable fool." The law must,
therefore, in a changing society march in tune with the changed ideas and
ideologies. Legislatures are, however, not best fitted for the role of adapting
the law to the necessities of the time, for the legislative process is too slow
and the legislatures often divided by politics, slowed down by periodic
elections and overburdened with myriad other legislative activities. A
constitutional document is even less suited to this task, for the philosophy
and the ideologies underlying it must of necessity be expressed in broad and
general terms and the process of amending a Constitution is too cumbersome and
consuming to meet the immediate needs. This task must, therefore of necessity
fall upon the courts because the courts can by the process of judicial
interpretation adapt the law to suit the needs of the society.
aa.
Because, "It is something to show
that the consistency of a system requires a particular result, but it is not
all. The life of the law has not been logic: it has been experience. The felt
necessities of the time, the prevalent moral and political theories, intuitions
of public policy, avowed or unconscious, even the prejudices which judges share
with their fellow-men, have had a good deal more to do than the syllogism in
determining the rules by which men should be governed. The law embodies the
story of a nation's development through many centuries, and it cannot be dealt
with as if it contained only the axioms and corollaries of a book of
mathematics. In order to know what it is, we must know what it has been. and
what it tends to become. We must alternately consult history and existing
theories of legislation. But the most difficult labor will be to understand the
combination of the two into new products at every stage. The substance of the
law at any given time pretty nearly corresponds, so far as it goes, with what
is then understood to be convenient; but its form and machinery, and the degree
to which it is able to work out desired results, depend very much upon its
past.
bb.
Because, " the framers of our
Constitution were men of vision and ideals, and many of them. had suffered in
the cause of freedom. They wanted an idealistic and philosophic base upon which
to raise the administrative superstructure of the Constitution., They,
therefore, headed our Constitution with a preamble which declared India's goal
and inserted Parts III and IV in the Constitution."It may not be possible
to frame an exhaustive definition of what executive function means and implies.
Ordinarily the executive power connotes the residue of governmental functions
that remain after legislative and judicial functions are taken away. The Indian
Constitution has not indeed recognized the doctrine of separation of powers in
its absolute rigidity but the functions of the different parts or branches of
the Government have been sufficiently differentiated and consequently it can
very well be said that our Constitution does not contemplate assumption, by one
organ or part of the State, of functions that essentially belong to another.
The executive indeed can exercise the powers of departmental or subordinate
legislation when such powers are delegated to it by the legislature. It can
also, when so empowered, exercise judicial functions in a limited way. The
executive Government, however, can never go against the provisions of the
Constitution or of any law. This is clear from the provisions of Article 154 of
the Constitution but, as we have already stated, it does not follow from this
that in order to enable the executive to function there must be a law already
in existence and that the powers of the executive are limited merely to the
carrying out of these laws."
cc.
Because, the power of Judicial review
has been developed to a stage today when without reiterating any analysis of
the steps by which the development has come about, one can conveniently
classify under three heads the grounds on which administrative action is
subject to would call ’illegality’ the second ‘irrationality’ and the third
‘procedural impropriety’ That is not, to say that further development on a case
by case basis may not in course of time add further grounds. The possible
adoption in the future of the principle of ‘proportionality’ which is
recognized in the administrative law of several of our fellow; but to dispose
of the instant case the three already well established heads that I have
mention will surface.”
dd.
Because, “No citizen has a fundamental
right to trade in killing of milk
producing animals whether indigenous or
imported from other State. Assuming
trade to be fundamental right granted under Article 19 (1) (g), the prohibition
imposed thereon by the impugned Act is in public interest and in consonance
with the moral claims embodied in Article 48 A of the Constitution; and the ban
on trade in imported ivory and articles made there from is not violative of
Article 14 of the Constitution and does not suffer from the mala fides namely,
unreasonableness, unfairness and arbitrariness.” In the context of our national
dimensions of human rights, right to life, liberty, pollution, free air and
water is guaranteed by the Constitution under Articles 21, 48A and 51 (g), it
is the duty of the State to take effective steps to protect the guaranteed
constitutional rights.
ee.
Because, "Democratic and
aristocratic States are not in their own nature free. Political liberty is to
be found only in moderate governments; and even in these it is not always
found. It is there only when there is no abuse of power. But constant
experience shows us that every man invested with power is apt to abuse it, and
to carry his authority as far as it will go. Is it not strange, though true, to
say that virtue itself has need of limits?. In every government there are three
sorts of powers : the legislative the executive in respect of things dependent
on the law of nations and the executive in regard to matters that depend on the
civil law..No right is absolute in a welfare state. Man is a social animal . He cannot live without the cooperation of
large number of person. Thus when there
is a clash between two fundamental rights, the right which would advance the
public morality or the public interest would alone be enforced through the
process of Court. Moral consideration
can be kept at bay. Judges are not
excepted to sit at mute structures of clay in the hall known as Court Room, but
have to be sense that they must keep their finger firmly upon the pulse of the
accepted morality of the day.
ff.
Because,
"The functions of Government under our system are apportioned. The legislative
department has been committed the duty of making laws; to the executive the
duty of executing them : and to the judiciary, the duty of interpreting and
applying them in cases properly brought before the Courts. The general rule is
that neither department may invade the province of the other, and neither may
control, direct, or restrain the action of the others." It is also well to
remember that freedom depends upon the separation of three organs of the
State.,, Each must function within its own domain and remain distinct.
gg.
Because,
the Judicial review of the administrative action or inaction where there is an
obligation for action should be with caution and not in haste. Its sense of
priority it has determined, there may have been certain lethargy and inaction.
It has been said by Adam Smith in his 'Wealth of Nation' that whenever you see
poverty widespread rest assured that either of the two causes must have
operated, either energy has not been applied or energy has been misapplied.
That the judicial system is based on the cooperation of the
administration. It is well settled
preposition of jurisprudence that every right has a corresponding duty upon the
enforcing agencies regulated by the sovereignty of the State Government. Thus
the enforcement of the provisions of the law and statutory provision is not
only the responsibility of the Hon’ble Courts meant for the enforcement of
constitutional right but it is an elementary duty of the official assigned with
the responsibility makes the enforcement of the Public order. There is a comedy of error in our celebrated
principles that those person who are made accountable for the enforcement of
law, are themselves violative the public order for extraneous consideration.
Certainly judicial institutions must reflect the traditions, ideals and
assumptions, and in the end must respond to the needs, claims and expectations
of the social order in which they operate. They must not and ultimately cannot,
move too far ahead or lag too far behind. The problem for the Supreme Court is
one of finding of the proper degree of responsiveness and leadership or perhaps
better, of short-term and long-term responsiveness. Yet, in seeking out this
position the Court should not under-estimate the authority and prestige it has
achieved over the years. Representing the conscience of the community" it
has come to possess a very real power to keep alive and vital the higher values
and goals towards which our society imperfectly strives Given its prestige, it
would appear that the power of the Court to protect freedom of expression is
unlikely to be substantially curtailed unless the whole structure of our
democratic institutions is threatened".
hh.
Because, the Court of law has not
become the mute spectator of the melody prevalent in the society in absence of
fixing accountability of such officer who are guilty of violating the law. There is no fear in the mind of the
public. The invasion of law is common phenomenon. The people have given up there basic instinct
for the enforcement of social obligation and rather they have now dragged in
the process of participating with such person who are the offender and invaders
to the society at large. Thus the entire
society has now become an association of dreaded criminals. There is no frustration in the mind of the public at large even to go behind the bar
of jail if the same is having the attractive venture for the purposes of
getting the predomination in the society.
ii.
Because, the Constitution enshrines and
guarantees the rule of law and the power of the High Courts under Art. 226
(which is equally construe as per the power of Art. 32) is designed to ensure
that each and every authority in the State, including the Government acts bona
fide and within the limits of its powers and that when a Court is satisfied
that there is an abuse or misuse of power and its jurisdiction is invoked, it
is incumbent on the Court to afford justice to the individual. The Court
further observed that in such an event the fact that the authority concerned
denies the charge of mala fide, or asserts the absence of oblique motives or of
its having taken into consideration improper or irrelevant matter, does not
preclude the Court from inquiring into the truth of the allegations made
against the authority and affording appropriate relief to the party aggrieved
by such illegality or of use of power in the event of the allegations being
made out.
jj.
Because, there is a growing body of authority,
attributable in large part to the efforts of Lord Denning, to the effect that in
some circumstances when public bodies and officers, in their dealings with a
citizen, take it upon themselves to assume authority on a matter concerning
him, the citizen is entitled to rely on their having the authority that they
have asserted if he cannot reasonably be expected to know the limits of that
authority; and he should not be required to suffer for his reliance if they
lack the necessary authority." That the police force which was once being
considered to be the protector of the public at large has now starting acting
in a manner as it has now meant for ruining the society. There is a fear in the mind of the public
even to pass through the police station as they have their genuine apprehension
that they may be booked in some false cases.
This is the reason why the people has now taken the resort to approach
the Hon’ble Court even for the enforcement for the such rights having the
sanctity of law. This representation is
given in anticipation that the higher authority under the benevolent jurisdiction
may rise to the occasion as the applicant may not be enforced to seek the
protection against the redress of their grievance for the enforcement of law of
prevention of cruelty of animal through the court of law.
PRAYER
It
is therefore MOST RESPECTFULLY PRAYED
that this Hon’ble Court may graciously be pleased
i.
Issue a writ, order or direction in the
nature of mandamus declaring the
provision of Prevention of the Food and
Adulteration Act, 1954 on account of permitting the use of Recombined Milk,
Toned Milk, Skimmed Milk, Condensed Milk ,Milk Powder, Skimmed Milk powder,
Infant Milk food to its citizen, as defined in A.11.01.02 to A. 11.02.18 in
Appendix B under rule 5 Prevention of the Food and Adulteration Rules, 1955, in
context of the definition of the Milk
under A.11.01.01 and the provisions of
Rule 44 of Prevention of the Food
and Adulteration Rules, 1955 as ultra virus to the article 14, 19, 21, 38, 39, and 41 as well as article 51-A of the
petitioner’s farmers rights in our constitution and is there obsolete, redundant and non existent to the
implications on account of the whole sale and production of the skimmed, condensed
milk powder within the definition of the adulterated milk for the consumption
of the citizens.
ii.
Issue a writ, order or direction in the nature of mandamus the adequate guide
lines to the respondents for dealing with the menace of the synthetic milk and
discourage the use of skimmed milk powder for the production of the milk
products. There must be the check and balance upon the indiscriminate use of
the skimmed powder milk as it may be disproportionate to the consumption and
thereby providing a complete abrogation and subjugation to the production of the
natural milk in the market otherwise the same may be classified as irrational
classification which is prohibited under Article 14, 19 and 21 of the
Constitution of India. The same is prohibited under the directive principles of
the State Policy and as such this Hon’ble Court may tear the veil behind such
discrimination between the poor farmer and a multinational company.
iii.
Issue a writ, order or
direction in the nature of mandamus declare the provision Permitting the sale of
skimmed milk powder and the condense milk as violative of the provision of
natural milk in The Prevention of Adulteration Act,1954 as unconstitutional and ultra virus to the constitution of India as
the said provisions are redundant, obsolete and based on irrational classification
on account of the fact that now the industry of the milk product have been
commercialized by the use of schemed and condensed milk sold to the public by
the multi national companies and thereby resulting in to demoralization to the
people indulged into business of the animal husbandry
iv
Issue a writ, order or direction in the nature of mandamus direction as
to prevent the violation of the provisions of The Prevention of Cruelty Act,
1960, Wild Life Protection Act, 1972, The Environmental (Protection) Act, 1986,
Water (Prevention And Control of Pollution) Act, 1974 and Municipal Law meant
for the protection of the society from obnoxious biodegradable substance like
Caracas and Sewerage problem due to ruthless killing of the animals by the butchers
in discriminatory resulting in contravention to the provisions of sections 428 and 429 of Indian Penal Code or
to issue any other suitable order or direction which this Hon’ble Court may
deem fit and proper in the circumstances of the case.
v.
To award the cost of writ
petition in favour of the petitioner.
Dated/-14th
November, 2009 (YOGESH KUMAR
SAXENA) ADVOCATE
COUNSEL
FOR THE PETITIONER.
Chamber No 139, High Court, Allahabad
