JUDGMENT V.M. Kanade, J.
1. Heard counsels appearing on behalf of the parties.
2. The brief facts, giving rise to the present petitions, are as under.
3. The petitioner No. 1 is a Company registered under the provisions of Indian Companies Act, 1913 and is engaged in the business of manufacture and sale of food products inter alia soft drink concentrate. The petitioner No. 2 was at the relevant time the Manager, Quality Control and Development of petitioner No. 1 company.
4. The petitioner No. 1 Company was the manufacturer of one of its consumer food products by name 'TRINKA' which was a soft drink concentrate, The petitioner No. 1 company had entered into an agreement with the respondent No. 11 Company for bottling the said 'TRINKA' soft drink concentrate and thus the petitioner No. 1 Company used to supply bulk quantity of the said concentrate to the respondent No. 1 and, thereafter, the said concentrate was bottled by the respondent No. 11 Company and the same used to be supplied to various distributors in India and respondent No. 3 was the supplier and distributor for Nagpur Region.
5. It will be relevant at this stage to consider some of the notifications which were issued by the Ministry of Health & Family Welfare, Department of Health, which were published as required under Sub-section (1) of Section 23 of the Prevention of Food Adulteration Act, 1954. By virtue of the said amendment dated 15th April, 1998, in Rules 60 and 61 Sub-clause 7, the words "an Brominated Vegetable Oils" were omitted.
6. Rule 60 provides for the use of certain ingredients and thus from the period from 15-4-1988 to 16-4-1990 there was no restriction at all for the use for Brominated Vegetable Oils as an ingredient of the Soft Drink Concentrate.
7. It appears that the said notification dated 15th April, 1988 was again amended on 29th March, 1990 and by the said amendment "Brominated Vegetable Oils" was again included in Rule 60 and, thereafter, from 29th March, 1990 there was a restriction on the use of Brominated Vegetable Oils in the Soft Drink Concentrate. Thus, it is an admitted position that from 15th April, 1988 to 29th March, 1990, there was no restriction at all for the use of Brominated Vegetable Oils as an ingredient.
8. The respondent No. 1, Food Inspector, filed Criminal Case No. 23 of 1992, Criminal Case No. 18 of 1992 and Criminal Case No. 27 of 1992 against the petitioners herein, which is the subject matter of Criminal Writ Petition No. 44 of 1999, Criminal Writ Petition No. 45 of 1999 and Criminal Writ Petition No. 46 of 1999, respectively.
9. It is the case of the Food Inspector that on 17-12-1990 at about 14.00 hours, the complainant along with officers of Food and Drug Administration, Maharashtra State, Nagpur visited the godown of M/s Pushpak Enterprises and drew samples of 'TRINKA' Soft Drink Concentrate, orange flavour of various batches in an identical label. The complainant accordingly inspected the premises, demanded and purchased 3 poly jar each of 'TRINKA' Soft Drink Concentrate, orange flavour and sealed the samples by following the procedure as laid down under the Act and Rules and the said samples were sent to the Public Analyst, Public Health Laboratory, Nagpur in a sealed packet.
10. The Public Analyst, Public Health Laboratory, Nagpur reported that the sample of 'TRINKA' Soft Drink Concentrate, orange flavour contains Brominated Vegetable Oils and, therefore, there was a contravention of Rules 61 of Prevention of Food Adulteration Rules. It is an admitted position that the sealed jars having identical labels of the same Batch No. A092N, A085N, A087N, A095N, A086N, A093N, A099N, A084N, all the batches were being manufactured in 2 of 90 i.e. in February, 1990 by M/s Corn Products Company (India) Ltd., Bombay. The respondent No. 1, therefore, filed three complaints under the various sections of Prevention of Food Adulteration Act, 1954.
11. The learned counsel appearing on behalf of the petitioners submitted that the petitioners had manufactured the Soft Drink Concentrate, orange flavour in February, 1992 when there was no restriction for the use of Brominated Vegetable Oils. He referred to the notification issued by the Ministry of Health & Family Welfare, Department of Health, dated 15th April, 1988, wherein the words "and Brominated Vegetable Oils" were omitted. He, therefore, submitted that there was no restriction for the use of the said Brominated Vegetable Oils as an ingredient of the Soft Drink Concentrate. He further submitted that it is not disputed that the Soft Drink Concentrate which was purchased by the complainant was admittedly manufactured by the petitioner No. 1 in the month of February, 1990 and, therefore, the petitioners had not committed, any offence under the Act, muchless those alleged against them. He submitted that therefore under the said Act and Rules framed thereunder, the petitioners had not committed any offences and, therefore, the present petition is filed challenging the issuance of process by the Court of Judicial Magistrate, First Class.
12. The learned counsel appearing on behalf of the respondent submitted that though the said soft drink concentrate was manufactured in February, 1990 yet it was seized on 17-12-1990 from the respondent No. 3 herein namely, M/s Pushpak Enterprises, a Partnership Firm having business establishment at North Bazar Road, Dharampeth, Extn., Nagpur. He submitted that by another notification dated 29th March, 1990, the use of Brominated Vegetable Oils was again restricted and, therefore, it was a duty of the manufacturer to ensure that the said batch containing Bromide Vegetable Oils in the soft drink concentrate should have been recalled either by purchasing the same from their dealer or by informing the dealers and instructing them to destroy the said jars containing restricted bromide vegetable oils.
13. Heard counsels appearing on behalf of the parties. I have gone through the petition, the complaint is filed by the Food Inspector. In the Notifications issued by the Ministry of Health & Family Welfare, Department of Health, dated 15th April, 1988 and 29th March, 1990, it is an admitted position that the use of Brominated Vegetable Oils was not restricted during February 1990 when the soft drink concentrate were admittedly manufactured and, therefore, it cannot be said that the petitioners have committed any offences under the provisions of the Prevention of Food Adulteration Act and Rules framed thereunder. The contention of the respondent that the manufacturer was liable on account of the sale of the said articles by the retailer at the time when the sale had become unlawful, cannot be accepted. It is inconceivable to prosecute a person who does what is right and proper and complies with the law should be made responsible for something which takes place long after he has parted with the goods.
14. In my view, the petitioners had acted lawfully and had complied with the provisions of law when they manufactured the said soft drink concentrate and one cannot expect the manufacturer having legally manufactured the goods and, thereafter, having sold them to his wholesalers and retailers to purchase back these goods which are already sold.
15. The Apex Court in several cases has held that where from the averments of the complaint, no commission of any offences is made out under the provisions of the Act and Rules, then the High Court has a power to quash and set aside the criminal complaint. It would be relevant to take into consideration the observations made by the Apex Court in , in the case of Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors. The Apex Court in para 30 has observed as follows :
"It is no comfortable thought for the appellants to be told that they could appear before the court which is at a far off place in Ghazipur in the State of Uttar Pradesh, seek their release on bail and then to either move an application under Section 245(2) of the Code or to face trial when the complaint and the preliminary evidence recorded makes out no case against them. It is certainly one of those cases where there is an abuse of the process of the law and the courts and the High Court should not have shied away in exercising their jurisdiction. Provisions of Articles 226 and 227 of the Constitution and Section 482 of the Code are devised to advance justice and not to frustrate it. In our view, the High Court should not have adopted such a rigid approach which certainly has led to miscarriage of justice in the case. Power of judicial review is discretionary but this was a case where the High Court should have exercised it."
16. Similarly, the Apex Court in has taken into consideration the scope, ambit and range of Section 482 of the Code of Criminal Procedure. The Supreme Court has summarised the various instances where the order of the Magistrate could be quashed. Para 8 reads as follows :
"Another important consideration which is to be kept in mind is as to when the High Court acting under the provisions of Section 482 should exercise the inherent power insofar as quashing of criminal proceedings are concerned. This matter was gone into in greater detail in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi where the scope of sections 202 and 204 of the present Code was considered and while laying down the guidelines and the grounds on which proceedings could be quashed this court observed as follows :
Thus, it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside :
1. where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
2. where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
3. where the discretion exercised by the magistrate in issuing process in capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and
4. where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally Competent Authority and the like.
The cases, mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings."
17. In view of this, the order of issuance of process is patently illegal and, therefore quashed and set aside and Criminal Writ Petition No. 44 of 1999. Criminal Writ Petition No. 45 of 1999 and Criminal Writ Petition No. 46 of 1999 are allowed in terms of prayer clause (a) to the extent of the present petitioners.