BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 17/08/2009 CORAM THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI Crl.O.P.(MD)No.9783 of 2008 and M.P.(MD)Nos.1 and 2 of 2008 1.P.Robert Immanuel 2.M/s.Robert Immanuel Stall, No.13/51, Kuil Nindrar Street, Alwarthirunagari, Thoothukudi District. ... Petitioners Vs The State Rep.by The Food Inspector, Alwarthirunagari Town Panchayat, At Government Primary Health Cetre, Thenthirupperai, Thoothukudi District. ... Respondent PRAYER Criminal Original Petition filed under Section 482 of Cr.P.C. to call for the entire records in S.T.C.No.1641 of 2007 on the file of the Judicial Magistrate, Srivaikundam, Thoothukudi District and quash the same. !For Petitioners ... Mr.R.Anand ^For Respondent ... Mr.P.Rajendran, G.A.(Crl.side) :ORDER
The petition filed under Section 482 Cr.P.C. to call for the records in
S.T.C.No.1641 of 2007 on the file of the learned Judicial Magistrate,
Srivaikundam, Thoothukudi District and quash the same.
2.The brief facts of the case is as follows:
The respondent has filed a private complaint against the petitioner for
the alleged offence committed under Sections 16(1)(a)(i)(ii) and 16(1)(c) read
with 7(ii)(v), 14(A)2(ix)(k) of Prevention of Food Adulteration Act, 1954 and
Rule 24, 42(zzz)(1)&(12) & 32(e)(f)(i) & 50(1) of Prevention of Food
Adulteration Act, 1955.
3.On 21.01.2006 at about 11.30 a.m. the respondent inspected the shop owned
by the first petitioner and the first petitioner said to have possessed cool
drinks in the name and style of “Santhi Carbonated Beverage (Ginger)”. The
respondent have purchased 9 bottles for a sum of Rs.48/- and thereafter, issued
a receipt and then took sample from the said bottles and subsequently, sent the
same to the Public Analyst, Food Analysis Laboratory, Madurai. According to the
respondent, the Public Analyst had opined that the samples are misbranded as it
is not labelled in accordance with the requirements of Rule 24(zzz)(1) & (12) of
Rule 42 and 32(e)(f) &(i) of the Act and after obtaining sanction, a case has
been registered.
4.The petition is filed for quashing of the charges on the following
grounds:-
(i)that the petitioner was not given opportunity to test the second sample and
the respondent has not handed over the second sample to the petitioner.
(ii)that the respondent has not named the manufacturer of the said Beverage.
(iii)that the details of misbranding is not stated.
5.The respondent has filed a counter affidavit denying all the grounds.
6.Heard the learned counsel for the petitioners and the learned Government
Advocate (Crl.side) for the respondents.
7.The learned counsel for the petitioner would submit that there is a
delay in launching prosecution which is vitiated and the valuable right of the
accused to have a second sample for analysis is also lost and therefore, the
proceedings is liable to be quashed. He relied on 2002(1) LW (Crl.) 201 in
which this Court has held as follows:
“H.N.:- Prevention of Food Adulteration Act, Ss.13(2) and 9-A and Criminal P.C.,
S.482-Delay in launching prosecution by 9 month to obtain written consent from
the authority concerned – Higher authority had directed complainant to launch
prosecution within 7 working days – Valuable right of accused to have the other
portion of the sample analysed by the Control Food Laboratory being lost,
prosecution is liable to be quashed.”
8.The petitioner is alleged to have committed offence under Sections
16(1)(a)(i)(ii) and 16(1)(c) read with 7(ii)(v), 14(A)2(ix)(k) of Prevention of
Food Adulteration Act, 1954 and Rule 24, 42(zzz)(1)&(12) & 32(e)(f)(i) & 50(1)
of Prevention of Food Adulteration Act, 1955. It is the admitted case of the
prosecution that the sample, which was taken, was not adulterated but it was
found to be misbranded. In paragraph 12 of the counter affidavit filed by the
respondent/complainant it is stated that the sample of beverage is not labelled
in accordance with the requirements of Rules 24, 32(e)(f)&(i) and 42(zzz)(i)(12)
of Prevention of Food Adulteration Act, 1955 and the sample said to have been
misbranded regarding violation of the Rules 24, 32(e)(f)(i) 42 (zzz)(i)(12) and
50(1) of Prevention of Food Adulteration Act, 1955.
9.When the sample is found to be adulterated, it will attract the
provisions of Section 13(2) of the Act. Therefore, the above referred judgment
relied on by the petitioner is not applicable to the facts of the present case.
However, the petitioner is charged for offence of misbranding the food items.
Rule 24 contemplates that the extraneous addition of colouring matter to be
mentioned on the label i.e. the label should contain “(i)contains permitted
nature colours or
(ii)contains permitted synthetic food colours or
(iii)contains permitted natural and synthetic food colours
(iv)contains permitted natural and synthetic colours”
Rule 32(e)says the label should exhibit
“a distinctive batch number or lot number or code number, either in numerical or
alphabets or in combination, the numerical or alphabets or their combination,
representing 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:
Provided that in case of canned food, the batch number may be given at the
bottom, or on the laid of the container, but the words “Batch No.” given at the
bottom or on the laid, shall appear on the body of the container'”
10.Rule 32(i) contemplates that the label should contain the month and
year in capital letters up to which the product is best for consumption, in the
following manner, namely:
“BEST BEFORE ……. MONTH AND YEAR
OR
BEST BEFORE ……. MONTHS FROM PACKAGING
OR
BEST BEFORE ……. MONTHS FROM MANUFACTURER
OR
BEST BEFORE UPTO MONTH AND YEAR …
OR
BEST BEFORE WITHIN … MONTHS FROM
THE DATE OF PACKAGING / MANUFACTURE
……….”
11.Rule 42(zzz)(i) relates to mentioning the contents of permitted and
artificial sweetener mentioned in the table given in (Rule 47, and an
advertisement for such food) shall carry the following label, namely-
“(i)This ……(Name of food) contains…..(Name of artificial sweetner)
(ii)Not recommended for children
(iii)(a)Quantity of sugar added ……gm/100 gm
(b)No sugar added in the product
(iv)Not for Phenylketoneurics (If Aspertame is added)”
Section 7(ii)(v) deals with offence and
Section 16(1)(a)(i)(ii) deals with
“Penalties-(1)Subject to the provisions of sub-section (1-A), if any person –
(a)whether by himself or by any other person on his behalf, imports into India
or manufactures for sales, or stores, sells or distributes any article of food –
(i)which is adultered within the meaning of sub-clause (m) of clause (ia)
of section 2 or misbranded within the meaning of clause (ix) of that section or
the sale of which is prohibited under any provision of this Act or any rule made
thereunder or by an order of the Good (Health) Authority;
(ii)other than an article of food referred to in sub-clause(i), in
contravention of any of the provisions of this Act or of any rule made
thereunder;”
12.Section 14(A) deals with non disclosing of manufacturers name. The
said section reads as follows:
“14-A Vendor to disclose the name, etc., of the person from whom the article of
food was purchased – Every vendor of an article of food shall, if so required,
disclose to the Food Inspector the name, address and other particulars of the
person from whom he purchased the article of food.”
13.Admittedly, 200ml beverage bottle of ginger was taken for sample and
the respondent/Food Inspector has not mentioned anything about the label in his
report. The misbranding of label does not require any Public Analyst opinion.
The Food Inspector who had occasion to deal with the impugned beverage bottle
did not mention anything about the misbranding of label or contravention of the
Rules 24, 32 and 42.
14.The said private complainant has only relied on the Public Analyst
report for misbranding of the label. As stated earlier misbranding of label
does not require Public Analyst opinion and the Food Inspector, who had drawn
samples had not mentioned anything about the label of beverage bottles. It is
pertinent to note that the beverage is not adulterated but did not contain those
particulars as stated earlier which are contemplated under Rules 24, 32 and
42.The petitioner is a petty vendor who sold a beverage of local made. The
manufacturer could not be found by the respondent but the vendor has been
proceeded for offences of misbranding as the label of the bottle did not contain
so many particulars. In my considered view, the petitioner is not liable to be
prosecuted as the respondent Food Inspector who had the occasion to see the
beverage bottles did not mention anything about the misbranding and it does not
require the opinion of the Public Analyst.
15.In such event, if the proceedings are allowed to be continued, it is
nothing but abuse of process of law, which has to be interfered with by
exercising the powers under Section 482 Cr.P.C.
16.Hence, the impugned proceedings is quashed and accordingly, the
petition is allowed. Consequently, connected M.Ps. are closed.
nbj
To
1.The Food Inspector,
Alwarthirunagari Town Panchayat,
At Government Primary Health Cetre,
Thenthirupperai,
Thoothukudi District.
2.The Judicial Magistrate,
Srivaikundam,
Thoothukudi District.
3.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.