PFA – HC Allahabad – Ashok Kumar Sharma & Others Vs State of UP – Frozen Dessert – No standards fixed – case quashed – Oct 7th

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R. Court No. – 54 Case :- APPLICATION U/S 482 No. – 28729 of 2015

Applicant :- Ashok Kumar Sharma And 2 Others

Opposite Party :- State Of U.P. And

Another Counsel for Applicant :- Samit Gopal

Counsel for Opposite Party :- Govt. Advocate,C.K.Parikh,T.A.Singh

Hon’ble Mrs. Vijay Lakshmi, JUDGE

The applicants, by means of this application under Section 482 Cr.P.C., have invoked the inherent jurisdiction of this Court with prayer to quash the impugned order dated 7.12.2010 passed by the A.C.J.M. Court No. 1, Agra, in Criminal Complaint Case No. 3642 of 2010, Food Inspector Vs. Ashok Kumar Sharma and others, u/s 7/16 of the Prevention of Food Adulteration Act, 1954, P.S. Chhatta, District Agra. The prayer has also been made to quash the entire proceedings of the aforesaid complaint case.

Counter and rejoinder affidavits have been exchanged between the parties.

Heard Sri G. S. Chaturvedi, learned Senior Advocate, assisted by Sri Samit Gopal, learned counsel for the applicants, learned A.G.A. for the State, Sri C.K. Parekh, learned counsel for O.P. No. 2 and Sri T. A. Singh, learned counsel representing the Union of India (O.P. No. 3). Perused the records.

Some background facts in brief are that on 25.6.2010, the Food Inspector made an inspection in the premises of M/s Mahalaxmi Sales Corporation for the purpose of checking the quality of food product. He purchased 900 ml. of “Kwality Walls Frozen Dessert” for which the applicant Ashok Kumar Sharma, who was running the shop, gave him a receipt. Thereafter the Food Inspector prepared Form VI and after completion of all the formalities, sent the sample for chemical analysis to Public Analyst. A report was given by the Public Analyst after testing the said sample on 29.7.2010 and according to the said report the sample was found adulterated because the milk fat, total solids and wt./volume (g.m./lt.) were found less than the minimum limits of 10.0%, 36.0% & 525.0 respectively, prescribed for Frozen Dessert. On receiving such report of the Public Analyst, the Food Inspector moved an application to the District Magistrate, Agra, for grant of sanction. The sanction was received on 29.11.2010 and the complaint was filed by the Food Inspector on 7.12.2010. On the said complaint the learned Magistrate took cognizance and summoned the applicants to face trial vide impugned order dated 7.12.2010, the legality of which has been questioned before this court.

Sri G. S. Chaturvedi, learned Senior Advocate, challenging the correctness of the impugned order has vehemently contended that at the time when the sample was taken and sent to public analyst and also when the public analyst sutmitted its report no standard was fixed for “Frozen Dessert”. But the public analyst tested the sample, on the basis of standard prescribed for Item No. A-11.02.07 of Appendix B of the Prevention of Food Adulteration Rules, 1955, which is not applicable to “Frozen Dessert” and is applicable to Ice Cream, Kulfi, Chocolate Ice Cream and Softy Ice Cream. The submission of Sri Chaturvedi is that the public analyst, by applying wrong standards of the Rules for testing the sampled article, has submitted its report, which cannot form the basis of criminal prosecution.

Learned counsel for the applicants has submitted that the standards of the “Frozen Dessert” were made applicable for the first time from 5.2.2012, under the new Act i.e. Food Safety and Standards Act, 2006, therefore, the sampled commodity being a ‘proprietary food’ till 5.2.2012, the standards prescribed for ice-cream could not have been applied by the public analyst while analyzing the sampled commodity, which was admittedly Frozen Dessert and not the Ice Cream.

Learned counsel for the applicants has drawn the attention of this court to the definition of the “proprietary food” given under Rule 37A of the Prevention of Food Adulteration Rules, 1955. According to which ‘proprietary food’ means a food, which has not been standardized under the Prevention of Food Adulteration Rules, 1955. The learned counsel has also drawn the attention of this court to para 15 of the counter affidavit filed on behalf of the Union of India, O.P. No. 3, in which it has categorically been admitted that the standards for ‘frozen dessert’, which is item no. A.11.02.07.02 in the schedule although, notified vide notification No. GSR 356(E) dated 7.6.2005, the enforcement of the Rules with regard to ‘frozen dessert’ was deferred from time to time by several corrigenda, issued by the Ministry of Health and Family Welfare, Government of India, and the date of its enforcement was extended several times from GSR 706(E) dated 6.12.2005 to GSR 587(E) dated 29.7.2011 and ultimately it came into force on 5.2.2012. Learned counsel has contended that in the aforesaid paragraph, it has also been clearly admitted by O.P. No. 3 that when the sample was analyzed by the public analyst on 23.7.2010, no such rule had come into force prescribing any standard for ‘frozen dessert’ and its implementation was yet to be notified and finally the standards of the ‘frozen dessert’ were implemented in the year 2012.

On the aforesaid grounds it has been submitted that the sampled commodity being a ‘proprietary food’ till 5.2.2012 the standard of the ice-cream or Kulfi could not have been applied by the public analyst while analyzing the sampled commodity, therefore, the prosecution of the applicants, which has been made by the Food Inspector just to malign their image and goodwill, is unsustainable and the impugned summoning order passed by the Magistrate mechanically and without considering all these facts is liable to be quashed.

Sri C. K. Prekh and Sri T. A. Singh, learned counsels appearing on behalf of respondents 2 and 3, have vehemently opposed the application. They have filed counter affidavits. O.P. No. 2 has opposed the application mainly on the ground of delay and O.P. No. 3 has contended that the sampled commodity has been found adulterated vide report of the public analyst. It has been contended that the ‘frozen dessert’ was added by notification No. GSR 121(E) dated 11.4.1996 (w.e.f. 11.3.1996) in Rule 29 of the aforesaid Rules. At that time the item no.A-11.02.07 and item no. A- 11.02.08 were already in existence dealing with cheese Ice Cream, Kulfi and Chocolate i.e. milk products and as the ‘frozen dessert’ is also obtained from milk or cream, hence it has to conform with the standards prescribed for the aforesaid items and the ‘frozen dessert’ is not a separate item under the relevant entries.

Considered the rival submissions of the parties.

In the Prevention of Food Adulteration Rules, 1955 the following corrigendum were issued from time to time:

1. GSR No. 706(E), dated 6.12.2005

2. GSR No. 131(E), dated 3.3.2006

3. GSR No. 532(E), dated 5.9.2006

4. GSR No. 575(E), dated 5.9.2007

5. GSR No. 591(E), dated 13.8.2008

6. GSR No. 805(E), dated 20.11.2008

7. GSR No. 117(E), dated 24.2.2009

8. GSR No. 329(E), dated 15.5.2009

9. GSR No. 606(E), dated 28.8.2009

10. GSR No. 175(E), dated 5.3.2010

11. GSR No. 706(E), dated 27.8.2010

12. GSR No. 41(E), dated 19.1.2011

13. GSR No. 587(E), dated 29.7.2011 It is not disputed by the prosecution that the sample collected by the Food Inspector and sent for analysis to public analyst was of “Kwality Walls Frozen Dessert” and not of Ice Cream. The report of the public analyst, which is annexed as Annexure no. 4 to the affidavit shows that the public analyst in para II of his report has mentioned that he found the sample falling under Item No. A-11.02.07 of Appendix B of Prevention of Food Adulteration Rules, 1955 and has tested the seized product on the standards prescribed for Item A-11.02.07 whereas the item “frozen dessert” falls under Item No. A-11.02.07.02, which is evident from a perusal of the Gazette of India dated 7.6.2005 annexed as Annexure no. 9 to the affidavit filed in support of the application.

As it is the admitted case of the opposite parties that the Rules prescribing standards in respect of ‘frozen dessert’, were not in force at the time when the Food Inspector took the sample and sent it for analysis to the public analyst and the Rule came into force for the first time in the year 2012. It is my considered view that the seized product was a ‘proprietary food’ meaning thereby a food for which no standards were prescribed. Therefore, it cannot be said that the food item, which was “Kwality Walls Frozen Dessert” was adulterated.

In the case of M.V. Krishnan Nambissan Vs. State of Kerela, AIR 1966 SC 1676 the Hon’ble Apex Court has held that when no standard for the contents of buttermilk is prescribed and the rule making authority for reasons, which is obvious, has not thought fit or feasible to prescribe any standard in regard to the contents of buttermilk, the High Court erred in holding that in absence of standards for buttermilk, the standards of milk were applicable to Curd and that as Butter Milk was in essence curd from which butter had been extracted and that the Butter Milk should contain same quantity of solids and fat as curd should contain. It was further held that wherever the rule making authority intended to prescribe a specific standard for the contents of a product, it definitely states so. Hence, a person selling butter milk cannot be convicted for an offence under section 16(1)(a)(i) and section 7 of the Prevention of Food adulteration Act, 1954.

In another case before Hon’ble Apex Court titled, Jagdish Chandra Vs. State of U.P. 1981(1) FAC 33 (SC) a sample of “Chini Dalchini” was purchased by the Food Inspector. This sample according to the report of the Public Analyst was found to contain cent percent foreign bark and therefore, the seller was prosecuted for the same under the provisions of the Act. Finally it was found that the standard was prescribed by a Government notification with effect from 1.7.1979 only. The sample in dispute had been purchased earlier to this notification, and the public analyst revealed in his testimony that on the date when the sample was examined there was no standards prescribed for “Chini Dalchini”. On this short ground the appeal of the seller was accepted by Hon’ble Supreme Court.

In Hindustan Lever Ltd. Vs. Food Inspector and another, 2006 (1) FAC 237 (SC) sample of “instant dairy whitener” was purchased at the time when no standards were fixed for the same. It was held by the Hon’ble Apex Court that any prosecution in regard to an article for which no standards were fixed, applying the standards for other articles, would not be sustainable.

In a case before this court titled as Premier Vegetable Products Ltd. Vs. State of U.P., 1984(1) FAC 138 (Allahabad), a sample of refined ‘palm oil’ was purchased at a time when no standard was prescribed for palm oil under the Act or Rules. This court quashed the proceedings, which had been started against the seller in the court of Magistrate invoking the power u/s 482 Cr.P.C. holding that the proceedings can not be continued because no standard for refined palm oil had been fixed and it was extremely difficult and impossible to hold in such a case whether there is any deficiency in the sample of such oil. It was further held that in these circumstances no offence could be said to have been committed by the petitioner.

In the light of the above mentioned judicial pronouncements and considering the fact that no standards was fixed for ‘Frozen Dessert’ under the Prevention of Food Adulteration Act and Rules at the time when the sample was purchased and analyzed i.e. in the 2010 and the standards were prescribed and made effective for the first time from 5.2.2012, the proceedings initiated against the applicants cannot survive.

Accordingly, the application is allowed and the summoning order as well as entire proceedings of the aforesaid complaint case are hereby quashed.

Order Date:- 07.10.2016 Pcl.

 

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