Hindusthan Unilever Ltd vs The State Of West Bengal & Anr
2023 Latest Caselaw 6562 Cal

                                  1


              IN THE HIGH COURT AT CALCUTTA
                Criminal Revisional Jurisdiction
Present: -      Hon'ble Mr. Justice Subhendu Samanta.
                  C.R.R. No. - 2665 of 2018
                              +
 IA No. CRAN 1 of 2021 (Old No. CRAN 2739 of 2019)
                    IN THE MATTER OF
                  Hindusthan Unilever ltd.
                           Vs.
                The State of West Bengal & Anr.
                          With
                  C.R.R. No.- 2666 of 2018
                           +
IA No.CRAN-1 of 2019 (Old No. CRAN 2740 of 2019), CRAN 8 of
2023.
                    IN THE MATTER OF
                  Chandrakant Pagnis & Anr.
                            Vs.
                  The State of West Bengal & Anr.




For the Petitioners       : Mr. Sabyasachi Banerjee Adv.,
                            Mr. Anirban Dutta Adv.,
                            Mr. Abhijit Chaudhury Adv.

For the KMC                  : Mr. Gautam Dinha Adv.,
                               Mr. Anindyasundar Chatterjee Adv.


For the State            :     Mr. Imran Ali, Adv.,
                               Ms. Debjani Sahu Adv




Judgment on                   :       27.09.2023
                                  2


Subhendu Samanta, J.

The instant criminal revisions have been preferred u/s

397/401 read with Section 482 of the Code of Criminal

Procedure for setting aside and quashing the judgments and

orders dated 18th of June, 2018 passed by the Learned District

and Sessions Judge, Fast Track 1st Court Bichar Bhaban,

Kolkata in Criminal Appeal No. 33 of 2014 and 34 of 2014

thereby allowing the appeal and remanding back the matter to

the court of Learned Municipal Magistrate for reconsideration

of the matter from the stage u/s 313 of the Code of Criminal

Procedure and further directing the Learned Magistrate to write

a fresh judgment after considering the respective arguments on

behalf of the parties.

The brief fact of the case is that one Food Inspector of

Kolkata Municipal Corporation registered a criminal case

against the present petitioner company and others duly

represented by one Mr. Chandrakanata Pagnis for the offence

u/s 16(1)(a) (i) and (7) The Prevention of Food Adulteration Act

1954 for the alleged offence of misbranding of "Red Label

Natural Care Tea". In the said proceeding the Learned

Municipal Magistrate convicted the present petition along with

others by an order and judgments dated 19th February, 2014

and thereby sentence them to suffer simple imprisonment for 6

months and fine Rs. 5,000/-each in-case of default to suffer

simple imprisonment for one month. Being aggrieved by the

said order the present petitioner preferred an appeal before the

Learned City Sessions Court, Bichar Bhaban Kolkata, vide

criminal no. 33 of 2014. The said appeal was heard by the

Learned Fast track 1st Court, Bichar Bhaban, Kolkata. After

hearing the parties the Learned Fast Track 1st Court allowed

the appeal by setting aside the order of conviction and

sentence. However, the matter was remanded back to the

Learned Court of Senior Municipal Magistrate for fresh

consideration from the stage of examination of the accused

persons u/s 313 Cr.P.C. and directed the Magistrate to re-write

the judgment after hearing the parties.

Being aggrieved by and dissatisfied with the said order

the present revision has been preferred. Learned Advocate for

the petitioner submits that the impugned judgment passed by

the Learned Appellate Court suffers illegality the appellate

court has though considered the judgment passed by the

Learned Magistrate to be suffered by serious discrepancies and

ambiguity, still then he remanded back the matter for fresh

decision. The case of prosecution before the Magistrate was not

at all proved against the present petitioner. The basic evidence

of the prosecution case i.e. the analyst report was not proved

by the analyst himself. There is nothing before the Learned

Municipal Magistrate to hold how the alleged food items 'Tea",

was misbranded. The reason for such misbranding was not at

all before the Learned Magistrate on that score the Learned

Magistrate should have dismissed the prosecution case by

acquitting the present petitioner. Learned Appellate court has

categorically pointed out the discrepancies appeared in the

judgment of Municipal Magistrate but, erroneously remanded

the case back.

Learned Advocate for the appellant submits that the

impugned order passed by the Learned Appellate Court is need

be set aside and the present petitioner is liable to be acquitted

as the case has not been proved before the Learned Municipal

Magistrate.

Learned Advocate appearing on behalf of the Kolkata

Municipal Corporation argued that the proceeding was

sufficiently proceeded before the Learned Municipal Magistrate.

The prosecution has proved the case beyond reasonable doubt.

According to the provisions of Section 13(5) of the Prevention of

Food Adulteration Act 1954, the report of the analyst is final

and a conclusive evidence thus there is no error in the

judgment passed by the Municipal Magistrate. However, it is

true that some relevant question were not put forward to the

accused persons u/s 313 Cr.P.C.. He again argued that

according to the provisions of Section 32 of the Said Act,

packaging, Labelling of Food should be made according to the

direction of the Provision 32 of the said Act. The petitioner

company has not complied with the provisions u/s 32 of the

said act thus there is an utter violation of the petitioner and

the prosecution against the petitioner has been correctly

proved.

Heard the Learned Advocates.

Perused the materials on record, apart from procedural

irregularities let me consider what is the allegation levelled by

the Food Inspector against the present petitioner in the case

before the Learned Municipal Magistrate. It has been alleged in

the case that product i.e. "Red Label Natural Care Tea" is

misbranded. Report of public analyst stated it is violative to the

Rule 38 and 39 of PFA Rule. The Rule 38 and 39 of the

Prevention of Food Adulteration Rules 1955 mentioned about

the misbranding of a food items as follows----

38. Labels not to contain reference to Act or rules contradictory to required particulars.--

The label shall not contain any reference to the Act or any of these rules or any comment on, or reference to, or explanation of any particulars or declaration required by the Act or any of these rules to be included in the label which directly or by implication, contradicts, qualifies or modifies such particulars or declaration.

39. Labels not to use words implying recommendations by medical profession.---

There shall not appear in the label of any package containing food for sale the words "recommended by the medical profession" or any words which imply or suggest that the food is recommended, prescribed or approved by medical practitioners [or approved for medical purpose].

Exhibit 4 is the label over the said tea. Exhibit 12 is the

report of public analyst who is of opinion that the Brooke Bond

Red Label Tea contravenes PFA Rule 38 and 39. Hence it is

misbranded. Admittedly the said analyst was never produced

by the prosecution to support/prove his opinion. The reason

for misbranding has not been mentioned by the prosecution in

anywhere in their case. On plaint reading of Rule 38 and 39 it

appears to me that there are several reasons of misbranding in

the provision itself. The prosecution has failed to bring out the

particular reason why the alleged tea was marked as

misbranded.

The Learned Appellate Court has opined that without

the evidence of public analyst the case of the prosecution

cannot be said to be proved. Section 13 (5) of the said act

makes it clear that the opinion and the certificate signed by the

Director of Central Laboratory Food, shall be final and

conclusive evidence; but such opportunity is not available with

the public analyst. The report of public analyst should be

proved beyond reasonable doubt; more so, the reason for

misbranding has to be elaborated/explained by the public

analyst on the dock and the defence should have given

sufficient opportunities to cross-examine the public analyst.

The entire judgment passed by the Learned Appellate

court has mentioned about the contradictions in the

prosecution case. He also perused the Rule 38 and 39 PF Rules

instead of which the appellate Court has remanded the matter

back. Learned Appellate Court has assigned no reason for

remanding back the case. On such score the impugned

judgment appears to me in proper.

When a judgment was challenged before an Appellate

Court and when the Appellate Court is perused the

discrepancies in the case of prosecution. Then it is the only

option to the Appellate Court to dismiss the entire prosecution

case by allowing the appeal itself. The deformity as well as the

discrepancies appeared in the prosecution case cannot be

cured by only remanding back the case from the stage of

examination of accused u/s 313 Cr.P.C. Moreover, the

appellate Court must not have allowed the prosecution to cure

the defect by which the accused would be prejudiced. The

Appellate Court has only duty on finding the discrepancies of

the case of prosecution to acquit the accused.

Considering the entire materials and considering the

impugned judgment passed by the Learned Appellate court it

appears to me that the direction of Appellate Court in

impugned judgment regarding remanding back the case before

the Magistrate is erroneous.

The Judgment of Appellate Court in respect of setting

aside the judgment and sentence by Senior Municipal

Magistrate in connection with criminal case No. 2 (D) of 2011 is

affirmed.

The petitioners appear to be not found guilty to the

offence as alleged against them and they are hereby acquitted

from the case.

Petitioners are on bail; they be set at liberty at once.

Thus, the criminal revision is hereby allowed on the

above observations.

Connected CRAN applications if pending are also

disposed of.

Any order of stay passed by this court during the

continuation of instant criminal revision is also vacated.

Parties to act upon the server copy and urgent certified

copy of the judgment be received from the concerned Dept. on

usual terms and conditions.

(Subhendu Samanta, J.)