HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR
SB : JUSTICE S.K. PALO
M.Cr.C. No. 9263/2011
Surendra & Company
Vs.
Rajesh Kumar Rai and others
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Shri K.N. Gupta, Senior Advocate with Shri R.S. Dhakad, Advocate,
for the petitioner.
Ms. Sudha Shrivastava, Panel Lawyer for the respondent/State.
Shri Sanjay Dwivedi, Advocate for the respondent No.3.
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ORDER
(01/05/2015) This petition under Section 482 of Cr.P.C. has been filed for invoking the inherent jurisdiction of this Court to quash the criminal proceedings pending as Criminal Case No.7197/2011 before the Judicial Magistrate First Class, Gwalior registered under Section 7/15 of Prevention of Food Adulteration Act, 1954 read with Rules known as Prevention of Food Adulteration Rules, 1955.
Briefly stated the factual matrix is as follows: the complainant/ respondent No.2 is the Food Inspector serving under the respondent No.1 Deputy Director Foods and Drugs Administration, District- Gwalior. He has been authorized by Public Health and Family Welfare Department and also by Director Food and Drugs Administration and Local Health officer to observe the Prevention of Food Adulteration in Gwalior. The complainant / respondent No.2 on 13.06.2011 at about 4:30 pm came to the shop of the petitioner, which is in the Firm Future Retail Ltd., Deendayal City Mall, Phoolbag, which is run by Surendra and Company. He purchased three samples of Nutralite “Healthier than Butter” from the manager Shivanand Jha at a cost of Rs.330/-. The samples are of batch No.K-122, PKD 05/2011. He has also obtained receipt for the payment he made and given a notice of form No.6 to Shivanand Jha.
He labelled the samples and wrapped the sample by brown paper and thereafter sealed. The No.147679 was affixed on the sample. Every sample was sealed by him. During this process Smt. Shashi Mudgal and Shri Ajay Soori witnessed the said proceedings. The said sample was sent to State Level Food Examination Laboratory, Bhopal by registered post. The other two samples were kept in the office safely. After examination the said sample, the Laboratory by its report dated 21.07.2011 informed the food department that the sample sent, was “substandard” and “misbranded”. Therefore, the Food Inspector lodged the complaint against the manager of the shop Shivanand Jha, firm Future Retail Limited, Deendayal Mall and the manufacturer and marketing agent “Judas Wellness Limited” Registered Office Judas Tower Satellite, Cross Road, Ahmedabad, and the petitioner vendor Surendra & Company, Dalbazar Gwalior.
The present petition has been filed by Surendra & Company on the ground that the proceedings filed by the respondent no. 1 against the petitioner and other accused persons deserves to be quashed. The Public Analyst does not have any authority or competence under the Prevention of Food Adulteration Act and the Rules made thereunder even to opine a product as ‘misbranded’. No methodology is defined under Prevention of Food Adulteration Act and the Rules made thereunder for reporting a product as ‘misbranded’.
The Magistrate fell in error in not considering that summoning of the accused in criminal case is a serious matter, without examining nature of allegations made in the complainant and considering the oral and documentary evidence that it is not sufficient to bring in the charge to the accused as held by M/s. Pepsi Food Vs. Special Judicial Magistrate reported in AIR 1998 SC 128.
‘Misbranded’ as defined in Section 2(ix) of the Act and interpreted by the Hon’ble Supreme Court reported in the case of “Bal Kishan Thakur Vs. Municipal Corporation, Delhi” reported in AIR 1979 SC 1004. It is also contended that the petitioner is not a manufacturer and not having licence to manufacture the product cannot be prosecuted for a product, which is alleged to be ‘misbranded’.
Learned counsel for the petitioner has also contended that the Magistrate fell in error in not appreciating the meaning of the word “associated” in Rule 49(23) of the Prevention of Food Adulteration Rules, which provided that word “butter” shall not be associated while labeling the product. “Associated” means being connected with or in relation to as interpreted by the Hon’ble Apex Court in the case of Commissioner Madras Hindu Religious and Charitable Endowment Vs. Narayan Iyengar reported in AIR 1965 SC 1916. It is also contended that the Magistrate fell in error in not considering the allegations made in the complaint even after taken to be true in its entirety do not constitute an offence against the petitioner because the product is not “misbranded”, unless it resembles another article of food in the name of which it is sold. For this contention counsel for the petitioner placed reliance on Municipal Corporation, Delhi Vs. Thouram reported in ICR 1974 Delhi.
The petitioner is only the vendor of the product, he has displayed the said product as supplied to it by the manufacturer, packer and marketing agency without any changes to the said packaged product. Since the allegation in the complaint is with regard to the content displayed on the package and not about the product itself, it is clear that the petitioner has not committed any offence.
It is further claimed without prejudiced to the submission of the petitioner Rule 49(23) of the said Rule shows that the requirement of not associating the word ‘butter’ is in respect of the label and not the package.
Learned counsel for the petitioner prays that this is a fit case for invoking the inherent jurisdiction under Section 482 of Cr.P.C. and to quash the proceedings in Criminal Case No.7197/2011 pending in the court of Judicial Magistrate First Class, Gwalior.
Learned counsel for the state opposing the contentions submitted that in the label use of the term “butter” is prohibited, whereas in the label of the food product Neutralite it is mentioned that “Healthier than Butter”. Which means “misbranded”. She also contended that the report submitted by the Public Analyst indicates that acid value of the extracted fat is not as per standard prescribed. The petitioner is the offender is liable under Section 7(i) and 7(ii) read with Section 16(i)-A of Prevention of Food Adulteration Act, 1954. Therefore, the present petition is not maintainable.
Having heard both the parties and after going through the record, it is felt necessary to examine the provisions. In section 2(ix) of the Prevention of Food Adulteration Act:
“(ix)”misbranded” – an article of food shall be deemed to be misbranded-
(a) if it is an imitation of, or is a substitute for, or resembles I a manner likely to deceive, another article of food under the name of which it is sold, and is not plainly and conspicuously labelled so as to indicate its true character;
(b) if it is falsely stated to be the product of any place or country;
(c) if it is sold by a name which belongs to another article of food;
(d) if it is so coloured, flavoured or coated, powdered or polished that the fact that the article is damaged, is concealed or if the article is made to appear better or of greater value than it really is;
(e) if false claims are made for it upon the label or otherwise;
(f) if, when sold in packages which have been sealed or prepared by or at the instance of the manufacturer or producer and which bear his name and address, the contents of each package are not conspicuously and correctly stated on the outside thereof within the limits of variability prescribed under this Act;
(g) if the package containing it, or the label on the package bears any statement, design or device regarding the ingredients or the substances contained therein, which is false or misleading in any material particular; or if the package is otherwise deceptive with respect to its contents;
(h) if the package containing it or the label on the package bears the name of a fictitious individual or company as the manufacturer or producer of the article;
(i) if it purports to be, or is represented as being, for special dietary uses, unless its label bears such information as may be prescribed concerning its vitamin, mineral, or other dietary properties in order sufficiently to inform its purchaser as to its value for such uses;
(j) if it contains any artificial flavouring, artificial colouring or chemical preservative, without a declaratory label stating that fact, or in contravention of the requirements of this Act or rules made thereunder;
(k) if it is not labelled in accordance with the requirements of this Act or rules made thereunder;”
As per Rule 49(23) of the Prevention of Food Adulteration Act, 1955, it is provided that:
“[(23) The fat spread shall not be sold in loose form. It shall be sold in sealed packages weighing not more than 500 gms. The word “butter” shall not be associated while labelling the product. The sealed package shall be sold or offered for sale only under AGMARK certification mark bearing the label declaration as provided under rule 42 besides other labelling requirements under these rules.]”
Food packet purchased by the Food Inspector contains the words “Nutralite” (Healthier then Butter). As per the complaint of the Food Inspector using the word ‘butter’ in the labeling of the product is prohibited. Therefore, it violation of Section 2(ix)(x) of the Food Adulteration Act and Rule 49(23) of Food Adulteration Rules. Therefore, the word butter used in the label constitute “misbranding”.
It would be appropriate to examine the Public Analyst report dated 21.07.2011 in which the Analyst has stated that the food product examined does not confirm the standard prescribed as per the provisions laid down under Prevention of Food Adulteration Act, 1955 in respect of the above test.
The comparative chart is given below to ascertain the correct position of the analyst report:
S.No. Quality Name of Result Prescribed Characteristics Method of Standards as test used per Rules 1. Fat Q.G.H.S. 69.5% Not more Method than 80% not less than 40% 2. Moisture 29.0% Not more than 56% not less than 16% 3. Melting point of - 36.1º C Not more extracted fat than 37º C (capillary slip method) 4. Acid Value of - 0.89% Not more extracted fat than 0.5% 5. Bandowin test of - Positive - extracted fat 6. Added colour - Absent - 7. Test for salt - Positive - 8. Visible extraneous - Nil - matterThough the analyst has not mentioned the prescribed standard as per item A.31 of appendix-B in his report but the acid value of extracted fat in the report has been found to be 0.89, whereas it should not be more than 0.5 as required in item A.31 of Appendix-B of the Prevention of Food Adulteration Act, 1955.
In this regard, the petitioner has not offered any satisfactory explanation.
Learned counsel for the petitioner placed reliance in the case of M/s F.C. Food (Supra). The Hon’ble Supreme Court at para 26 and 28 has analysed the powers of the High Court. In the words of the Hon’ble Apex Court :-
“Para No.26: Nomenclature under which peition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the Court finds that the appellants could not invoke its jurisdiction under Article 226, the Court can certainly treat the petition one under Article 227 or Secton 482 of the Code. It may not, however, be lost sight of that provisions exist in the Code of revision and appeal but sometime for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate Courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution.
Page No.28: Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording the preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.”
However, the question remained to be examined in the present case that whether the food product examined, was sub-standard and use of word “butter”, mentioned in the label of the food product can be permissible. In the case of M/s Pepsi Food, the allegation was that the said beverage under brand “Lehar Pepsi” was adulterated but the petitioner was not the manufactured, therefore, the same case law is not attracted in the present case.
Learned counsel for the petitioner has tried to fortify his view by placing reliance in the case of Balkishan Thapar 1977 (Supra) in which it has been held that :
“Prevention of Food Adulteration Act (37 of 1954), Section 2(ix) (a) and (g) – Preparation labelled “as sweet as Saccharin but not as bitter as Saccharin”
– Preparation could not be held to have been misbranded as Saccharin or preparation of the type of Saccharin within the meaning of Section 2(ix) (a) and
(g) – 1975 F.A.J. 220 (Delhi) Reversed.”
The Hon’ble Apex Court in this case dealt with the question of “misbranding” related to Saccharin. In its label, it is mentioned that “as sweet as Saccharin but not as bitter as Saccharin”, giving an impression to the purchaser that preparation sold was sweet as Saccharin but not as bitter as Saccharin. This was indicated merely to lay emphasis on the sweetness of the preparation, therefore, the hon’ble Apex Court has held it not within ambit of “misbranding”.
In the present context, despite the fact that term will not be associated while labeling product, as has been stated above, word “butter” has been used to promote the sale by labeling it as “healthier than butter”. Thus, the above citation is of no avail in the present case.
Learned counsel for the petitioner relied in another case of Pooranlal Vs. State of M.P. reported in 2007(1) MPLJ 1990, in which it is held that the question raised was of sold packet of iodize salt which was purchased from the licenced manufacturer in packets. Therefore, the petitioner could not be held responsible for the sale of iodize salt. Inherent powers of the Court was invoked because the party availed the right of revision before the Court of Sessions. The same party again cannot avail as second revision as it is barred. However, it does not bar to invoke its inherent power to remove the abuse of process of Court.
Sub-section 2 of Section 19 of Prevention of Food Adulteration Act, provides that :
“[(2) A vendor shall not be deemed to have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves-
(a) that he purchased the article of food-
(i) in a case where a license is prescribed for the sale thereof, from duly licensed manufacturer, distributor or dealer,
(ii) in any other case, from any manufacturer, distributor or dealer, with a written warranty in the prescribed from; and
(b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it.]”
At this juncture, when the food material was purchased from the petitioner’s shop Surendra and Company, the petitioner has to prove that he has purchased the food packet from duly licenced manufacturer, distributor or dealer. The petitioner as vendor can avail the benefit of sub-section 2 of Section 19 of the said Act, only when he proves the same.
Sub-section 1 of Section 19 of Prevention of Food Adulteration Act provides that:
“it shall be no defence in a prosecution for an offence pertaining to the sale of any adulterated or misbranded article of food to allege merely that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale”
In the light of the above, the vendor/petitioner is to prove that he purchased / questioned the article of food from the licenced manufacturer.
At this stage, it would not be appropriate to exonerate the petitioner/vendor merely that he was ignorant of the nature of substance of the quality of food article.
Learned counsel for the petitioner placed reliance on Parakh Foods Limited Vs. State of Andhra Pradesh and another (2008) 4 SCC 584, in which the Hon’ble Apex Court has exonerated the appellant in the case of “misbranding” of Soyabean oil. In the label photographs of vegetables which are not soyabean is depicted. Holding that the appellant has used pictures of vegetables on the label of the food product, which is refined soyabean oil for preparation of vegetables depicted thereon. In other words, the label does not claim that the soyabean oil has been extracted or prepared from the vegetables. Therefore, the prohibit expression which are exaggeration of quality of the product does not attract.
The above case is totally in a different footing and therefore, the same cannot be applied in the present context.
Learned counsel for the petitioner has also preferred to cite the case of Academy of Nutrition Improvement and others Vs. Union of India reported in (2011) 8 SCC 274.
In this case, the Hon’ble Supreme Court has considered vires of amendment made in the Food Adulteration Rules 1955, wherein it was made compulsory iodisation of common salt in human consumption. This case law is also of no avail in the present context as it is in a different footing.
Similarly, Dr. Manu Seth Vs. Food Inspector reported in MANU/PH/1544/2008 decided by the High Court of Punjab and Haryana; Gopi Nath and Sons Vs. State of Himachal Pradesh and another reported in 1981 CriLJ 175 decided by the High Court of Himachal Pradesh, Selvakumar Vs. State, Represented by the Food Inspector Madurai Corporation reported in 2010 Indlaw MAD 1788 decided by the High Court of Madras are in different context and are in different footing, therefore, does not attract in the present case.
With the above discussions, it is evident that direct traces of the allegations contained in the complainant against the petitioner, does not warrant quashing the charges against the petitioner/vendor.
Accordingly, this petition under Section 482 of Cr.P.C. filed by the petitioner, is hereby dismissed.
(S.K. Palo) Judge
PesPro 