Thursday 19 November 2015

When accused can be discharged in prevention of food adulteration case?

 The court below opined that if the petitioner was
not satisfied with the report of public analyst, he should
have invoked Section 13 (2) of the PFA Act. This point is
no more res integra. The Bombay High Court in Shivkumar
alias Shiwalamal Narumal Chugwani Proprietor of Kanhaiya
General Stores vs. State of Maharashtra, (Criminal Application
No.3439/2006, decided on 21.6.2010) dealt with this
aspect. In the said case, the complaint was instituted by
Food Inspector after a reasonable period from the date
of taking sample. Pertinently, the complaint was filed
after the shelf life of the product. When this action was
challenged by contending that valuable right under
Section 13 (2) of the PFA Act was lost and prosecution
has become worthless, the complainant urged that the
delay was for administrative reason. This administrative 
delay cannot at all mitigate the valuable right of
accused to have a sample reanalyzed or retested from
the Central Food Laboratory. The Bombay High Court
after considering AIR 1967 SC 970 (Municipal Corporation of
Delhi vs. Ghisa Ram); (1999) 8 SCC 190 (State of Haryana v. Unique
Farmaid (P) Ltd.); 2008 (3) Scale 563 (Medicamen Biotech Ltd. v.
Rubina Bose), opined that the valuable right of accused
persons under Section 13(2) of the PFA Act is violated
because the complaint was filed after shelf life of the
product. The justification of delay on the basis of
administrative reasons and limitation of three years for
filing complaint was not accepted by the High Court. For
this reason also, the impugned order cannot sustain
judicial scrutiny. This judgment of Bombay High Court
was put to test before Supreme Court in State of
Maharashtra vs. Shivkumar @ Shiwalamal N. Chugwani, reported
in 2011 (1) FAC 41 (Special Leave to Appeal (Cri) No. 6332/2010).
The said SLP was dismissed on merits by Supreme Court
on 13th September, 2010. Suffice it to say that after
shelf life of a product is over, remedy under Section
13(2) of the PFA Act is of no use to the accused. Even if
by order dated 11.8.2011, the court below rejected
similar contention of the petitioner, it is of no help to the
respondent. In view of the law laid down in Shivkumar @
Shiwalamal N. Chugwani (supra) and affirmed by Supreme
Court, the said objection pales into insignificance.
13. As per forgoing analysis, impugned order and
complaint proceedings have become vulnerable.
Accordingly, the impugned order dated 11.8.2011 is set
aside. The application of petitioner preferred under Section
245(1), CrPC, (Annexure P/9) is allowed.
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Misc. Criminal Case No.629/2012
Sri Prakash Desai and another
vs.
State of MP

Dated; (21/09/2015 )

This petition filed under Section 482 of the Code of
Criminal Procedure (CrPC), challenges the order dated
11.8.2011 passed by JMFC, Ganj Basoda, whereby the
application of the petitioner filed under Section 245 (1)
CrPC (Annexure P/9) is rejected by the court below.
2. Draped in brevity, the admitted facts are that on
16.5.2001, the complainant/Food Inspector visited the
premises of retailer at Ganj Basoda and obtained the
sample of Kinley Packaged Drinking Water. The sample
was sent to public analyst. The said analyst opined that
the sample is misbranded as per the Prevention of Food
Adulteration Act, 1954 (for short, the “PFA Act”). Based
on the said report, the instant complaint was filed. The
court below took cognizance of the matter and other
party was summoned. In the said case, the analyst's
report dated 25.6.2005 is filed (Annexure P/4). In the
report, it is mentioned that “sample is clear free from
suspended matter”. However, in the opinion, it is
mentioned that sample is “misbranded”.
3. Shri Surendra Singh, learned senior counsel
contended that the public analyst's report is vague. It
does not specify as to how product was 'misbranded'. MCRC No.629/2012 2
Thus, the petitioner filed an application for discharging
him under Section 245(1) CrPC (Annexure P/9).
4. In reply to this application, it is stated by the
complainant that “prosecution was lodged as on the
label of Kinley Packaged Drinking Water the word 'pure'
was mentioned, which is not permissible and hence, the
application filed by the accused is liable to be
dismissed”.
5. Learned senior counsel criticized the order dated
11.8.2011, whereby the aforesaid application of
petitioner was rejected by the court below. It is urged
that neither prosecution nor the court below was aware
as to how product can be treated as “misbranded”. He
submits that the sample was taken on 16.5.2001
whereas complaint was filed on 22.9.2003. It is evident
from the declaration mentioned in statutory Form VI
under Rule 12 (Annexure P/3) that the shelf life of the
water bottle in question was only for six months. The
bottle in question was packed on 12.4.2001. He submits
that the court below opined that if the petitioner was
not satisfied with the report of public analyst, he could
have invoked Section 13(2) of the PFA Act and should
have got his product examined in Central Food
Laboratory. He submits that since shelf life of the
product came to an end before filing of complaint, the
petitioner could not have invoked Section 13(2) of PFA
Act. In nutshell, he challenged the impugned order and
prosecution on following grounds:-
(i) The use of word “pure” does not fall within the
ambit of “misbranding”.
(ii) As per the letter of Directorate General of
Health Service, dated 20.9.2001, the
permission was accorded to use the word
“pure” on the packed bottle till 31.12.2001.
Thus, the petitioner used the same during the MCRC No.629/2012 3
permissible limit.
(iii) Remedy under Section 13(2) of the PFA Act was
not available to the petitioner because of
inordinate delay in filing the complaint.
(iv) The complaint proceedings cannot be permitted
to continue unless it is made clear as to what is
the exact nature of accusation against the
petitioner. On the basis of vague and tangent
allegation, which does not fall within the ambit
of “misbranded”, the complaint proceeding can
not be permitted to continue.
In support of contentions, learned senior counsel
relied on certain High Court judgments.
6. Per Contra, Shri Amit Bansal, learned Deputy
Government Advocate supported the order passed by
the court below. It is urged that the court below earlier
passed the order dated 11.8.2011 and opined that the
petitioner has not made any effort to get the product
tested from Central Food Laboratory and, therefore, he
has waived his right. This order of court below dated
11.8.2011 has attained finality. Thus, the petitioner
cannot be permitted to raise the same point again. In
addition, Shri Bansal relied on rule 41 of the Prevention
of Food Adulteration Rules, 1955 (for short, the
“Rules”), and submitted that as per this rule, the use of
word “pure” is prohibited. Lastly, it is urged that at this
stage no interference is warranted. There are disputed
questions of fact, which can be decided by the court
below after recording evidence.
7. No other point is pressed by the parties.
8. I have heard learned counsel for the parties and
perused the record.
9. Delhi High Court in Pepsico India Holdings Pvt. Ltd. vs.
The Bureau of Indian Standards and others (129 (2006) DLT 522),
considered the question whether use of words “pure”, MCRC No.629/2012 4
“crisp”, “refreshing”, “purified” and “purity guaranteed”
contravene any provision of law ? Hon'ble Vikramajit
Sen, J. (as His Lordship then was) considered the
dictionary meaning of said words and opined that use of
the words “pure”, “crisp”, “refreshing”, “purified” and
“purity guaranteed” on a label pertaining to packaged
drinking water does not offend any provision of law. The
said judgment of Delhi High Court is followed by this
Court in 2012 (4) MPHT 26 (Shri Prakash Desai vs. State of MP).
Interestingly, the said case (M.Cr.C.No.11475/2011) was
filed by the present petitioner and was pertaining to
same product, i.e., Kinley Pure Drinking Water. After
considering the judgment of Delhi High Court, this Court
opined that even if allegations made against the
petitioner in the complaint are taken at their face value
and accepted in their entirety, no offence under the PFA
Act would be made out. Thus, by applying the ratio of
AIR 1992 SC 604 (State of Haryana vs. Bhajanlal), this Court set
aside the complaint proceedings.
 As per the judgment of Pepsico India Holdings Pvt.
Ltd. (supra), followed by this Court in Shri Prakash Desai
(supra), it is clear that use of word “pure”, by no stretch
of imagination, can amount to “misbranding”. Thus, in
my judgment, the petitioner should not be compelled to
undergo the rigmarole of criminal proceedings. Apart
from this, the letter dated 20.9.2001 of Directorate
General of Health Service makes it clear that the
petitioner was even otherwise entitled to use the word
“pure” till 31.12.2001. Admittedly, the sample was
taken before the said date on 16.5.2001. For this reason
also, the complaint has no basis.
10. This is trite law that charge must be specific,
precise and pregnant with necessary details in order to
make the accused aware as to what are specific
allegations against him so that he can meet those MCRC No.629/2012 5
charges and put forth his defence. See (2014) 8 SCC 340
(Chandra Prakash vs. State of Rajasthan).
11. Admittedly, in the present case, the whole case of
prosecution is based on the alleged use of word “pure”
on the bottle. As analyzed above, the said action of the
petitioner does not fall within the ambit and scope of
“misbranded”. Thus, the prosecution is like house of
cards and cannot sustain judicial scrutiny.
12. Shri Bansal, learned Deputy Government Advocate
heavily relied on Rule 41 of the Rules. Rule 41 reads as
under:-
“41. Imitations not to be marked “pure”.-- The word
“pure” or any word or words of the same significance
shall not be included in the label of a package that
contains an imitation of any food.”
 (Emphasis supplied)
 A plain reading of this rule makes it clear that it
is applicable to “imitations”. It is not the case of the
prosecution that sample taken from the petitioner was
an “imitation”. Thus, the said rule is of no assistance to
the respondent.
12. The court below opined that if the petitioner was
not satisfied with the report of public analyst, he should
have invoked Section 13 (2) of the PFA Act. This point is
no more res integra. The Bombay High Court in Shivkumar
alias Shiwalamal Narumal Chugwani Proprietor of Kanhaiya
General Stores vs. State of Maharashtra, (Criminal Application
No.3439/2006, decided on 21.6.2010) dealt with this
aspect. In the said case, the complaint was instituted by
Food Inspector after a reasonable period from the date
of taking sample. Pertinently, the complaint was filed
after the shelf life of the product. When this action was
challenged by contending that valuable right under
Section 13 (2) of the PFA Act was lost and prosecution
has become worthless, the complainant urged that the
delay was for administrative reason. This administrative 
delay cannot at all mitigate the valuable right of
accused to have a sample reanalyzed or retested from
the Central Food Laboratory. The Bombay High Court
after considering AIR 1967 SC 970 (Municipal Corporation of
Delhi vs. Ghisa Ram); (1999) 8 SCC 190 (State of Haryana v. Unique
Farmaid (P) Ltd.); 2008 (3) Scale 563 (Medicamen Biotech Ltd. v.
Rubina Bose), opined that the valuable right of accused
persons under Section 13(2) of the PFA Act is violated
because the complaint was filed after shelf life of the
product. The justification of delay on the basis of
administrative reasons and limitation of three years for
filing complaint was not accepted by the High Court. For
this reason also, the impugned order cannot sustain
judicial scrutiny. This judgment of Bombay High Court
was put to test before Supreme Court in State of
Maharashtra vs. Shivkumar @ Shiwalamal N. Chugwani, reported
in 2011 (1) FAC 41 (Special Leave to Appeal (Cri) No. 6332/2010).
The said SLP was dismissed on merits by Supreme Court
on 13th September, 2010. Suffice it to say that after
shelf life of a product is over, remedy under Section
13(2) of the PFA Act is of no use to the accused. Even if
by order dated 11.8.2011, the court below rejected
similar contention of the petitioner, it is of no help to the
respondent. In view of the law laid down in Shivkumar @
Shiwalamal N. Chugwani (supra) and affirmed by Supreme
Court, the said objection pales into insignificance.
13. As per forgoing analysis, impugned order and
complaint proceedings have become vulnerable.
Accordingly, the impugned order dated 11.8.2011 is set
aside. The application of petitioner preferred under Section
245(1), CrPC, (Annexure P/9) is allowed. Consequently,
complaint Case No.494/2003 (renumbered as 534/2004) is
set aside.
14. Petition is allowed. No cost.
(Sujoy Paul)
(yog) Judge
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