[1951] EACA 338

## ORIGINAL CIVIL

### Before de LESTANG, J.

## SHAH JIVRAJ HANSRAJ, Plaintiff

# THE SENIOR COLLECTOR OF CUSTOMS, Defendant

#### Civil Case No. 74 of 1951 (Mombasa)

## Customs Management Ordinance (Cap. 261) (Section 198 (1) (a))—Public Health (Condensed Milk) Rules, 1950 (Rule 6)—Public Health Ordinance (Cap. 130) (Section $134$ ).

A suit was instituted for the release of 250 cases of condensed milk imported by the plaintiff and seized by the Customs as being a prohibited import. It was common ground that the tins were not labelled in the manner prescribed in Schedule I to the Public Health Rules. The only question for decision is whether Rule 6 is valid or not.

Held (23-7-51).—(1) Nowhere does section 134 Public Health Ordinance expressly empower the making of rules requiring in connexion with importation the sort of labels which have been prescribed.

(2) Although the power to make rules prohibiting the importation of condensed milk not bearing the prescribed label is not expressly given by S. 134 it does not follow that there is no such power, as it may well be implied.

(3) In order to decide whether the section confers that power it is necessary to have regard not only to its wording read as a whole, but also to its objects and purposes.

(4) The objects and purposes of the paragraphs are to preserve the health of citizens and secure that clean, wholesome and sound articles of food are sold.

(5) The objects of (i) (J) & (L) contemplate the making of reasonable rules to carry out the objects stated either by prohibiting importation of the articles or by labelling it<br>or by both. Rule 6 is therefore *intra vires* the powers conferred by section 134.

(6) The rule is reasonable.

Halsbury's Laws of England, 2nd Edn. 31 Hailsham p. 534.

I. J. Inamdar for the plaintiff.

$K$ . Bechgaard for the defendant.

JUDGMENT.—This is a suit instituted under section 198 (1) (a) of the Customs Management Ordinance (Cap. 261) for the purpose of securing the release of 250 cases of condensed milk imported by the plaintiff and seized by the Customs as being a prohibited import under section 46 of the Ordinance, on the ground that the labels on the tins of condensed milk do not conform with Rule 6 of the Public Health (Condensed Milk) Rules, 1950. This rule reads as follows:-

"6. No person shall import into the Colony condensed milk intended for sale for human consumption unless such milk contains not less than the appropriate percentage of milk fat and milk solids specified in the Second Schedule to these Rules and is contained in a tin or other receptacle labelled in the manner prescribed in the First Schedule to these Rules:

Provided that the provisions of this rule shall not apply in any case—

(a) where the condensed milk is contained in a $\tan$ or other receptacle whose net weight exceeds fifteen pounds;

v.

(b) where the condensed milk is imported for re-exportation and remains under Customs control until exported from the Colony to any place other than to the Protectorate of Uganda or to a place in any territory into which it may be admitted free of customs duty by virtue of any agreement made under section 263 of the Customs Management Ordinance, 1926."

It is common ground that the tins of condensed milk imported by the plaintiff are not labelled in accordance with this rule and it is agreed that the only question for decision in this suit is whether Rule 6 in so far as it purports to prohibit the importation of condensed milk without the prescribed label is valid or not.

The Public Health (Condensed Milk) Rules, 1950, are expressed to be made under section 134 of the Public Health Ordinance (Cap. 130). The relevant parts of this section for the purposes of this suit are the following:

"134. The Governor in Council on the advice of the Board may make rules regarding all or any of the following matters: —

- $(a) \ldots \ldots \ldots \ldots$ - $(b) \ldots \ldots \ldots \ldots$ - $(c)$ .......... - $(d)$ the conveyance and distribution of milk and the labelling or marking of receptacles used for the conveyance of milk: - (e) .................................... - (f) . . . . . . . . . . . . $\ldots$ - $(g) \ldots \ldots \ldots \ldots$ - (h) $\ldots$ - (i) prohibiting the importation into the Colony of any article of food which is not clean, wholesome, sound and free from any disease or infection or contamination, and the seizure and disposal by destruction or otherwise of any such article so imported; - $(i)$ the preparation, manufacture or importation and the storage and sale of or trade in articles of food which are packed in air-tight receptacles or are otherwise preserved, and the marking of any such article or receptacle with the date of manufacture or preparation. - $(k)$ .......... - (1) in relation to food intended for sale in or export from the Colony, prescribing standards of composition, strength and quality, for the prevention of adulteration, misbranding, misdescription or reduction below a prescribed standard and for securing the sale in a pure state and in a condition which conforms with such standards."

It is contended by Mr. Inamdar on behalf of the plaintiff that the enabling section does not confer any power to make rules prohibiting the importation of condensed milk in improperly labelled tins. It is contended on behalf of the defendant that paragraphs $(d)$ and $(l)$ confer the necessary power.

In my view, paragraph $(d)$ deals with fresh milk and can have no bearing on the question for decision. That it refers to fresh milk is I think obvious not only from the wording of the paragraph itself but also from the position which it occupies in the section. It is sandwiched between several paragraphs dealing with dairies, cow-keepers and purveyors of milk and can only in my opinion refer to fresh milk produced in the Colony.

As regards paragraph $(l)$ it applies, in my view, to articles of food (including of course condensed milk) intended for sale in or export from the Colony and, if I understand the paragraph correctly, it empowers the making of two sets of of rules, (1) prescribing standards of composition, strength and quality, and (2) for the prevention of adulteration, misbranding, misdescription, etc. It seems to me therefore that rules prescribing for the labelling of condensed milk for sale could properly and validly be made under (2) as this would be for the prevention of the several malpractices mentioned therein. Paragraph (*l*), however, makes no reference to importation and it cannot therefore be said to expressly authorize the making of rules prohibiting the importation of improperly labelled condensed milk intended for sale. Indeed nowhere does section 134 expressly empower the making of rules requiring in connexion with importation the sort of labels which have been prescribed. Paragraphs $(i)$ and $(j)$ deal expressly with importation of articles of food. The former, however, is silent on the question of labelling while the latter expressly provides for the marking of the article or receptacle containing it with the date of manufacture or preparation. Although the power to make rules prohibiting the importation of condensed milk not bearing the prescribed label is not expressly given by section 134 it does not in my judgment necessarily follow that there is no such power as it may well be implied. In order to decide whether the section confers that power or not it is necessary to have regard not only to its wording read as a whole but also to its objects and purposes and construing those powers generously and benevolently in accordance with the principle enunciated in the following passage from Halsbury's Laws of England, 2nd Edition, 31 Hailsham, p. 534-"In considering the manner of exercise (of statutory powers) the Court have regard to the objects of the statute, construing more liberally powers exercised for public purposes than those given to private corporations for objects of gain". Now there can be no doubt about the objects and purposes of the paragraphs which I have quoted earlier on from section 134. Briefly, they are to preserve the health of the citizens of this Colony and secure that only clean, wholesome and sound articles of food are sold to them. Is not the labelling of condensed milk in the manner prescribed a reasonable safeguard against the sale of an inferior or unwholesome commodity? Is not the best way of preventing the sale to prohibit the entry of the article into the Colony? In my view, paragraphs (i), (j) and (l) taken together contemplate the making of reasonable rules to carry out the objects which I have stated either by prohibiting the importation of the article or by labelling it or by both. Let us briefly consider these three paragraphs. Paragraph (i) empowers rules prohibiting the importation of unclean, unwholesome and unsound food. Paragraph $(j)$ empowers rules regarding the importation of preserved foodstuffs. Paragraph (1) empowers rules for the prevention of adulteration, misbranding and misdescription. Is not Rule 6 really a combination of these three paragraphs especially paragraphs $(j)$ and $(l)$ since it prescribes that condensed milk which is a preserved foodstuff may only be imported if it is labelled in such a way as to prevent misbranding or misdescription? For these reasons I hold that Rule 6 is *intra vires* the powers conferred by section 134 of the Public Health Ordinance and consequently valid.

During the hearing of this suit I gave a ruling to the effect that the reasonableness of the rule was irrelevant. In the event of this ruling being found to be wrong I should like to say that I cannot see anything unreasonable in the rule which has been questioned. I think that this conclusion follows necessarily from what I have already said and the reasons which I have given for the validation of the rule. The suit is accordingly dismissed with costs.