IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 7849 of 2001()
1. G.D. SHANBHAG
... Petitioner
Vs
1. THE FOOD INSPECTOR
... Respondent
For Petitioner :SRI.M.T.SURESHKUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.R.UDAYABHANU
Dated :13/12/2006
O R D E R
K.R. UDAYABHANU, J.
CRL.M.C.NO.7849 of 2001
DATED THIS THE 13TH DAY OF DECEMBER 2006
ORDER
The petitioners, who are the accused in C.C.No.248 of 2001
in the Court of the Chief Judicial Magistrate, Kottayam with
respect to the offences under Sections 2(ia)(a)(m), 7(i)and 26
(1)(a)(i) of the Prevention of Food Adulteration Act, have sought
for setting aside the above proceedings.
2. The prosecution case is that the Food Inspector
purchased three packets of glucovita glucose-D from the shop
by name Vaypookara Medicals situated in Kottayam Municipality
and on subjecting the same for examination by the Public
Analyst, it was found that the same did not conform to the
standard prescribed for `Dextrose’ under the P.F.A. Act and
Rules and hence the same is adulterated. According to the
petitioners, the above charge is not sustainable as glucovita
glucose-D and dextrose are entirely different food articles. It is
pointed out that the ingredients of glucovita-glucose-D as
CRMC 7849/01 -2-
mentioned in the complaint are as follows:
“Sugar, Dextrose Monohyderate, Malic acid, Calcium
Phosphate, Fruit juice powder,Sodium Citrate,
Common salt, Emulsifying and Stabilizing agents,
vitamins and minerals”
Glucovita-glucose-D manufactured by the 2nd petitioner Company
is an energy drink powder for which no standard has been
prescribed under the P.F.A. Act and Rules. The same is a
proprietary food as mentioned in Rule 37(a) Explanation (b) of
P.F.A.Rules. The proprietary food is a food which has not been
standardised under the P.F.A.Rules. The standard of dextrose as
per Rule 5 of Appendix-B is A.07.07 which is as follows:
“A.07.07-Dextrose is a white or light cream granular
powder, odourless and having a sweet taste.
When heated with potassium cupritartarate solution it
shall produce a copious Precipitate of cuprous oxide.
It shall conform to the following standards:-
Sulphate ash – Not more than 0/1 per cent on dry basis.
Acidity- 0.5 gm.dissolved in 50 ml.of freshly
boiled and cooled water re requires
for neutralization not more than 0.20
CRMC 7849/01 -3-
ml.of N/10 Sodium hydroxide to
phenolphthalein indicator.
Glucose Not less than 99.0 per cent on dry basis.
Sulphur dioxide content shall not exceed 70p.p.m.”
3. The standard of dextrose shows that it is an article of
food containing not less than 99 per cent of glucose on dry
basis. As glucovita-glucose-D is a proprietary food of which
Dextrose mono-hydrate is only one among the several
ingredients. Hence, it cannot be tested on the standards
prescribed for dextrose. The first petitioner is the Vice
President (Technical) of the manufacturer and the 2nd
petitioner is the company that manufactured the impugned
article of food.
4. Counsel appearing for the Food Inspector has
opposed the application.
5. I find that the proceedings have been initiated against
the vendor, distributor and manufacturer. The article was
purchased from a medical shop. Annexure-B is a certificate of
the Public Analyst as per which the percentage of glucose is
only 18.6 per cent on dry basis in the sample whereas as per
CRMC 7849/01 -4-
Appendix-B, the standard for dextrose, i.e.A.07.07, the
content on glucose and dextrose is not less than 99.0 per cent
on dry basis. Evidently on testing on the basis standard of
dextrose, the article seized and analysed is adulterated.
Counsel for the petitioner has relied on the decision in
Hindustan Lever v. food Inspector [ (2004) 13 SCC 83]
wherein the Apex Court has held that the instant diary
whitener is an article for which no standards has been laid and
hence the standard for skimmed milk powder cannot be
applied to instant dairy whitener as it contained only partly
skimmed milk powder with other ingredients. The decision of
this Court in Crl.M.C.No.5499/2000 with respect to ice cream
mix was also relied on wherein this Court has held that the
standard specified for dried ice cream mix cannot be applied
for Rex ice cream mix. The decision in Viswambharan Pillai
v. Food Inspector[2006(3)KLT 72] was also relied on
wherein this Court has held that the pineapple cool drink sold
by the petitioner therein cannot be tested with the standard
prescribed for “fruit drink” as such. The sample obtained was
1800 ml.of “pineapple cool drink” that was prepared using
CRMC 7849/01 -5-
“Happy pineapple soft drink concentrate”, sugar and water.
Counsel has specifically relied on the decision of the Madras
High Court in Corn Products Company, Bombay v. Food
Inspector, Tirunelveli Municipality, Tirunelveli, 1993
Crl.L.J.1106, wherein the court has held that glucovita
glucose-D is a proprietary food and hence the standard for
dextrose cannot be applied. It has been held that the same has
not been standardised in the Act. The content of the same was
found to be dextrose mono-hydrate – 99.4 gms., calcium
phosphate – 0.6 gms., vitamin D3(cholecalciferol) – 88.11U and
that the same is not glucose simpliciter otherwise called
dextrose. It was held that the above product cannot be said
to be either a primary article of food or an article of food
under a misbranded name .
6. On the other hand, counsel for the respondent has
relied on the decision of this Court in Food Inspector,
Corporation of Calicut v. Kochunni & Another, 1984
K.L.T.871 wherein the court has exhaustively analysed the
matter involved. Therein the sample analysed was glucose-C.D
kept for sale. It was cane sugar that was the major content,
CRMC 7849/01 -6-
i.e.99.8 per cent by weight on dry basis and the test for
glucose was negative. Dextrose is another name for glucose.
This Court rejected the contention of the
manufacturers/accused absolutely. I am unable to support
the reasoning of the Madras High Court in Corn Products
Company , Bombay (op.cit). It has also to be noted that in
the sample tested in the above case contained 99.4 gms. of
dextrose also. In the instant case, the content of
dextrose/glucose is only 18.6 per cent. As explained in
Kochunni’s case (op.cit), the accused should not be
permitted to get over the provisions of the P.F.A.Act and Rules
by describing the article in another name and duping the
customers incorporating the name glucose. It is pertinent to
note that the same is sold through a medical store. Hence, I
find that the contention that glucovita-glucose-D is only a
proprietary food and the standards of dextrose cannot be
applied, cannot be upheld.
In the result the Crl.M.C.is dismissed.
ks. K.R.UDAYABHANU, JUDGE
CRMC 7849/01 -7-
K.R.UDAYABHANU, J
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CRL.M.C.NO.7849 OF 2001-
A
ORDER
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13-12-2006
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