PFA – Delhi Court – Food Inspector Vs Khurana Bros – Adulterated and Misbranded Mustard – June -26-2017

                  IN THE COURT OF SH. ASHU GARG,
         Addl. Chief Metropolitan Magistrate - II (New Delhi),
                   Patiala House Courts, New Delhi

CC No. 90/06
Unique Case ID No. 02403R0175422006

Date of Institution:           24.03.2006
Date of reserving judgement:   29.05.2017
Date of pronouncement:         27.06.2017

In re:

Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035                                ...   Complainant

               versus

A-1) Sh. Vikas Khurana
S/o. Sh. Kaushal Khurana
R/o. 11112, East Park Road,
Karol Bagh, Street No. 2,
Delhi-110005

A-2) Sh. Chandan Khurana
S/o. Sh. Kaushal Khurana
R/o. 11112, East Park Road,
Karol Bagh, Street No. 2,
Delhi-110005

A-3) Smt. Neelam Khurana
W/o. Sh. Kaushal Khurana
R/o. 11112, East Park Road,
Karol Bagh, Street No. 2,
Delhi-110005




CC No. 90/06                                               Page 1 of 67
 A-4) M/s. Khurana Departmental Store
432, Bhera Enclave, Paschim Vihar,
New Delhi-110063                             ...      Accused Persons


JUDGEMENT:

1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that the accused persons have violated the provisions of the PFA Act and Rules. The accused no.1 Vikas Khurana is stated to be the vendor-cum-partner of accused no.4 Firm M/s. Khurana Departmental Store, from where the food article, that is, ‘Rai Whole’ was lifted for sampling. Accused no.2 Chandan Khurana and accused no.3 Neelam Khurana are stated to be the other two partners of accused no.4 Firm stated to be in-charge of and responsible to it for its affairs.

2. As per the complaint, on 30.08.2005, the food officials consisting of Food Inspector (FI) Hukum Singh and Field Assistant (FA) Om Prakash under the supervision of Local Health Authority (LHA) / SDM Sh. B. M. Jain reached along with their staff at the premises of accused no.4 Firm at 432, Bhera Enclave, Paschim Vihar, New Delhi-63, where the accused no.1 was found conducting the business of various food articles, which were lying stored / exposed for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of Rai Whole from the vendor lying in sealed packets of 100 grams each bearing same label declarations. A sample of nine such sealed packets of the same lot was then lifted as per procedure prescribed under the PFA Act and Rules. Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the notice as per Form-VI, panchnama, etc. The price of sample was paid to the vendor vide vendor’s receipt. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 30.09.2005, the PA found the sample to be adulterated on the ground that it was coloured with unpermitted oil soluble colouring matter and it was also found to be misbranded being in violation of Rule 32(a), (d), (e) and Rule 42(zzz)(17). Upon receipt of report, the SDM/LHA ordered investigation which was carried out by FI. It was found that accused no.4 was a partnership firm of which accused no.1, 2 and 3 were its partners. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court on 24.03.2006 alleging violation of section 2(ia)(a), (b), (j) and

(m) of PFA Act as well as Section 2(ix)(k) of PFA Act read with Rule 32 and 42 of PFA Rules, as punishable under section 7/16(1A) of PFA Act.

3. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused persons were summoned vide order dated 24.03.2006. The accused persons appeared and filed an application under section 13(2) of PFA Act thereby exercising the right to get the second counterpart of the sample analysed from the Central Food Laboratory (CFL). The application was allowed and a counterpart was sent for analysis to CFL. The CFL examined the sample and its Director gave Certificate dated 29.05.2006, opining the sample to be not conforming to the standards of Rai (Mustard) Whole as per PFA Rules due to presence of synthetic Red oil soluble colour and also misbranded being in contravention of Rule 32(a) and (e) as well as Rule 42(zzz)(17) of PFA Rules.

4. On the basis of CFL report, pre-charge evidence was recorded, wherein the complainant examined PW-1 FI Hukum Singh and PW-2 FI Arun Kumar Gupta. On the basis of their depositions, charges were framed against all the accused persons on 12.11.2009 for commission of the offence punishable under section 7/16(1A) PFA Act, being violation ofsection 2(ia)(a), (b), (j) and (m) read with Rules 23, 28 and 29 of PFA Rules, as well as section 2(ix)(k) of PFA Act read with Rules 32(a), (d) and (e) as well as Rule 42(zzz)(17) of PFA Rules, to which they pleaded not guilty and claimed trial. At the trial, the witnesses already examined in pre-charge stage were recalled for further cross-examination in post- charge stage and additionally, the prosecution examined PW-3 Sh. B.M. Jain (SDM/LHA), PW-4 FI O. P. S. Ahlawat and PW-5 FA Om Prakash in post-charge stage.

5. PW-1 was the FI, PW-3 was the SDM/LHA and PW-5 was the FA, who were part of the team that had visited the spot for sample proceedings. All these witnesses deposed about the proceedings conducted by them on 30.08.2005 and narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of nine sealed packets of 100 gms each of Rai Whole bearing identical label declaration, dividing it in three parts by putting three sealed packets as one counterpart, sealing and marking the samples and obtaining signatures of vendor and witnesses. They also proved the necessary documents including the vendor’s receipt Ex. PW-1/A vide which price of sample was paid to the vendor, Notice as per Form-VI Ex. PW-1/B, Panchnama Ex. PW-1/C and Raid Report Ex. PW-1/D. On the next working day, one counterpart of sample along with Memo as per Form-VII were sent to PA for analysis vide PA Receipt Ex. PW-1/E and two such counterparts with copy of Memos were deposited with LHA/SDM vide receipt Ex. PW-1/F. PA report Ex. PW-1/G was received and upon direction of the SDM/LHA, investigation was carried out by PW-4. During investigation, letter Ex. PW-4/A was sent to VATO to ascertain the constitution of accused no.4 and its reply was taken. PW-4 collected the partnership deed Ex. PW-4/B from the vendor upon which he again sent letter Ex. PW-4/C to VATO and received its reply. Thereafter, sanction Ex. PW-2/A was taken from the Director PFA and the complaint Ex. PW-2/B was filed in the court by PW-2 being in-charge of the Sub Division. Copy of PA report and intimation letter Ex. PW-2/C were sent to the accused persons vide postal receipts Ex. PW-2/D.

6. These witnesses were duly cross-examined by the Ld. Defence Counsel. PW-1 accepted that Rai Whole contained different natural colours such as Red and Yellow but could not tell if it was due to presence of inherent colour cartinonts. He denied that the colour found in the sample was natural colour of Rai Whole and not added colour. He also accepted that at that time there was a policy of the department to issue warning for first violation of Rule 32 only. PW-2 denied that the complaint was filed in routine manner. PW-3 deposed that the label was reproduced by the FI on Form VI and stated that the vendor had informed that the sample packets were of Rai Whole and of same lot. He stated that the packets were transparent and its contents could be seeing. He denied that the endorsement on Form VI was made by the accused at the instance of the FI or that the sample was taken in contravention of Rule 22A. PW-4 accepted that only the names of partners had been given in reply to his letter and it was not mentioned as to who was the partner in-charge of and responsible for the business of the firm. PW-5 stated that the labels of the packets were identical which were reproduced by the FI on Form VI. He denied that identical packets were not taken as sample.

7. Statements of the accused persons under section 313 CrPC were recorded on 13.12.2014 wherein they denied the allegations and pleaded innocence. Though accused no.1 (also representing accused no.4 Firm) admitted the proceedings dated 30.08.2005, yet he claimed that no efforts were made to join public witnesses, no payment was made to him, the proceedings were conducted in official vehicle and not in his presence, his signatures were obtained after the proceedings, he signed the documents upon directions of the FI. Accused no.2 and 3 expressed ignorance about the sample proceedings as they were not present at the spot. They denied their liability on the ground that they were not working partners and were not looking after its business. The accused persons claimed that there was no adulteration or misbranding. They asserted that the colour detected in the CFL report was its natural colour. They took stand that the firm had purchased the food article of very good variety from the market and after packing the same, it had stored for sale in the shop. They chose to lead evidence in defence.

8. The accused persons summoned one Sh. S. N. Mahendru and examined him as DW-1 as the only witness. He was a Food Chemical Expert and author of several books on Food Quality and Laws. Upon going through the PA and CFL reports, he stated that the reports did not show but variety of Rai was analysed. He stated that Rai contains natural colour which is oil soluble. According to him, the analyst must identify and mention the colour found in his report. He stated that added synthetic colours can be identified through proper testing methods like TLC method and subsequent comparison with the RF value. He opined that the CFL report does not show the chemical name of the Red colour found and thus, it could not be ascertain if it was synthetic or natural colour. During cross- examination, he accepted that the analyst gives specific report as to if the colour is natural or added. He accepted that DGHS method was used by the CFL in the present case, though claimed it to be incomplete. He accepted that the Direct, CFL is expert in his field and his opinion is based on established principles and methods.

9. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against all the accused persons beyond reasonable doubt, on the ground that the accused persons have not been able to rebut the findings in the CFL report dated 29.05.2006. It is submitted that all the witnesses have supported its case and no contradiction can be seen in their testimony.

10. On the other hand, Ld. Defence Counsel has submitted that the sample proceedings were not conducted properly and that there are various missing links in the testimony of witnesses. Ld. Counsel has contended that no percentage or extent of colour has been mentioned in the reports of the chemical experts and it might be possible that only traces of colour were present. It is submitted that Rai has its own natural colour which is also oil soluble in nature, as deposed by DW-1. It is submitted that since the sealed packets were not bearing the name of commodity or any batch number, there was nothing to show that they were of the same lot. It is submitted that there was violation of Rule 22-A of PFA Rules and the FI was required to open the sealed packets, transfer the contents to a single container, mixing all the contents together to homogenize the same and then to divide the same in three parts. It is then submitted that the PA had adopted chromatography method to determine food colour. Ld. Counsel has relied upon the judgement of Maya Ram v. State of Punjab [1987(II) PFA Cases 320] to argue that paper chromatography test used for detecting unpermitted food colours is not a reliable test. It is pointed out that the CFL has also not mentioned the exact method of DGHS manual used by it and in the absence of any such details of the test, the report of CFL becomes unreliable. It is further submitted that the PA and CFL reports are at variance with respect to the extraneous matter and also the fact that the shade of the colour was not identified by the PA but the CFL identified it to be of Red colour. It is also argued that the accused persons were not the manufacturers of the article but were only retailers who had purchased the commodity from another seller, for which they should not be held liable. It is then submitted that no role has been attributed to accused no.2 and 3, and they cannot be held liable just because they were the partners of the accused no.4 Firm. It is finally contended that the laboratories in which the samples were analysed were not notified under the Rules and therefore the prosecution is bad in law. On misbranding, reliance has been placed on a policy of the department existing at that time which required only a warning to be issued to first time violators of Rule 32 of PFA Rules, as recognized in the judgement titled as S. S. Gokul Krishnan v. State [2009(1) FAC 132].

11. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused persons and have carefully perused the material available on record.

12. It is to be understood that the charges framed against the accused persons are for violation of section 2(ia)(a), (b), (j) and (m) of the PFA Act read with Rules 23, 28 and 29 of PFA Rules with respect to ‘adulteration’ and for violation of section 2(ix)(k) read with Rule 32(a), (d) and (e) as well as Rules 42(zzz)(17) of PFA Rules with respect to ‘misbranding’. This is important to note because the ingredients of these offences are different and distinct.

13. Section 2(ia)(a) deals with a situation where an article of food 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. Section 2(ia)(b)applies when the article contains any other substance which injuriously affects its nature, substance or quality. Section 2(ia)(j) specifically deals with colouring matter which is present other than prescribed or is present beyond the prescribed limits of variability. Section 2(ia)(m) of PFA Act deals with situation where the quality or purity of an article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but not rendering the food article injurious to health. Rule 23 of PFA Rules prohibits the addition of colouring matter to any article of food except as specifically permitted by the rules. Rule 28 of PFA Rules enumerates the synthetic food colours which can be used in food articles and Rule 29 provides the food articles in which such permitted food colours can be used. Rule 30 provides for the maximum limits upto which the permitted food colours can be used in permitted food articles. On the other hand, Section 2(ix)(k) provides that an article of food shall be deemed to be misbranded if it is not labelled in accordance with the requirements of the Act or Rules made thereunder. Rule 32 and 42 applies to the packaging and labelling of foods. Rule 32(a), which existed at the relevant time (before it was amended in 2006 vide G.S.R.491(E) dated 21.08.2006 w.e.f 20.02.2008) required that the name, trade name or description of food contained in the packet should be mentioned on the label). Rule 32(d) provides the net weight or number or measure or volume of contents to be declared on the label. Rule 32(e) requires a batch number or code number which is a mark of identification by which the food can be traced in the manufacture and identified in the distribution, to be given on the label. Rule 42(zzz)(17) provides that every package of vegetarian symbol in green colour on the principal display panel just close in proximity to the name or brand name of the food.

14. The commodity in the present case is Rai Whole (mustard whole) which falls in the category of Spices and Condiments and has to be tested as per the standards prescribed for the same. This commodity falls under Item No. A.05.15 of Appendix-B of PFA Rules, under which both the PA and CFL have analysed the article. Minimum standards have been prescribed under the Rules for this food article.

15. To begin with, it is important to understand that the reports of chemical experts are admissible in evidence without formal proof under section 293 CrPC read with section 13(5) of PFA Act. As per section 13(5) of PFA Act, “Any document purporting to be a report signed by a public analyst, unless it has been superseded under sub-section (3), or any document purporting to be a certificate signed by the Director of the Central Food Laboratory, may be used as evidence of the facts stated therein in any proceeding under this Act or under Sections 272 to 276 of the Indian Penal Code: Provided that any document purporting to be a certificate signed by the Director of the Central Food Laboratory shall be final and conclusive evidence of the facts stated therein.”

16. The court does not find itself in agreement with the contention of Ld. Defence Counsel that the reports of PA and Director CFL cannot be relied upon as they have not been examined in the court.

17. The said issue was put at rest by the 5-Judge Constitution Bench of the Hon’ble Supreme Court of India long back, in the authoritative judgement titled as Mangaldas Raghavji Ruparel v. State of Maharashtra [(1965)2 SCR 894, AIR 1966 SC 128]. The following extract is worth noting [It may be noted that section 510 CrPC referred to in this judgement pertains to the CrPC of 1898 (as amended in 1955), a part of which is now Section 293 in the currently applicable CrPC of 1973]:

“As regards the failure to examine the Public Analyst as a witness in the case no blame can be laid on the prosecution. The report of the Public Analyst was there and if either the court or the appellant wanted him to be examined as a witness appropriate steps would have been taken. The prosecution cannot fail solely on the ground that the Public Analyst had not been called in the case. Mr Ganatra then contended that the report does not contain adequate data. We have seen the report for ourselves and quite apart from the fact that it was not challenged by any of the appellants as inadequate when it was put into evidence, we are satisfied that it contains the necessary data in support of the conclusion that the sample of turmeric powder examined by him showed adulteration. The report sets out the result of the analysis and the tests performed in the public health laboratory. Two out of the three tests and the microscopic examination revealed adulteration of the turmeric powder. The microscopic examination showed the presence of pollen stalks. This could well be regarded as adequate to satisfy the mind of a Judge or Magistrate dealing with the facts. Mr Ganatra then said that the report shows that the analysis was not made by the Public Analyst himself but by someone else. What the report says is “I further certify that I have caused to be analysed theaforementioned sample and declare the result of the analysis to be as follows.” This would show that what was done under the supervision of the Public Analyst and that should be regarded as quite sufficient.

This provision clearly makes the report admissible in evidence. What value is to be attached to such report must necessarily be for the court of fact which has to consider it. Sub-section (2) of Section 13 gives an opportunity to the accused vendor or the complainant on payment of the prescribed fee to make an application to the court for sending a sample of the allegedly adulterated commodity taken under Section 11 of the Act to the Director of Central Food Laboratory for a certificate. The certificate issued by the Director would then supersede the report given by the Public Analyst. This certificate is not only made admissible in evidence under sub- section (5) but is given finality of the facts contained therein by the proviso to that sub-section. It is true that the certificate of the Public Analyst is not made conclusive but this only means that the court of fact is to act on the certificate or not, as it thinks fit. …

Sub-section (1) of Section 510 permits the use of the certificate of a Chemical Examiner as evidence in any enquiry or trial or other proceeding under the Code and sub-section (2) thereof empowers the court to summon and examine the Chemical Examiner if it thinks fit and requires it to examine him as a witness upon an application either by the prosecution or the accused in this regard. It would, therefore, not be correct to say that where the provisions of sub-section (2) of Section 510 have not been availed of, the report of a Chemical Examiner is rendered inadmissible or is even to be treated as having no weight. Whatever that may be we are concerned in this case not with the report of a Chemical Examiner but with that of a Public Analyst. Insofar as the report of the Public Analyst is concerned we have the provisions of Section 13 of the Act.”

18. Thus, the above provisions do not mean that such reports cannot be questioned on any point on which they are silent. If an accused wishes such reports to be clarified or questioned, he has an option available to him to apply to the court under section 293 CrPC and cross-examine the analyst. Despite such option being available, if the accused fails to exercise the same, he cannot then chose to question the report on assumptions, presumptions and hypothesis, without according any opportunity to the examiner to clarify or explain the things. The court cannot impose its views and refuse to disbelieve a report of PA or CFL, without giving the analyst any opportunity to explain any point on which the report is silent.

19. In the present case, the report of PA has already been superseded by the Certificate of the Director, CFL. In such a case, if the accused persons were genuinely feeling aggrieved by mentioning or non-mentioning of any details in the reports, there was no reason why they did not opt to cross- examine the CFL analyst and ask him/her about anything on which the report was silent. The CFL (and even PA) maintains all the details of the tests conducted, calculations made, values derived and methods used on the basis of which final results are given as mentioned in its certificate. The report and certificate on record are only the final figures as given in the formats prescribed under the PFA Rules. They do not contain all the details of the entire analysis from beginning to end and such data can always be called by the accused if desired. The accused persons cannot be allowed to take benefit of their failure to apply and cross-examine the CFL when this opportunity was available to them, and then to raise the issue at final hearing on something on which the final report may be silent. This was obviously not the responsibility of the prosecution as the report of the CFL is admissible is evidence and is rather final and conclusive as to the facts stated therein. In Richpal v. State (Delhi Administration) [1988 (2) DLT 422] and Mohd. Hussain v. State (Delhi) [1989 (1) FAC 206}, it was observed that “the contents of the CFSL report have to be treated as correct and in case defence wanted to challenge the said report, the defence should have prayed to the trial court for calling the expert with the record for the purposes of cross-examination to enable the defence to prove that the contents of CFSL report are in any manner incorrect.”

20. In the case at hand, the defence is seeking to claim that the samples were not representative due to variations in PA and CFL report. It is pointed out that as per PA report, extraneous organic matter was 0.068%, extraneous inorganic matter was 0.081% and the colour found was stated to be oil soluble without any further identification. As against this, as per CFL report, extraneous organic matter was found to be Nil, extraneous inorganic matter was found to be 1.26% and the colour found was stated to be synthetic red oil soluble colour. It is specifically pointed out that PA report did not specify or identify which colour was present and even the CFL did not ascertain the chemical name or identity of such colour. Ld. Defence Counsel has also questioned the CFL report where the word ‘synthetic’ had been added by hand before the typed words ‘red oil soluble colour detected’, arguing that the same was an afterthought sufficient to create doubt as to its veracity.

21. The prime argument of the Ld. Defence Counsel on the basis of which acquittal is sought at the threshold in this matter is ‘Since there is variation of more than 0.3% in the reports of PA and CFL, the samples were not representative’. Pointing out the above said ‘variations’, it is contended that the same would be sufficient to conclude that samples were not taken by the FI in proper manner and were not representative, for which benefit should be given to the accused persons.

22. In this regard, the defence strongly relies upon the judgement titled as Kanshi Nath v. State [2005(2) FAC 219], informing that the said ruling has been constantly followed by the Hon’ble High Court of Delhi in State v. Ramesh Chand [2010 (2) JCC 1250], Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vinod Kumar Gupta [2010(2) JCC 957], State v. Virender Kohli [2014(2) FAC 223], State v. Kamal Aggarwal [2014(2) FAC 183], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir[2014(1) FAC 286], State v. Santosh Sharma [2014(1) FAC 296], Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523], State v. Sunil Dutt [2011(4) JCC 2377] and State v. Rama Rattan Malhotra [2012(2) FAC 398].

23. I have carefully gone through the said judgments based on the star judgement in Kanshi Nath v. State [2005(2) FAC 219]. However, the position is not as simple as it appears. It is necessary to understand the concept of reports of PA and CFL and variations therein.

24. As per section 13(3) of the PFA Act, the certificate issued by the Director of CFL shall supersede the report of the PA. As per proviso to section 13(5) of the Act, such certificate shall be final and conclusive evidence for the facts stated therein. Thus, as far as the findings of the CFL are concerned, the same are final and conclusive and no evidence can be given to disprove the same.

25. In Calcutta Municipal Corporation v. Pawan Kumar Saraf [AIR 1999 SC 738], it has been authoritatively laid down that the legal impact of a certificate of the Director of CFL is three fold: (a) it annuls or replaces the report of the PA, (b) it gains finality regarding the quality and standard of the food article involved in the case and (c) it becomes irrefutable so far as the facts stated therein are concerned.

26. In Subhash Chander v. State, Delhi Administration [1983(4) DRJ 100], it was observed by Hon’ble High Court of Delhi that “It has repeatedly been held by the supreme court that the certificate of the Director supersedes the report of the public analyst and is to be treated as conclusive evidence of its contents. The Director is a greater expert and therefore the statute says that his certificate shall be accepted by the court as conclusive evidence. For all purposes the report of the public analyst is replaced by the certificate of the Director…. Superseded is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. The Director’s certificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose.

It will be anomalous to hold that for some purpose it survives and for other purposes it is superseded.”

27. The scheme of Act would show that CFL has been, in a way, given the status of an appellate expert over the findings of PA. In the landmark judgement titled as MCD v. Bishan Sarup [ILR 1970 (1) Delhi 518], the full bench of Hon’ble High Court of Delhi observed that “According to the scheme of the Act, the Director of Central Food Laboratory is constituted to be a sort of greater expert than the Public Analyst and his certificate supersedes the report of Public Analyst under sub-section (3) of section 13“. The Hon’ble Court also took a note of the ruling in Municipal Corporation of Delhi v. Ghisa Ram [AIR 1967 SC 970] wherein it was observed that the right has been given to the vendor for his satisfaction and proper defence, to get the sample analysed be a “greater expert whose certificate is to be accepted by court as conclusive evidence”.

28. What is important to be noted is, that no such finality and conclusiveness has been attached to the report of PA and it has been only attached to the report of CFL. Reliance can be placed on Municipal Corporation of Delhi v. Zahiruddin [ILR (1972) 1 Del 630]. Thus, evidence can be given by the accused to disprove the report of PA, but once the accused exercises his right under section 13(2) of the Act upon which Certificate is given by CFL, such a certificate of CFL would supersede the PA report and would become final and conclusive.

29. The question is, whether the PA report can still be looked into for any purpose? Well, no precedent prior to Kanshi Nath’s case (supra) has been shown by the defence where such PA report, as superseded by the CFL report, has been considered for any purpose, particularly for finding the guilt or innocence of the accused on the basis of variations therein.

30. In Food Inspector, Corporation of Cochin v. T.V. Habeeb, [1984 (1) FAC 41], it was observed that “It can thus be seen that it is settled law that the report of the Public Analyst is superseded by the certificate of the Director which has conclusive effect also. Analysis in the two cases is done by different persons at different laboratories. It would not be surprising if, assuming the best conditions there is some difference in the results of the two analysis. Even in cases where sampling and analysis is done to the satisfaction of the most exacting standards, there could be variation in the percentage of different components arrived at in the two laboratories. But, once the report of the Public Analyst is superseded by the report of the Director of the Central Food Laboratory, there is no report of the Public Analyst available in the eyes of law for comparison with the certificate issued by the Director. The court cannot, therefore, legitimately make such a comparison and conclude that there are divergences and therefrom draw an inference that the sampling must have been done improperly. To arrive at such a conclusion would amount to flying in the face of settled position of the law and the terms of sub- sections (3) and (5) of Section 13 of the Act”.

31. Similarly, in Prahlad Bhai Amba Lal Patel v. State of Gujarat [1984 (2) FAC 26], the Full Bench of the Hon’ble High Court of Gujarat while relying upon the decision of the Hon’ble Apex court in Andhra Pradesh Grain & Seeds Merchant Association v. Union of India [AIR 1971 SC 246] and Chetumal v. State of M.P., [AIR 1981 SC 1387] discussed the issue of ‘variation’ and held that “Proviso to section 13(5) also indicates that what is stated in the later certificate issued by the Director would be final and conclusive evidence of the facts stated in the said certificate. It is obvious that the facts stated would be with respect to the result of the analysis by the Director and the findings reached therein regarding relevant ingredients of the part of the sample sent for analysis and analysed by the Director of the Central Food Laboratory. Once this type of conclusive evidence emerges on record, whatever might have been contra-indicated regarding the concerned ingredients of the sample as found in the prior report of the public analyst would be totally pushed out of the arena of contest and cannot be looked at. If that is so, there would be no question of considering any variance between the results of the tests carried out by the public analyst on the one hand and the Director of the Central Food Laboratory on the other vis-a-vis two parts of the same sample. Any variation or variance between the different ingredients mentioned in these two reports would presuppose comparison between two existing reports on record. But if one of the reports is wholly pushed out of record as enjoined by S. 13(3) read with S. 13(5), there is no question of resorting to the exercise of comparison between the contents of these two reports with a view to finding out the supposed variance between the existing and operative report of the Director and earlier report of the public analyst which has ceased to exist on record.”.

32. In the case of MCD v. Bishan Sarup [supra], the Hon’ble High Court of Delhi (Full Bench) was dealing with a sample of milk. The PA had reported the sample to be adulterated as it contained fat in the sample 6.7% and non-fatty solids 8.03% against prescribed minimum 8.5%. After lapse of about three years, CFL gave report again opining the sample to be adulterated observing that fat contents were 7.2% and milk solids other than fats were 6.4%. (The variations were thus of 0.5% and 1.63% respectively). On such reports, the accused persons were acquitted and their acquittal was upheld even in first appeal. After discussing the law on the point, the Hon’ble Court reversed the acquitted into conviction and observed as under:

(a) The accused is entitled to get benefit of doubt if on account of delay or lapse on the part of prosecution to institute a prosecution, the Director CFL is unable to analyse the sample because of delay or of the sample undergoes a change for this reason. In Ghisa Ram’s case (supra), the Director, CFL had reported that the sample had become highly decomposed and no analyses was possible. In that case, on the basis of evidence, the court found that sample of curd could not have survived for more that four months. At the same time, there was no rule laid down that in every case of frustration of such right, the vendor cannot be convicted on the basis of PA report and different considerations may arise. Similarly in Ram Mehar v. Delhi Administration (Criminal Revision No. 618-D/1965, Delhi High Court, dated 28.07.1969), after the delay of none months, the sample was sent to CFL but the Director reported that the sample had become highly decomposed and its analyses was not possible. Further, in Municipal Corporation of Delhi v. Om Prakash [Criminal Appeal N. 7- D/1966, Delhi High Court, dated 28.07.1969], the evidence had been led in that case to show that the difference between the two reports was mainly due to lapse of time.

(b) The consideration of time-lapse is relevant only for a limited purpose. “Once the Director has examined the sample and has delivered his certificate, under proviso to sub-section (5) of section 13 of the Act, the certificate is final and conclusive evidence of the facts stated therein. The presumption attaching to certificate again is only in regard to what is stated in it as to contents of the sample actually examined by the Director and nothing more. Even after this certificate, it is open to the accused to show that in the facts of a given case and on the concrete objective grounds that he may prove on record the sample sent for analyses to the Director could not be taken to be a representative sample of the article of food from which it was taken.”

(c) “If prejudice is caused to the accused on account of the delay in the institution of proceedings, as when the sample is rendered unfit for analyses in the meanwhile, then the accused is entitled to the benefit of doubt… But in case no prejudice is caused to the accused he cannot be allowed to escape the consequences under the law for such anti-social act…”

(d) Despite the difference in reports, there was no effort to show that the sample sent to the Director, CFL was not representative of the milk from which it was taken or that it had even otherwise undergone any chemical changes. Proviso to section 13(5) would be attracted in full force as certificate of Director was final and conclusive evidence of the contents of the sample.

33. This judgment was also relied upon by the Hon’ble High Court of Delhi in Salim and Co. v. Municipal Corporation of Delhi [1978 Cri LJ 240[], where it was observed that “It is correct that there is wide variation in the two reports, but according to sub-sec. (3) of S. 13 of the Act, the report of the Director of Central Food Laboratory supersedes the report of the Public Analyst. The Statute has clearly provided as to what value should be attached to the report of the Director of Central Food Laboratory qua that of the Public Analyst. Thus the report of the Public Analyst loses all its value after supersession by the certificate of the Director”.

34. In Municipal Corporation of Delhi v. Zahiruddin [ILR (1972) 1 Del 630], the Hon’ble High Court of Delhi held that “It is ridiculous that the learned Magistrate should have compared the report of the Public Analyst with the certificate issued by the Director. Under Section 13(5) of the Act the certificate issued by the Director has to be final and conclusive evidence of the facts stated therein, although no such presumption attached to the report of the Public Analyst. The certificate granted by the Director cannot therefore be dis-regarded.” Similar was the observation of Hon’ble High Court in Municipal Corporation of Delhi v. Manohar Lal[1975 (1) FAC 182].

35. A careful study of the said precedents would therefore show that mere differences or variations in report of PA and CFL would not, by themselves, lead to a direct conclusion that the samples were not representative. When a sample is analysed by two different persons, the possibility of variations cannot be ruled out. And precisely for this reason, the report of CFL has been given preference over the report of PA, considering the Director, CFL to be the better expert. Not only this, the report of CFL is given finality and is declared to be conclusive evidence, after superseding the earlier report of PA. The sample would become all the more prone to variations as there would always be some time gap between the analyses carried out by PA and CFL. But mere delay in analyses by CFL and consequent variations would not be a reason to discard its report, which is otherwise final and conclusive, unless the accused is able to show that the variations are on account of delay in analysing the sample or that some chemical changes during the intervening period had resulted in such variations. Again, this is not a matter or assumptions or presumptions. There is no rule prescribed anywhere that after a particular delay, a sample would be rendered unfit for analysis. The court cannot assume such facts on hypothetical basis and observe that delay would in any case would have frustrated the right of the accused so as to cause prejudice to him. But if the accused is able to lead sufficient evidence or is able to otherwise establish that prejudice was in fact cause to him on account of any such delay, benefit would certainly go to him. One such situation in favour of the accused would be when the sample is sent to CFL but it is found to be “unfit for analysis” in which case it can be assumed that the right of the accused stood frustrated. But where despite the delay, the sample did not get decomposed and remained fit for analysis, or where the accused did not opt to get the sample analysed from CFL, in such cases, there would be no assumption that the sample would have become unfit for analysis or caused prejudice to the accused. It would always be a matter or evidence adduced by the prosecution and defence and not a matter or assumptions.

36. The Hon’ble High Court of Delhi in Kashi Nath’s case (supra), was dealing with a situation where there were certain variations in the reports of PA and CFL while analysing a sample of ‘dhania powder’. Hon’ble Court considered the ratio in Bishan Sarup’s case (supra) and held that it would still be open for the accused to establish that the sample tested was not a representative one, and if the variation in the two reports is substantial enough, then the PA report can certainly be looked onto to establish this variation.

37. It is thus clear that the Kanshi Nath and Bishan Sarup judgements are on the same lines. There can be no dispute that if there are such variations on the basis of which the accused is able to show that the samples were not representative, the accused would be given benefit. However, the important point to be noted is, that there is no rule prescribed under the statute to conclude what variation would be “substantial enough” to be considered in favour of the accused. The Act or Rules do not prescribe that there any variation of more than a specific value / percentage would be a substantial variation so as to disregard the report of the CFL which has otherwise been given finality and conclusiveness. In the absence of any such standard prescribed, the matter would be governed only by the evidence adduced by the parties, which includes cross-examination of complainant’s witnesses and/or examination of defence witnesses (subject to cross-examination of course). If the accused on the basis of evidence can show that any particular variation, to a particular extent, in any particular matter and for a particular ingredient, would be “substantial enough”, then certainly he would be given benefit. But the argument that in case of any and every variation in the two reports, in any ingredient (incriminating or not) without even considering its nature, irrespective of the extent of preservative used, irrespective of the time gap between two reports, on any count whatsoever, would straight away lead to conclusion that the samples were not representative, would certainly be not tenable.

38. If PA has failed to detect some ingredient, or had detected something improperly or by using invalid method, the accused can always lead evidence to disprove the said report, even on the ground that the sample was not representative of the food article, because no finality has been given to the report of PA and this report is not conclusive proof of evidence. Alternatively, accused can exercise his right to get the sample analysed from CFL under section 13(2) of the Act, but in that case, section 13(3) and proviso to section 13(5) of the Act would come in to play and the report would be now conclusive and final.

39. In Kanshi Nath’s case, the prosecution had examined the Director CFL as a witness. During cross-examination, he was specifically asked about possible variation in the content of Sodium Chloride when the sample is representative and analysed by two experts. To this, he had opined that if the sample was representative and was examined by two different experts under ideal conditions, the total analytical variation may be ± 0.3%. It was on the basis of such deposition of an expert witness that the Hon’ble Court ruled in favour of the accused and acquitted him.

40. Thus, the point to be noted is, that the law laid down in Bishan Sarup’s case still holds good. No benefit can be granted to the accused merely because there are variations in two reports. If the accused is able to show, through evidence, that the variations are substantial enough so as to conclude that the sample was not representative, he would get benefit. In Kanshi Nath’s case, the accused was able to adduce evidence to the effect that ‘in ideal conditions’, the variations of ± 0.3% would be permissible in the case of Sodium Chloride. The Hon’ble Court in this case never laid down that the said testimony in the form of an opinion of an expert witness, would be applicable to all the future cases to come, irrespective of the fact if ideal conditions were there or not. It was nowhere laid that such variation of ± 0.3% would be applicable to all the ingredients and not only Sodium Chloride for which expert evidence was given in that case. It was nowhere laid down that opinion of that expert witness examined in that case would be binding on all experts with respect to all other ingredients. It was not laid down that in every case of whatever nature, if there is variation of more than ± 0.3% in any of the ingredients, that would lead to direct inference that the sample was not representative. Even in Bishan Sarup’s case, the Hon’ble Court had convicted the accused despite the variations being more than 0.3% and despite huge time gap between the two reports. This was precisely because the accused had failed to show that such variation was due to the sample being not representative. It was held that merely on account of delayed analysis, the trial court was not having an occasion to feel surprise or intrigued over the report in view of section 13(3) of the Act.

41. Such an interpretation as being suggested by the defence is not even logical to be drawn. For instance, if there is deadly poison in sample of a food article and presence of that poisonous matter (or any other prohibited substance) is confirmed by PA to be 55% and CFL to be 56%, then can benefit be given to the accused on the ground that there is variation of more than ± 0.3% in the two reports, particularly when the CFL report is final and conclusive? Similarly, if the PA and CFL both find the poisonous matter to be 55%, then can the accused get benefit in the ground that some there is variation of more than 0.3% in the two reports with respect to moisture or ash content? Certainly no. This position would not change even if there is huge delay in analysis by two experts. Similarly, if PA fails to detect any poison, or detects a specific kind of poison, or fails to identify the said poison, and CFL detects such poison, or detects an additional poison, or is able to identify the said poison, even then no benefit can be granted to the accused on account of variation, unless he is able to establish in evidence that such poison was a result of delay in sending the sample for analysis or of improper sampling. CFL report in all cases supersedes the PA report and variations therein would not lead to irrefutable conclusion that the samples were not representative. If the two reports are to be so compared with each other, then it would lead to giving finality and conclusiveness as to the contents even to the report of PA, which is against the scheme of the Act that gives such finality and conclusiveness only to the report of CFL. The comparison, if any, can only be to ascertain if the variations are substantial enough, provided that there is evidence to show that any particular variation might be because of sample not being representative. The CFL report is given precedence over PA report irrespective of the results therein. If PA detects some adulteration but CFL does not find any such adulteration, the benefit goes to the accused straight away and in that case, the law does not permit the two reports to be compared. Similarly, if PA detects some ingredient present in some quantity and CFL detects presence or absence of another ingredient or presence of that ingredient in different quantity, the finality clause in CFL report cannot be left redundant solely on the ground that variation in reports is more than 0.3%. Since CFL is better equipped, have better means of analysis, is having more experienced analysts, advanced technology, its report has to be given precedence over report of PA in every case where the accused exercises his right to get the sample analysed from CFL. There is no requirement under the Act or Rules that the two reports should be uniform or identical or that any variation of ± 0.3% in any ingredient would nullify the report of CFL. No such limit is prescribed anywhere and therefore, it depends on the evidence led in each case and testimony of expert witnesses, including the analysts, from case to case based on their study, experience and research, and their passing the test of cross-examination by opposite side.

42. Again, this position would apply only in those cases where the samples are required to be representative. For instance, if any prohibited substance (like poison or prohibited colour) is added in a food article, then even if the samples were not representative, that would not make any difference as even a minuscule presence of such ingredient would implicate an accused irrespective of variation in its quantity. Again, if there is variation in content of any permitted ingredient which has been added in excess of prescribed maximum limits, then merely because there is variation in two reports, that would not lead to inference that the samples were not representative. It would be for the accused to establish what would be the variation that can be called as substantive enough to give benefit to him and further that such variation was a result of sample being not representative. The accused cannot simply rely upon the Kanshi Nath’s case (or any other case for that matter) and say that since the variation in one or more ingredients in his case was more than ± 0.3% as opined by an expert in one particular case, the sample in his case would deemed to be not representative or would render the food article as free from adulteration. Apparently, the Kanshi Nath’s judgement was based on evidence led by the parties where there was clear evidence as to specific variation, in one specific ingredient (Sodium Chloride), in a specific case. The accused persons cannot now rely on the testimony of that expert in that case without leading any further evidence whatsoever. If such interpretation is given, then all the cases of food adulteration would fail, the moment the CFL gives its report which happens to be at variance with the PA report to be more than ± 0.3%. This would rather give precedence to the report of PA and not CFL, which is against the scheme of the Act.

43. As mentioned earlier, this judgment has been relied upon time and again by the Hon’ble High Court of Delhi, where there were variations between the PA report and CFL report more than 0.3%. But these judgements can be easily distinguished in view of the above discussion, primarily in view of the fact that these were appeals, mostly against acquittals, where the scope of interference is limited, as observed in the judgements themselves. [Food Inspector v. Parvinder Malik [2014(2) FAC 306], State v. Vidya Gupta [2014(1) FAC 291], State v. Dinesh Goswami [2014(1) FAC 302], State v. Mahabir [2014(1) FAC 286] and State v. Santosh Sharma [2014(1) FAC 296]].

44. At this stage, it is not out of place to mention that the Hon’ble Supreme Court of India in State v. Kanshi Nath [Crl. Appeal No. 1158/07 dated 08.09.2011] has dismissed the appeal to Kanshi Nath’s judgement, but at the same time, expressly ordered the question of law to be kept open.

45. The judgements of State v. Virender Kohli [2014(2) FAC 223] and State v. Kamal Aggarwal [2014(2) FAC 183], are exactly on the same lines as that of Food Inspector v. Kailash Chand [2014 (2) FAC 143, in Crl. LP no. 264/14, Delhi High Court, dated 16.04.2014] where the acquittal was upheld on the ground that variations in two reports were more than 0.3%, which has already been set aside by the Hon’ble Supreme Court of India in Food Inspector v. Kailash Chand [Crl. Appeal No. 1138/2015, Supreme Court of India, dated 31.08.2015], and the matter remanded back to consider the statutory provisions under section 13(3) of PFA Act.

46. The judgements in Raja Ram Seth & Sons v. Delhi Administration [2012(2) FAC 523] and State v. Rama Rattan Malhotra [2012(2) FAC 398] had also relied upon State v. Mahender Kumar [2008(1) FAC 170] but this judgement has been set aside in State Delhi Administration v. Mahender Kumar [2012 (2) FAC 642] by the Hon’ble Supreme Court of India and matter remanded back for fresh consideration, expressly keeping all the issues open.

47. The judgements in State v. Sunil Dutt [2011(4) JCC 2377], State v. Ramesh Chand [2010 (2) JCC 1250] and State v. Vinod Kumar Gupta [2010(2) JCC 957] were based on evidence led by the parties and appreciation thereof, and not that the variation between the two reports was more than 0.3%.

48. Thus, the judgements relied upon by the defence have to be considered in right perspective. The Hon’ble High Court refused to interfere in the judgements of acquittal by subordinate courts that had considered the variations to be substantial enough and passed the judgement on the basis of evidence available on record. But where the evidence does not show that the variations were due to sample being not representative, the matter cannot result in acquittal simply by assuming that any variation more than 0.3% in any factor would make the sample non representative. Certainly, if the variations are established to be substantial enough to conclude that the sample was not representative, the accused would surely get benefit but not otherwise. Recently in Mithilesh v. State of NCT of Delhi [(2014)13 SCC 423], the Hon’ble Supreme Court has upheld the conviction of the vendor despite the variations in the ash content of more than 0.3% in the reports of PA and the Director CFL.

49. In the case in hand, the court cannot, merely on the basis of the above mentioned variations, conclude that the samples were not representative. In view of section 13(3) and proviso to section 13(5) of the Act, the report of CFL becomes conclusive and final, and superseding the report of PA. The CFL report would get precedence over the PA report.

50. In any case, as far as the extraneous colour is concerned, there is no variation whatsoever in the two reports. There is no reason for the court to doubt the findings of the CFL certificate, which confirms the PA reports with respect to the incriminating ingredient. The PA detected ‘oil soluble colour’ when the chromatography method gave positive result with respect to ‘added colouring matter’. There is specific opinion of the PA that the sample was adulterated because it was coloured with ‘unpermitted oil soluble synthetic colouring matter’. The words ‘added’, ‘unpermitted’ and ‘synthetic’ would clarify that it was not a natural colour, as claimed by the defence. Similarly, the CFL also detected ‘synthetic red oil soluble colour’. It confirms the PA report with respect to the ‘synthetic’ and ‘oil soluble’ colour, though it also noted the red shade of such colour. Merely noting down the shade of the colour by the CFL which the PA did not note, would not nullify the CFL report by terming it to be at variance with the PA report. Similarly, addition of the word ‘synthetic’ by the Director CFL by hand would not create any doubt by calling it as an ‘afterthought’, as the said addition was duly initialled by him at the time of preparation of report itself. It is not that some manipulation or unauthorized addition / modification was done by some mischievous person subsequent to preparation of the report. Had it been only a case of natural colour, there was no occasion for the PA and the CFL to have failed the sample on this ground.

51. The present case pertains to Rai Whole which falls in item no. A.05.15 of Appendix-B of PFA Rules, which categorically specifies that “the product shall be free from … added colouring matter”. As already noted, Rule 29 deals with the food articles in which synthetic food colours can be added. Rai Whole is not a food article falling under Rule 29 wherein the food articles in which the synthetic colours as listed in Rule 28 are permitted to be added. Hence, no colour could be added to Rai Whole and use of any such synthetic colour is absolutely prohibited. The obvious inference is that use of such synthetic food colour is totally prohibited for use in Rai whole, though use of some prescribed colours is permitted in specified food articles within the prescribed limits. Reliance can be safely placed on the precedents titled as Delhi Administration v. Ashwani Kumar [Crl. A. 538/2013, Delhi High Court, Dated 09.05.2013] which pertains to food grains and Delhi Administration v. Manohar Lal [Crl. A. 153/2013, Delhi High Court, Dated 18.02.2013] which are squarely applicable to this case as well.

52. Further, the incriminating ingredient in this case is artificial synthetic oil soluble colour, the chemical name or identity of which was not or could not be detected by the analysts. But it may be understood that the CFL report and the opinion of Director CFL cannot be nullified on the ground that the chemical name or identity of extraneously added oil soluble synthetic colour was not mentioned. Not all the colours available in the world may be chemically identifiable or their exact nature could be identified with available means / tests / apparatus. It is not known if the red synthetic colour as detected by the CFL in the present case was identifiable or identified or not. When the accused persons have chosen not to exercise their right to apply under section 293 CrPC and cross examine the Director CFL, they cannot claim that the report is incomplete being silent in some aspect. The court cannot hypothetically conclude that there was no synthetic colour in the food article on the ground that the Director CFL did not identify or could not identify or did not mention its chemical name. As already noted, the report on record is only a final report given as per the format prescribed under the PFA Rules. The other details of analysis, including the exact method used, the values derived, calculations made and possibly the identity of colour as well, would have been a part of the record maintained separately by the CFL office but no attempt was made by the defence to summon such record or to seek clarifications or explanations from the Director CFL on any point on which the report is silent, despite his being the best witness to do so. The fact remains that even if the colour has not been chemically identified, it was still found to be synthetic, oil soluble and extraneously added colour which was prohibited under the PFA Rules. Absence of chemical name of the colour in the final report would not render the food article unadulterated or free from such colour. Therefore, the opinion of DW-1 that the report is incomplete, would also not affect the report for the purposes of determining if the food article was adulterated or not, being in violation of the PFA Act and Rules. The specific opinion of the CFL, being the competent authority recognized by the State, would negate the defence version that the said colour was natural.

53. Having said so, it is immaterial to go into the question as to what was the percentage or quantity of colour used in the sample of Rai Whole. Even if the said quantity was in traces, as being contended by the Ld. Defence Counsel, that would still make out the offence as this colour is not permitted within any limits for use in this food article. In any case, it would be for the accused persons to show as to on what basis they claim presence of such colouring matter in traces in food article in question. The burden would upon be them to show how even traces of colour could have entered the food article being sold by them. But no evidence has been led by the accused persons to establish this fact and their stand throughout trial has been that no such colour was there and the colour detected by the analysts was only the natural colour.

54. The further question is if the so called variations in the two reports were a result of the sample being not representative. For that, it is first to be seen if the sample was required to be representative. In my considered view, once such incriminating ingredient is found present in any quantity whatsoever in the food article, that would result in violation, irrespective of the variation in two reports as to the quantity present. Thus, even if the samples were not homogenized properly or were not homogenized at all (homogenization was not done in the present case as the sealed packets were lifted as such without opening the seal), that would not make any difference as even its smallest quantity of incriminating substance would be violative of the provisions. Unless the accused is able to show that such presence of prohibited material was beyond his control or was a result of delay in analysis by CFL, the court has to consider the CFL findings against the accused. In this case, no such stand has been taken by the accused persons at the trial. No suggestion to this effect was given to any witness during cross-examination. The accused persons never chose to examine the PA or Director CFL whose reports are otherwise admissible under section 293 CrPC. The prosecution is not required to rule out all remote possibilities and defences available under the Sun to prove the guilt of the accused. If any specific defence the accused persons have to take, the burden would be upon them to prove that defence either by pointing out weaknesses in the prosecution case and/or by leading defence evidence. And such defence has to be more that mere bald suggestions. The accused persons are required to bring positive material on record and mere putting suggestions to witnesses, which they deny, would not serve their purpose.

55. There is nothing to show that the variations as pointed out by the Ld. Defence Counsel is the result of sample being not representative. The certificate of Director CFL is final and conclusive which cannot be disregarded or disbelieved on mere assumptions. There is no evidence on record to show that variations in two reports are a natural consequence of time gap or something which was beyond the control of the accused persons. There is nothing to show that time gap between the two reports, being called as ‘delay’ has caused any prejudice to the accused persons, as the sample did not decompose in the meanwhile and was not rendered unfit for analysis by the CFL but was duly analysed by it. Even otherwise, the nature of synthetic colours is such that there is no change in its nature or content despite lapse of long period. Synthetic colours if present would not vanish with the passage of time and such colours if absent would not develop with the passage of time. Therefore, no benefit can be given to the accused persons on this count.

56. There is nothing for the court to disbelieve the said report wherein synthetic oil soluble colour has been detected in the food article. Even the defence has nowhere disputed this fact, though has sought to challenge the validity of reports on other technical grounds and by claiming that it was natural colour that was detected. It is not the defence of the accused persons that no colour was detected, or was detected wrongly, or was added by the food officials at the time of sampling or subsequently. In this case, no stand has been taken by the accused persons at the trial that any such colour was a result of natural environment or the food article having been exposed to natural environment. No suggestion to this effect was given to any witness during cross-examination. No such defence was raised by the accused persons in their statements under section 313 CrPC or even in defence evidence.

57. At this atage, the defence claims that the sample was not taken properly. But no irregularity has been pointed out by the accused persons in sample proceedings, except giving bald suggestions to the PWs which were categorically denied by them. There is no rule prescribed anywhere that the sealed packets of rai whole to have been first opened, then transferred to another container, then mixed together and homogenized, and then divided into three parts, as contended by the accused. Rule 22 only provides the quantity of sample of food to be sent to public analyst. As per Item 18 in Table therein, quantity of 200 gms of Spices and Condiments (whole) are to be sent to analyst. Thus, the FI was required to lift 600 grms of rai whole as per Rule 22 if lying open. This Rule only provides the minimum quantity of food article that would be required to be sent to the analyst for analysis. There is no bar in sending quantity in excess to these prescribed values and if any excess quantity is lifted, that would not make sampling proceedings bad in law. As per Rule 22-B, notwithstanding Rule 22, the quantity of sample lifted would be considered ‘sufficient’ unless the analyst reports to the contrary. This rule therefore deals with sufficiency of sample and nothing more.

58. Rule 22-A on which the defence is strongly relying, has to read only in such perspective. It mere prescribes that where food is sold or stored in sealed container having identical label declaration, the contents of one or more such containers as may be required to satisfy the quantity prescribed in Rule 22 shall be treated as part of the sample. It nowhere deals with opening the sealed packets or homogenizing them as being contended. For instance, if rai was in sealed packets of 100 gm each, one counterpart would consist of 2 such packets. As per Note to Rule 22 (as inserted in 2005), food sold in packaged condition (sealed container or package) shall be sent for analysis in its original condition, without opening the package as far as practicable, to constitute approximate quantity along with original label. Thus, even by this provision, the FI was required not to open the seals of the packets. This rule is applicable not only to sealed containers but also to other packages as in the present case. There is no requirement that such packets had to be compulsorily opened and mixed. Rather it was a better method to take the sealed samples as counterparts even in the absence of the Note to Rule 22, as it would rule out the possibility of contamination of the sample during the sample proceedings.

59. The requirement of mixing and homogenizing would arise in those cases where failure to homogenize might give different result in analysis. It is required particularly in those cases where proper homogenization would distribute all the ingredients evenly so as to render the three counterparts representative of each other. For instance, in case of milk, it is necessary to mix and homogenise the samples so as to evenly distribute its fat content, moisture, cream, etc. Similarly, in case of spices and condiments, it is necessary to mix and homogenise the samples so as to evenly distribute there ash content, moisture, broken grains, etc. If it is notso done, these contents might give different values in analysis and may not give reliable results to be compared with prescribed standards. The only purpose of homogenisation is to ensure even and representative sampling.

60. But this rule would not apply to those cases where homogenization would have no bearing on the standards on which a sample is to be tested. For instance, if a sample of milk contains deadly poison which is a prohibited substance, then any minuscule percentage of such substance would make out an offence. Making such a sample homogenized or failure to do so would have no bearing on such testing. Even if such a sample is homogenized in the best possible manner, that would only result in even distribution of incriminating substance but would never result in its being absent. So, if homogenization has a tendency to bring the sample within prescribed standards, failure to do so would give benefit to the accused. But where a sample is liable to fail irrespective of such homogenization, then in that case failure to homogenize would have no adverse effect.

61. In this perspective, if the sample of Rai whole was failing on account of ash content, moisture, damaged seeds, etc, then homogenization would have been required and failure to do so moght have given some benefit to the accused persons. But when the sample is to be tested for presence of artificial synthetic colouring matter, which is a prohibited substance for use in this product, then any homogenization would be immaterial. Even if homogenized in the best possible manner, such colour would still be there, though evenly distributed, which would be an offence in any case. Thus, there is no merit in the contention that the packets were to be first opened and then mixed before taking the sample, as any such method would have given no benefit to the accused persons.

62. Ld. Defence Counsel then submits that if colour was detected using paper chromatography method by the CFL, then that method is not a sure test. It is pointed out that even the PA used this method, which he asserts to be not reliable, thus arguing that the prosecution was bad in law.

63. Well, the court does not find merit in the said submissions. As already discussed, the accused has an option available to him to apply to the court under section 293 CrPC and cross-examine the analyst and if despite such option being available, he fails to exercise the same, he cannot then chose to question the report on assumptions, presumptions and hypothesis, without according any opportunity to the examiner to clarify or explain the things. The court cannot impose its views and refuse to disbelieve a report of CFL, without giving the analyst any opportunity to explain any point on which the report is silent. In the present case, there is no reason why the accused persons did not opt to cross-examine the CFL analyst and ask him about the exact method used by him to detect synthetic colour, if they were genuinely feeling aggrieved by his failure to name the exact testing method. The accused persons cannot be allowed to take benefit of their failure to apply and cross-examine the CFL when this opportunity was available to them. The CFL would have been the best witness, having analysed the sample and given opinion, as to the name, nature, intricacies, validity, authenticity, reliability etc. of the testing methods applied by him. It is not that the paper chromatography method, even if applied by the CFL (though there is no evidence to this effect), is an invalid test.

64. Even the judgement of Maya Ram v. State of Punjab [1987(II) PFA Cases 320] would not help the accused persons. There is nothing to show that paper chromatography test is not a sure or reliable test to detect colour in food articles. This test is internationally recognised and accepted method to detect presence of colours in food articles, and is also recognised by the DGHS in its Manual. Even the DW-1 examined by the defence never deposed to the effect that the paper chromatography test is not a sure test.

65. The judgements in Maya Ram v. State of Punjab (supra) and Daulat Ram v. State of Punjab [1979(II) PFA Cases 202], as relied upon by the defence, are otherwise clearly distinguishable on facts of this case. These judgements would apply only to those cases where some synthetic food colour is permitted to be used in a food article (like sweets andconfectionery as covered in Rule 29 of PFA Rules) and the court has to determine if the synthetic colour found in the sample was permitted (as per Rule 28) or unpermitted (the ones not covered by Rule 28). In such a position, the Hon’ble Court had observed that paper chromatography test would not be sufficient to find if the colour detected was permissible or not. But these judgements would not apply to those cases where use of such colours is absolutely prohibited and not permitted for use to any extent. Where the court need not go into the question if the colour detected was permissible or not, but has only to determine if any such colour was detected (as all such colours are prohibited), these judgements would not apply.

66. It is then contended by the Ld. Counsel that the nine packets lifted by the food officials were not of the same lot. Well, there is no evidence to this effect. When there was no label declaration on the sealed packets showing the batch number or lot number, as never even denied by the defence, then there was no occasion for the food officials to have guessed that they were of the same lot or not, except to seek the response of the accused vendor. In this regard, the accused no. 1 gave in writing to the food officials by making endorsement on Form-VI Ex. PW-1/B under his signatures, categorically stating that said packets were of the same lot. This declaration by the accused no. 1 in response to the notice in Form-VI has not been rebutted, disputed or retracted, except vaguely claiming that it was made at the instance of the FI. It is nowhere the case of the accused no.1 at the trial and during the cross examination of PW-1, PW-3 or PW-5 that he was forced or pressurized or threatened to make such endorsement. Such stand has not been proved by leading any defence evidence to this effect. No complaint was lodged against any food official in any forum whatsoever, at any stage. Thus, such a claim has no basis.

67. Moving ahead, the defence claims that method of analysis and laboratories were not specified by the Rule-making authority and thus, prosecution was bad. It has been argued that the prosecution was launched on 24.03.2006 on the basis of the PA report dated 30.09.2005. Relying upon the judgement of the Hon’ble Supreme Court titled Pepsico India Holdings Pvt. Ltd. v. Food Inspector [2010(2) PFA Cases 310], the Ld. Defence counsel has argued that the prosecution was bad in law and no prosecution could have been launched because Section 23, which empowered the Central Government to make rules to carry out the provisions of the Act, was amended with effect from 01.04.1976 and Sub Clause (ee) and (hh) were inserted in Clause (1A) of section 23 which included power to define/ designate laboratories competent to analyze the sample as well as define the methods of analysis to be used. It is pointed argued that the methods of analysis to be adopted were specified for the first time only with effect from 25.03.2008 after clause 9 was inserted in Rule 4 and that the laboratories have not been specified till date. It is thus argued that any analysis done prior to 25.03.2008 based on whatsoever method cannot be made a basis for concluding whether the sample was adulterated or not and consequently to prosecute the accused persons or not as till 25.03.2008 no methods of analysis were specified which the PA or the Director, CFL could adopt for analysis of the product in question.

68. However, I do not find myself in agreement with the said contention or to the interpretation sough to be given to the above mentioned precedent. If such an interpretation is to be given, then all the cases of whatever nature, of whatever ingredient and of any amount of adulteration, registered after 01.04.1976 would lead to outright dismissal en block, without going into any other evidence, on the ground that laboratories have not been specified, and particularly between 01.04.1976 and 25.03.2008 on the ground that method of analysis was not specified. But such an interpretation is not possible or plausible. There are large number of precedents during this period where the guilty persons had been booked and convicted and their convictions and sentences upheld by the superior courts throughout the country.

69. As far as analysis by the PA and launching of the prosecution on her report is concerned it is to be seen that as per the scheme of the Act the first analysis of the sample/food product is done by the PA in terms of section 811 and 13 of the Act. The PA is appointed by the Central or State government by way of notification in the official gazette. Unless the report of PA is superseded by that of Director, CFL, this report holds good for all purposes and remains effective and valid and can be used as evidence of the facts stated therein. The Ld. Defence counsel also argued that PA Smt. Mohini Srivastava was not validly appointed as Public Analyst and hence could not analyze the sample. Though no such stand was taken at the trial and PA was not sought to be cross-examined under section 293 CrPC to explain the facts, yet Ld. SPP has shown the orders dated 31.05.1985, 22.04.1999 as well as 26.05.2005 bearing no. F.41/51/05-H&FW whereby the Hon. Lt. Governor of the Government of NCT of Delhi had appointed Smt. Mohini Srivastava to the post of PA with effect from 31.05.1985. Hence on the day of giving report of analysis of the sample, that is, 30.09.2005, she was a duly / validly appointed Public Analyst. Even her report Ex. PW-1/G also mentions that she has been duly appointed and this fact was never disputed at the time of trial.

70. Regarding analysis by the Director, CFL as per the Act and Rules appended therein Section 4 empowers the Central Government by way of notification in official gazette to establish one or more Central Food Laboratory or Laboratories to carry out the functions entrusted to the Central Food Laboratory by this Act or Rules made under this Act. Section 13(2) of the Act gives an option to the accused to challenge the report of PA by getting the counterpart of the sample analyzed by the CFL. The analysis at the CFL is done by the Director whose report has been made conclusive and final, thereby overriding the PA report. Rule 3(2) designates various CFLs (at Pune, Kolkatta, Ghaziabad, Mysore) to analyse the samples as per the Act. At the relevant time and even on date, CFL Pune was/has been specified to be the laboratory for Delhi region.

71. At this stage it would be worthwhile to highlight extracts of Preface to the first edition of the DGHS Manual. The same reads as:

The Prevention of Food Adulteration Act 1954 came into effect from Ist June 1955. Adulteration has been defined in section 2 of the PFA Act. Under sub-clause (I) of clause (i) of section 2, it has been stated that an article of food shall be deemed to be adulterated, if the quality or purity of the article falls below the prescribed standards or its constituents are present in quantities which are in excess of the prescribed limits of variability. The specifications prescribed for the purity of various articles of food have been given in Appendix ‘B’ of the Prevention of Food Adulteration Rules.

The analysts as well as food technologists and Analysts employed in various organisations have been using various method of tests for the determination of different components whose limits have been laid down under these rules. As the methods adopted by Analysts are different, the results obtained may sometime differ even in the case of the same food product analysed at different food laboratories. The Central Committee for Food Standards considered this subject in detail and desired that methods of tests as available with the various institutions like Indian Standards Institution, Directorate of Marketing and Inspection etc. be aligned and published for the guidance of Public Analysts and other analytical chemists so as to have a uniformity in the reports. A sub- committee under the convenership of Dr. Sadgopal, Deputy Director General Indian Standards Institution with Shri R.K. Malik, Senior Marketing Officer, Directorate of Marketing and Inspection and Shri S.N. Mitra, Director, Central Food Laboratory, Calcutta was constituted for the purpose. These methods of tests having been recommended by the Sub-committee and approved by Central Committee for Food Standards are published for the guidance of all concerned.”

72. This Manual was published in the year 1975 and its chief purpose was to lay down the methods to be employed for analysis of different food products. As is evident from its Preface the Central Committee for Food Standards published the same so as to be the guidance for Public Analysts and Analytical Chemists to have a uniformity in the reports. Section 3 of the PFA Act empowers the Central Government to form/constitute the above Committee, that is, Central Committee for Food Standards to advise the Central as well as the State Governments on matters arising out of administration of this Act and to carry out the other functions assigned to it under this Act.

73. Therefore, on the day of analysis of the sample in question, the Public Analyst was competent to analyze the sample and use the method she deemed fit for the purpose of analysis of the sample. There is nothing to show that any method adopted by her was not a sure or reliable test, particularly when she was not even sought to be cross-examined by applying under section 293 CrPC on this point. Similarly, on the day of analysis of the counterpart of the sample in question, CFL, Pune was a specified laboratory as per the Act and Rule 3(2) of CFL Rules to analyze the sample and as per the scheme of the Act it was competent to use the method it deemed fit for the purpose of analysis of the sample.

74. As far as Pepsico’s case (supra) is concerned, the judgement cannot be read in isolation or selectively. It has to be read as a whole keeping in mind the purpose and the scheme of the Act which intends to safeguard the public at large from the evil/ menace of food adulteration. The relevant portion of the judgement relied upon by the Ld. Defence counsel reads as:

“34. As far as Grounds 1 and 2 are concerned, the High Court was not convinced with the submission made on behalf of the appellants that in the absence of any prescribed and validated method of analysis under Section 23(1-A)(ee) and (hh) of the 1954 Act, the report of the Public Analyst, who had used the DGHS method, could not be relied upon, especially when even the Laboratories, where the test for detection of insecticides and pesticides in an article of food could be undertaken, had not been specified. The observation of the Division Bench of the High Court that if the submissions made on behalf of the Appellants herein were to be accepted, the mechanism of the Act and the Rules framed thereunder would come to a grinding halt, is not acceptable to us, since the same could lead to a pick and choose method to suit the prosecution. However, in any event, the percentage of Carbofuran detected in the sample of Pepsico which was sent for examination to the Forensic Laboratory is within the tolerance limits prescribed for Sweetened Carbonated Water with effect from 17th June, 2009.

35. The High Court also misconstrued the provisions of Section 23(1-A)(ee) and (hh) in holding that the same were basically enabling provisions and were not mandatory and could, in any event, be solved by the Central Government by framing Rules thereunder, by which specified tests to be held in designated Laboratories could be spelt out. Consequently, the High Court also erred in holding that the non- formulation of Rules under the aforesaid provisions of the 1954 Act could not be said to be fatal for the prosecution.”

75. Thus, in that case, even the laboratories where the tests were to be performed for determining content of pesticides in sweetened carbonated drinks were not specified. But in the case at hand, the analysis was done by CFL, Pune which was a specified laboratory to analyze the sample as per Rule 3(2) of PFA Rules. Again, in Pepsico’s case, the Hon’ble court was dealing with a situation where there were no standards at the relevant time prescribing the tolerance limits of Carbofuran detected in the sample of sweetened carbonated water. Such tolerance limits were specified subsequently wherein the sample was found to be within permissible limits. The prosecution in Pepsico’s case was that for violation of section 2(ia)(h) of the PFA Act. At that time, it was no Rule framed by the government specifying as to what quantity of pesticides was permissible. But in the case at hand, specific Rules are there with respect to prohibition of use of artificial synthetic colours in foodgrains. In this case, prosecution is primarily for violation of section 2(ia)(a), (j) and (m) of the Act. The present case would be squarely covered by the judgement of the Hon’ble Supreme Court titled as Prem Ballab v. State (Delhi Administration) [(1977) 1 SCC 173]. This judgement was discussed even in Pepsico’s case, but was never disturbed and was sought to be distinguished on the ground that this was dealing with colouring matter (as in the present case) and not with pesticides in carbonated water. But when the present case is also with respect to colouring matter and not pesticides in carbonated water, the ruling in Pepsico’s case would not help the accused persons. It is clear that the food article in question was ‘adulterated’ due to presence of extraneous synthetic oil soluble colour.

76. Now moving on to the offence of ‘misbranding’. It is seen that both the PA and CFL opined about violation of Rules 32(a), 32(e) and 42(zzz) (17) of PFA Rules. The PA had also opined violation of Rule 32(d) which was negated by the CFL report, and correctly so, because the net weight of the food article was duly mentioned on the label, as can be seen from the label declarations reproduced by the FI on Form-VI Ex. PW-1/B.

77. Rules 32 and 42 come under Part-VII of PFA Rules under the heading “Packaging and Labelling of Foods”. It requires “every package” of food to carry a label as provided in Rules and to contain details as mentioned in the Rules. Section 2(ix)(k) makes failure to label such food product an act of misbranding which is an offence punishable under section 16(ia)(a) of the PFA Act.

78. Section 2(x) of PFA Act defines “package” to mean a box, bottle, gasket, tin, barrel, case, receptacle, sack, bag, wrapper, or other thing in which an article of food is placed or packed. Even a wrapper or ‘other thing’ in which article of food is placed is covered in the definition. Thus, a plastic packet duly sealed by the accused persons would be squarely covered in the definition of “package”. It was used to pack Rai Whole and duly sealed to determine its value.

79. It also qualifies to be called a “prepacked commodity” as per the Explanation VII to Rule 32 (at it existed at the relevant time), being a commodity of food, with or without the purchaser being present, having been placed in a package of ‘whatever nature’ so that the quantity of commodity therein has a predetermined value and such value cannot be altered without the package or its lid or cap, as the case may be, being opened or undergoing a perceptible modification. Even after amendment, Rule 2(t) defines prepackaged food to be packaged or made up in advance in a container, ready for offer to the consumer. In the case at hand, the polythene packets were duly sealed and were of predetermined value of 100 gm weight which could not have been altered without tearing/cutting of the seal. Individual price of the food article was mentioned on each packet. Thus, such labelling and packaging rules are applicable to such product. It is not even the stand of the accused persons that the packets in question would not come under the purview of Rule 32 or 42 of PFA Rules.

80. Apparently, the accused persons have never denied that the packets being sold by them were not having the label declaration showing the name of the food article (as per Rule 32(a) which existed at that time, and which is now covered by Rule 32(b)(1)) or batch number / lot number / code number (as per Rule 32(e)) or the vegetarian symbol (as per Rule 42(zzz)(17)). It is nowhere the stand of the accused persons that such declarations were in fact there on the label which were not reproduced by the FI on Form VI. No such stand was taken at the trial nor any attempt was made to call for the sample counterparts from the office of LHA to be seen by the court in case the label declarations were disputed.

81. At this stage, though not raised by the defence, the court deems it necessary to also go into the question of validity of Rule 32(e) which is generally raised in such cases, by relying upon the judgement titled as Dwarka Nath v. MCD [1972 FAC 1 (SC)], where the Hon’ble Supreme Court of India struck down the said provision being beyond the rule making power under section 23(1) of the PFA Act.

82. In the said judgement, the decisive factors as observed by the Hon’ble Court can be noticed as under:

(a) There was no definition of the expression “batch number” or “code number” in the Act or in the Rules. No affidavit had been filed on behalf of respondent to show whether any technical meaning in the trade was given to these expressions and the matter was based only on the evidence of the Food Inspector.

(b) No notification issued by the Central Government had been brought to the notice of the Hon’ble court with respect to the food article in question showing the applicability of Section 23(1)(c) of PFA Act.

(c) As per Rule 32(e) [as it is existed at that time (the said judgement was passed on 23.04.1971)], “batch number or code number”, had to be mentioned in Hindi or English or numericals or alphabets or in combination, on every label.

83. In view of this factual position, the Hon’ble Supreme Court held that:

(a) There was nothing in clauses (c), (f) and (g) of section 23(1) of PFA Act which would give power to the Central Government to frame rules requiring the batch number or code number to be given on the labels, particularly there was no notification brought to the notice of the Hon’ble Court under clause (c).

(b) Clause (d) of section 23(1) would also not be applicable as there was no rational or remote connection between the batch or code number artificially given by a packer and the public or the purchaser being prevented from being deceived or misled as to the character, quality or quantity of the article, contained in a sealed tin.

(c) As there is no definition of the expression “batch number” or “code number” either in the Act or the Rules, and it was admitted that even where batch or code number was to be given, there was no further obligation to specify in the label the date of packing and manufacture of the article of food or the period within which the article of food had to be utilised, used or consumed, merely giving an artificial batch number or code number will not be of any use to the public or to the purchaser. Hence, Rule 32(e) was held to be beyond the rule-making power even under section 25(1)(d) of the Act.

84. Relying upon the said judgement of Dwarka Nath v. MCD, Hon‘ble High Court of Delhi has also upheld the acquittal of an accused in Criminal LP no. 17/2009 filed against the judgement dated 24.01.2009 of the Ld. ASJ-01 (South), Patiala House Courts, New Delhi in Criminal Appeal no. 34/08. Against the said judgement of the Hon’ble High Court of Delhi, the State went in appeal before the Hon’ble Supreme Court of India in case titled as NCT of Delhi v. Mohinder Singh [Criminal Appeal no. 1470/11] and vide order dated 27.08.2015, the Hon’ble Supreme Court reiterated that since Rule 32(e) of PFA Act had already been declared ultra vires of the constitution, no case could lie in the matter.

85. A careful study of the position would however, negate the said defence. It is to be noted that there has been a lot of difference in the language of Rule 32(e) as it existed at the time when the judgement of Dwarka Nath v. MCD was passed and that as it existed on the day when the sample was lifted and as it existed till the PFA Act was repealed and substituted by new Food Safety and Standards Act, 2006.

86. It is to be noted that after 1971, when the judgement of Dwarka Nath v. MCD was passed holding Rule 32(e) as ultra vires of the Constitution, the said rule was amended. This Rule 32 was last amended in 2006 and clauses (d), (e), (f), (g) and (h) of Rule 32 were substituted by G.S.R. 491(E) dated 21.08.2006 (w.e.f 20.02.2008) as corrected by G.S.R. 518(E) dated 31.07.2007.

87. At the time of Dwarka Nath v. MCD judgement, Rule 32(e) read as: “a batch number or code number either in Hindi or English numericals or alphabets or in combination”.

88. Rule 32(e) as it is existed prior to the G.S.R. 491(E) read as: “a distinctive batch number or lot number or code number, either in numericals or alphabets or in combination, the numericals or alphabets or their combination, representing the batch number or lot number or code number being preceded by the words “Batch No.”, or “Batch, or Lot No.”, or “Lot” or any distinguishing prefix.”

89. Rule 32(e) as it stood on the day of sampling in the present case read as: “Lot/Code/Batch Identification- A Batch number or Code number or Lot number which is a mark of identification by which the food can be traced in the manufacture and identified in the distribution, shall be given on the label”.

90. An apparent distinction, which can be seen in the language of Rule 32(e) as it existed earlier and its existed at the time of sampling, is that the purpose of giving batch number / code number / lot number has been specified, that is to identify the food article by any identification mark so as to enable it to be traced in the manufacturing and distribution process. Such meaning / purpose was earlier missing from the language of Rule 32(e).

91. Therefore, in view of the present language of Rule 32(e), it cannot be said that there is no definition of these expressions in the Act or in the Rules so as to reveal their purpose, as observed by the Hon’ble Supreme Court of India in Dwarka Nath v. MCD decided in 1971. The purpose of mentioning such batch number / code number/ lot number has now been made clear by the legislature.

92. It cannot be said now that a purchaser would not have any concern with the batch number or code number or lot number on the label artificially given by the manufacturer / packer. It is to be understood that if such a separate number is given to various lots of products prepared, it would be possible to trace the manufacturer/supplier/dealer and to fix their liability for selling adulterated or misbranded food. Under PFA Act, not only the seller but distributors / supplier and manufacturers are also liable for prosecution. Therefore, unless it is established that any particular product lifted from the vendor was purchased from a particular supplier/ distributor, it shall not be possible to apprehend any such person and fix his responsibility. In the absence of any such mark of identification, it would be very easy for any distributor/supplier to deny/disown the lifted incriminating food product to be the one sold by him through a particular invoice.

93. At this stage, it is also to be seen that the Hon’ble Supreme Court of India had held Rule 32(e) as it existed at that time, ultra vires. Thus, upon passing of the said judgement, Rule 32(e) no more existed in the eyes of law. However, when Rule 32(e) in modified language was again inserted and then substituted with a different language at its exists now, such a provision cannot be said to have been declared ultra vires merely because the number of Rule 32(e) is the same. There is force in the stand of Ld. SPP for the complainant that Rule 32(e) which had been declared ultra vires, has now been completely changed and the modified Rule 32(e) as it existed when the sample was lifted has never been declared unconstitutional by any court of law. The said provision inserted / substituted by G.S.R. 491(E) as corrected by G.S.R. 518(E) has to be considered as valid unless declared unconstitutional by any court.

94. In view of this position, judgement in Dwarka Nath v. MCD would not help the accused persons. For that matter, even the order dated 27.08.2015 passed by the Hon’ble Supreme Court of India in case titled as NCT of Delhi v. Mohinder Singh [Criminal Appeal no. 1470/2011] would not be applicable, because that order also pertained to a sample lifted on 23.08.1993 (copy of the pleadings to this effect has been shown by the Ld. SPP). Since Rule 32(e) stood amended and substituted in 2006 /2007, the said Rule would be applicable to the present case where the sample was lifted on 14.05.2008. The said rule has not been declared unconstitutional or ultra virus and is therefore binding.

95. Finally, there is no force in the stand of the defence that at the relevant time, there was policy no. F6(228)/85/ENF/PFA dated 23.09.1985, which provided that in case of misbranding under Rule 32 of PFA Rules, only a written warning was to be issued for the first offence and the prosecution had to be instituted only upon a subsequent offence.

This policy was subsequently withdrawn vide office order no. 5/07 dated 14.09.2007. The policy has been relied upon by the Hon’ble high Court in various cases where this policy was in existence at the relevant time, like in the judgement titled as S. S. Gokul Krishnan v. State[2009(1) FAC 132], which was followed in Hindustan Unilever Ltd. v. State [2011(1) FAC 183], Jaykal Exports v. NCT of Delhi [(2011)122 DRJ 432], Pepsi Food Pvt. Ltd. v. State [(2012)194 DLT 468] and Gupta Tea Traders v. State [2012(2) FAC 415]. However, a careful perusal of this policy no. F6(228)/85/ENF/PFA dated 23.09.1985 would show that it was to apply only to those cases where the prosecution was to be launched for violation of “only” Rule 32. It was specifically and expressly mentioned in the policy itself that this benefit will not be given to those cases where there is some violation in addition to Rule 32 as well. Thus, where the prosecution has been launched for violation of various provisions including Rule 32, this policy would not help the accused. For that matter, even on those cases where the prosecution has been launched under various provisions but the complainant is not able to prove the other violations except Rule 32, or the court frames charges only under Rule 32 or the subsequent CFL report negates the other violations, even then this policy would not help the accused, as it applies only till the stage of launching of prosecution. Therefore, the accused persons cannot seek benefit of such policy in this case, because the prosecution here had been launched not only for violation of Rule 32, but also for the offence of adulteration. When the prosecution was not for Rule 32 ‘only’, the policy would not apply. Thus, the food article in this case would also be misbranded.

96. Moving ahead, there would be no defence available to the accused persons to claim that they were not the manufacturers of the commodity in question or that they were only retailers selling the same. A seller or packer or distributor or manufacturer would operate in different fields and all of them can be held liable in their separate areas. Sale of adulterated food article is prohibited. The definition of ‘sale’ under section 2 (xiii) is very wide which includes storing or exposing for sale as a retailer and even attempt to sell and also sale for analysis. The only benefit which an accused can claim on this ground is under section 19(2) of PFA Act which would apply only if he is able to show that he had purchased the product against a warranty and had been selling the product in the same manner as purchased by him.

97. In the present case, the accused persons never disclosed from where they had purchased the commodity or that they were selling the same in the same condition as had been purchased. Neither such details were disclosed at the time of sample proceedings nor during the investigation, nor at the trial while cross-examining the witnesses, while recording statements of accused persons or even by way of defence evidence. Except stating for the first time in their statements under Section 313 CrPC that they had purchased the food article from market, there is no material which could be called as evidence to establish and identify the supplier from whom any such food article was purchased. No bill was produced or proved on record. No witness has been examined by the accused persons who could establish that any such food article was purchased by them from any third person. No such bill was ever submitted to the PFA department even during the investigation. No such bill was shown to the FI at the time of sampling. No endorsement was made by the accused no.1 on the documents prepared at the spot claiming that he had purchased the same from any third person or that was having any such bill / invoice / cash memo. Again, every such bill has to be in prescribed format as per Form-VI-A as provided under Rule 12-A of PFA Rules. The bill has to contain code number or batch number so as to identify the lifted product to be the same which was purchased through the bill. In this case, it cannot be said that the sealed packets as lifted from possession of the accused persons were containing the same rai as was purchased by them from any other place. Therefore, no benefit of warranty under section 19(2) PFA can be given to the accused persons. Such a defence is also liable to be rejected.

98. The fate of the case depends on quality of witnesses and not their quantity or designation or professions. There is no rule of law that requires the evidence of food officials to be viewed with any suspicion. What is required is that attempt is made to join public persons as witnesses as a matter of prudence. The court is not oblivious of reluctance of public persons to join such legal proceedings that involves lengthy procedural formalities and strict future commitments. But non joining of such witnesses would not negate the testimony of official witnesses when they are otherwise truthful and credit worthy and have withstood the test of cross-examination. No motive has shown to exist giving them reason to depose falsely against the accused persons. The Hon’ble Supreme Court in Shriram Labhaya v. MCD [1948-1997 FAC (SC) 483] has categorically held that testimony of the Food Inspector alone, if believed, is sufficient to convict the accused and there is no requirement of independent corroboration by public persons unless the testimony suffers from fatal inconsistencies. No such inconsistency can be seen in this case. No violation of any rule or provision has been pointed out by the defence. All the witnesses in this case have supported and corroborated the version of each other. All deposed about their presence at the spot, sampling proceedings, preparation of documents, etc. No contradiction whatsoever can be seen in the testimony of witnesses which could go to the root of the matter so as to shake their credibility.

99. But as far as accused no.2 and 3 are concerned, it is an admitted position that they were not the vendors from whom the food article was lifted nor they were present at the time of sampling. In case of a company (which includes partnership firm, as per Explanation (a) to section 17 of PFA Act), its directors (which includes partners of a firm, as per Explanation (b) to section 17 of PFA Act), officers or other employees can be held vicariously liable with the aid of section 17 of PFA Act (which is pari materia to section 141 NI Act). However, it is well settled that any and every director (or partner), officer or employee of a company (or a firm) cannot be held liable just because he happens to be a director (or partner) of the said company (or firm). All such persons cannot be held to be responsible for every act of the company (of firm) just because of the reason that they hold a particular post. The burden would be upon the complainant only to aver and prove by leading positive evidence to show that such a director (or partner) was in charge of or responsible for the day to day affairs of the accused company (firm) so as to hold him vicariously liable. In the absence of such a role specifically attributed to them, any or every director of a company (or firm) cannot be held liable. It is also well settled that the complainant has to explain by bringing on record the necessary facts that how and in what manner such person can be held liable and a bald averment that he was so responsible for the conduct of affairs of the company (or firm), would not serve the purpose.

100. While dealing with section 141 NI Act in the case of a company, the Hon’ble Supreme Court of India in SMS Pharmaceuticals Ltd. v. Neeta Bhalla [(2005) 8 SCC 89] has laid down that it is necessary for the complainant to specifically aver in the complaint that at the time when the offence was committed, the person accused was in charge of or responsible for the conduct of business of the company. Without this averment being made, requirements of section 141 NI Act would not be satisfied. All the directors in a company (or other officers or employees) cannot be deemed to be in charge of or responsible for the conduct of business of the company. With the exception of a Managing Director or the signatory of the cheque, to implicate any other person as vicariously liable, there has to be specific averment and proof of his role.

101. The Hon’ble Supreme Court of India subsequently in the case titled as National Small Industries Corporation Ltd. v. Harmeet Singh Paintal [167 (2010) DLT 143] held that vicarious liability on the part of a person must be pleaded and proved and not inferred. The said liability does not arrive merely on the basis of designation or office which a person holds in a company and a bald cursory statement in a complaint that a director made an accused was in charge of or responsible to the company for the conduct of its affairs, without anything more as to his role, would not be sufficient.

102. The said position would be applicable in case of PFA Act as well. Reliance can be safely placed on the judgements titled as Raghav Gupta v. Food Inspector [Crl. MC No. 1488/2011, Delhi High Court, dated 30.01.2012] and Municipal Corporation of Delhi v. Ram Kishan Rohtagi [(1983) 1 SCC 1] that pertain to PFA Act only. It has been laid down that that mere averment, that an accused being director or partner would ‘as such’ be liable for the acts of the company/firm, would not be sufficient.

103. Relying upon the law so laid down, it becomes clear that every director of a company or partner of a firm cannot be held liable for the affairs of the company or firm just because of his being a director or partner ‘as such’. There can be any number of directors of a company or partners of a firm but any and all of them cannot be held vicariously liable for the offence committed by the company or firm. There has to be specific averment in the complaint attributing a specific role to any such person made as an accused so as to proceed against him. Such averment has to be supported by adequate proof of allegations. In the absence of such averment and proof, no liability can be attributed to a partner of a firm, as there is no rule of law that makes every such partner responsible for the affairs of the firm for all its acts which amount to criminal offence.

104. In the present case, it is seen that the complaint is totally silent as to the specific role and involvement of the accused no. 2 and 3 in the offence in question, except making a bald averment that they were the partners of accused no. 4 firm. Thus, there is no material to show the involvement these accused persons. They were not the vendors at the spot and no documents had been signed by them. There is nothing to show that they were involved in purchase, storage, sale or distribution of the food article. No account books, bill books, or other documents were seized which could attribute any role to these accused persons. No document had been collected and placed on record to show if these accused persons had ever participated in any of the day to day activities of the firm. There is nothing to show if any bills were signed by them or any orders were placed by them or if they had sold any article to any customer or purchased any article from supplier or had maintained accounts or had discharged any other routine liability of the firm. No reply was received from the firm disclosing who all were its partners in charge of or responsible to it for its affairs. Therefore, no proceedings can lie against them and vicarious liability cannot be fastened upon them under section 17 of PFA Act. Accused no. 2 and 3 are therefore entitled to be given benefit of doubt.

105. No other stand has been taken by the accused persons at the trial or during the arguments advanced.

106. The case in hand would be thus covered under section 2(ia)(a) as the Rai Whole sold by the accused no. 4 firm through its vendor-cum-partner accused no. 1 was not of the nature, substance or quality which it purported and represented to be, under Section 2(ia)(j) as there is presence of colour which is not permitted in this article and under section 2(ia)(m) of PFA Act as the constituent of colour is present in quantities not within the prescribed limits, being totally prohibited, and thus would fall in the definition of an adulterated food. However, in the absence of the percentage or extent of colour used, it cannot be said that the colour had injuriously affected the nature, substance or quality of the food article so as to make out violation of Section 2(ia)(b) of PFA Act. Benefit on this score can be certainly given to them. The matter is also covered for violation of Rule 32(a), 32(e) and 42(zzz)(17) resulting in contravention of section 2(ix)(k) for the offence of misbranding. As per section 7 of PFA Act, no person shall ‘himself’ or ‘by any person on his behalf’ manufacture for sale or store, sell or distribute and adulterated and misbranded food. As such, the accused no. 4 firm and its vendor-cum- partner accused no. 1 both would be liable.

107. Violation of section 2(ia)(j) is punishable under section 16(1A), violation of section 2(ia)(a) and (m) is punishable under section 16(i)(a) of PFA Act but being graver offence, the conviction can be under section 16(1A) of PFA Act.

108. Misbranding under section 2(ix)(k) is also punishable under section 16(i)(a) of PFA Act, but as it is a separate offence than adulteration, which can exist even without adulteration, it has to be punished separately.

109. Having said so, it can be said that the complainant / prosecution has been able to establish its case and prove the guilt of the accused no. 1 and 4 beyond the shadow of reasonable doubt. It has been proved that the accused no. 1 and 4 had sold an adulterated food in violation of section 2(ia)(a), (j) and (m) of PFA Act read with Rules 23, 28 and 29 of PFA Rules and also misbranded food in violation of section 2(ix)(k) of PFA Act read with Rules 32(a), 32(e) and 42(zzz)(17) of PFA Rules (Rule 32(a) which existed at that time) and thus committed the offences punishable under section 7(i)/16(1A) and 7(ii)/16(1)(a)of PFA Act.

110. Thus, the accused no. 1 and 4 are held guilty and convicted for the offences punishable under section 16(1)(a) as well as 16(1A) of the PFA Act. Accused no. 2 and 3 are however given benefit of doubt and are acquitted of the charges. Their bail bonds shall remain in force for the next six months in terms of section 437-ACrPC.

111. Let the matter be listed for arguments on sentence qua the convicted accused no. 1 and 4.

Announced in the open court this 27th day of June 2017 (ASHU GARG) ACMM-II (New Delhi), PHC Judge Code- DL0355

FSSA – Madhya Pradesh HC – PIL – Water packaging units selling water without complying standards – 11-7-2017

                          Madhya Pradesh High Court                              
                                 WP-9290-2016
                  (RAJESH NAYAK SOURABH Vs UNION OF INDIA)
11-07-2017

      None for the petitioner.
      Shri Amit Seth, Government Advocate for respondents No.2 and 4/State.

Ms Jayalakshmi Aiyer, Advocate for respondent No.3. Shri Sanjay Dwivedi, Advocate for respondents No.6. 8 and 10. The grievance of the petitioner in the present petition in public interest is against the water packaging companies selling water without complying with the prescribed standard under the Food Safety and Standard Act, 2006. The grievance is that the Manufacturers are selling water in various quantities ranging from small Pouches of 250 ml to 20000 ml which is being sold in the market without any control and monitoring by the Authorities.

In return on behalf of respondents No.2 and 4, it is said to the following effect:

10. The answering respondents submit that as per provisions contained in the Food, Safety and Standard Act 2006, so also Bureau of Indian Standard Act 1986, the entity involved in production and sale of packaged drinking water is essentially required to obtain certification from respondent no.3 (BIS) and all the private respondents herein who are indulged in production and sale of packaged drinking water in Katni have obtained necessary certification from BIS, so also all of them are having consent and permission from Pollution Control Board, licence from concerned local body, licence from the Department of Food and Drugs Administration under the Food, Safety and Standard Act 2006 and have also deputed expert staff necessary for running such establishment. Copies of licence and permissions of respondents no.6, 8, 10 & 11 are annexed herewith as ANNEXURE R/2, 3, 4 & 5 respectively.

11. It is further pertinent to mention here that all the aforesaid respondents have established proper laboratory and modern scientific equipments, which are required for production and purchase of packaged drinking water, as is evident from photographs, which are collectively marked as ANNEXURE R/6.

12. In so far as respondent no.7 is concerned, it had closed down its establishment and so far as respondent no.9 is concerned, same is not indulged in sale of packaged drinking water and is therefore not covered by the provisions of the Food, Safety and Standard Act 2006.

13. The Pollution Control Board also vide its communication dt.29/05/2017 had informed the answering respondents that the private respondents herein are having valid NOC in their favour to run their establishments. Copy of the communication dt.29/05/2017 is annexed herewith as ANNEXURE R/7.

None has put in appearance on behalf of the petitioner on 12.05.2017. Today again none is present on behalf of the petitioner.

In view of the reply filed that the Manufactures have No Objection Certificate from the Competent Authority, we do not find any further indulgence is warranted in the facts of the present case.

Disposed of.

   (HEMANT GUPTA)   (VIJAY KUMAR SHUKLA)
  CHIEF JUSTICE             JUDGE

HC restrains procurement of Masoor Dal over health issues

RO Water Manufacturers knock HC’s door

Nagpur: The RO Chilled Water Manufacturers Association knocked judiciary’s doors challenging Foods and Drugs Administration’s (FDA) action of prohibiting them from selling their products without Bureau of Indian Standards (BIS) certification.
A division bench comprising justices Bhushan Dharmadhikari and Rohit Deo, on Friday, issued notices to the respondents, including Union Ministry for Health and Family Welfare and Food Safety and Standards Authority of India (FSSAI), asking them to reply before August 1. FDA’s Mumbai office along with its designated officers and assistant commissioners (Food) in Nagpur, Akola and Bhandara, and BIS are other respondents in the case.
About 16 petitioners from these three cities moved to Nagpur bench of Bombay High Court through counsel Harnish Gadhia after FDA teams raided their premises in last couple of weeks. Immediately after that, the respondents under FSS Act, 2006, issued orders prohibiting the sale of chilled water, being sold openly by them. TOI, in a series of reports, had exposed on how chilled water sellers allegedly sell products in most unhygienic conditions.
The petitioners earlier made various representations to respondents and also raised the issue at various other forums, but nothing moved in their favour.
According to Gadhia, the centre made some amendments in ‘Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011’ on November 16 last year and published a notification in the Official Gazette of India on March 1.
In a reply to RTI query, the city-based FDA office informed that it’s necessary to obtain the licenses under the Act only for sale of packaged drinking water . The BIS informed that its licenses are granted against an Indian Standard, but since it wasn’t formulated for drinking water supplied in jars, those can’t be granted.
The petitioners prayed for quashing or staying various prohibition orders issued by FDA officers in three cities. They also insist on asking respondents not force them to obtain a license from BIS to sell the water.

PFA – Delhi Dt.Court – Food Inspector Vs Bajrang Lal – Pure Refined Sunflower oil case – June 2-2017

                    IN THE COURT OF SH. ASHU GARG,
          Addl. Chief Metropolitan Magistrate - II (New Delhi),
                    Patiala House Courts, New Delhi

CC No. 400/03
Unique Case ID No. 02403R0039542003

Date of Institution:              11.12.2003
Date of reserving judgement:      30.05.2017
Date of pronouncement:            02.06.2017

In re:

Delhi Administration / Food Inspector
Department of PFA,
Govt. of NCT of Delhi
A-20, Lawrence Road Industrial Area,
Delhi-110035                                   ...    Complainant

               versus

Bajrang Lal
S/o. Sh. Bhagwan Dass
R/o. 1/7860, Gali no.1,
East Gorakh Park, Delhi.                       ...    Accused


JUDGMENT:

1. The present is a complaint filed under section 16 of the Prevention of Food Adulteration Act, 1954 (PFA Act), alleging that the accused has violated the provisions of the PFA Act and Rules. The accused is stated to be the vendor-cum-proprietor of M/s. Shri Balaji Trading Company, from where the food article, stated to be ‘pure Refined Soyabean Oil’ was lifted for sampling.

2. As per the complaint, on 26.10.2002, the food officials consisting of Food Inspector (FI) Ram Pratap Singh and FI Suniti Kumar Gupta under the supervision of Local Health Authority (LHA)/SDM Sh. R.K.Chauhan reached along with their staff at the premises of M/s Shri Balaji Trading Company at 25/123/1, Chajjupur (North), Delhi-110093, where the accused was found conducting the business of food articles which were lying stored for sale for human consumption. The FI disclosed his identity and expressed his intention to purchase a sample of Refined Soyabean Oil from the accused, lying in sealed tins having identical label declaration. The sample was then lifted from one such sealed tin as per procedure prescribed under the PFA Act and Rules (as they were existing at that time). Each sample was separately packed, fastened, marked and sealed and necessary documents were prepared at the spot, including the Notice as per Form-VI, panchnama, etc. The price of sample was paid to the accused. The remaining tins (24 in number) were also seized at the spot under Section 10(4) of PFA Act. Thereafter, one counterpart of the sample was sent to the Public Analyst (PA) in intact condition and the other two counterparts were deposited with SDM/LHA. Vide report dated 07.11.2002, the PA found the sample to be not conforming to the standards of soyabean oil on the ground that the BR reading and iodine values were less than the prescribed minimum limits and the saponification value exceeded the prescribed maximum limit. Upon receipt of report, the SDM/LHA ordered investigation which was carried out by the FI. Record shows that in the meanwhile, the accused gave a representation dated 31.10.2002 to the complainant department claiming that the food article lifted from him was actually palmoline oil on which the workers had put the labels of soyabean oil by mistake. He claimed that he was in the process of replacing the wrong labels with correct labels of palmoline oil but the sample was lifted by the team before the correct labels were put. He requested that the lifted sample be tested as per the standards of palmoline oil instead of soyabean oil. However, the food officials did not find merit in such claim as no such claim was raised at the time of sampling. After completion of investigation, sanction under section 20 of the PFA Act was obtained from the Director PFA. The complaint was then filed in the court on 11.12.2003 alleging violation of section 2(ia)(a) and (m) of PFA Act, as punishable section 7/16(1)(a) of PFA Act.

3. As the complaint was filed in writing by a public servant, recording of pre-summoning evidence was dispensed with and the accused was summoned vide order dated 11.12.2003. The accused appeared and exercised his right under section 13(2) of PFA Act to get the second counterpart of the sample analysed from the Central Food Laboratory (CFL), without making any admission and without prejudice to his other defences.

4. The said application was allowed and the second counterpart of the sample commodity was sent to the CFL. After analysis, the Director CFL gave certificate dated 06.02.2004, reaffirming the opinion that the sample did not conform to the standards of Refined Soyabean Oil. The analytical values again revealed that the BR reading and iodine value were less than the prescribed minimum limits and the saponification value was more than the prescribed maximum limit. The food article also tested positive for rancidity.

5. On the basis of CFL report, the matter was listed for pre-charge evidence wherein the prosecution examined PW-1 FI Ram Pratap Singh. In view of his testimony, charge was framed against the accused on 12.11.2009 for commission of the offence punishable under section 7/16(1)(a) PFA Act being violation of Section 2(ia)(a) and (m) of PFA Act, to which he pleaded not guilty and claimed trial. The witness already examined in pre-charge stage was recalled for cross-examination in post- charge stage. Additionally, the complainant examined PW-2 Sh. R.K.Chauhan and PW-3 FI Suniti Kumar Gupta in post-charge stage.

6. At the trial, PW-1, PW-2 and PW-3 who were part of the team that had visited the spot for sample proceedings, deposed about the proceedings conducted by them on 26.10.2002 and narrated the steps undertaken by them during the sample proceedings, including disclosing their identity, expressing intention to purchase sample for analysis, lifting the sample of 750 gms of food article after opening a sealed tin bearing identical label declarations to the effect that the food article was pure Refined Soyabean Oil. It was dividing into three parts and put in clean and dry sample bottles, which were separately fastened, sealed and marked and signatures of the accused and witness were obtained. The remaining 24 sealed tins were also seized at the spot by the FI. They also proved the necessary documents including the vendor’s receipt Ex. PW-1/A, Notice as per Form-VI Ex. PW-1/B, Panchnama Ex. PW-1/C, seizure memo Ex. PW-1/D and surety bond Ex. PW-1/D-1. On the next working day, one counterpart of sample along with Memo as per Form-VII were sent to PA for analysis vide receipt Ex. PW-1/E and remaining two counterparts with copy of Memos were deposited with LHA/SDM vide receipt Ex. PW-1/F. PA report Ex. PW-1/G was received and upon direction of SDM/LHA, investigation was carried out by PW-1. During investigation, accused submitted his statement / representation Ex. PW-1/D-2 as aforesaid. PW-1 sent letter Ex. PW-1/H to the STO and received its reply. The seized tins were deposited with the LHA vide memo Ex. PW-1/I. After completion of investigation, sanction Ex. PW-1/J was taken from the Director PFA and the complaint Ex. PW-1/K was filed in the court. Intimation Letter Ex. PW-1/L was sent to the accused along with copy of PA report through post vide receipt Ex. PW-1/M. These witnesses were duly cross-examined by the defence.

7. During cross examination, PW-1 admitted that the spot was a factory where oil was manufactured and packed. He denied that the sample was that of palmoline oil which was taken as Refined Soyabean Oil despite protest of the accused. He deposed that no label was found putting fresh labels after removing old labels from the tins.

8. PW-2 during cross-examination informed that they had reached at the spot at about 6 pm but the dealer was not available who reached at the spot after 1.5 hours after being contacted by the employees. He denied that at that time, the labour was affixing new labels on the tins after removing the old labels.

9. PW-3 under cross examination deposed that the sample had already been taken by the PFA team before his reaching at the spot. Though he stated that no labour was working inside the factory at that time, yet he did not recollect if any labour was present there or not. He denied that the accused had informed that wrong labels had been affixed on some of the tins by mistake for which labour had been called to replace the same with correct labels. He denied that the accused had informed that the food article was palmoline oil and not pure Refined Soyabean Oil.

10. Statement of the accused under section 313 CrPC was recorded on 15.12.2011 wherein he denied the allegations and pleaded innocence. He admitted the proceedings dated 26.10.2002, informed that he was not present at the premises and had rushed there after he was informed about the visit of the PFA raiding party by his staff members. He took stand that the food article was palmoline oil and not soyabean oil, that the labels of Refined Soyabean Oil had been affixed on the tins containing palmoline oil by mistake, and that representation in this regard was also given to the Director PFA during investigation. He did not lead any evidence in defence, despite opportunity.

11. It is in these circumstances, Ld. SPP for the complainant has argued that the complainant has been able to establish its case against the accused beyond reasonable doubt, on the ground that the accused has not been able to rebut the findings in the CFL Certificate dated 06.02.2004 which has confirmed the findings of the PA report dated 07.11.2002 to the effect that the sample did not conform to the standards of Refined Soyabean Oil. It is submitted that the defence has not been able to establish its claim that wrong labels had been put on the food article which were in the process of being replaced, as contended. It is pointed out that all the PWs have denied that any such claim was raised by the accused at the time of sample proceedings and has argued that such a claim of the accused was an afterthought.

12. On the other hand, Ld. Defence Counsel has submitted that the sample proceedings were not conducted properly and that there are various missing links in the testimony of witnesses. It is primarily contended that after the sample was lifted on 26.10.2002, the accused after four days only, gave representation dated 31.10.2002 to the complainant department (which was admittedly received by it on 01.11.2002) informing about the fact that the food article was palmoline oil on which the labels of soyabean oil had been put by mistake which were in the process of being replaced. It is pointed out that instead of accepting or rejecting his representation or to carry out investigation on such claim, the FI chose not to take any action thereupon and simply filed the representation on record. It is submitted that the sample should have been tested for palmoline oil as requested by the accused vide his representation dated 31.10.2002. It is also asserted that if the analytical values of the PA and CFL reports are considered on the parameters prescribed for palmoline oil as per PFA Rules, the product would be as per standards, except rancidity which developed due to delay of 14 months in analysis of sample by the CFL. It is argued that the food article lying in godown of the factory was not yet ready for sale and it was yet to be labelled correctly before being offered for sale.

13. I have heard the arguments advanced by Ld. SPP for the complainant and Ld. Defence Counsel for the accused and have carefully perused the material available on record including the written submissions filed by the Ld. Defence Counsel.

14. It is to be seen that the charge framed against the accused is for violation of section 2(ia)(a) and (m) of the PFA Act. For section 2(ia)(a) PFA Act, the prosecution has to establish that the purchaser had demanded a food article of a specific nature, substance or quality and the article sold was, to his prejudice, either not of the nature, substance or quality demanded, or was not of the nature, substance or quality which it purported or represented to be. Section 2(ia)(m) of PFA Act deals with situation where the quality or purity of an article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability which does not render the article injurious to health.

15. Before delving into the main issue, it would be pertinent to note that the accused has not disputed the fact that he is the proprietor of the business concern M/s. Shri Balaji Trading Company from where the food article was lifted by the PFA team. It is not his case that he was not the proprietor or that some other person was its proprietor. Again, he has not disputed the factum of lifting of sample from his premises and the steps taken during the proceedings, though has disputed the identity of the food article lifted therefrom.

16. Further, the accused has not disputed the correctness of analytical values derived by the PA and CFL in their respective reports. It is nowhere his case that the said analytical values were wrong or that the PA or CFL were not competent to analyse the sample or had adopted some invalid or incomplete testing methods. Again, he has not alleged that the deficiencies found in the sample were due to any incorrect sampling procedure or due to any contamination.

17. As per section 13(3) of the PFA Act, the certificate issued by the Director of CFL shall supersede the report of the PA. As per proviso to section 13(5) of the Act, such certificate shall be final and conclusive evidence for the facts stated therein. Thus, as far as the findings of the CFL are concerned, the same are final and conclusive and no evidence can be given to disprove the same.

18. In Calcutta Municipal Corporation v. Pawan Kumar Saraf [AIR 1999 SC 738], it has been authoritatively laid down that the legal impact of a certificate of the Director of CFL is three fold: (a) it annuls or replaces the report of the PA, (b) it gains finality regarding the quality and standard of the food article involved in the case and (c) it becomes irrefutable so far as the facts stated therein are concerned.

19. In Subhash Chander v. State, Delhi Administration [1983(4) DRJ 100], it was observed by Hon’ble High Court of Delhi that “It has repeatedly been held by the supreme court that the certificate of the Director supersedes the report of the public analyst and is to be treated as conclusive evidence of its contents. The Director is a greater expert and therefore the statute says that his certificate shall be accepted by the court as conclusive evidence. For all purposes the report of the public analyst is replaced by the certificate of the Director…. Superseded is a strong word. It means obliterate, set aside, annul, replace, make void, inefficacious or useless, repeal. The Director’s cetificate supersedes the report given by the public analyst. Once superseded it does not survive for any purpose. It will be anamolous to hold that for some purpose it survives and for other purposes it is superseded.”

20. Since the report of CFL is final and conclusive and the same supersedes the report of PA, only this report has to be considered and the report of PA has to be ignored. Therefore, the reports show that the BR reading and Iodine value of the food article were less than the prescribed minimum limits and the saponification value was more than the prescribed maximum limit, if tested on the parameters prescribed for Refined Soyabean Oil. Other than this, the sample also tested positive for rancidity as per the CFL certificate. The accused never claimed that the BR Reading, Iodine value and saponification value were different than what has been ascertained by the analysts. It is nowhere the case of the accused that the said analytical values derived by the PA and CFL are wrong, though the parameters on which these values have been applied have been disputed.

21. The prime ground of the defence has been that the food article was not Refined Soyabean Oil, but was Palmoline Oil and therefore, should have been analyzed as per the standards prescribed for Palmoline Oil. The court is therefore now required to ascertain the issue of identity of the food article.

22. The basis of which prosecution claims that the food article was Refined Soyabean Oil, is the label declarations on the food article. Ld. SPP has pointed out that all the tins seized from the spot were bearing identical label declarations, pointing out towards the fact that they were being sold as Refined Soyabean Oil, irrespective of the contents therein. It is also submitted that the accused never raised any objection to mentioning of the food article as Refined Soyabean Oil by the FI on the documents prepared at the spot Ex. PW-1/A, Ex. PW-1/B, Ex. PW-1/C, Ex. PW-1/D and Ex. PW-1/D-1, which also bear the signatures of the accused. It is submitted that the claim of the accused that it was only a case of wrong labels being put under mistake, is an afterthought and that too without any evidence.

23. On the other hand, Ld. Defence Counsel has submitted that the food officials did not allow the accused to write anything on the documents prepared at the spot and therefore, the accused made representation in writing within four days only to the PFA department, even before the sample was analyzed by the PA and before its analytical values were derived. It is contended that no action was taken on such representation of the accused and the food was not got analysed on the parameters of Palmoline Oil.

24. It is therefore clear that at the time of sampling, the accused never objected to the use of the words ‘Refined Soyabean Oil’ by the FI on the documents prepared at the spot. He never made any endorsement on any document claiming that the labels had been put under mistake or were being replaced. When the three PWs denied that the accused had raised any such claim at the spot, no evidence was led by the accused to rebut such evidence and to establish that he had in fact made any such claim at the spot which was not accepted by the food officials. Thus, such a stand of the accused, that he had raised any such issue at the spot, has not been proved.

25. However, the important fact to be noted is that the accused had made representation dated 31.10.2002 to the complainant department, just after four days of lifting the sample. It is an admitted position, as can be ascertained even from the letter Ex. PW-1/D-2, that the said representation was received by the complainant department on 01.11.2002. This fact assumes more importance because such a representation was made even before the sample was put to analysis by the PA. The PA report is dated 07.11.2002 and before this date, there was no occasion for the accused to have already known the result of analysis of the sampled food article.

26. As per the scheme of PFA Act, investigation is carried out after the PA gives a negative report. If the sample is passed by the PA, the matter ends there. But even after the sample is failed by the PA, the accused is never informed of the PA report or the findings therein or the opinion therein. The grounds and analytical values on which the sample is failed by the PA, are never informed to the accused. It is only when the prosecution is launched under the Act that the complainant is required under section 13 of PFA Act to send a copy of PA report along with intimation letter to the accused informing him about the position and about his right to get the other counterpart of the sample analysed from the CFL. Thus, the accused is able to get the PA report only after the prosecution is launched.

27. Therefore it has to be accepted that the accused gave representation to the PFA department even before the sample was analyzed by the PA, before the PA gave her report, before the prosecution was launched and before the copy of PA report was served upon the accused. Though there is a gap of 3-4 days in making the representation to the PFA department, yet such a delay cannot be termed as an ‘afterthought’ particularly in view of the fact that the sample was yet to be analyzed by then.

28. In his representation, the accused asserted that the sample was actually of Palimoline Oil and requested that the same may be tested accordingly. However, instead of taking any action on the said representation, the food officials simply kept the same on record on the ground that no such claim had been raised by the accused on the day of sampling. Well, even if no such claim had been raised by the accused on the day of sampling, the food officials were ideally required to investigate into the said claim made by the accused, more so when the sample was yet to be analyzed. The FI in such a position was required to ascertain the truthfulness or falsity of the allegations by making necessary inquiries from the relevant witnesses and also to inform the PA accordingly so as to enable her to analyse the food article as per the parameters of Palmoline Oil as well, in addition to those of Refined Soyabean Oil. Had it been done, it would have been possible for the court to also ascertain if the sample conformed to all the standards of Palmoline Oil or if it was being used as an adulterant in some quantities in Refined Soyabean Oil. The court would have been able to then ascertain if the food article had been substituted wholly or in part of Refined Soyabean Oil so as to injuriously affect its nature, substance or quality in terms of various clauses of section 2(ia) of PFA Act.

29. This is particularly when the presence of workers / staff / employees of the accused at the spot has been admitted by the prosecution witnesses, though in contradiction to each other. PW-1 and PW-2 in their examination-in-chief stated that the accused was found conducting the business of the shop in question at the time of raid. However, PW-2 during cross-examination informed that the accused was not available at the premises when they had reached at the spot at about 6 PM on routine checking, and that the accused had reached at the spot after 1.5 hours after he was contacted by his employees. Therefore, presence of such employees at the spot has been admitted by PW-2, though denied by PW-

3. In any case, the accused in his representation specifically claimed that the labourers were in the process of replacing the labels affixed wrongly by mistake. In such a position, FI was required to ask the accused about the names and identity of such labourers, to make inquiry from such labourers present at the spot so as to accept or reject his representation. When PW-2 stated that some empty tins were also lying at the spot and some oil was also lying in the tanks, it was also the duty of the FI to have lifted a sample from such oil tanks to ascertain the nature and identity of the food article being packed at the spot, particularly when the identity of the lifted commodity had been disputed by the accused even before the analysis by the PA. But no attempt was made by the FI to visit the premises again to ascertain if any labels other than that of Refined Soyabean Oil and Palmoline Oil were there at the premises, whether the food article could have been Palmoline Oil, and whether it was or was not a case of genuine mistake in putting the labels. Therefore, the investigation is incomplete on this point. Instead of taking any action on the representation of the accused so as to accept or reject it, the FI simply put the same on record, under his belief that representation was an afterthought as no such claim had been raised at the time of sampling. Even in that case, the FI had no occasion to form such an opinion without actually disposing the representation. The SDM/LHA or the Director PFA while granting consent never dealt with the representation of the accused and never chose to formally dispose it of. The sanction order does not even reveal if any such representation was considered by the Director PFA. Failure of the complainant department to deal with the issue has created a dent in the prosecution case.

30. Though it is correct that no evidence in defence has been led by the accused to establish that the present is a case of putting of wrong labels under mistake or that the accused was in the process of replacing the labels, yet the failure of the FI to carry out investigation on the representation made to him even before the sample was put to analysis, would be sufficient to create doubt in the mind of the court as to identity of the food article.

31. For that matter, if the analytical values derived by the PA and CFL are considered in view of the standards prescribed under PFA Rules for Palmoline Oil, the product would be as per standards. Palmoline oil (Palmolein) is also a standardised food article falling in Item no. A.17.20 of Appendix-B of PFA Rules. In addition to various other standards, it requires that the BR reading should be between 43.7 to 52.5, Iodine value should be between 54 to 62, Saponification value should be between 195 to 205, Unsaponifiable matter should not be more than 1.2% and the Acid value should not be more than 6.0%.

32. If the PA and CFL reports are considered on such parameters, it would show that the BR reading was 48 as per PA and 50 as per CFL, saponification value was 202.96 as per PA and 199.0 as per CFL, iodine value was 61.05 as per PA and 60.0 as per as CFL, unsaponifiable matter was 0.36% as per PA and 0.45% as per CFL, and acid value was 0.19% as per PA and 1.1 as per CFL. All these values are well within the standards prescribed for Palmoline Oil. Therefore, if the sample had been analyzed by the PA and CFL on the parameters of Palmoline oil as claimed by the accused, the sample would have conformed to the standards.

33. Therefore, there was no occasion for the food officials to ignore or throw away the representation of the accused, or not to investigate the same simply on the ground that no such stand was taken on the day of lifting the sample. As the representation was given even before the sample was put to analysis by the PA, it cannot be termed as “afterthought” at the outset. The claim of the accused that the labels had been put thereupon wrongly under mistake, should have been investigated and then accepted or rejected.

34. If it was only a case of wrong label, then it might have been only an offence of misbranding under any of the clauses of section 2(ix) of PFA Act. Section 2(ix)(a) applies if the food article is an imitation of or is a substitute for another food article under the name of which it is sold. Section 2(ix)(c) applies if the food article is sold by a name which belongs to another article of food. Section 2(ix)(e) applies in case of false claims made on the label. Section 2(ix)(g) applies if the labels bear any false or misleading or deceptive statement, design or device with respect to the ingredients of the product. Therefore, when the claim of the accused was not rejected by conducting suitable investigation, it is quite possible that the present case would have been only that of misbranding, under which no prosecution has been launched. In view of this position, there would be a serious doubt as to the identity of the food article, primarily due to inaction of complainant department. Such a position would certainly go against the complainant, the benefit of which would go to the accused.

35. As far as the ground of rancidity is concerned, on which CFL failed the sample, it is important to understand that oil and oil products as food articles are prone to natural variations with the passage of time. If the said food articles are kept for a long period, certain changes are bound to take place. But when the quality or purity of such an article falls below the prescribed standards solely due to natural causes and beyond the control of human agency, then such article would not be termed as adulterated. The effect of presence of air, moisture, temperature, external environment, internal heat etc. cannot be ignored on such article, particularly when no preservative as such was used in the sample. Such changes would be natural changes beyond human control. Rancidity develops in oils/ghee/vanaspati and the food articles prepared using these ingredients with the passage of time. Reliance can be placed on the judgements titled as Nebh Raj v. State [Criminal Appeal No. 113/1975, Supreme Court of India, dated 24.10.1980] and National Diary Development Board v. State of Haryana [1997(I) PFA Cases 95]. In the present case, such development of rancidity cannot be ruled out after 14 months of lifting of the sample. Thus, there is possibility that such changes as observed by the CFL in the matter in hand were natural changes. The burden would be on prosecution to rule out possibility of such natural changes before the accused can be convicted. The only conclusion would be that the sample underwent a natural change during the intervening period which was beyond human control. Again, the accused would get benefit of doubt.

36. In a criminal trial, the burden is upon the complainant / prosecution to establish its case beyond the shadow of reasonable doubt. To bring home the guilt of an accused, it has to stands on its own legs and lead positive evidence. Mere suspicion, howsoever strong it might be, cannot take place of proof required to establish guilt of an accused. This burden has to be discharged by the prosecution and it cannot be shifted upon the accused.

37. In view of the above discussed circumstances, this court is of the view that the complainant in this case has not been able to establish beyond the shadow of reasonable doubt that the accused had sold or stored for sale any adulterated food article. The identity of the food article, to be Refined Soyabean Oil (as per prosecution case) and not to be Palmoline Oil (as per representation of accused), has not been satisfactorily established. The accused is entitled to be given benefit of doubt.

38. Having said so, the accused is acquitted of the charges. However, his bail bond shall remain in force for the next six months in terms of section 437-A, CrPC.

39. File be consigned to the record room.

Announced in the open court this 02nd day of June 2017 ASHU GARG ACMM-II (New Delhi), PHC Judge Code: DL0355

FSS Act – Bombay HC – Hindustan Unilever Ltd Vs GCMPF – Ice cream adlaws suit

Bombay High Court
Hindustan Unilever Limited vs Gujarat Co-Operative Milk … on 16 June, 2017
Bench: S.J. Kathawala
 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION (L) NO. 690 OF 2017 IN SUIT (L) NO. 204 OF 2017.
Hindustan Unilever Limited ) a Company incorporated under the Companies Act,1913, ) having its Registered office at Unilever House, B.D. Sawant ) Marg, Chakala, Andheri (East), Mumbai-400 099 )…Applicant (Orig. Plaintiff ) In the matter between: Hindustan Unilever Limited ) a Company incorporated under the Companies Act,1913, ) having its Registered office at Unilever House, B.D. Sawant ) Marg, Chakala, Andheri (East), Mumbai-400 099 )…Plaintiff vs. 1. Gujarat Co-operative Milk Marketing Federation ) Ltd., a co-operative society registered under the ) Gujarat Co-operative Society Act, 1961, having its ) Registered Office at Amul Dairy Road, Anand-388001 ) and having its Zonal Office and carrying on business ) at Rampart House, 4th floor, 22A-26A, K. Dubhash ) Marg, Fort, Mumbai-400 023 ) . FCB Ulka Advertising Pvt. Ltd. ) a Company incorporated under the Companies Act, ) 1956 and having its office /place of business at ) 4th floor, Nirmal Building, Barrister Rajni Patel Marg, ) Nariman Point, Mumbai-400 021 ) 3. Vadilal Industries Ltd. ) a Company incorporated under the Companies Act, ) 1956 and having its office/place of business at ) Vadilal House, Near Navrangpura Rly. Crossing, ) Navrangpura, Ahmedabad-9, Gujarat ) 4. Vadilal Dairy International Limited, ) a Company incorporated under the Companies Act, ) 1956 and having its office/place of business at ) Plot No. M-13, MIDC Industrial Area, Tarapur, ) Boisar, Maharashtra-401 506 )…Defendants Mr. Virag Tulzapurkar, Senior Advocate, along with Dr. Birendra Saraf, Mr. Nishad Nadkarni, Mr. Vivek Ayyagari, Ms. Nupur Pandit, instructed by M/s. Khaitan & Co., for the Plaintiff. Mr. Ravi Kadam, Senior Advocate, along with Mr. Ashish Kamat, Mr. Pranit Nanavati, Mr. Vishal Maheshwari, Ms. Surabhi Singh and Mr. Bankim Gangar, instructed by M/s. Khaitan Legal Associates, for Defendant No.1. Mr. Hiren Kamod, instructed by Mr. Ashwin V. Sakalkar, for Defendant Nos. 3 and 4.
 COR AM: S. J. K ATHAWALLA, J.
Judgment reser ved on : 28th April, 2017 Judgment pronounced on : 16th June, 2017
JUDGMENT

1. The Plaintiff — Hindustan Unilever Limited, is a Public Limited Company incorporated under the Companies Act, 1956. Prior to 1956, the name of the Plaintiff was Lever Brothers (India) Limited which was changed to Hindustan Lever Limited with effect from 3rd October,1956 and subsequently to Hindustan Unilever Limited on 11th June, 2007. The Plaintiff carries on the business of manufacturing and selling Fast Moving Consumer Goods (‘FMCG’), including frozen desserts and ice cream under the mark “KWALITY WALL’S”.

2. Defendant No. 1 –Gujarat Co-operative Milk Marketing Federation Limited is a co-operative body of milk producers in Gujarat and is engaged in marketing of various dairy and dairy based products including ice creams under the mark “AMUL”, and is a competitor of the Plaintiff. Defendant No.2 — FCB Ulka Advertising Pvt. Ltd. is an advertising agency.

3. Defendant Nos. 3 and 4 – Vadilal Industries Ltd. and Vadilal Dairy international Limited are manufacturers of frozen dessert products/the same class of products as that of the Plaintiff which are the subject matter of the present Suit. According to the Plaintiff, Defendant Nos. 3 and 4 are joined as party Defendants to the Suit since they have a common interest with the Plaintiff, and are therefore proper parties for the purposes of the present Suit. No reliefs are claimed against Defendant Nos. 3 and 4.

4. According to the Plaintiff, they are one of India’s most well-known and reputed Company in the business of FMCG with presence, inter alia, in foodsand beverages sectors and home & personal care products. The Plaintiff’s products are spread across several distinct consumer categories, touching the lives of two out of three Indians. The Plaintiff’s combined sales are over several crores. The products of the Plaintiff are of excellent quality, enjoy a very high reputation and are sold in over one million retail outlets.

5. According to the Plaintiff, KWALITY has been a well-known brand in India (having been in the market for over 70 years) and was acquired by the Plaintiff before foraying into the business of ice creams and desserts in India. The said brand KWALITY has been used along with the Plaintiff’s own global brand WALL’S as KWALITY WALL’S. Being the first ever brand of ice creams to be introduced in the Indian market on a large commercial scale, KWALITY enjoys, down to this day, a special status in the eyes of the purchasing public being a very popular trade mark. The Plaintiff has been manufacturing and selling the KWALITY WALL’S products in India since at least 1998. The KWALITY WALL’S products manufactured and sold by the Plaintiff command impeccable reputation and goodwill and are well known for their quality, taste and texture. According to the Plaintiff, majority of the KWALITY WALL’S products sold in India are classified as frozen desserts under the Food and Safety Standards Act, 2006 (‘FSSA’) and the Regulations framed thereunder. The Plaintiff is the market leader amongst the organized players in the frozen desserts category with about 51.3% market share. The Plaintiff’s products, including its frozen desserts, scrupulously meet, satisfy and comply with all requirements of the law, rules, regulations including food safety requirements. The Plaintiff’s frozen desserts are safe, healthy, hygienic and fit for human consumption. The Plaintiff has made extensive sales of its KWALITY WALL’s products all across India.

6. The present Suit is filed by the Plaintiff to restrain Defendant Nos.1 and 2 from inter alia (i) telecasting or broadcasting or otherwise howsoever  communicating to the public or publishing two Television Commercials (hereinafter, the ‘Impugned TVCs’) or any part thereof, or any other advertisement of a similar nature in any language, or in any manner causing the Impugned TVCs or any part thereof or any other advertisement of a similar nature to be telecast or broadcast or communicated to the public or published in any manner and (ii) disparaging or denigrating the Plaintiff’s KWALITY WALL’S products (including frozen desserts manufactured and/ or sold under the said brand and sub-brands thereof ), or the Plaintiff’s business in any manner whatsoever.

7. On 29th March 2017, the Plaintiff made an application for urgent ad- interim reliefs when this Court granted time to Defendant No.1 to file its Affidavit-in-Reply on or before 3rd April 2017, along with its compilation of documents. The Defendant No. 1 filed its Affidavit-in-Reply dated 3rd April, 2017, along with its compilation of documents. The Plaintiff filed its Affidavit- in-Rejoinder dated 5th April, 2017 along with its compilation of documents. The Defendant No. 1 raised two preliminary objections viz. (i) issue of territorial jurisdiction (paragraph 4.9 of the Affidavit-in-Reply) and (ii) maintainability and jurisdiction on the basis of non-issuance of a Notice under Section 167 of the Gujarat Co-operative Societies Act, 1961 (paragraph 4.10 of the Affidavit-in-Reply). However, the Learned Senior Advocate appearing for the Defendant No.1, upon instructions of Defendant No.1 on 7th April, 2017, waived both the preliminary objections for the purposes of not only the above Notice of Motion but also the Suit. In view thereof, the Notice of Motion was taken up for final hearing.

8. The present Suit is in the nature of an action for generic disparagement/slander of goods of the product category of Dairy Based Desserts referred to as “Frozen Desserts”. Plaintiff is the market leader  amongst the organised players for frozen desserts, and as stated above owns 51.3 % of the market share. It is submitted by the Plaintiff that the Defendant No.1, through the two impugned TVCs seeks to spread false information about frozen desserts as a whole by generalizing the entire class of frozen category goods, and more particularly that of the Plaintiff which is the market leader in respect of the said product category. According to the Plaintiff, though in the impugned TVCs no reference/mention is made about the frozen dessert products of the Plaintiff, the reference to the frozen dessert and the comparison made in the impugned TVCs is obviously and unmistakably directed to the KWALITY WALL’S products of the Plaintiff, and it directly affects the Plaintiff’s products considering the fact that they are the market leaders in that category of products. In view thereof before discussing the contents of the two impugned TVCs, at the outset it is necessary to examine as to when disparagement of a product can be said to have taken place, and the entitlement of a manufacturer of a product to sue for disparagement of its product when an entire class of products is disparaged. The law on these issues is amongst others laid down in the following judgments:

(i) Reckitt & Colman of India Ltd. Vs. M.P. Ramchandran and another 1:

In this case the plaintiff was the manufacturer of a whitener sold under the brand name Robin Blue. The defendants too manufactured a whitener and sold their product under the brand name Ujala. It was the case of the plaintiff that for the purpose of promoting the sale of Ujala, the defendants sought to project the goods of the plaintiff as inferior to that of the defendants. It was argued on behalf of defendant No. 1 that in its advertisement it had not 1 . 1999 PTC (19) 741  projected the product of the petitioner, and the defendant No. 1 has projected the entire class of blues; the question therefore of disparaging the product of the petitioner did not arise and as such the petitioner had no cause of action; the statements made in the advertisement regarding “Blue” are all correct and the same had been made to show the technological advancement of the product of the defendants.

The Learned Single Judge of the Calcutta High Court (Barin Ghosh, J.), after discussing various decisions of Courts, has at page 746 summarised the law on the subject as follows:

“I) A tradesman is entitled to declare his goods to be best in the world, even though the declaration is untrue. II) He can also say that his goods are better than his competitors’, even though such statement is untrue. III) For the purpose of saying that his goods are the best in the world or his goods are better than his competitors’ he can even compare the advantages of his goods over the goods of others.

IV) He however, cannot, while saying that his goods are better than his competitors’, say that his competitors’ goods are bad. If he says so, he really slanders the goods of his competitors. In other words he defames his competitors and their goods, which is not permissible. (emphasis supplied) V) If there is no defamation to the goods or to the manufacturer of such goods no action lies, but if there is such defamation an action lies and if an action lies for recovery of damages for defamation, then the Court is also competent to grant an order of injunction restraining repetition of such defamation.”

The Learned Single Judge has, after setting out the contentions raised by the defendants, rejected the contention of the defendants that since the product of the petitioner was not projected in the advertisement, and since the advertisement is projected against the entire class of ‘Blues’, the question of  disparaging the product of the petitioner did not arise. The relevant extracts from pages 749 and 750 of the said Judgment are reproduced hereunder:

@ Pg.749 “In sum and substance therefore the defendant No. 1 contended as follows:-

(i) In the advertisement the defendant No. 1 did not project the product of the petitioner;

(ii) In the advertisement the defendant No. 1 projected the entire class of blues;

(iii) Since the product of the petitioner was not projected in the advertisement, the question of disparaging the product of the petitioner did not arise and as such petitioner has no cause of action;

(iv) The statements made in the advertisement regarding “Blue” are all correct and the same had been made to show the technological advancement of the product of the defendants.” @ Pg. 750 “Therefore, in a suit of this nature one has to look at whether the advertisement merely puffed the product of the advertiser or in the garb of doing the same directly or indirectly contended that the product of the other trader is inferior. There cannot be any dispute that in the concerned advertisements blue was stated to be of inferior quality. Although, for having depicted the container and the price in the advertisement together it is difficult to proceed on the basis that the Defendant No. 1 was not referring to Robin Blue, but assuming in the advertisement insinuations are not made against Robin Blue and the same were directed to all blues as has been stated in no uncertain terms in the affidavits, can it be said that it was not made against Robin Blue? The answer is a definite “no”, because Robin Blue is also a blue.

It was sought to be contended that insinuations against all are permissible, though the same may not be permissible against one particular individual. I do not accept the same for the simple reason that while saying all are bad it was being said all and everyone is bad and anyone fitting the description of everyone is affected thereby.

It is true that one can boast about technological superiority of his product and while doing so can also compare the  advantages of his product with those which are available in the market. He can also boast about the relative advantages of his own product over the other products available in the market. He can also say that the technology of the products available in the market has become old or obsolete. He can further add that the new technology available to him is far more superior to the known technology, but he cannot say that the known technology is bad and harmful or that the product made with the known technology is bad and harmful. What he can claim is only that his product and his technology is superior. While comparing the technology and the products manufactured on the basis thereof, he can say that by reason of the new superior technology available to him, his product is much superior to others. He cannot, however, while so comparing say that the available technology and the products made in accordance therewith are bad and harmful.”(Emphasis Supplied) The Learned Judge held at page 750 of the report that even assuming the advertisement would not have made insinuations directly against the Plaintiff’s product but the class of goods to which the Plaintiff’s goods belonged, it cannot be said that it was not made against the Plaintiff’s goods since the Plaintiff’s goods also belonged to that class of goods. The Learned Judge rejected the contention of the Defendant that insinuation against all is permissible though it may not be permissible against any one particular individual.

(ii) Dabur India Limited vs. Colgate Palmolive India Ltd. 2.

In this case, the plaintiff manufactured and marketed its products under the brand name ‘Dabur’. The plaintiff in the course of its business also manufactured and marketed ‘Dabur Chyawanprash’. The plaintiff claims to have a market share of 63 per cent of total market of chyawanprash, which is a health tonic. The defendant was also engaged in the manufacture of various ayurvedic 2 . 2004 (29) PTC 401 (Del) formulations including chyawanprash under the brand name Himami Sona – Chandi Chyawanprash. The defendant introduced a new product in the market namely Himani Sona-Chandi Amritprash and advertised the same on the audio-visual-media and by way of T.V. commercial. In the said advertisement, film star Sunny Deol is shown as declaring “Garmion mein chyawanprash bhool jao, himani sona- chandi Amritprash khao”, which upon translation in English would read as follows: “Forget chyawanprash in summers, eat Amritprash instead”. The plaintiff impugned the said commercial and contended that the same was a negative campaign of the product of the plaintiff, and that there is an effort on the part of the defendant of insinuating the product of the plaintiff. It was submitted that the clear message that is being sent by airing the said T.V. commercial was that consumption of chyawanprash is not advisable during summer season and that Amritprash is a more effective substitute of chyawanprash for the summer season. It was submitted that the said advertisement/T.V. commercial of the product of the defendant is deceptive and dubious and a malafide attempt to do negative campaign and bring in an insinuating advertisement campaign against the product of the plaintiff. It was submitted on behalf of the defendant that the said advertisement could not be said to be defamatory nor can it be said that it was a measure of negative campaigning. It was submitted that the defendant itself is manufacturing and marketing chyawanprash, which is to be used in the winter months and not in the summer months and therefore only a general statement made by the defendant through the commercial/TV advertisement cannot be objected to. It was also submitted that chyawanprash is a generic word and there is no exclusivity which could be claimed to the said word. The Learned single Judge of the Delhi High Court (Dr.Mukundakam Sharma, J.) after considering the submissions of the parties concluded that, in his considered opinion even if there is no direct reference to the product of the plaintiff and only a reference is made to the entire class of chyawanprash in the generic sense, even in those circumstances disparagement is possible. The Learned Judge further proceeded to hold that when the defendant is propagating in the advertisement that there should be no consumption of chyawanprash during the summer months, it is also propagating that the plaintiff’s chyawanprash should also not be taken during the summer months as it is not good for health and instead Amritprash, which is the defendant’s product, should be taken.

Paragraphs 7, 8, 9 and 11 of the said judgment are reproduced hereunder for ready reference:

“7. In the light of the aforesaid legal position, I have to scrutinize and examine the position in the present case to come to a conclusion as to whether or not an injunction should be granted in favour of the plaintiff, as prayed for, for any disparagement or defamation or insinuation to the goods of the plaintiff in the advertisement in question. The aforesaid advertisement appears on the electronic media for a few seconds and it shows Sunny Deol saying that Chyawanprash is not to be taken in the summer months and instead Amritprash is to be taken. The message that is sought to be conveyed by the aforesaid T.V commercial is that consumption of Chyawanprash during the summer months is not advisable and Amritprash is more effective substitute for Chyawanprash in summer season. The plaintiff is manufacturing and marketing and has a market share of 63% of the total market of Chyawanprash throughout India and, therefore, is vitally interested in seeing that Chyawanprash is sold through India during all the seasons. If, on the other hand, the said product is sold and marketed only for a few months of the year and not throughout the year the business of the plaintiff is going to be vitally and prejudicially affected. It is also brought on record that the defendant has a market share of about 12% of the total market in Chyawanprash throughout India whereas in the market of Amritprash, which is a new product being brought out by the defendant, there is no other competitor in the market. Therefore, what is sought to be done by the defendant is to forbid and exclude user of Chyawanprash during the summer months so that it can exclusively capture the Indian market during the summer months, which is sought to be done by sending a message that consumption of Chyawanprash during the summer season serves no purpose and Amritprash is more effective substitute thereof and thereby attempting to induce an unwary consumer into believing that Chyawanprash should not be taken in summer months at all and Amritprash is the substitute for it. The aforesaid effort on the part of the defendant would be definitely a disparagement of the product Chyawanprash and even in generic term the same would adversely affect the product of the plaintiff. The presence of the defendant in the market is only to the extent of 12% of the total market of Chyawanprash in India whereas the plaintiff has about 67% share/presence in the Indian market and if sale of Chyawanprash is weeded out from the market during the summer months, the plaintiff’s presence in the market for sale of Chyawanprash is adversely affected. In my considered opinion, even if there be no direct reference to the product of the plaintiff and only a reference is made to the entire class of Chyawanprash in its generic sense, even in those circumstances disparagement is possible. There is insinuation against user of Chyawanprash during the summer months, in the advertisement in question, for Dabur Chyawanprash is also a Chyawanprash as against which disparagement is made. To the same effect is the judgment of the Calcutta High Court in Reckitt & Colman of India Limited v M.P. Ramchandran& Another (supra).”

8. “Mr. Chandhiok, appearing for the defendant vehemently submitted that Chayawanprash is a generic word and the plaintiff cannot have a monopoly or sole rights of the use of the said generic word and that the impugned advertisement, at any rate, did not make a slightest reference to the product of the plaintiff and on the contrar y it makes reference to its own product Sona Chandi Amritprash and, Therefore, it cannot be said that there is any disparagement of the product of the plaintiff.”

“9. In my considered opinion, when the defendant is propagating in the advertisement that there should be no consumption of Chayawanprash during the summer months, it is also propagating that the plaintiff ‘s Chayawanprash should not also be taken  during the summer months as it is not good for health and instead Amritprash, which is the defendant’s product, should be taken. Such an advertisement is clearly disparaging to the product of the plaintiff as there is an element of insinuation present in the said advertisement.”

“11. The defendant could not have taken up a plea that Chayawanprash, which is a competitor to Amritprash, is bad during the summer months and since the defendant has resorted to the same, the same is disparaging and, Therefore, the case in hand calls for an action in terms of the prayer made in the injunction application ……” (emphasis supplied)

(iii) Dabur India Ltd. Vs. Colgate Palmolive 3 In this case, the plaintiff, Dabur India Limited, is the manufacturer of Dabur Lal Dant Manjan powder and the defendant Colgate Palmolive India Ltd. is the manufacturer of Colgate Tooth Powder. The impugned T.V. advertisement complained off by the plaintiff showed Cinestar Sunil Shetty stopping the purchasers of Lal Dant Manjan powder. He further informed them of the ill effects of such Lal Dant Manjan by rubbing it on the purchaser’s spectacles, which leaves marks which are termed by him as being akin to sandpapering. He also endorses the defendant’s Colgate Tooth Powder as being 16 times less abrasive and non-damaging to the spectacles. He also was heard telling the purchasers that it is 3 . 2004 (29) PTC 401 (Del) easy to change spectacles but not one’s teeth. It was contended on behalf of the Plaintiff that it had an 80 per cent share of the ayurvedic tooth powder trade and is directly hit by this advertisement as the principal producer, by the denigration of the generic product Lal Dant Manjan. It was submitted on behalf of the plaintiff that though the impugned advertisement made no direct reference to Dabur Dant Manjan i.e. the plaintiff’s product, the visual representation in the offending advertisement leaves no manner of doubt that the product being referred to is Lal Dant Manjan manufactured and marketed by the plaintiff. On the other hand, the defendant contended that the advertisement does not identify and refer to products of the plaintiff; that it is open to the defendant while praising its own product to point out the defects/deficiencies in the rival product; the criticism is based on the studies conducted in United States of America, which found such Lal Dant Manjan tooth powder to damage tooth enamel which was affirmed by two dentists of repute; and in any case the defendant is prepared to drop the red container/bottle which according to the plaintiff identifies its product. The offer made by the defendant to drop the red container/bottle from the advertisement was rejected by the plaintiff who insisted that even otherwise they are entitled to an order and injunction against the defendant from airing the said advertisement.

The Defendant relied upon the meaning of the word disparage from Black’s Law Dictionary which is set out in paragraph 3 (k) of the judgment and reproduced hereunder:

“disparage (di-spar-ij), vb. 1. Hist. To connect unequally (e.g., to marry below one’s status). 2. To dishonor (something or someone) by comparison. 3. To unjustly discredit or detract from the reputation of (another’s property, product or business). Disparagement (di-spar-ij-ment), n. A false and injurious statement that discredits or detracts from the reputation of another’s property, product, or business……”

The Learned Single Judge (Mukul Mudgal, J.), after considering the submissions advanced by the plaintiff as well as the defendant proceeded to hold that the law relating to generic disparagement of a specified commodity and the entitlement of one of such unidentified manufacturer of such decried product is settled by the decisions of the Delhi High Court in Dabur India Ltd. Vs. Colgate Palmolive Pvt. Ltd. (supra) and Reckitt & Coleman vs. Kiwi T.T.K. Ltd. 4 and that the Learned Judge is prima facie of the view that the offending advertisement is clearly covered by the fourth principle set out in the two judgments namely – slandering of a rival product as bad is not permissible. Paragraphs 13, 19, 20 and 21 of the said judgment are relevant and are reproduced hereunder for ready reference.

“13. While Mr. Rohatgi is right in submitting that the generic disparagement was not to be found in the judgment of the learned Single Judge in Reckitt & Coleman’s case (supra) which was followed in Dabur’s case, yet I am of the view that the position of law about generic disparagement in Dabur’s case was not only justified but also warranted. Even if the ratio of the two learned Single Judge’s judgments of this Court is considered to be only in respect of an 4 . 1996 PTC (16) 393  identified product, in principle there is no reason why the manufacturer of a disparaged product, which though not identified by name, cannot complain of and seek to injunct such disparagement.” (emphasis supplied) “19. I am further of the view that generic disparagement of a rival product without specifically identifying or pin pointing the rival product is equally objectionable. Clever advertising can indeed hit a rival product without specifically referring to it. No one can disparage a class or general of a product within which a complaining plaintiff falls and raise a defense that the plaintiff has not been specifically identified. In this context the plaintiff has rightly rejected the offer of the defendant to drop the container from its advertisement so as to avoid the averred identification of the plaintiff’s product. I must also deal with a English judgment of Willes J relied upon by the counsel for the defendant (for which no citation is indicated), the entire reasoning of which reads as under………”

“20. The practice of undue obeisance to English jurisprudence without any thought to the merit and reasoning of such judicial wisdom should also be discouraged. When there is a judgment of Hon’ble Justice Dr. M.K. Sharma directly on the point of generic disparagement, I see no reason why one should travel westwards for seeking enlightenment. Similarly on the question of rival product disparagement the Division Bench of this Court in Pepsi Co. (supra) has also held that defamation of the product of a rival manufacturer cannot be done. Undeniably it is not the puffing up of the defendant’s product i.e. the Colgate Tooth powder which can be found objectionable but the running down of a rival product which is the situation in the present case.”

“21. The advertisement campaign on the visual media has an immediate impact on the viewers and possible purchaser’s mind particularly when a well-known cinestar is endorsing it…….”

( iv) Annamalayar Agencies Vs. VVS & Sons Pvt. Ltd.

& Ors . 5 In this case, the grievance of the plaintiff was that the first defendant company which manufactures VVD gold coconut oil issued three advertisements through TV channels and thereby disparaged the plaintiff’s product namely Parachute. In the advertisement no.1, two tender coconuts, one in green colour and another in blue colour were shown and an actress wearing a green dress appears on the screen and asks a question, Which is natural? Thereafter she herself picks up a green coconut and says that the green coconut is natural.

In the advertisement no. 2, an actress wearing a green dress picks up one of the green coloured plastic bottles of VVD arranged on a shelf and says this is 100% pure and natural and this is what I want. Then the next shot shows an actress wearing a green dress in the foreground and the lady wearing a blue saree in the background. The lady wearing the blue saree has a blue coloured bottle in her left hand and a VVD bottle in her right hand. She looks at the blue bottle which is in her left hand and shakes her head disapprovingly and puts the bottle down. Then she looks at the VVD bottle in the 5 . 2008 (38) PTC 37 (Mad) right hand and lifts the bottle up and says VVD Gold, this is what I want.

In advertisement no. 3, which is shown in fast forward mode, people are seen going into a supermarket where two shelves are displayed, they pick up all the green bottles in no time and empty the shelf which is once again refilled, while the other shelf with the blue bottles is shown as remaining almost untouched.

The plaintiffs therein contended that the said three advertisements are nothing but a dishonest attempt on the part of the 1st defendant to show that the plaintiff’s product is not a pure and natural product. It was therefore a 100% disparaging attempt to discredit the plaintiff’s product. According to the plaintiff, the blue bottle which was shown in the advertisements refers only to the plaintiff’s blue bottle, as the blue bottle shown in the advertisements bears a bar code and only the plaintiff’s blue bottles have a bar code.

The first defendant denied that the aim of the advertisement was to disparage the plaintiff’s brand Parachute, but submitted that the aim was to drive home the message that VVD is 100% pure coconut oil. The 1st defendant also contended that their advertisements do not refer to Parachute alone and it refers to all other brands also, and most of the other brands sell their oil in blue coloured plastic bottles. They also contended that there are at least six other brands which have blue coloured bottles having bar code.

The Learned Single Judge of the Madras High Court (S. Rajeswaran, J.) has, after referring to several judgments on the issue of disparagement of products summarised the legal principles in paragraph 29 of his Judgment which is reproduced hereunder:

“(1) A manufacturer of a disparaged product which though not identified by name can complain of and seek to injunct such disparagement.

(2) Generic disparagement of a rival product without specifically identifying or pinpointing the rival product is equally objectionable. (3) Advertisement campaign on visual media has an immediate impact on the viewers and possible purchasers’ mind particularly a well-known cinema star is endorsing it.

(4) There must be a dividing line between statements that are actionable and those which are not.

(5) When a claim of superiority over a rival product is made and until the same is proved by a panel of experts, an order of interim nature should operate against those advertisements.

(6) Advertiser has a right, to boast of its technological superiority in comparison with a product of a competitor, however while doing so, he cannot disparage the goods of the competitor. (7) If the Defendants highlight its better future while comparing its product with that of the Plaintiff in an advertisement, no possible objection can be raised thereto.

(8) Courts will injunct an advertiser from publishing an article if the dominant purpose is to injure the reputation of the Plaintiff.

(9) The factors to be kept in mind to decide the question of disparagement are (1) intent of the commercial (2) manner of the commercial (3) story line of the commercial, and (4) the message sought to be conveyed by the commercial.

(10) The degree of disparagement must be such that it would tantamount to or almost tantamount to defamation.

(11) An advertiser can say that his product is better than that of his rival, but he cannot say that the rival’s product is inferior to his product.”

The Learned Judge after discussing the submissions advanced on behalf of the plaintiff as well as the defendant concluded that the impugned advertisements are certainly causing disparagement of the product of the Plaintiff.

Paragraphs 33, 34, 35, 36 and 37 are reproduced hereunder for ready reference:

“33. In so far as advertisements 2 and 3 are concerned, they definitely refer to a plain unnamed blue bottle and drives home a message that the blue bottle does not contain 100% pure and natural coconut oil whereas the 1st Defendant’s product alone contain 100% pure and natural coconut oil. It is one thing to say that the 1st Defendant’s product alone is 100% pure which is not actionable and it is another thing to say that the Plaintiffs product is not 100% pure which is actionable.”

“34. Even though it was denied by the 1st Defendant that they did not mean to run down the product of the Plaintiff, it was admitted by them that it was aimed at all the blue bottles including that of the Plaintiff. It is also not in dispute that only the Plaintiff and the 1st Defendant are holding the majority market share in the State of Tamil Nadu and in such circumstances it cannot be said that no attempt was made by the 1st Defendant to disparage the product of the Plaintiff namely Parachute.”

35. Even in the counter affidavit, the 1st Defendant tries to compare its product with that of the product of the Plaintiff by name Parachute advanced which is not 100% pure edible grade coconut oil. But the 1st Defendant did not come forward with the relative merits of the Plaintiffs product namely. Parachute 100% pure coconut oil and its product which raises a serious doubt about the intention of making such advertisements. It is also not a case of the 1st Defendant that both coconut oils were tested by a panel of independent experts and it was proved that the 1st Defendant’s product in 100% pure coconut oil and Parachute is not so. In such circumstances, advertisement Nos. 2 and 3 are certainly causing disparagement of the product of the Plaintiff.”

“36. If it is an innocuous advertisement without any intent to malign, defame and disparage the product of the Plaintiff, then there was no necessity of showing a blue bottle and comparing its purity by more than one in action.” “37. The 3rd advertisement also goes to show that the general public not picking the blue bottles stacked in the shelf whereas the 1st Defendant’s product are being grabbed with enthusiasm and swiftness. This definitely would send a wrong message to television viewers and the buyer of the coconut oil that the blue bottle products are inferior to that of green bottle products of the 1st Defendant, which is nothing but openly disparaging the product of the Plaintiff.”

(v) Godrej Consumer Products Limited V Initiative Media Advertising 6 6 . 2012 (52) PTC 260 (Bom)  This is the judgment of this Court on disparagement actions. The judgment was cited by the Plaintiff to emphasise the general principles of disparagement even when the plaintiff’s product is not referred to by name, and to emphasis the instant and lasting effect that a television commercial has on viewers. The facts of the case are peculiar, since though the product of the plaintiff was not named, but a label similar to that of the plaintiff was used. The message conveyed by the advertisement was, that the device of the defendant was more effective than the one already plugged in (which had a label similar to that of the plaintiff ). In the facts of the case had it not been for the depiction of the plaintiff’s label on the product depicted in the advertisement, the effect would have been only that of puffing and hence the relief was moulded. Paragraphs 18, 19 and 20 of the judgment of the learned Single Judge (B. R. Gavai, J.) are reproduced hereunder:

“18. It is equally settled that to decide the question of disparagement, the following factors are to be kept in mind:

(i) Intent of commercial

(ii) Manner of the commercial

(iii) Storyline of the commercial and the message sought to be conveyed by the commercial. Out of the above, “manner of the commercial”, is very important. If the manner is ridiculing or condemning product of the competitor then it amounts to disparaging but if the manner is only to show one’s product better or best without derogating other’s product then that is not actionable.”

“19. ……I am aware of the fact that the comparison that has to be done should be from  the view point of an ordinary person of average intelligence. Upon comparison of the labels used on the bottles in the advertisements and the label of the plaintiff’s product, I find that the label used in the advertisements is capable of giving impression to the ordinary man of average intelligence that the bottle which is initially used in the machine is that of the plaintiff’s product….”

“20. As already discussed hereinabove, an intent of commercial; the manner of commercial; storyline of commercial; and the message sought to be conveyed would be material. If the intent of the commercial is only for the purpose of promotion of the goods of the manufacturer, the same would not be actionable but if the intention of the commercial is disparaging the product of the plaintiff, then an action would lie. From the storyline and the manner of the advertisements in question, it can clearly be seen that the message that is sought to be given in the advertisements, is that even after the machine with product containing label alike plaintiff’s product is put on, it has no effect and the mosquitoes go on troubling which require the person in the room to indulge in acrobatics etc. It is to be noted that the advertisement campaign or visual media has an immediate impact on the viewers and possibly purchaser’s mind, particularly, when a well-

known cinestar is endorsing it. It is further to be noted that the matter has to be looked from the view point of the ordinary person of average intelligence. Though the advertisements in question may show the product having a label alike that of plaintiff’s product for a few seconds, the possibility of the same being registered in the mind of an average consumer and linking it with the ineffectiveness of the product cannot be ruled out.”

(vi) Eureka Forbes Ltd. V Pentair Water India 7 In this case, the question before the Court was whether the advertisement in question amounts to disparaging the product of the appellant Company and whether the order of the trial Court suffered from perversity, or is capricious. The Learned Single Judge of the Karnataka High Court (V. Jagannathan, J.) held that though in the advertisement there was no mention of the product, ‘Aquaguard’ of the Appellant, yet the advertisement viewed as a whole appears to be generic in nature and is actionable.

Paragraphs 15 and 19 of the said decision are reproduced hereunder:

“15. …..The disparagement though not specific in the sense that there is no mention of the word ‘Aquaguard’, yet, taken on the whole, the advertisement though appears to be generic in nature, still becomes actionable and, as such, the appellant is right in contending that the said advertisement has affected its product.”

“19. Therefore, having regard to the aforesaid position in law, in the instant case, the advertisement will have to be held to be a disparaging one, even in a generic sense and hence is actionable.”

9. The above judgments not only categorically specify as to when a product can be said to have been disparaged, but have also settled the principle of law that generic disparagement of a rival product without specifically identifying or pin pointing the rival product is equally 7 2007 (35) PTC 556 (Karn)  objectionable. In other words, no one can disparage a class of products within which a complaining plaintiff falls and raise a defense that the plaintiff has not been specifically identified. Even if there is no direct reference to the product of the plaintiff and only a reference is made to the entire class of products in its generic sense, even in those circumstances disparagement is possible.

10. With the above issues being answered, I now turn to the two impugned TVCs of Defendant No.1, which according to the Plaintiff disparages the entire class of frozen desserts in which category of products, the Plaintiff has a market share of 51.3 per cent and therefore the products of the Plaintiff in this category are also disparaged and affected. The two impugned TVCs are annexed and marked Exhibits-H and L to the Plaint. The story board of the impugned TVCs are reproduced hereunder:

1st TVC:

A KPPNair 27 NMSL-690/2017 D KPPNair 28 NMSL-690/2017 E F G KPPNair 29 NMSL-690/2017 Disclaimer I Disclaimer J Disclaimer KPPNair 30 NMSL-690/2017 K The Disclaimer is in very minute print and it is impossible for any viewer to read the same. However, the contents of the Disclaimer is reproduced hereunder:

“FSSAI — the apex body of food safety and regulatory norms in India defines Ice-cream as milk based product that has not less than 10% milk fat and Frozen Dessert as Vegetable Oil based product that has not less than 10% Vegetable oils. It also prohibits any misguiding practices of presenting frozen desserts as ice-creams. Vanaspati mentioned in the voice over refers to Vegetable Oil.”

2ND TVC:

The story board of the second TVC is identical to the 1st TVC with regard to all the above screen shots, save and except the voice over in the third last screen shot where the word ‘vanaspati tel’ is used in place of ‘Vanaspati’ and the Disclaimer in the last three screen shots also uses the word ‘vanaspati tel’ in place of ‘vanaspati’. However, the entire story board of the 2nd TVC is reproduced hereunder .

The above three Disclaimers are in such small minute letters that it would be humanly impossible for any person watching TVC-2 to read the same. However, the Disclaimer is reproduced hereunder:

” FSSAI – the apex body of food safety and regulatory norms in India defines Ice-cream as milk based product that has not less than 10% milk fat and Frozen Dessert as Vegetable Oil based product that has not less than 10% Vegetable oils. It also prohibits any misguiding practices of presenting frozen desserts as ice-creams. Vanaspati Tel mentioned in the voice over refers to Vegetable Oil.”

11. Amongst others, the main grievance of the Plaintiff with regard to the two TVCs is that the Defendant No. 1 has in the first TVC mislead the consumers of frozen desserts by stating that Amul Icecream contains pure milk, whereas frozen desserts contain Vanaspati (which in common parlance is referred to as Dalda or ghee), and which admittedly is bad for health. In the first TVC, the Defendant No. 1 has also depicted milk flowing /overflowing in the cup of Amul Icecream and Vanaspati / Ghee going into the cup of frozen dessert, and has through the said TVC maligned, belittled and discredited the entire category of frozen desserts and sought to influence the customers to refrain from buying /consuming frozen desserts, the same not being the correct choice. After the Plaintiff took up their grievance with the Defendant No. 1, they substituted the word ‘Vanaspati’ by ‘Vanaspati tel’ in the voice over and in the Disclaimer found in the Screen Shot Nos. 8, 9 and 10 in the 2nd TVC reproduced above. However Defendant No. 1, as can be seen from Screen Shot Nos. 8 and 9 of the 2nd TVC continued to show semi solid Vanaspati / ghee going into the cup of frozen dessert. The 2nd TVC is therefore nothing but the continuation of 1st TVC. According to the Plaintiff, Vanaspati which is hydrogeneted vegetable oil and which is perceived to be bad for health by the consumers, is not at all used by the Plaintiff and or Defendant Nos. 3 and 4, who are having 70% share in the Frozen Dessert Market. It is contended by the Plaintiff that despite this, Defendant No.1 by publication of the two impugned TVCs are inter alia conveying to the consumers, by a negative campaign, that all frozen desserts contain Vanaspati, and are therefore impure, unhealthy and inferior and not the correct choice. Defendant No. 1 is therefore committing the tort of slander of goods and injurious / malicious falsehood and by generic disparagement of the product ‘frozen dessert’ are also disparaging the goods of the Plaintiff, which will adversely affect their presence in the market for sale of frozen desserts.

12. According to Defendant No.1, it is perfectly lawful and legitimate for Defendant No. 1 to state that frozen desserts contain either vanaspati or vanaspati tel; all that is stated in the TVCs constitutes truth and the material on record satisfies the same; the two TVCs do not in any manner disparage or denigrate frozen desserts or constitute slander of goods as alleged by the Plaintiff. According to the defendant no.1 they have not even shown the cup of the plaintiff but have shown a neutral cup of frozen dessert in their Advertisements/TVC’s.

13. For a better understanding of the controversy which is the subject matter of the Suit, the statutory as also the technical difference between the two rival categories of products involved in the matter namely ICE CREAMS and FROZEN DESSERT is necessary. Under the FSS Regulations, ice creams and frozen desserts are both food products classified as dairy based desserts. Ice creams are made out of milk/milk solids. In addition to milk and/or milk solids, fat is also required. This fat is either milk fat or vegetable fat, the other ingredients remaining the same. Globally, a majority of icecream manufacturing companies also use non-dairy fat and outside India these products fall within  the category of ice creams. As per Indian Regulations products which contain non dairy fat are categorised as frozen desserts. Both ice creams and frozen desserts contain milk solids but what makes them different is that in law, ice creams must contain over 10 per cent milk fat, whereas frozen desserts must contain over 10 per cent total fat (i.e. milk fat and/or edible vegetable oil). Rest of the ingredients are the same.

14. At this stage it is also necessary to understand the difference between hydrogenated fat or hydrogenated vegetable oil or Vanaspati and edible vegetable oil. The hydrogenated vegetable oil (Vanaspati) and edible vegetable oil are not the same and both are different in the process of manufacturing, composition and product properties. The law also distinguishes between edible vegetable oil and hydrogenated vegetable oil. The definitions of hydrogenation, hydrogenated vegetable oils and vegetable oils from the FSS Regulations are reproduced hereunder:

“Hydrogenation ” means the process of addition of hydrogen to an edible vegetable oil using a catalyst to produce a fat with semi-solid consistency” (emphasis supplied) “Hydrogenated vegetable oils: 1. Vanaspati means any refined edible vegetable oil or oils, subjected to a process of hydrogenation in any form. It shall be prepared by hydrogenation from groundnut oil, cottonseed oil and sesame oil or mixtures thereof or any other harmless vegetable oils allowed by the Government for the purpose. Refined sal seed fat, if used, shall not be more than 10 per cent of the total oil mix….” (emphasis supplied) “Vegetable oils” means oils produced from oilcakes or oilseeds or oil bearing materials of plant origin and containing glycerides.”

It needs to be noted here that in view of the above definitions, reference to ‘vanaspati’ would mean a fat with semi solid consistency, and it is not  necessary to specify/clarify whilst referring to Vanaspati that it is in thick or semi solid or solid form.

15. The distinction between hydrogenated vegetable oil/Vanaspati oil and edible vegetable oil is extremely relevant in the context of the present Suit, since Vanaspati/hydrogenated vegetable oils are perceived to be bad for health, whereas edible vegetable oils per se, are not. The difference between the nutrition profile of Vanaspati and edible vegetable oil is reproduced hereunder :

Vegetable Oil (per 100g) Hydrogenated vegetable oil (per 100 g) Saturated Fat (g) 49.3 93.7 Mono unsaturated (g) 37 0.26 Trans fat (g) 0.26 As can been seen from the above, edible vegetable oil has lower saturated fat and does not contain any trans-fat or cholesterol, whereas Vanaspati/hydrogenated vegetable oil contains higher saturated fat and trans-fat and is perceived to be unhealthy. Extracts from the literature published, inter alia, by the National Institution of Nutrition (Dietary Guidelines for Indians, etc.) containing observations pertaining to the effects of the saturated fat and trans-fat contained in Vanaspati are annexed as Exhibit-J to the Plaint.

16. In paragraphs 6.13 and 6.14 of the Affidavit-in-Reply to the Notice of Motion, Defendant No. 1 itself has admitted that it is an undisputed position that Vanaspati is harmful and have also mentioned that the Plaintiff itself has annexed at Exhibit-J to the Plaint, the dietary guidelines which describes what Vanaspati is, and the risk of heart disease associated with it. Defendant No. 1 in the said paragraphs further makes a reference to the Article at running page 82 annexed to the plaint which discusses the risk of coronary heart disease associated with Vanaspati.

17. Keeping in mind that Defendant No.1, as set out hereinabove, admits that the use of Vanaspati is harmful for health and the risk of heart disease associated with it, let us go back to the storyline of the first impugned TVC set out in paragraph 8 above. The same shows Shriya a young child, having a dental problem. She visits the Dentist with her father and is shown in the Clinic, demonstrating courage during her entire check-up, rare for children of her age. In the voice over to screen shots F, G, H, I and J it is, inter alia, stated that “Shriya ki bahaduri ke inaam ko pure rakhna zaruri hai”, “Usse real milk wala Amul ice cream khilayein”, “Vanaspati wala nahi”, “unhe ice cream nahi frozen dessert kehte hain”, “ice cream word ke liye pehle pack check karein …..real milk real ice cream Amul”. (emphasis supplied) Screen shots H and I along with the said voice over “Vanaspati wala nahi”, unhe ice cream nahi frozen dessert kehta hai, also depicts two cups side by side showing a stream of milk flowing/overflowing into the Amul product, whereas “Vanaspati” i.e. semi solid product flowing into the cup of frozen dessert. Furthermore, the product of Defendant No. 1 is shown as sparkling white, whereas the frozen dessert equivalent is depicted by a murky yellowish colour representing Vanaspati. By the above voice over and depiction, Defendant No. 1 has in no uncertain terms sought to convey the message to the consumers that Shriya needs to be given the product of the Defendant i.e. Amul ice cream, which is pure, and she should not be given the product which contains Vanaspati and which product is called frozen dessert. The Defendants have therefore made a false representation to the consumers and also indulged in a negative campaign that no frozen dessert is pure, and only Amul ice cream is pure, as all frozen desserts contain Vanaspati, and are therefore inferior. The Defendant No. 1 has laid stress on ‘Vanaspati’ clearly with a view to suggest that therefore frozen desserts are not pure, are unhealthy and are inferior, and Amul ice cream which is made of pure milk should be consumed and not frozen desserts. Defendant No. 1 has therefore clearly made an attempt to influence the consumers not to buy frozen desserts. Additionally, as the story has a child protagonist, it leaves a scare in the minds of the viewers, who may also be parents, that Frozen Desserts are unsafe, not fit for children and hence are not the “correct choice”. It certainly leaves an impression that when a child is given frozen dessert the child is consuming something which is full of Vanaspati. This is also in view of the product of Defendant No.1 being shown as sparkling white, whereas the frozen dessert is depicted with a murky yellowish colour. Though there is a Disclaimer shown in the first TVC, in very small illegible letters inter alia stating that “Vanaspati” mentioned in the voice over refers to “vegetable oil”, the said representation itself is again incorrect and misleading, in view of it being explained hereinabove, that as per the law, i.e. under the FSS Regulations, Vanaspati cannot be equated with vegetable oil.

18. The entire first TVC is therefore prepared by the Defendant No.1 to disparage the entire category of frozen desserts by putting a scare in the mind of the consumers that it contains Vanaspati (which is perceived as unhealthy) and is therefore not pure, is inferior, unhealthy, not the correct choice, should not be consumed and instead the consumers should turn to the product of the Defendant No.1. From the case law discussed in paragraph 8 above, it is clear that it is settled law that the manufacturer of a product whilst advertising his product/s cannot say directly or indirectly that the product of the competitor is bad and/or harmful. If a manufacturer indulges in such negative campaigning,  the same would amount to slandering of a rival product, which is not permissible in law, and entitles any manufacturer affected by such slandering of his product to an injunction against such negative campaigning. Thus I am convinced that by the first TVC the Defendant No. 1 has indulged in negative campaigning against its rival products i.e. ‘Frozen Desserts’ and is therefore guilty of generic disparagement and slander of the entire category of the ‘Frozen Dessert’ products.

19. A revisit to the second TVC which is reproduced in paragraph 8 above, makes it clear that the only change that the Defendant No. 1 made to the first impugned TVC, was that it replaced the word “Vanaspati” with “Vanaspati oil/tel” and commenced publication of the same on various digital media. Save and except the above change, all the other visual and oral features of the first impugned TVC were kept as it is in the second impugned TVC. What is most important is the fact that no change has been made in the visual representation of the second impugned TVC which shows Vanaspati falling into the cup along with the voice over stating ‘ Vanaspati Tel Wala Nahi’ ‘unhe ice cream nahi frozen dessert kehte hai’ thereby once again attempting to influence the consumers of Frozen Dessert, not to consume the same on the ground that Frozen Desserts are not pure, are unhealthy, inferior, and therefore not the correct choice. This dominant effect is not taken away by the use of the word ‘tel’ in the voice over. The addition of the word “tel” therefore does not make any difference to the intent, manner and storyline of the advertisement taken as a whole. The Disclaimer in letters which are illegible also makes no difference. The second TVC is therefore nothing but a continuation of the first TVC. In this regard the decision of the Delhi High Court in the case of Karamchand Appliances Pvt. Ltd. vs. Shri Adhikari Brothers and others 8, 8 . 2005 (31) PTC 1 Del.

KPPNair 41 NMSL-690/2017 wherein the Court inter alia accepted the submission of the plaintiff that the change in the modified advertisement was so insignificant that the viewers of the commercial would not notice the same and the viewers who had seen the original advertisement were bound to recall the same in their memory. In its said decision the Court has also observed that since there is no cut and dry formula to decide whether or not the goods of a trader or manufacturer are disparaged or not and would depend on the facts and circumstances of each case, all that the Court need to be conscious of is that while disparagements may be direct, clear and brazen, they may also be subtle, clever and covert. Paragraphs 19, 21, 26, 27, 28, 29, 30 and 32 of the said decision are relevant and reproduced hereunder:

“19. Two propositions clearly emerge from the above pronouncements, namely, (1) that a manufacturer or a tradesman is entitled to boast that his goods are the best in the world, even if such a claim is factually incorrect, and (2) that while a claim that the goods of a manufacturer or the tradesman are the best may not provide a cause of action to any other trader or manufacturer of similar goods, the moment the rival manufacturer or trader disparages or defames the goods of another manufacturer or trader, the aggrieved trader would be entitled to seek reliefs including redress by way of a prohibitory injunction. Question No. 1 is accordingly answered in the negative.”

“21. Whether or not the goods of a trader or manufacturer are disparaged would depend upon the facts and circumstances of each case. There is no cut and dried formula, for general application. All that the Court need to be conscious of is that while disparagements may be direct, clear and brazen, they may also be subtle, clever or covert. What is the statement made by the rival trader and how it belittles, discredits or detracts from the reputation of another’s property, product or business is the ultimate object of the judicial scrutiny in such cases. Before I examine the rival submissions in the instant case, I may refer to a few of cases where the Courts found the statements to be disparaging, hence actionable.”

… …. ….

“26. Coming then to the facts of the present case, the defendant’s commercial, which provoked the filing of the suit, showed the pluggy device of the plaintiff and dubbed the same as an obsolete 15 years old method of chasing away mosquitoes. On a comparison with its own product the defendant’s advertisement claimed that it was the latest machine available in the market which chased away the mosquitoes at twice the speed. This Court’s order found that advertisement to be disparaging and restrained its telecast. In appeal the Division Bench made a modification to the extent that the advertisement can go on but without disparaging the plaintiff’s product. The defendant’s case now is that it has modified the advertisement and instead of showing the pluggy device which resembled the plaintiff’s machine, it has shown a different device which has a different design and colour combination. The plaintiff cannot, Therefore, complain of any disparagement in the modified commercial which simply puffs up the plaintiff’s product – something that the defendant in law is entitled to do.”

“27. On behalf of the plaintiff Mr. Jaitley argued that the change in the shape of the device, was so insignificant that the viewers of the commercial would not even notice the same. He relied upon the power of recall of the viewers and submitted that the viewers having seen the original advertisement were bound to recall the same in their memory and … (illegible) the plugg now being shown with the plaintiff’s machine….” “28. The pluggy device which was shown in the first version of the defendants commercial no longer appears in the modified version in as much as the shape and the colour combination of the device is marginally altered. The defendant’s version is that what is shown in the modified version is a device, the design whereof is registered in its name. In other words, the commercial does not any more show the plaintiff’s device or any device deceptively similar to it. Two aspects need to be examined in that backdrop. The first is whether the altered design of the pluggy device makes any material difference in the matter of conveying the message which the commercial intends to convey to the viewers. The second aspect is whether a disparagement of a general concept is actionable in law, if such disparagement is otherwise unsustainable on the touchstone of any technological advantage, which the defendant’s product may be enjoying over the product, that is, disparaged.”

“29. There is considerable merit in the submission made by Mr. Jaitley that the original advertisement, against which the plaintiff had complained, showed a pluggy device deceptively similar to the defendant’s device, if not the very device which the defendant manufactures and markets. The message contained in the advertisement was that pluggy devices used as mosquito repellents in which the defendant is the market leader are old, obsolete and outdated method of chasing the mosquitoes and deserve to be discarded as the lady model in the commercial actually does so. Re-run of the same commercial, with a slightly modified design of the device or colour scheme, does not materially alter either the message or the basis on which the same is being sent across. The viewers will, in all likelihood, view the modified version also in the light of the first version that appeared on the television networks before it was restrained by the Court.”

“30. …A disparagement even if generic would remain a disparagement and can be restrained at the instance of a party, who manufactures or trades in that class of goods regardless whether the technology used is modern or obsolete. The defendant is indeed entitled to boast that its product is the latest in the market and even the best but it cannot describe either the technology or the concept used by any other manufacturer or trader in the manufacture or sale of his products as obsolete or worthless. Comparative advertisement is permissible, so long as such comparison does not disparage or denigrate the trademark or the products of a competitor. Comparison of different features of two products showing the KPPNair 44 NMSL-690/2017 advantages, which one product enjoy over the other is also permissible provided such comparison stops short of discrediting or denigrating the other product. Viewed thus the defendant’s commercial, which shows the model in the same taking out the pluggy device by describing it as 15 years old and obsolete method is a clear case of disparagement of devices like that of the plaintiff’s that are based on that concept or technology and would therefore, be impermissible.” “32. I am, Therefore, of the view that the telecast of the modified commercial is liable to be restrained not only because the commercial disparages the product manufactured and marketed by the plaintiff but also because the claim made by the defendant about any technological advantage justifying the disparagement are not substantiated.”

20. Therefore all the observations made hereinabove qua the 1st TVC, are also applicable to the 2nd TVC. From the content, intent, manner and storyline of both the TVCs it is clear that Defendant No. 1 seeks to take undue advantage of the perception of the public that Vanaspati is bad for health and creates a false impression that all Frozen Desserts are made using Vanaspati and are consequently not pure, inferior, bad for health and not the correct choice, i.e. should not be consumed by the public who should instead have the product of the Defendant No.1, i.e. ice cream. Therefore, as explained above, addition of the words ‘Vanaspati tel’ instead of ‘Vanaspati’ in the 2nd TVC makes no difference. The justification given by Defendant No.1 for using the words ‘vanaspati tel’ in the voice over and disclaimer in the 2nd TVC cannot be accepted and is dealt with in detail in paragraph 33 hereinafter. It also needs to be clarified that only on the basis of the words Vanaspati and Vanaspati tel used in the TVCs, it cannot be said that the TVCs are disparaging the category of Frozen Desserts, but since the content, intent, manner and storyline of the impugned TVCs seen as a whole, convey a false, untruthful, malicious and negative message, this Court is of the view that the two impugned TVCs disparages the entire category of products known as Frozen Desserts of which the Plaintiff is a market leader, thereby also disparaging the products manufactured and sold by the Plaintiff and adversely affecting the business of the Plaintiff. As held in the judgments set out/quoted in paragraph 8 above, the Plaintiff is therefore entitled to impugn the two TVCs despite the same not making any direct reference therein to the Plaintiff or the product manufactured by the Plaintiff. Therefore, the submission of the Defendant No.1 that they are not showing the cup of the Plaintiff in its TVC’s/advertisement but are showing a neutral cup also does not assist the Defendant No.1 in any manner whatsoever.

21. In defence of its claim that the impugned TVCs do not in any manner defame, denigrate or slander either Frozen Desserts or the Plaintiff’s products, the Defendant No. 1 has laid emphasis on the fact that the manufacturers of Frozen Desserts, despite the introduction of Regulation 2.1.7 in the year 2011 by the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011, separately classifying ice creams and Frozen Desserts under the larger head – “Dairy based deserts/confections”, continued to describe the product as ice creams thereby violating Section 53 of the FSSA, 2006. In order to educate the members of the public, Defendant No. 1 commenced an advertisement campaign explaining the distinction between ice creams and Frozen Desserts and the impugned TVCs are nothing but an extension of the said campaign.

22. Defendant No. 1 have sought to contend that since for the first time in 2011–12 the FSS Regulations brought about the distinction between ice creams and frozen desserts, they commenced advertisement campaigns from the year 2012. This contention is incorrect. As pointed out by the Plaintiff, the true fact is that the distinction between frozen desserts and ice creams existed even prior to 2011-12. The distinction was first introduced on 7th June, 2005 by an  amendment to the Regulations framed under the Prevention of Food Adulteration Act, 1954, the relevant extract of which was tendered in Court by the Advocate for the Plaintiff. Entry A.11.02.07.02 pertains to frozen dessert/frozen confection and is identical to the present provision under the FSS Regulations. However, in the years 2012-2013, Defendant No. 1 did start a campaign by distribution of pamphlets setting out the difference between Frozen Desserts and ice creams. However, it is important to note that Defendant No.1 in their Hindi as well as English pamphlets distributed from 2012-2013 onwards always used the words “vegetable oil” and not “Vanaspati”or “Vanaspati tel”. The said pamphlets are reproduced hereunder:

It is further important to note that Defendant No.1 has in the said pamphlets not only not used the words vanaspati or vanaspati tel but even the reference to vegetable oil is also not in relation to all Frozen Desserts generally as a category, but to most of them ( ‘JYADATAR’). It is only in the TVCs which are introduced in March, 2017 by Defendant No. 1, that Defendant No. 1 started use of the words Vanaspati and Vanaspati tel. The pictorial depiction of Vanaspati falling into the cup of Frozen Dessert, also arose for the first time in the TVCs which are introduced in March, 2017. It is obvious that this is so since Defendant No.1 was well aware that Vanaspati being perceived as a health hazard, its mention as an ingredient in the Frozen Dessert would scare the consumers from having Frozen Desserts, who would then turn to the product of Defendant No. 1 i.e. ice cream.

23. Any campaign to educate the members of the public by placing before them the true and correct facts/ingredients used in a product should always be welcomed. However, no manufacturer can place misleading information before the consumers qua the product of his rivals and thereby disparage/discredit/belittle such product including influencing the consumer not to buy the same in the garb of educating and/or bringing the correct facts before the members of the public, as is done in the present case by Defendant No.1. Apart from educating the consumers qua the difference in products by mentioning the correct facts and following the legal route, action can also be taken against the manufacturers of products, if they are found violating Section 53 of the FSSA, 2006 as alleged by the Defendant No.1. The aforesaid excuse /reason given by Defendant No.1 therefore lacks justification and is rejected.

24. Defendant No. 1 has contended that on a true and correct viewing of the TVCs, the following position emerges:

(i) As reward for Shreya’s confidence and valour displayed through her

dental treatment, the doctor suggests the parent to give Shreya an ice cream;

(ii) Since there is purity in Shreya’s courage, the advertisement suggests the parent to give Shreya an ice cream;

(iii) What is made out of Vanaspati and Vanaspati Tel is not ice cream but frozen dessert. Hence the consumer ought to check the packaging of the product to identify, whether it is ice cream or frozen dessert.

(iv) Lastly TVCs recommend Amul Ice cream to the consumer.

Defendant No. 1 has contended that the Plaintiff’s suggestion that frozen dessert is shown in murky yellowish colour; is depicted as unhealthy or inferior; or shown as lacking in purity is equally incorrect. The suit TVCs only show frozen dessert for what they are as containing ‘Vegetable Tel’ which they do. The legend on the packaging of the generic frozen dessert is magnified to show that frozen dessert contains vegetable oil. Hence there is no falsehood, slander or defamation.

25. In my view this is an over simplification of the TVCs. The intent, storyline, manner of depiction , effect and impact of the TVCs of Defendant No. 1 is certainly not what is stated by Defendant No. 1. The TVCs are not innocuous as asserted by Defendant No. 1. The storyline, manner of depiction, effect and impact of the TVCs has been dealt with hereinabove.

26. Defendant No. 1 has contended that the terms “Vanspati” or “Vanaspati Tel” per se are not defamatory words. It is not even the Plaintiff’s case, that they are defamatory in a secondary sense. On the contrary, both “Vanaspati” and “Vanaspati Tel”are recognized food ingredients. In fact, any milk based frozen dessert or confection containing either Vanaspati or Vanaspati Tel in law would be termed as frozen dessert.

 As set out herein above, it is the case of Defendant No. 1 itself in its reply that Vanaspati is harmful to health. The Plaintiff has also pleaded that. The substitution of the word Vanaspati with Vanaspati Tel in the second TVC makes no difference as dealt with in paragraph nos. 19, 20 and 33 of this order. Further, the words cannot be considered in isolation but the TVCs have to be considered in its entirety including the visuals. This contention of Defendant No. 1 is devoid of merits.

27. The Defendant No. 1 has also laid emphasis on the statement made by the Plaintiff in the plaint that, ” In fact, a majority of the manufacturers of ice- creams with non-dairy fat i.e. frozen desserts i.e. 70 % of manufacturers of ice- creams with non-dairy fat (which constitutes the Plaintiff, Defendant No. 3 and

4) do not use hydrogenated fat or hydrogenated vegetable oil ordinarily known as vanaspati” and have contended that the Plaintiff has therefore admitted that 30 per cent of the manufacturers of Frozen Dessert are using Vanaspati in the manufacture of Frozen Dessert. Apart from the fact that Defendant No. 1 by its impugned TVCs have given an incorrect impression to the consumers that 100 per cent manufacturers of Frozen Dessert use Vanaspati/hydrogenated fat/hydrogenated vegetable oil, by no stretch of imagination, it can be concluded /held from the above statement in the plaint that the Plaintiff has admitted that 30 per cent of the manufacturers of Frozen Dessert use hydrogenated fat or hydrogenated vegetable oil, ordinarily known as Vanaspati. The Plaintiff has approached this Court with a case that the Defendant No. 1 is guilty of generic disparagement of the product known as Frozen Dessert by, inter alia, through the TVCs, wrongly informing the consumers that all Frozen Desserts contain Vanaspati, despite the fact that the Plaintiff (who is a market leader qua Frozen Desserts along with Defendant Nos. 3 and 4 have 70 per cent share in the Frozen Desserts market, and do not use Vanaspati in Frozen Desserts. The Plaintiff has only conveyed this and no further. The question therefore of the Plaintiff having admitted that 30% or any per cent of the manufacturers of Frozen Desserts are using Vanaspati or hydrogenated vegetable oil in the manufacture of Frozen Desserts does not arise. Since the Defendant No. 1 in their Affidavit-in-Reply incorrectly interpreted the aforestated statement of the Plaintiff, the Plaintiff was constrained to explain in their Rejoinder that their statement in the plaint only meant that the Plaintiff and the Defendant Nos. 3 and 4 constituting 70 per cent of the manufacturers of Frozen Desserts do not use Vanaspati. The said clarification therefore cannot be construed as the Plaintiff having changed its stand in its Rejoinder. In my view, even if 30 per cent of the manufacturers of Frozen Desserts use Vanaspati, Defendant No. 1 is not entitled to convey by way of any statement or depiction that the entire category of Frozen Dessert manufacturers, or in any event a majority of them, are using Vanaspati in the manufacture of Frozen Dessert.

28. The Defendant No. 1 in support of its contention that the manufacturers are using Vanaspati in their product has produced photographs of two products viz. ‘LAZZA’ and ‘HERITAGE’. The photograph of the third party product ‘LAZZA’ does not show Vanaspati/hydrogenated vegetable oil as an ingredient. The only product that Defendant No. 1 has sought to portray which uses edible hydrogenated vegetable fat is at page 267 of the Defendant’s compilation. Defendant No. 1 has not provided any details as to what is the market share of the said product allegedly sold under the mark “Heritage”. In any event as the saying goes ‘one swallow does not a summer make’, a single product cannot justify the depiction of the entire category of Frozen Desserts as having Vanaspati. The Defendant ought to have discharged the burden of demonstrating that the entire class of products known as Frozen Desserts contain Vanaspati, failing which the Impugned TVCs are not only false but also disparaging. In my view, the Plaintiff is correct in its submission that where the contention of Defendant No. 1 is that all Frozen Dessert (or at least 30%) manufacturers are using Vanaspati and Defendant No. 1 seeks to rely upon such an assertion to contend that as the truth and as a defence to the present action, the principles analogous to those laid down in Pidilite Industries Ltd. v S.M. Associates and Ors.9 would be applicable and Defendant No. 1 should then demonstrate with sufficient material that its assertion is in fact true. It is not sufficient to show only one packaging of one manufacturer alone, without showing any other material like the extent of sale, market share, availability of product throughout India etc. Paragraphs 52, 53, 54, 57 and 58 of the said Judgment are reproduced hereunder for ready reference:

“52. As far as use of the word “Seal” as a suffix is concerned, Dr.Shivade was actually pressing into service the series theory. According to him, as various traders use the word “Seal” as a suffix just as the Plaintiff does, there would be no likelihood of confusion or deception. According to him, traders and the public have gained such knowledge of the common element or characteristics of the series “that when they meet another mark having the same characteristic they will immediately associate the later mark with the “series” of marks with which they are already familiar.” The principle on which the series theory is based is that the consumer being aware of the fact that there are several marks with the common element will pay attention to the other features, thereby negating the possibility of any doubt/confusion.”

53. “It is important to note at the outset that other than annexing cartons bearing the aforesaid marks with the suffix “seal”, there is no evidence produced as to its actual use much less the extent of its use. In paragraphs 26, 27 and 28 of the affidavit in rejoinder, the Plaintiff has categorically denied the existence of the said brands “A-

Seal” “Inn-Seal” “Jam-Seal” “Max-Seal”. The Plaintiff has further stated that the brands are not in use much less in continuous or extensive use. It is further denied that the colour scheme is used by most of the manufacturers.

An affidavit in sur-rejoinder has been filed. Significantly, the first Defendant has even in the sur-rejoinder not furnished any evidence of actual use or the extent of such use.”

54. “The Supreme Court in Corn Products v. Shangrila Food Products, AIR 1960 Supreme Court 142 dealt with this question. In that case, it was contended that there were various trade marks with a prefix or suffix “Gluco” or “Vita” and that made it impossible to say that the common features “Gluco” or “Vita” were associated only with the Appellants products. The submission was based on a passage from Kerly on Trade Marks, (7th Edition, page 624) to the effect that where there are a series of marks registered or unregistered having a common feature or a common syllable if the marks in the series are owned by different persons, this tends to assist the Applicant for a mark containing the common feature……”

57. I am unable to accept the submission that the ratio consisted of accepting the submission on behalf of the Defendant that the judgment of the Supreme Court in Corn Products would only be applicable to a matter decided at the final hearing after evidence is led. The above extract itself indicates that the learned Judge accepted as sufficient at the interim stage, the evidence produced before him to establish prima-facie that several marks with the suffix “Sprin” were in fact in use. It is difficult to read the judgment as having held that though at the trial proof of extensive use of the series of marks is required at the interim stage it is not.”

58. “The fallacy of this submission lies in the misconception that the issue to be proved is different at different stages of legal proceedings. Whatever the stage KPPNair 54 NMSL-690/2017 of the proceedings, the issue to be proved or the content of the proof remains the same. It is the level of proof that varies depending on whether the order sought is at the interim stage or at the final hearing.

The judgment in Corn Products requires the Defendant to prove that the marks must be not merely in use but in “extensive use”. Thus, even in interim proceedings, it is not sufficient merely for the Defendant to show prima- facie that there is some user of the marks. There must be prima facie evidence to show extensive use. At the final hearing of the suit the level of proof required is higher – the matter requiring to be proved viz. “extensive or substantial use” remaining the same.

For instance, in a given case, a Defendant may well establish conclusively in interlocutory proceedings that there was actual use of the marks in the market. He would thus have fulfilled the first requirement viz. actual use. He may however candidly admit that the extent of use is minimal. The Defendant could not in such circumstances resist an injunction on the series argument contending that at the interim stage the extent of use is not material.”

29. The Defendant No.1 has contended that the aforesaid Judgment cannot be relied upon in the present context since the same relates to an action for infringement /passing off of trade marks. This submission of Defendant No.1 cannot be accepted. Defendant No.1 has sought to generalize Frozen Desserts and has sought to contend that all Frozen Desserts contain Vanaspati. In support of this, Defendant No.1 has sought to rely upon one isolated box of one isolated manufacturer. The Judgment is sought to be relied upon to show that in circumstances where a party seeks to contend that a certain state of affairs is general and applicable to large number of players in the field, it should substantiate the same with material to show that such manufacturers are actually in the market and the extent of sales of such manufacturers. Relying on some stray solitary box, it is not open to a party to generalize a certain state of affairs to all others in that field of activity. I am therefore in agreement with the submission on behalf of the Plaintiff that the Judgment and the principles analogous to those set out therein are apt and applicable to the present case.

30. It is also contended on behalf of Defendant No. 1 that it is for the Plaintiff to point out that all manufacturers of Frozen Desserts are not using Vanaspati/hydrogenated vegetable oil as an ingredient in any of the Frozen Desserts. I am not in agreement with the submission since the present Suit is in the nature of an action for generic disparagement /slander of goods for the category of dairy based products referred to as Frozen Desserts. The grievance of the Plaintiff is that by conveying to the consumers by way of the impugned TVCs that all Frozen Desserts contain Vanaspati/hydrogenated vegetable oil Defendant No. 1 is disparaging the entire category of Frozen Desserts which affects the Plaintiff’s products considering the fact that they are the market leaders in that category of products. It is therefore enough for the Plaintiff and its supporting Defendants to show that they do not use Vanaspati in their Frozen Desserts and they cannot be called upon to prove/establish as to who are the manufacturers of Frozen Desserts who are using Vanaspati/hydrogenated vegetable oil.

31. Defendant No.1 has in support of its contention that it has not disparaged the category of Frozen Desserts in any manner also laid emphasis on the fact that the modified advertisement (Second Impugned TVC) uses “Vanaspati TEL” in the voice over which is the term used to define “vegetable oil” in the Hindi version of FSS Regulations. It is submitted that the Oxford Dictionary also shows the translation of Vanaspati TEL as Vegetable Oil. Accordingly, the advertisement being in Hindi, the use of the term is justified and the impugned TVCs reflect the truth.

32. At the cost of repetition I once again clarify that it is not only because of the words ‘Vanaspati’ and ‘Vanaspati tel’ being used in the impugned TVCs, that this Court has come to the conclusion that Defendant No. 1 is guilty of disparaging the entire category of Frozen desserts which includes the products manufactured by the Plaintiff under the said category, but the Court has reached the said conclusion after considering the content, intent, manner and storyline of the impugned TVCs, which seen as a whole convey a false, untruthful, malicious and negative message that frozen desserts contain vanaspati (which is perceived as unhealthy) are not pure, are inferior to ice creams, not meant to be given to children, is not the right choice and should not be purchased.

33. As stated earlier, Defendant No. 1 in all its past communications and even in its Hindi Pamphlets, has referred to Frozen Dessert products as having “vegetable oil” and not ‘vanaspati tel”. The Defendant’s own compilation at page 248 demonstrates this. The word “Vanaspati” or “Vanaspati Tel” has never been used earlier in the context of vegetable oils and is for the first time used in the Impugned TVCs. This demonstrates that to the knowledge of the Defendant No.1, vegetable oil is normally referred to as “vegetable oil” and not as ‘vanaspati’ or ‘vanaspati tel’ and the consumers also do not refer to vegetable oil as Vanaspati or Vanaspati Tel. The authoritative text of the FSS Regulations is admittedly in English. However, Defendant No. 1 in March, 2017, chose to use the Hindi version of the FSS Regulations. As correctly stated by the Plaintiff, if Defendant No. 1 was so insistent on using Hindi terms in the advertisement, Defendant No. 1 would have described frozen dessert as “Shitit Misthan” which would be the Hindi equivalent of Frozen Dessert. The intent of Defendant No. 1 was to disparage and also get an unjustified advantage by associating the ill effects of Vanaspati with all Frozen Desserts generally and to mislead and scare the consumers. The Defendant No. 1 first used the word Vanaspati instead of vegetable oil in the first impugned TVC with a misleading disclaimer, and thereafter when objected to by the Plaintiff changed the word Vanaspati to Vanaspati tel in an attempt to confuse the public and to also create a scare in them qua the Frozen Dessert product by retaining the word ‘Vanaspati’ and continuing with the depiction of vanaspati flowing into the cup of frozen dessert. It is necessary to go back to the Screen Shots G & H of the first impugned TVC and Screen Shots 7 and 8 of the second impugned TVC with the voice over, ” Usse real milk wala Amul ice cream khilayein” “Vanaspati tel wala nahi” and note that Defendant No. 1 in both the TVCs whilst comparing the ingredient ‘milk’ in ice creams with ‘vegetable oil’ in Frozen Desserts, is using the English word “milk” and not “doodh” in Hindi for its ice cream, but is going out of its way to use the Hindi terms Vanaspati/Vanaspati tel instead of the word vegetable oil as an ingredient of Frozen Dessert. This shows to what extent Defendant No. 1 is straining its every nerve to use the term ‘vanaspati’ in the garb of informing /educating the consumers about the difference between the two products, only so that by the word ‘Vanaspati’ itself, the consumer will get scared and stay away from Frozen Desserts. Therefore, as correctly submitted by the Plaintiff, the substitution of the word “Vanaspati” with “Vanaspati tel”, would not in any manner alter the situation. The second TVC is a continuation of the first TVC. The mind of the public having been fixed from the first TVC that Frozen Desserts contain Vanaspati, the addition of the word “tel”, is in any event inconsequential and does not alter the situation. Further, in any event, the addition of the word “tel” is meaningless when the visual representation which is the prominent and the most effective part in both the TVCs, does not show edible vegetable oil which is not in solid form, going into the cup of frozen dessert, and instead shows a thick (semisolid) Vanaspati going into the cup of the Plaintiff. This is a complete giveaway of the fact that the addition of “tel” and the reliance on the translations is not a sustainable defence. The Plaintiff is KPPNair 58 NMSL-690/2017 therefore correct in contending that the impugned TVCs do not reflect the truth as alleged by the Defendant No.1 and the decisions relied upon by the Plaintiff in this regard viz. Lakhanpal National Limited vs. M.R.T.P. Commission and another10 and Gorbatschow Vodka K.G. vs. John Distilleries Limited11 support the contention of the Plaintiff.

34. Defendant No. 1 has next submitted that the Plaintiff has suppressed the following material facts in the plaint:

(i) The true facts, in relation to the ASCI Complaint/s, the fact that the Plaintiff’s complaints were not upheld, and that the Suit TVCs raise the same issues and make out the same distinction between ice creams and Frozen Desserts;

(ii) That the Plaintiff, Defendant Nos. 3 and 4 and other manufacturers of Frozen Desserts (who constitute a class) are indulging in false and misleading advertisements and attempting to project Frozen Desserts as ice cream;

(iii) That the 2011 Regulations (Hindi version) statutorily term ‘vegetable oil’ as Vanaspati Tel. Equally, the Plaintiff has failed to state that even in common parlance, the dictionary meaning of ‘vegetable oil’ is ‘Vanaspati Tel’. This non- disclosure is material, since it is the main thrust of the Plaintiff’s case that the use of the word ‘Vanaspati’ disparages and denigrates Frozen Desserts (as a class).

(iv) That the pre-suit correspondence is not disclosed. A perusal of the same would show that the Plaintiff had no issue with the visual depiction of the TVCs and it found only the use of the word ‘Vanaspati’, objectionable. It is therefore submitted on behalf of the Defendant No.1 that the Plaintiff being guilty of concealment of material facts, ought to be denied relief by the 10 (1989) 3 SCC 251 11 2011 (47) PTC 100 (Bom)  Court. In support of its submission, Defendant No. 1 has relied on the decisions of the Hon’ble Supreme Court in Dalip Singh vs. State of Uttar Pradesh12 and Oswal Fats and Oils Limited vs. Additional Commissioner (Administration) Bareily Division, Bareilly & Ors. 13

35. As regards the allegation of suppression qua the ASCI complaints, it is submitted on behalf of the Plaintiff that in view of what is inter alia stated by them in paragraph 16 of the plaint, it cannot be said that they have suppressed any facts pertaining to the issues before the ASCI. It is further submitted that the impugned TVCs are independent and distinct and give rise to a separate, distinct, independent cause of action; the impugned advertisements were never the subject of any ASCI proceedings and have no connection whatsoever to any of the previous ASCI proceedings; no ASCI Complaint has been filed in respect of the impugned TVCs and there is no ruling in relation to the impugned TVCs by the ASCI; the impugned TVCs therefore have to be considered on their own.

35.1 I have considered the submissions of the parties qua the ASCI complaints and the documents relied upon by them. It is true that complaints and counter complaints were earlier filed by the Plaintiff and Defendant No. 1 before the ASCI. On certain issues ASCI upheld the correctness of the objections raised by the Plaintiff, and on some issues it did not. Where the ASCI has asked the Plaintiff to correct itself, the Plaintiff has done so. In fact ASCI in response to a complaint from the Plaintiff, had earlier also directed Defendant No. 1 not to claim in its advertisements that, ” Ice creams are a complete food easy to digest and full of energy “. The Plaintiff has in paragraph 12 . (2010) 2 SCC 114 (Paras 4 to 7) 13 . (2010) 4 SCC 728 (paras 20 to 26)16 of the Plaint made a mention of the complaints/counter complaints and has also craved leave to refer to and rely upon the proceedings before the ASCI, if necessary, inter alia, “with a view to avoid any allegations of suppression”.

35.2 In any event, as can be seen from the Pamphlets reproduced at pages 46 and 47 of this Order that Defendant No. 1 in the past has never used the words ‘Vanaspati’/’Vanaspati Tel’ in its advertisement but has always referred to the same as vegetable oil even in Hindi. Furthermore, reference to ‘vegetable oil’ was also not in relation to all Frozen Desserts generally as a category but to most of them — ‘jyadatar’. The Plaintiff is therefore correct in its submission that the use of the word ‘Vanaspati’ and the pictorial depiction of Vanaspati falling into the cup of Frozen Desserts has arisen for the first time in the impugned TVC aired in March, 2017; that Defendant No.1 has in its TVCs for the first time sought to convey through the voice over a negative message to the consumers not to purchase Frozen Desserts by referring to Vanaspati along with the visual of Vanaspati falling in the cup of Frozen Dessert; that the Impugned TVCs are independent and distinct and give rise to a separate, distinct and independent cause of action; the impugned advertisements were never the subject of any ASCI proceedings and have no connection whatsoever to any of the previous ASCI proceedings; no ASCI complaint has been filed in respect of the Impugned TVCs and there is no ASCI ruling in relation to the Impugned TVCs; the Impugned TVCs are different and distinct from the earlier advertisements; the words Vanaspati/Vanaspati Tel as well as the visual representations complained of, have been used for the first time by Defendant No.1; the Impugned TVCs therefore have to be considered on their own.

35.3 It is therefore clear that it cannot be said that the Plaintiff has in the plaint suppressed relevant facts qua the ASCI complaints. It will also not be out of place to mention here that the Defendant No. 1 who in its Affidavit-in-Reply KPPNair 61 NMSL-690/2017 is now trying to give utmost importance to ASCI, its proceedings and its rulings, has as late as on 9th September, 2016, through its Chief Operating Officer whilst confirming that they have long back modified the leaflet (trade pamphlet) complained of by the Plaintiff, inter alia, recorded that, “we wish to reiterate that we are not living in a banana republic where Kangaroo Courts conducted by Companies like ASCI Ltd. can give motivated rulings without understanding the subject and overlooking the interest of the consumers.” The Defendant No. 1 is therefore blowing hot and cold as per its convenience.

36. As regards the allegation that the plaint does not disclose that the Plaintiff, Defendant Nos. 3 and 4 and other manufacturers of Frozen Desserts are indulging in false and misleading advertisements and are attempting to project Frozen Desserts as ice cream, the same is vehemently denied by the Plaintiff. However, as stated earlier, even if the above allegations made by Defendant No. 1 are true, the Defendant No. 1 in the garb of educating/informing the public qua the ingredients of Frozen Desserts is not entitled to mislead the consumers by directly or indirectly conveying to them that all Frozen Desserts contain Vanaspati. This is done by Defendant No. 1 by expressly using the term Vanaspati in its first TVC, along with the visual of Vanaspati being poured into the cup containing Frozen Dessert and changing the word Vanaspati to Vanaspati tel in the second TVC but continuing to show the visual of Vanasapati being poured into the cup of Frozen Dessert coupled with the negative message not to purchase Frozen Dessert by saying, “…Vanaspati wala nahi unhe frozen dessert kehtey hain”. Again, as stated earlier, if the Plaintiff or any of the manufacturers of Frozen Desserts are indeed indulging in false representations, the Defendant No. 1 can in addition to portraying the correct facts in its advertisements, also proceed to take action against them for violation of Section 53 of FSSA, 2006. The allegation of suppression therefore cannot be accepted.

37. As regards the allegation that the Plaintiff has not mentioned in the plaint that the 2011 Regulations (Hindi version) statutorily term ‘vegetable oil’ as ‘vegetable tel’ and the dictionary meaning of ‘vegetable oil’ is ‘vanaspati tel’, it is pertinent to mention here that the Plaintiff has not approached this Court only with a grievance that the Defendant No. 1 has used the words ‘Vanaspati/Vanaspati tel’ in its TVCs. The Plaintiff has moved this Court contending that the content, intent, manner and story line of the Impugned TVCs seen as a whole convey a false, untruthful, malicious and negative message and it is wrongful and deceiving to suggest to the consumers that a product which is compliant with the food laws of the country, is a wrong choice, and that only Amul’s product is the right choice. The Plaintiff has correctly contended that the cumulative effect of the visual depiction as well as the spoken words, disparages the category of products known as Frozen Desserts to the effect that they are not pure, not meant to be given to children, contain only Vanaspati (which is perceived as unhealthy), should not be purchased, etc., which specifically disparages and denigrates the entire category of products known as Frozen Desserts – of which the Plaintiff is a market leader, therefore the same directly affects, disparages and denigrates the Frozen Dessert products of the Plaintiff, causing special damage to the Plaintiff. The change in the second TVC from the word ‘vanaspati’ to ‘vanaspati tel’ does not make difference and is a continuation of the first TVC and that both the TVCs are disparaging the product frozen dessert is explained/set out in paragraph nos. 19, 20 and 33 of this order. Again a person watching a television commercial is not expected to sit with a dictionary. The allegation of suppression is therefore untenable.

38. The submission of Defendant No. 1 that the Plaintiff has not disclosed the pre-suit correspondence in the Plaint which would have shown that the Plaintiff had no issue with the visual depiction of the TVCs and it found only the use of the word ‘Vanaspati” objectionable cannot be accepted and I am in agreement with the Plaintiff that the submission of the Defendant No.1 is untenable, unfair and clutches at straws. The email issued by the Plaintiff to the Defendant No.1 prior to the filing of the Suit on 5 March 2017 protested against the First Impugned TVC. Vanaspati was mentioned in the advertisement as well as shown in the visual. The email dated 5 March 2017 cannot be treated as a protest only against the word used in the voice over. The correspondence was not in the nature of a correspondence between lawyers, but between top level management personnel of the respective parties. It was an email request made by the Plaintiff’s Executive Director to Defendant No. 1’s Managing Director. These emails are not in the nature of legal notices. The email cannot by any means be read as an acceptance by the Plaintiff of the depiction of Vanaspati in the visual. Again, the pre-suit emails between the top level management personnel of the Plaintiff and Defendant No.1 cannot be read as any estoppel or waiver by the Plaintiff of any grievance made by them in the present Suit. In fact, the Managing Director of the Defendant No. 1 has, in his correspondence with the Executive Director of the Plaintiff tried to draw support for using the word ‘Vanaspati Tel’ by relying on the Google dictionary. The Managing Director has not made any mention about the Hindi version of the FSSA Regulations or to the Oxford Dictionary wherein the meaning ascribed to the word ‘vegetable oil’ is ‘vanaspati tel’. However, it would be ridiculous to contend or to hold that since in the correspondence the Managing Director of Defendant No. 1 has not made any mention to the Hindi version of FSSA Regulations, 2011 and/or to the Oxford Dictionary, the same cannot now be relied upon by Defendant No. 1 for the first time in its Affidavit-in-Reply. I am therefore in agreement with the submission of the Plaintiff that the Defendant No. 1, by such submissions, is only trying to clutch at straws.

39. I am therefore of the view that the Plaintiff cannot be held guilty of suppression of any facts or documents as alleged by the Defendant No.1. The decisions relied upon by Defendant No. 1 in support of its case that the Plaintiff has suppressed material facts and documents therefore does not lend any assistance to Defendant No.1.

40. Defendant No.1 has submitted that the Suit is essentially a class action and the same is apparent from the Plaintiff’s averments in paragraphs 2, 19, 21, 24, 25, 26, 28 to 30 and 33 of the Plaint; It is the Plaintiff’s consistent case that Defendant No.1 is through the Suit TVCs disparaging the entire class of products viz. the Plaintiff is the market leader (for Frozen Desserts) and as such its reputation is also being injured; It is only since the Suit is a class action that the Plaintiff has joined Defendant Nos. 3 and 4 as parties having common interest – being manufacturers of Frozen Desserts /same class of products. On this basis Defendant No. 1 has contended that the requisite pleadings necessary to sustain class action are missing in the plaint. It is also contended that this being a class action, the plaintiff is required to bear the burden of all the members of the class and since there are members of the class who use Vanaspati and the members of the class are indulging in misleading advertisement, the action must fail.

The Plaintiff has disputed that the present Suit filed by the Plaintiff is a class action and has submitted that this submission on behalf of the Defendant No. 1 is based on a complete misreading and misunderstanding of the complaint filed by the Plaintiff and the nature of action initiated in the present proceedings. I am in agreement with the Plaintiff that the Plaintiff has nowhere contended that this is a class action filed by the Plaintiff in its representative capacity KPPNair 65 NMSL-690/2017 representing the entire class of manufacturers of Frozen Desserts. The case of the Plaintiff is that the impugned TVCs disparage the entire class of Frozen Desserts to which the Plaintiff belongs and as a result of generic disparagement of Frozen Desserts, the Plaintiff being market leader, is also disparaged and the business of the Plaintiff is affected. The action is one based on a generic disparagement of a class and cannot be confused with the class action in a representative capacity. Since the Defendant No. 1 in its TVCs has inter alia sought to convey to the consumers that all Frozen Desserts contain Vanaspati, the Plaintiff joined two more players in the field to the Suit only for the purpose of pointing out that the Plaintiff along with Defendant Nos. 3 and 4 has a 70 per cent share in the market of Frozen Desserts and they do not use Vanaspati and for no other reason.

41. It is also submitted by the Defendant No. 1 that the plaint repeatedly avers that Frozen Desserts contain vegetable oil and as such are healthier than ice creams. In view of this averment, a Suit filed on the ground of alleged disparagement of Frozen Desserts ought to be dismissed. As stated earlier, the Plaintiff has come to this Court with a grievance that the content, intent, manner and story line of the Impugned TVCs seen as a whole, convey a false, untruthful, malicious and a negative message (that for the manufacture of Frozen Desserts, Vanaspati is used and therefore they are not pure, not meant to be given to children and should not be purchased, etc.), which disparages and denigrates the entire category of products known as Frozen Desserts, of which Plaintiff is the market leader. In order to show that the said TVCs convey a false, untruthful, malicious and negative message, the Plaintiff has in Exhibit-M to the plaint set out the nutritional information of the Plaintiff’s KWALITY WALLS product with that of the first Defendant’s Amul Ice cream, to point out that the product of the Plaintiff is not only at par with Defendant No.1’s ice cream products in all aspects of nutrition, but it is in fact  healthier to the extent that it has no trans fat whatsoever and has less content of saturated fat than found in the product of Defendant No.1, and therefore the attempts of Defendant No. 1 to disparage the Frozen Dessert category of products and create a scare in the minds of the consumers is false and malicious. The Plaintiff is justified in making these submissions, and the submission on the part of Defendant No. 1 that in view of the Plaintiff having made the aforestated averment, it cannot be heard to say that its products have been disparaged, cannot be accepted and is rejected.

42. The Defendant No. 1 has next contended that it is settled law that (i) pleadings in a defamation case are liable to be strictly construed; (ii) the entire charge including innuendos are required to be expressly and explicitly pleaded; and (iii) if the plaint does not contain any facet of the defamatory charge, the same is not liable to be considered for the purposes of grant of any reliefs. In support of this submission, Defendant No. 1 has relied on the decisions of the Hon’ble Supreme Court in M. Zakharia Sait vs. T.M. Mohammed and others 14, the decision of the Calcutta High Court in W. Hay and others vs. Aswini Kumar Samanta15 and the decision of this Court in Essel Infraprojects Ltd. vs. Devendra Prakash Mishra and others16 It was extensively argued on behalf of Defendant No. 1 that the present action being in the nature of defamation, it is mandatory for the Plaintiff to plead and prove that on viewing the impugned TVCs the public would relate to the Plaintiff.

43. It has rightly been pointed out by the Plaintiff that the legal requirements of a personal defamation case and that of malicious falsehood and 14 . (1990) 3 SCC 396 (paras 30 to 37) 15 . AIR 1958 Cal 269 16 . 2015 (1) Bom CR 340  slander of goods are distinct and different. An action for slander of goods will lie where the defendant falsely and maliciously publishes words concerning the plaintiff’s goods and where the publication causes the plaintiff to suffer special damages. Paragraphs 274, 275, 277 at pages 137, 138 and 140 respectively of Halsbury’s Laws of England (Fourth Edition) Volume 28 are in this regard relevant and reproduced hereunder:

“Page 137 Para274 “Malicious or Injurious falsehood. At common law an action will lie for written or oral falsehoods which are published maliciously and are calculated in the ordinary course of things to produce, and do produce, actual damage. Such an action is not one of libel or of slander, but an action for damage wilfully and intentionally done without lawful occasion or excuse. At common law special damage is always necessary, but this rule has been modified by statute.

Page138 para 275 “Comparison with Defamation – Actions for malicious falsehood are in a category of their own and are quite distinct from actions for defamation. These actions are not concerned with injury to reputation. In an action for defamation, to establish cause of action, the plaintiff must prove that the words referred to him and bore a meaning defamatory of him. To establish his action in an action for slander of title or slander of goods or other malicious falsehood, the plaintiff must prove that the words were false, that they were published maliciously and unless covered by the statutory exceptions, that they caused special damage.” (emphasis supplied) Page 140 para 277 – “Slanderof goods – An action for slander of goods will lie where the defendant falsely and maliciously publishes words of and concerning the plaintiff’s goods and where the publication causes the plaintiff to suffer special damages.”

44. The entire contention of Defendant No. 1 that the present action is in the nature of defamation and as such it is mandatory for the Plaintiff to plead and prove that on viewing the Impugned TVCs the public would relate the same to  the Plaintiff, is based on a complete misunderstanding of the nature of proceedings filed by the Plaintiff. The Judgments relied upon by Defendant No. 1 are those relating to personal defamation of an individual or entity and not relating to slander of goods or malicious falsehood. The above extract from Halsbury’s Law of England cited hereinabove clearly brings out this distinction. This has in fact been emphasised in another Judgment relied upon by Defendant No.1 that is Reckitt Benckiser (India) Limited vs. Naga Limited & Ors.17 wherein it has been observed as under:

“Clerk & Lindsell on Torts draws a distinction between malicious prosecution and defamation, in that “defamation protects the Plaintiff’s reputation, while malicious falsehood protects the Plaintiff’s interest in his property or trade”. In its chapter on Libel and Slander, American Jurisprudence, Second Edition Volume 50 declares that – “Generally, publication of any false and malicious statement which tends to disparage the quality, condition, or value of the property of another, and which causes him special injury or damage, is actionable… “

45. The decision in the case of De Beers Abrasive Products Ltd. and Others v International General Electric Co. of New York Ltd. and Another 18 differentiates between an action for defamation and slander of goods as follows :

“I shall now briefly notice the cases that have been cited to me on this point in chronological order, noting, however, before I do so, that, in so far as any of them refer to or may have depended upon the absence of a claim in respect of special damage, this, since section 3 of the Defamation Act 1952, is now wholly irrelevant; no such averment is now necessary in a claim for slander of goods or injurious falsehood or whatever label one chooses to place upon this particular tort.

The first case cited to me was Evans v. Harlow (1844) 5 Q.B.

624. That case is, I think, a difficult case, but I think it is a difficult case solely because the pleadings were in some considerable muddle, and it is a little difficult to get out of them and the judgments what the real point at issue was; but, as I understand that case, the real point was that the plaintiff was suing for a libel — that is to say, an ordinary libel upon him personally — and, in order to prove that libel, the only matter to which he could point was statements made about the goods which he was selling. Undoubtedly, one of the statements made about the goods that he was selling was the rather specific one that “… the tallow is wasted instead of being effectually employed as professed” (see p. 627). But what the court decided there, in contradistinction to what the House of Lords decided in a later case which I shall consider later, Linotype Co. Ltd. v. British Empire Type-Setting Machine Co. Ltd. (1899) 81 L.T. 331, was that the allegation that the plaintiff was selling ineffective machines was not a personal libel upon him; and it was on that ground that the court said that there was no case to answer. However, one of the judges, Patteson J., did go on to consider the position under what we would now call slander of goods. He says, at the conclusion of his judgment, 5 Q.B. 624, 633:

“This is not, in effect, a caution against the plaintiff as a tradesman in the habit of selling goods which he knows to be bad; if it were, it would be a libel upon him personally: but it is a caution against the goods, suggesting that the articles which the plaintiff sells do not answer their purpose; which is not actionable unless it were shown that the plaintiff, by reason of the publication, was prevented from selling his goods to a particular person;”

that is to say, unless special damage was shown.

So that, although at first blush that case would make one think, if read hastily, that it was perfectly all right for the defendant to have said that “the tallow was wasted instead of being effectually employed as professed,” once the true explanation of that case is appreciated it in fact really does not assist us in the present case at all. That my explanation of that case is not merely my own appears quite clearly from the judgment of Cozens-Hardy M.R. in Griffiths v. Benn (1911) 27 T.L.R. 346, where he adopts precisely the same sort of approach to it.”

46. It has been contended on behalf of Defendant No. 1 that (i) pleadings in a defamation case are liable to be construed strictly (ii) the entire charge including innuendos are required to be expressly and explicitly pleaded; and (iii) if the plaint does not contain any facet of the defamatory charge, the same is not liable to be considered for the grant of any relief. The Defendant No. 1 has submitted that the details and particulars of the defamatory material and its effect are not set out in the plaint. As pointed out by the Plaintiff, each of the contentions of the Plaintiff have been particularised in the plaint with precision as under :

(i) The impugned TVCs are annexed and marked as Exhibits-H at page 256, Exhibit-L at page 87 of the plaint, Exhibit-G at page 55 and Exhibit-K at page 86 of the plaint. The story board of the first Impugned TVC is annexed and marked as Exhibit-H at page 56 of the plaint and story board of the second TVC is annexed and marked as Exhibit-L at page 87 onwards of the plaint.

(ii) Amongst other paragraphs, paragraphs 19, 20, 21, 22, 24 to 32 point out how the Impugned TVCs are maliciously disparaging the entire category of Frozen Desserts, thereby also disparaging the products of the Plaintiff falling in the category of Frozen desserts.

(iii) In Paragraph 19 of the Plaint, it is averred that the first Impugned TVC treats all Frozen Desserts as containing Vanaspati and also depicts the same by showing Vanaspati going into the cup containing Frozen Desserts.

(iv) In Paragraph 20 of the plaint, it is interalia contended that the first

Impugned TVC makes a false assertion and portrays a false message in a malicious manner viz. “All frozen desserts contain only vanaspati.” “Ice-creams use whole milk whereas all frozen desserts necessarily use only vanaspati.” “Consumers should not eat frozen desserts since they contain vanaspati and are not ice creams and should check label for “ice-cream” word before purchasing; Frozen desserts are unhealthy since they contain vanaspati”.

(v) In Clause (b) of paragraph 21 of the Plaint, it is averred that the visual and oral representation in the first Impugned TVC that Vanaspati is used by all manufacturers in their frozen desserts is false and incorrect.

(vi) In Clause (e) of paragraph 21 of the Plaint, it is averred that the Disclaimer in the first TVC seeks to confuse the term Vanaspati with edible vegetable oil and seeks to give a false impression that Frozen Desserts are not permitted to and/or do not use milk fat.

(vii) In paragraph 22 it is averred that the only change that Defendant No. 1 made to the First Impugned TVC is that it replaced the word “vanaspati” with “vanaspati oil” and commenced publication of the same on various digital media. The said change is completely inconsequential and does not in any manner change the false message conveyed by the First impugned TVC.

(viii) In Paragraph 24 of the Plaint, it is averred that the imputations made in the Impugned TVCs are directed not only at the entire category of products classified by law as “Frozen Desserts ” but also towards the KWALITY WALL’S products of the Plaintiff and, in any event, can safely be treated as directed at the products/ Frozen Desserts of the Plaintiffs having regard to the fact that they control more than 50% of the market share thereof.”

(ix) In Paragraph 25 of the Plaint, it is alleged that Defendant Nos. 1 and 2 are attempting to and continue to mislead the consumers by the claims and visuals as set out above whereby they are led to believe that all Frozen Desserts are made only out of ‘Vanaspati’ whereas in fact that is absolutely incorrect.

(x) In paragraph 28 of the Plaint, it is averred that the impugned TVCs are

patently designed by the Defendant Nos. 1 and 2 to mislead the public into believing that entire class of products being frozen desserts of which the Plaintiff is a market leader with its KWALITY WALL’s products, are of poor quality and unhealthy/unfit for consumption.

(xi) In paragraph 32 of the Plaint, it is averred that the impugned TVCs have the effect of seriously debasing and tarnishing the entire class of product (frozen dessert) of which the Plaintiff is the market leader and owns over 50% market share and is a malicious attempt to erode the equity and goodwill and reputation of such products. Use of the impugned TVCs by Defendant No. 1 is wrongful, illegal, fraudulent, reckless and malicious and results in tarnishing and disparaging the product category as a whole and in particular the KWALITY WALL’S product of the Plaintiff.

(xii) In Paragraph 33 of the Plaint, it is averred that the impugned TVCs make false statements/representation/suggestions as a fact, that all Frozen Desserts contain Vanaspati, are unhealthy, impure and should not be consumed.

(xiii) In Paragraph 37 of the Plaint, it is averred that by reason of the aforesaid wrongful and illegal acts and misconduct of the Defendant Nos. 1 and 2 in telecasting and/or broadcasting and/or publishing the impugned TVCs, the Plaintiff has also suffered special damages. Further there is every likelihood that the Plaintiff has suffered or is likely to suffer loss of sales of its said product.

47. However, the Defendant No.1 has submitted that the Plaintiff has not made a mention of the following in the Plaint, but has mentioned the same in the Rejoinder thereby completely shifting and expanding its case in rejoinder :

(i) that the Defendant No.1 has falsely sought to portray in the first Impugned TVC that all Frozen Desserts products are made using only Vanaspati which is solid in form/nature as opposed to edible vegetable oil which is not solid in form or nature.

 The above contention of Defendant No. 1 cannot be accepted. The Plaintiff as set out hereinabove, has repeatedly averred in the plaint that the Defendant No.1 has falsely sought to portray in the Impugned TVCs that all Frozen Dessert products are made using only Vanaspati. From the definition of hydrogenated vegetable oil/Vanaspati and vegetable oil reproduced in paragraph 13 above, it is clear that Vanaspati is in semi solid form. Therefore elaboration of the same by the Plaintiff in its Rejoinder by stating that the Defendant No. 1 has falsely portrayed that the Frozen Dessert products are using Vanaspati which is solid in form/nature as opposed to edible vegetable oil which is not solid in form or nature, cannot be treated as the Plaintiff having completely shifted or expanded its case in the Rejoinder.

(ii) That the Plaintiff in the Rejoinder has sought to clarify that its statement in the plaint does not mean that the remaining 30 per cent of the manufacturers necessarily use Vanaspati, but only means that the Plaintiff is not aware of the product composition of the balance 30 per cent of the manufacturers who may also not be using Vanaspati at all.

The Plaintiff has only sought to clarify a misreading of the plaint by Defendant No. 1. This contention of the Defendant No. 1 is already dealt with in paragraph nos. 27 to 29 of this Order and need not be repeated.

(iii) That by the Suit TVCs, Defendant No. 1 in its depiction has sought to falsely show and suggest that the Plaintiff’s products contain Vanaspati and do not contain milk at all.

As set out hereinabove, the Plaintiff has in the plaint stated [paragraphs 20, 25

(viii)] that the Defendant No. 1 has falsely sought to portray that the Frozen Desserts contain only Vanaspati. It is thereby obviously implied that Defendant No. 1 has sought to portray that frozen desserts does not contain anything except vanaspati. In view thereof, the statement of the Plaintiff in the rejoinder that Defendant No.1 has falsely sought to suggest that the Plaintiff’s products contain vanaspati and do not contain milk at all cannot be termed as the Plaintiff having completely shifted and/or expanded its case in the Rejoinder.

(iv) That the reference to Vanaspati Tel from the 2011 Regulations (Hindi) is merely an afterthought/cover up.

Since the Managing Director of the Defendant No. 1 had, whilst dealing with the reference to Vanaspati Tel relied on the Google Dictionary and had not made any reference to the 2011 Regulations (Hindi) with regard to the use of the words Vanaspati Tel in the second TVC which Defendant No. 1 has mentioned in its reply, the Plaintiff has in the Rejoinder contended that the same is merely an afterthought/cover up. This cannot be treated as the Defendant shifting or expanding its case in the Rejoinder.

(v) That despite the use of the word Vegetable Oil, the Suit TVCs convey a false message that Frozen Dessert contain Vanaspati and no milk. Defendant No. 1 in its reply laid stress on the words ‘Vegetable Oil/Vanaspati Tel’. In the rejoinder, the Plaintiff has referred to the depiction in the snap shots in the first TVC and the second TVC which shows thick/semi solid Vanaspati going into the cup of Frozen Dessert and have therefore submitted that a false message is conveyed that Frozen Desserts contain Vanaspati and no milk. This action cannot be termed as the Plaintiffs having completely shifted or expanded its case in the Rejoinder.

(vi) That the Disclaimer contents are false, since Frozen Desserts are not defined as ‘vegetable oil based products’.

As regards the Disclaimers, this Court has taken cognizance of the fact that the Disclaimers are in such small prints that none watching the TV can read the Disclaimers with the naked eye and further, in the first TVC though the voice over clearly suggests that all the Frozen Desserts contain Vanaspati, in the Disclaimer which is illegible, it is sought to be stated that Vanaspati means vegetable oil, which statement is incorrect to the knowledge of the Defendant KPPNair 75 NMSL-690/2017 No. 1, in view of the definitions set out in paragraph 8 above, pertaining to hydrogenated/vanaspati and vegetable oil.

I am therefore, of the view that all the required averments are found in the Plaint and it cannot be said that the Plaintiff have tried to shift or expand their case in the Rejoinder as alleged.

48. Relying on the decisions in: (i) Procter & Gamble Home Products Pvt. Ltd. vs. Hindustan Unilever Ltd.19; (ii) Phillips India Pvt. Ltd. vs. Shree Sant

(iii) Reckit Benckiser (India) Ltd. vs. Naga Limited & Ors.21; (iv) Godrej Sara Lee Ltd. vs. Reckitt Benckiser (I) Ltd. 22; (v) Dabur India Ltd. vs. Colortek Meghalaya Pvt. Ltd. 23; (vi) Marico Limited vs. Adani Wilmar Ltd.24; (vii) Phillips India Pvt. Ltd. vs. Shree Sant Kripa Appliances Pvt. Ltd. (supra); (viii) Havells India Ltd. vs. Amritanshu Khaitan and Ors.25; (ix) Procter & Gamble Home Products Pvt. Ltd. vs. Hindustan Unilever Ltd.26, and Dabur India Ltd. vs. Colortek Meghalaya Pvt. Ltd.27,it is submitted on behalf of the Defendant No.1 as follows:

19        .         2017 (69) PTC 528 (Del) (paragraph 33,page 541)

20        .         Delhi High Court judgment dated 30th October, 2014 (paragraphs 7.3
                   to 7.5)

21        .         ILR (2003) 1 Delhi 325 (paras 1, 5 and 7)

22        .         2006 (32) PTC 307 ( Del) (paras 3 t 5, 9, 13, 15, 16, 21 to 27, 30 to 34
                   and 37)

23        .         (2010) 167 DLT 278 (DB) Paras 12 to 224.

24        .         (2013) 199 DLT 663 (paras 3, 12 to 15, 18, 19, 21 to 24)

25        .         2015 (62) PTC 64 (Del) (paras 2, 24 to 28, 33, 35, 48 to 52)

26        .         2017 (69) PTC 528 (Del). (Paras 2 to 4, 7, 30, 36 to 38, 39 to 41, 42 to
                   50 and 52)

27        .         (2010) 167 DLT 278 (DB) (Paras 12 to 24)

(i)       Advertisement and/or commercial speech is a part of the fundamental

right guaranteed under Article 19 (1) (a) of the Constitution of India;

(ii) It is open for an advertiser to puff (even incorrectly) its own products and also to compare only a select or a particular attribute, feature or characteristics of the product with that of its competitor. It is in law not necessary for the advertiser to either depict all the other factors or characteristics of the product, or to show any advantages of the competitors product;

(iii) Whilst considering television advertisements, a frame by frame and/or over elaborate analysis of the advertisement is to be avoided. Advertisements (more particularly, competitive ones) are to be seen from the perspective of an aware and ‘alert consumer of goods;

(iv) If the purpose of the advertisement is to make the consumer aware of his mistaken impression, or correct a wrongful impression then the Plaintiff cannot be heard to complain of such an action.

(v) In cases of comparative advertising, it is permissible to term one’s own products as better than one of its competitor. Equally, the right to protect one’s own reputation, is not to be misunderstood as a right not to be spoken against or a right to be criticized for one’s own shortcomings. In such cases, the Court has to bear in mind that the consumer is vigilant, aware of his rights, and in cases of comparative advertisement is likely to be more analytical in analyzing the comparison thoughtfully and having a piecemeal review of the product attributes;

(vi) For a Plaintiff to establish a case of generic disparagement, it has to be in a position to demonstrate that either the class or the product reflected in the impugned advertisement is that of the Plaintiff or that the Plaintiff’s product is synonymous or associated with the class, that any reference to a product in that class would evoke only the Plaintiff’s product in the mind of the consumers;

and is ement is by and large truthful, the advertiser must be given enough latitude and room to play around in the grey areas of advertisement and the plaintiff ought not to be hypersensitive.

49. It cannot be disputed that advertisements and/or commercial speech is a part of the fundamental right guaranteed under Article 19 (1) (a) of the Constitution of India. However, it cannot be that the fundamental right so guaranteed under the Constitution can be abused by any individual and/or manufacturer of a product by maligning, discrediting and/or belittling the product of another manufacturer by way of negative campaign as is done in the present case. It is also correct that it is open for an advertiser to puff up its own products and also to compare only a select or a particular attribute, feature or characteristic of the product with that of its competitor. However, the instant case is not that of a mere puff up of its product by the Defendant No.1. As set out hereinabove, Defendant No. 1 has knowingly denigrated the entire category of Frozen Desserts thereby also affecting the Plaintiff who is a market leader of the products falling under the category of Frozen Desserts. The present case is also not in the nature of permissible comparative advertisements in the true, proper and fair sense. This is because Defendant No. 1 shows an ingredient going into Frozen Desserts, which ingredient most Frozen Desserts do not contain at all i.e. vanaspati. In particular, the Plaintiff’s Frozen Dessert does not contain any Vanaspati. This cannot be comparative at all. Also, even in a permitted comparative advertisement the same corresponding feature of the product must be compared and not a totally different feature, as is done in the present case i.e. milk is compared with Vanaspati/Vanaspati Tel, instead of comparing the ‘fat’ used in both the products.

50. It cannot be said that in the instant case the Plaintiff is analysing the Impugned TVCs frame by frame. The Impugned TVCs have to be viewed as television commercials and not print advertisements. The plaintiff even before  the commencement of arguments placed the TVCs for viewing by the Court. It is essential to see/view the whole Impugned TVCs and consider what they convey. The impugned TVCs, seen as a whole, convey to the public clearly by content, intent, manner and meaning that Vanaspati in large quantity goes into Frozen Desserts. This is shown by the Vanaspati falling into the cup in the visual in both the impugned TVCs seen together with the voice overs. In fact, it is Defendant No. 1 who wants this Court to ignore the visual impact and consider only the evidently insignificant addition of the word “Tel”. Defendant No.1 seeks to dissect the advertisement, its visual portions and its voice over by trying to explain only the addition of the word Tel whilst not dealing with the visual and its impact at all. In fact, no justification is given by the Defendant No. 1 as to why they originally showed Vanaspati and use the term Vanaspati in the TVC. It is only after the effect and impact of the visual and the voice over is considered that this Court has come to the conclusion that both the TVCs are disparaging in nature. As already held hereinabove, it is clear beyond any doubt that if the purpose of the advertisement is not to make the consumer aware of his mistaken impression, or correct a wrongful impression and therefore the Plaintiff can certainly be heard to complain of such an action. The TVCs of Defendant No. 1 cannot be said to be truthful and therefore giving any latitude and room to play around in the grey areas of advertisement to the Defendant No. 1 does not arise nor can it be said that the Plaintiff ought not to be hypersensitive.

51. The Defendant No. 1 has contended that the consumer is informed, analytical and an alert consumer. This is more so, in case of comparative advertising. It is wholly misconceived to contend that the depiction in the TVCs would make the consumer believe that frozen dessert contains only Vanaspati or Vanaspati Tel. The ingredients are written on the pack and the consumer has eaten both ice cream and frozen dessert and knows what he wants.

The effect and impact of the TVCs have been dealt with hereinabove. On viewing the TVCs and considering them in their entirety, I do not think that even an alert average consumer of dairy based desserts would consider the TVCs in the manner stated by Defendant No. 1. The TVCs surely convey a message which has been dealt with hereinabove and result in disparagement of frozen desserts.

52. The Judgments cited on behalf of the Defendant therefore do not in any manner show any change in the law. The legal principles continue to be the same and that Defendant No. 1 is not entitled to denigrate the products of another is clearly borne out by each of the Judgments cited on behalf of Defendant No.1 on disparagement. The Judgment in the case of Procter & Gamble vs. Hindustan Unilever Ltd. (supra) does not take into consideration some of the principles set out in the earlier Judgments, and in particular does not take into consideration the difference between disparagement/ malicious falsehood/ slander of goods/ and defamation, and therefore with utmost respect I do not intend to follow the same.

53. The Plaintiff has correctly distinguished the Judgments relied upon by the Defendant No. 1 and set out in paragraph 47 above, as summarised hereunder:

(i) Reckitt Benckiser (India) Ltd. vs Naga Limited & 28Ors The present case is not one where Defendant No. 1 is seeking to correct a mistaken impression of the consumer as set out in para 7 of the Judgment. Defendant No. 1 has not produced any material to show that the consumer has a mistaken impression. In fact it is Defendant No. 1 that is seeking to give the 28 .ILR 2003 I Delhi 325  consumer a mistaken and misleading impression that all Frozen Desserts contain Vanaspati, and this is impermissible.

The reliance placed on the orders of ASCI referred to in paragraph 8 of the said Judgment is baseless. In the said case, the ASCI order pertained to the same commercial and not in the context of some other commercial. In any case, as set out hereinabove in the present case the ASCI’s proceedings were expressly mentioned in the plaint. The said Judgment does not in any manner alter the well settled legal position. In fact the Judgments relied upon by the Plaintiff have been followed. Whether there is in fact disparagement or not in a given fact situation is a matter depending on the facts of each case.

( ii) Godrej Sara Lee Ltd vs Reckitt Benkiser (I) Ltd 29 This Judgment, in fact, supports the case of the Plaintiff. Para 5(c) shows that the advertisement in question only projected that the product of the defendant had both the qualities in one product. Paragraph 13 clearly provides: “he can declare that his goods are better than that of his competitor. However, while doing so, he cannot disparage the goods of a competitor. … But while doing so, he is not permitted to project that his competitors goods are bad. ” So also, paragraphs 15, 16 and 17 also contain observations which affirm the general principles in favour of the Plaintiff and set out the principal that intent, manner and storyline of an advertisement have to be borne in mind; the fact that in the electronic media the disparaging message is conveyed to the viewer by repeatedly showing the commercial everyday thereby leaving an indelible impression in their mind etc. is also to be kept in mind by the court. The only reason an injunction was not granted in the said case was that there was in fact no denigration in the facts of that case. This is dependent on the facts of each case.

(iii) Marico Limited vs Adani Wilmar Ltd. 30

The Judgment is of no assistance to the Defendant No. 1 since the message conveyed by the Impugned TVCs in the present Suit is not the truth. In fact, the entire message conveyed by the Impugned TVCs in the present case is false, as demonstrated hereinabove. The emphasis on the portion in paragraph 15 to say that the public expects a certain amount of hyperbole in advertisement and that the tests to be applied is whether a reasonable man would take the claim being made as one made seriously or will have to take it with a pinch of salt, is not at all applicable to the present case. The present case is not one of mere hyperbole but placing incorrect facts before the public. In any case, the hyper bole may be to puff up one’s product but in so doing cannot disparage somebody else’s product. The hyperbole cannot be used in a negative connotation for the product of the rival. An example was placed during arguments on behalf of the Plaintiff that if a sugar free product were to be compared with one containing very little sugar, the sugar free manufacturer cannot show a whole sack full of sugar as an ingredient of the rival product. Such a hyper bole in the negative sense is nothing but disparagement and malicious falsehood.

( iv) Phillips India Pvt. Ltd. vs Shree Sant Kripa Appliances Pvt.Ltd. 31 30 2013 SCC Online Del 1513 31 (Delhi HC Unreported dated 19.01.2015)

The case was about the fact that LED bulbs are better than CFL bulbs, which was an admitted fact and hence there was no finding of disparagement on facts. (para 3.3 and para 4 of the Judgment). The facts of the case were entirely different from the facts of the present case.

There is otherwise no change in the principle enunciated on the law of disparagement. This Judgment is of no assistance to the Defendant No. 1. The observations in paragraph 7.4 of the Judgment that disparagement is difficult to establish at an interlocutory stage unless an entity against whom disparagement is directed is the only rival in the trade is contrary to the findings in all other Judgments relating to generic disparagement and the settled law and is therefore per incuriam and not binding. This finding is also contrary to the findings of the Bombay High Court in the case of Godrej vs Jyothi Laboratories (supra) and is therefore not binding on this Court. This Judgement is of no assistance to Defendant No. 1. In the present case, disparagement of a class is established beyond doubt and there is no “difficulty”.

(v) Havells India Limited & Anr. vs Amritanshu Khaitan & Ors 32 This Judgment was cited for the proposition that the defendant was entitled to pick and choose the feature that it wished to compare and it was not necessary to compare all product features of competing products. In the case in question the same feature in the competing products was compared. This is not so in in the present case. In the present case, the milk content of AMUL is compared with the FAT content of Frozen Dessert which is obviously not the same feature in both the products i.e. it is not fat vs fat comparison – but a comparison made on distinct and unfair parameters (paragraph 24 page 19 of the plaint). Further, in this case it was not the case of the Plaintiff that the chart put up is false. Secondly, the Judgement in para 38 to 42 assist the Plaintiff. The 32 . 2015 (62) PTC 64 (Del) advertisement must not be misleading – in the present case they are misleading. The features compared must not be misleading – in the present case they are misleading. Accordingly, the question of the Plaintiff being ‘hypersensitive’ cannot and does not arise in the present case.

(vi) Procter & Gamble vs Hindustan Unilever Limited 33 This Judgment proceeds on a wrong footing and equates an action for malicious prosecution / slander of goods with an action for defamation. This is contrary to established principles of law, set out above. This Judgment however, also recognises, that comparative advertising is permissible so long as the rival’s product is not derogated, discredited, disgraced. The fact that the intent, manner and storyline of the advertisement are relevant has also been accepted. The “hyperbole” referred to in the Judgment is only in the context of puffing up one’s own product but cannot be applied to the showing down of another’s product. In the present case, there is no element of permissible puffing up of the AMUL product. The Defendant No. 1 is seeking to gain an unfair advantage by showing an unfair comparison of the products by depicting incorrect statements in respect of Frozen Dessert products. In the present case, showing a cup full of “Vanaspati” or “Vanaspati TEL” is not permissible especially having regard to the negative connotation that the term Vanaspati has, coupled with the negative message not to purchase, by saying, ” Vanaspati wala nahi unhe frozen dessert kehtey hain” along with the visual. The ‘search attributes’ and ‘experience qualities’ tests can have no application to the present case since shampoos are utility products, whereas ice-creams / Frozen Desserts are not.

(vii) Dabur India Ltd. vs. Colortek Meghalaya Pvt. Ltd.(supra) This judgment also lends no assistance to the Defendant No. 1. In the said Judgment, the Division Bench of the Delhi High Court has reiterated the 33 2017(69) PTC 528 (Del) guiding principles set out by the Hon’ble Supreme Court in its decision in Colgate Palmolive (India) Ltd. vs. Hindustan Lever Ltd.34 including the principle that an advertisement must not be false, misleading, unfair or deceptive and has further clarified that though an advertisement is commercial speech and is protected by Article 19 (1) (a) of the Constitution; if an advertisement extends beyond the grey areas and becomes a false, misleading, unfair or deceptive advertisement, it would certainly not have the benefit of any protection. Again, in the said judgment the Division Bench of the Delhi High Court has also followed its decision in Pepsi Co. Inc. and others vs. Hindustan Coca Cola Ltd. and another35 wherein it was held that though boasting about one’s product is permissible, disparaging a rival product is not, whilst glorifying its product, an advertiser may not denigrate or disparage a rival product. Paragraph 278 of the Halsbury’s Laws of England (Fourth Edition Reissue Volume 28) is also referred to which provides that “[It] is actionable when the words go beyond a mere puff and constitute untrue statements of fact about a rival’s product”. The finding in the decision of the Delhi High Court in Dabur India Ltd. vs. Wipro Limited, Bangalore36 is also referred to namely that “[It] is one thing to say that the defendant’s product is better than that of the Plaintiff and it is another thing to say that the Plaintiff’s product is inferior to that of the defendant”. In the instant case, as pointed out hereinabove, the Defendant No. 1 is clearly guilty of disparaging the rival product i.e. frozen desserts by making untrue statements of fact with regard to the same and also asking the consumers not to have frozen desserts but instead have the product of Defendant No.1 i.e. Amul ice cream.

34               (1999) 7 SCC 1

35              2003 (27) PTC 305 (Del.) (DB)

36              2006 (32) PTC 677 (Del)

54. I have therefore considered the content, intent of commercial, the manner of the commercial, the storyline of the commercial; and the message sought to be conveyed by the Impugned TVCs in totality and it has become crystal clear that the same are shown with the sole intention of disparaging the entire category of Frozen Desserts. From the storyline and the manner of the impugned advertisements, it can clearly be seen that the message that is sought to be given in the impugned advertisements, is that all Frozen Desserts contain Vanaspati/ hydrogenated vegetable oil and that all Frozen Desserts are necessarily unhealthy / harmful and should not be purchased / consumed. The fact that the advertisement campaign or visual media has an immediate impact on the viewers and purchaser’s mind, I see substance in the submission of the Plaintiff that irreversible damage is caused to the Plaintiff. The impugned advertisements are being telecast repeatedly, thus confusing the consumers and disseminating incorrect information. The Plaintiffs are therefore entitled to interim relief against the Defendant No.1.

55. The learned Senior Advocate appearing for the Plaintiff has rightly also drawn my attention to the decision of the Division Bench of this Court in R.R. Oomerbhoy Pvt. Ltd. vs Court Receiver, High Court &Ors 37 , the relevant portions of which are reproduced hereunder:

” In a matter such as the present, therefore, it would be most inappropriate for this Court to permit the Appellant to use the mark POSTIANO with a modification of the colour scheme, get-up or trade dress. Equally, it would be inappropriate for this Court to suggest such modifications. That the use of the mark by the Appellant was not honest or bona fide is also clear, as noted earlier 37 . 2003 (27) PTC 580 Bom from the advertisement of the Appellant containing a postcard with a postal stamp and a postman in the background. An assumption of good faith which underlies the request for a modification cannot be made in this case, in view of the conduct of the appellant. A similar situation arose before the Court of Appeal in England in Wright, Layman & Umney Ltd. v. Wright, 1949 (46) RPC 149. The Master of the Rolls, Lord Greene speaking for the Court of Appeal, put it succinctly thus :

” It has been said many times that it is no part of the function of this Court to examine imaginar cases of what the defendant could or could not do under this form of injunction. The best guide, if he is an honest man, is his own conscience; and it is certainly not the business of this Court to give him instructions or hints as to how near the wind he can sail. Honest men do not attempt to sail near the wind .”

We, therefore, reject this submission.” (emphasis supplied).

However the disparaging manner in which the impugned TVC’s are made/prepared it is in any event not possible to direct/order/suggest any modification/s to the same.

56. In the circumstances, I proceed to pass the following Order:

The Notice of Motion is allowed and the Defendant Nos.1 and 2 are restrained from inter alia (i) telecasting or broadcasting or otherwise howsoever communicating to the public or publishing two Television Commercials (hereinafter, the Impugned TVCs) or any part thereof or any other advertisement of a similar nature in any language or in any manner causing the Impugned TVCs or any part thereof or any other advertisement of a similar nature to be telecast or broadcast or communicated to the public or published in any manner and (ii) disparaging or denigrating the Plaintiff’s KWALITY  WALL’S products (including Frozen Desserts manufactured and/ or sold under the said brand and sub-brands thereof ) or the Plaintiff’s business in any manner whatsoever.

Accordingly the Notice of Motion is disposed of with costs.

(S. J. K ATHAWALLA, J.)

After the above Judgment is pronounced the Learned Advocate appearing for the Defendant No.1 has requested that the order passed against Defendant No.1 be stayed. This court having come to the conclusion that Defendant No.1 is guilty of disparaging the rival product i.e. Frozen desserts by making false statements of facts with regard to the same and also indulging in a negative campaign and also asking the consumers not to have frozen desserts but instead have the product of Defendant No.1 i.e. Amul ice-cream, which is not permissible in law, the question of granting any stay on the order does not arise. The application for stay is therefore rejected.

(S. J. K ATHAWALLA, J.)

PFA – M/s RK Trading Co Vs State of HP – Rishi Vanaspathi – adulteration case – May 25-2017

Bench: Hon’Ble Mr. Chauhan

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MMO No. 208 of 2016 .

Date of decision: 25th May, 2017.

M/s R. K. Trading Company …..Petitioner.

Versus State of Himachal Pradesh and others ….. Respondents.                                                                

Coram : The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.

This petition under Section 482 of the Code of Criminal Procedure seeks quashing of the order dated 16.11.2015, passed by the learned Chief Judicial Magistrate, Chamba, whereby the petitioner has been ordered to be arraigned as accused No. 3.

2. The case in brief is that respondent No.1-complainant filed a complaint under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (for short the ‘Act’) against respondent No. 2 Shri Prem Kumar for commission of offence under the Act in the Whether the reporters of the local papers may be allowed to see the Judgment?Yes Court of learned Chief Judicial Magistrate, Chamba. It was alleged that on 28.4.2008, Food Inspector inspected the shop of respondent .

No. 2 and found in his possession 16 packets of ‘Rishi Vanaspati’ for sale to the general public for consumption with other food articles in a carton box in his shop. The Food Inspector expressed his intention to take the sample of ‘Rishi Vanaspati’ for analysis and accordingly purchased three packets thereof weighing one litre each against the cash payment of Rs.195/- and obtained the receipt duly signed by the accused and the witnesses. It was alleged that after completion of the formalities, the sample was sealed and send to Public Analyst, Kandaghat, whereas the remaining two packets of the samples were deposited with the Local (Health) Authority in a safe manner. On analysis, the sample was found to be adulterated by the Public Analyst, Kandaghat and on these allegations after obtaining the consent of the C.M.O. Chamba, the complaint was filed against respondent No. 2 in the aforesaid Court.

3. However, during the pendency of the petition respondent No. 2 filed an application under Section 20-A of the Act for impleadment of M/s Karam Chand Mehgna Ram, Damtal on the allegations that the ‘Rishi Vanaspati’ in question had been purchased from the said firm against Bill No. 114, dated 12.04.2008 and after purchase, the same was stored in a safe place and sold to the Food Inspector in a sealed packet, which was kept in the same condition.

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4. The learned Magistrate vide order dated 28.9.2012 impleaded the aforesaid firm as accused No. 2 through its proprietor Ramesh Kumar. Accordingly, notices were sent to Ramesh Kumar, who put in his appearance and charges were framed against him.

5. However, thereafter, Ramesh Kumar, in turn, filed an application under Section 20-A of the Act on 6.8.2013 for impleading the petitioner as an accused on the allegations that he had purchased the articles, of which the sample had been taken, from the petitioner’s firm and that the same was sold to respondent No. 2 in the same condition, in which it had been purchased by the firm. The application moved by accused No. 2 was taken by the Court for consideration on different dates and ultimately it was reported by the counsel appearing for the aforesaid firm reported that on 8.5.2014 the accused No. 2 Ramesh Kumar proprietor of M/s Karam Chand Mehgna Ram had expired. The Court directed the counsel to produce death certificate, which was accordingly filed on 11.9.2014 and the proceedings against accused No. 2 Ramesh Kumar were dropped on the said date.

6. However, the learned Magistrate abruptly on 27.3.2015 again took up the case for proper orders and heard arguments on .

the application, which had been filed by the deceased Ramesh Kumar and vide impugned order dated 16.11.2015 ordered the petitioner to be arraigned as accused No.3.

7. Aggrieved by the said order of impleadment, petitioner has filed the instant petition assailing the said order on various grounds as taken in the petition.

I have heard learned counsel for the parties and have gone through the records of the case.

8.. At the outset it may be observed that it is not in dispute even by the respondents that Ramesh Kumar, proprietor of M/s Karam Chand Mehgna Ram had died during the pendency of the proceedings and such proceedings has already been dropped against him vide order dated 11.9.2014, as having been abated. It is further not in dispute that his death had occurred prior to there being any effective order or evidence having been led in the application filed by him for impleadment of the present petitioner under Section 20-A of the Act.

9. In such circumstances, the moot question that arises for consideration is as to who was prosecuting the application preferred by deceased Ramesh Kumar and what was the evidence led in support thereof.

.

10. Section 20-A of the Act reads as under:

“20-A. Power of Court to implead manufacturer, etc.- Where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food, the Court is satisfied, on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with that offence, then, the Court may, notwithstanding anything contained in [sub-section (3) of section 319 of the Code of Criminal Procedure, 1973 (2 of 1974) or in section 20 proceed against him as though a prosecution had been instituted against him under section 20.”

11. The operative portion of the order reads thus:

“Accused No. 2 has placed on record bill No. 70 dated 11.4.2008 of M/s R.K. Trading Company, Gagret, Distt. Una, H.P. and perusal of the same reveals that at Sl. No. 2 quantity 50 i.e. Vanaspati appears to have been sold by M/s R.K. Trading Company, Gagret, Distt. Una, H.P. to accused No. 2. Hence application under Section 16(1)(a)(i) of PFA Act is allowed and M/s R.K. Trading Company, Gagret, Distt. Una, H.P. through its proprietor Sh. Gautam Nayar is arrayed as accused No. 3 in the present case. Application stands disposed of. It be tagged with main case file. Let notice be issued to accused No. 3 for 19-12-2015.”

12. It would be noticed from a perusal of the Section 20-A that power of the Court to implead the manufacturer can be resorted to only once the Court is satisfied, on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with the offence.

.

13. Now what would be the meaning of the ‘evidence’ has been elucidated by Hon’ble Constitutional Bench of Hon’ble Supreme Court in Hardip Singh & Ors vs. State of Punjab and others (2014) 3 SCC 92, wherein it was held as under:-

“59. Before we answer this issue, let us examine the meaning of the word ‘evidence’. According to Section 3 of the Evidence Act, ‘evidence’ means and includes:

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;

r (2) all documents including electronic records produced for the inspection of the Court, such statements are called documentary evidence;

60. According to Tomlin’s Law Dictionary, Evidence is “the means from which an inference may logically be drawn as to the existence of a fact. It consists of proof by testimony of witnesses, on oath; or by writing or records.”

61. Bentham defines ‘evidence’ as “any matter of fact, the effect, tendency or design of which presented to mind, is to produce in the mind a persuasion concerning the existence of some other matter of fact- a persuasion either affirmative or disaffirmative of its existence. Of the two facts so connected, the latter may be distinguished as the principal fact, and the former as the evidentiary fact.”

62. According to Wigmore on Evidence, evidence represents “any knowable fact or group of facts, not a legal or a logical principle, considered with a view to its being offered before a legal tribunal for the purpose of producing a persuasion, positive or negative, on the part of the tribunal, as to the truth of a proposition, not of law, or of logic, on which the determination of the tribunal is to be asked.”

63. The provision and the above-mentioned definitions clearly suggest that it is an exhaustive definition. Wherever the words “means and include” are used, it is an indication of the fact that the definition ‘is a hard and fast definition’, and no other meaning can be assigned to the expression that is put down in the definition. It indicates an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expression. (Vide: M/s. Mahalakshmi Oil Mills v. State of A.P., AIR 1989 SC 335; Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, .

Labour Court, Chandigarh & Ors., (1990) 3 SCC 682; P. Kasilingam & Ors. v. P.S.G. College of Technology & Ors., AIR 1995 SC 1395; Hamdard (Wakf) Laboratories v. Dy. Labour Commissioner & Ors., AIR 2008 SC 968; and Ponds India Ltd. (merged with H.L. Limited) v. Commissioner of Trade Tax, Lucknow, (2008) 8 SCC 369).

64. In Feroze N. Dotivala v. P.M. Wadhwani & Ors., (2003) 1 SCC 433, dealing with a similar issue, this Court observed as under:

“Generally, ordinary meaning is to be assigned to any word or phrase used or defined in a statute. Therefore, unless there is any vagueness or ambiguity, no occasion will arise to interpret the term in a manner which may add something to the meaning of the word which ordinarily does not so mean by the definition itself, more particularly, where it is a restrictive definition. Unless there are compelling reasons to do so, meaning of a restrictive and exhaustive definition would not be expanded or made extensive to embrace things which are strictly not within the meaning of the r word as defined.”

65. We, therefore proceed to examine the matter further on the premise that the definition of word “evidence” under the Evidence Act is exhaustive.

66. In Kalyan Kumar Gogoi v. Ashutosh Agnihotri & Anr., AIR 2011 SC 760, while dealing with the issue this Court held :

“33. The word “evidence” is used in common parlance in three different senses: (a) as equivalent to relevant, (b) as equivalent to proof, and (c) as equivalent to the material, on the basis of which courts come to a conclusion about the existence or non-

existence of disputed facts. Though, in the definition of the word “evidence” given in Section 3 of the Evidence Act one finds only oral and documentary evidence, this word is also used in phrases such as best evidence, circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary evidence, substantive evidence, testimonial evidence, etc.”

67. In relation to a Civil Case, this court in Ameer Trading Corporation Ltd. v. Shapoorji Data Processing Ltd., AIR 2004 SC 355, held that the examination of a witness would include evidence-in- chief, cross-examination or re-examination. In Omkar Namdeo Jadhao & Ors v. Second Additional Sessions Judge Buldana & Anr., AIR 1997 SC 331; and Ram Swaroop & Ors. v. State of Rajasthan, AIR 2004 SC 2943, this Court held that statements recorded under Section 161 Cr.P.C. during the investigation are not evidence. Such statements can be used at the trial only for contradictions or omissions when the witness is examined in the court. (See also:

Podda Narayana & Ors. v. State of A.P., AIR 1975 SC 1252; Sat Paul v. Delhi Administration, AIR 1976 SC 294; and State (Delhi Administration) v. Laxman Kumar & Ors., AIR 1986 SC 250).

.

68. In Lok Ram v. Nihal Singh & Anr., AIR 2006 SC 1892, it was held that it is evident that a person, even though had initially been named in the FIR as an accused, but not charge-sheeted, can also be added as an accused to face the trial. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge- sheet or the case diary, because such materials contained in the charge-sheet or the case diary do not constitute evidence.

69. The majority view of the Constitution Bench in Ramnarayan Mor & Anr. v. The State of Maharashtra, AIR 1964 SC 949 has been as under:

“9. It was urged in the alternative by counsel for the appellants that even if the expression “evidence” may include documents, such documents would only be those which are duly proved at the enquiry for commitment, because what may be used in a trial, r civil or criminal, to support the judgment of a Court is evidence duly proved according to law. But by the Evidence Act which applies to the trial of all criminal cases, the expression “evidence” is defined in Section 3 as meaning and including all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under enquiry and documents produced for the inspection of the Court. There is no restriction in this definition to documents which are duly proved by evidence.”

(Emphasis added)

70. Similarly, this Court in Sunil Mehta & Anr. v. State of Gujarat & Anr., JT 2013 (3) SC 328, held that “It is trite that evidence within the meaning of the Evidence Act and so also within the meaning of Section 244 of the Cr.P.C. is what is recorded in the manner stipulated under Section 138 in the case of oral evidence. Documentary evidence would similarly be evidence only if the documents are proved in the manner recognised and provided for under the Evidence Act unless of course a statutory provision makes the document admissible as evidence without any formal proof thereof.”

77. With respect to documentary evidence, it is sufficient, as can be seen from a bare perusal of Section 3 of the Evidence Act as well as the decision of the Constitution Bench, that a document is required to be produced and proved according to law to be called evidence. Whether such evidence is relevant, irrelevant, admissible or inadmissible, is a matter of trial. “

14. Thus, it would be clear from the aforesaid exposition of law that ‘evidence’ within the meaning of the Evidence Act, with regard to documentary evidence would be evidence only if the documents is proved in the manner recognized and provided for .

under the Evidence Act and it is only when the document produced according to law, then it can be called ‘evidence’.

15. Admittedly, in this case, Ramesh Kumar, the sole proprietor of M/s Karam Chand Mehgna Ram had already died as reported to the Court on 8.5.2014 and proceedings against him were dropped on 11.9.2014 as having been abated and, therefore, there was none to prosecute the application, much less, lead evidence in support thereof, more particularly, the Bill No. 70, dated 11.4.2008 alleged to have been issued by the petitioner and to further prove as to whether it was the petitioner alone who had issued the bill or sold the goods mentioned therein or that the goods were the ones, which, in fact, had been sold to M/s Karam Chand Mehgna Ram, who, in turn, sold it to the petitioner. Various other questions have been left un-answered on account of death of Ramesh Kumar and therefore in absence of any evidence having been led on the application filed on behalf of M/s Karam Chand Mehgna Ram to implead the petitioner as an accused and further there being no one to prosecute such application, the trial Court erred in arraigning him as accused.

16. In view of the above, I find merit in this petition and the same is allowed and the order passed by the learned Chief Judicial .

Magistrate on 16.11.2015, arraigning the petitioner as accused No. 3 in the proceedings is quashed and set aside. Pending application(s), if any, stands disposed of.

    May 25, 2017                            (Tarlok Singh Chauhan),
    (Sanjeev)                                          Judge