Prince Gutka Ltd. vs State And Anr.
1999 Latest Caselaw 176 Del

JUDGMENT

S.N. Kapoor, J.

1. This petition is directed against notice issued to the petitioner for offence under Section 7 read with Sections 16 and Section 2(ix)(k) of the Prevention of Food Adulteration Act, 1954 and Rules 32(e) and (f) of the Prevention of Food Adulteration Rules (hereinafter called the "Act" and the "Rules" respectively for short).

1.2. The petitioner contends that the Trial Court failed to appreciate that since each packet contained 5.5g of the product, the particulars required under Clause (b) or (e) and (f) were not required to be mentioned on the packet. It is also contended that the First Proviso below Clause (f) of Rule 32 of the Act specifically provides that if any package weighs less than 20g particulars required under Clause (b) need not be specified. The learned Trial Court has also failed to appreciate that Sub-clause (iii) to the Fifth Proviso below Rule 32(f) specifically provided that if net contents in any package of food weighs 20g or 20ml or less, then the requirement of declaration as

to month and year of manufacturing it under Clause (f) may not be complied with. The Trial Court has wrongly held that there was violation of Second Proviso appearing below Clause (f) of Rule 32. His submission is that the Second Proviso being an exception to the First Proviso applies alone to the requirements of Clause (b) of Rule 32. It is vehemently submitted that the Second Proviso does not govern all the Clauses (a) to (f). Since it falls immediately after proviso relating to Clause (b) it naturally qualifies Clause (b) only. The distinction between declaration and particulars used in different clauses implies the same thing in the context of the present case, specially in the light of Rule 33.

1.3. Learned Counsel appearing on behalf of the State opposed this prayer and supported the impugned order of giving notice but only to the extent of violation of Clause (f) of Rule 32.

2. for proper appreciation, it may be mentioned that a sample of 'Prince Gukta' was taken by the Food Inspector. Each packet of the sample weighed 275g each and each packet was multi-piece package containing 50 packets of 5.5g each. Relevant part of the report of the Public Analyst dated 3rd April, 1995 (photocopy whereof has been shown by the learned Counsel for the petitioner) reads as under:

"Prince Ka Gutka". Supreme Scented Zarda Wala. Sample in small sealed original pouches. 50 such pouches contained in another polythene packet having all other information but without code No. and date of packing. On outer packet only one statutory warning for tobacco is given but on original pouches two statutory warnings are given.

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The sample is misbranded because there is violation of Rule 32(e) and (f)."

3.1. Having heard the parties' Counsel, it is desirable to reproduce relevant portion of Rule 32 of the Act, which reads as under:

"32. Package of food to carry a label--Every package of food shall carry a label and unless otherwise provided in these rules, there shall be specified on every label:

(a) the name, trade name or description of food contained in the package;

(b) the names of ingredients used in the product in descending order of their composition by weight or volume as the case may be:

(i) ... (ii) ...

(c) ...

(d) ... (i) ... (ii) ...

(e) A distinctive batch number or lot number or code number, either in numericals or alphabets or in combination, the numericals or alphabets or their combination, representing the batch number OF 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 lid of the container, but the words "Batch No," given at the bottom or on the lid, shall appear on the body of the container.

(f) the month and year in which the commodity is manufactured or prepared:

Provided that in case of package weighing 20g or less and liquid products marketed in bottles which are recycled for refilling, particularly under Clause (b) need riot be specified.

Provided also that such declaration shall be given on the label of multi-piece package either on the label of multi-piece package or in a separate slip inside the multi-piece package in such a manner that the same is readable even without opening the package.

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Provided also that no declaration as to the month and year in which the commodity is manufactured or prepared shall be required to be made on:

(i) ...

(ii) ...

(iii) any package of food where the net weight or measure of the commodity is 20g or 20ml or less if sold by weight or measure.

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Explanation-V : 'Multi-piece package' means a package containing two or more individually packaged or labelled piece of the same commodity of identical quantity, intended for retail either in individual pieces or packages as a whole."

3.2. The term "package" under Section 2(x) of the Act means "a box, bottle, casket, tin, barrel, case receptacle, sack, bag, wrapper; or other thing in which an article of food is placed or packed." The Act itself does not define multi-piece package. But in case this definition is read along with the Explanation V of Rule 32 which defines multi-piece package, it would be evident that the package includes

multi-piece package also and a multi piece package may contain such small packages which may not fall within the scope of Clause (iii) of the Fifth Proviso to Rule 32(f) of the Act or the First Proviso to the same Rule. Therefore, multi-piece package, which is not covered by Sub-clause (iii) of the Fifth Proviso to Rule 32 of the Act, is supposed to indicate the month and year in which the commodity is manufactured or prepared as is required by Clause (f) of Rule 32. Such a declaration is required to be given either on the label of multi-piece package or in a separate slip inside the multi-piece package in such a manner that the same is readable even without opening the package. Thus, the second proviso just visualises an eventuality where the package weighs above 20g or more and is not covered and governed by first proviso or by Sub-clause (iii) of the Fifth Proviso to Rule 32(f).

4. In the light of the contentions of both the parties the only thing which is required to be seen is the violation of Clause (f) of Rule 32. Clause (f) of Rule 32 requires that "Every package of food shall carry a label and unless otherwise provided in these rules, there shall be specified on every label", "the month and year in which the commodity is manufactured or prepared." The proviso below Clause (f) relates to Clause (b) exclusively otherwise along with Clause (b), Clause (f) also should have been referred to. Thus, the First Proviso does not exclude the application of Clause (f) in relation to any package of goods including a package which weighs 20g or less. It need not be repeated that Clause (f) requires that the package should indicate the month and year in which the commodity is manufactured or prepared. Second Proviso to Rule 32 indicates the manner in which declarations required under Clause (f) as well as other clauses of Rule 32 should be made on the label of multi-piece package to avoid any misrepresentation or non-declaration of the month and year of manufacture. It prescribes that all declarations shall be given on the multi-piece package either on the label of multi-piece package or in a separate slip inside the multi-piece package in such a manner that the same is readable even without opening the package. Second proviso does not refer to any clause as specifically as First Proviso mentions Clause (b), Third Proviso mentions Clauses (d) and (e) and Fourth Proviso mentions Clause (e). First Proviso talks of particulars under Clause (b) and does not refer to declaration. Rule 33 refers to "particulars of declaration". Consequently, it is not possible to accept the contention that second proviso to Rule 32 does not govern Clause (f) and the multi piece package need not comply requirement of Clause (f) in the manner provided by Second Proviso. Fifth Proviso below Clause (f) clarifies this aspect further by providing that "no declaration as to the month and year in which the commodity is manufactured or prepared shall be required to be made on any package of food where the net weight or measure of the commodity is 20g or 20ml or less if sold by weight or measure." It is, thus, apparent that so far as the pouches of 5.5g are concerned, they need not indicate the month and year in which the commodity was manufactured or prepared.

5. But in so far as the multi-piece package i.e. "a package containing two or more individually packaged or labelled piece of the same commodity of identical quantity, intended for retail either in individual pieces or packages as a whole" in terms of Explanation V of the said Rule is concerned, it must comply with and satisfy the requirements of Clause (f) by indicating the month and year in which the commodity was manufactured or prepared. In the case in hand, multi-piece package of 50 small pouches contained in polythene packet was having all other information

but without code number and date of packing. This multi-piece package is much more than 20g by weight Consequently, the multi-piece package is not covered by Clause (iii) of Fifth Proviso below Clause 32(f).

6. It appears that the learned Counsel for the petitioner very strenuously argued that the second proviso is an explanation to the First Proviso below Clause (f). The learned Metropolitan Magistrate referred to the arguments advanced by the Counsel for the petitioner in following words:

"Sh. Gupta has tried to contend that second proviso is in fact proviso to First Proviso."

The learned Metropolitan Magistrate rightly took the view that "conjoint reading of two provisos goes on to show that second proviso is not proviso to First Proviso and is independent of First Proviso." He also observed that "had it been proviso to First Proviso then instead of "such declarations", Legislature would have used words "such particular" under Clause (b)". Learned Counsel appearing on behalf of the petitioner, Mr. Bipin Behari Lall, also contends that Clause (b) require a number of declarations relating to the names of the ingredients used in the product in descending order as well as composition by way of weight or volume. It may be mentioned that if the contention of Mr. Bipin Behari Lall is accepted, then there would be no difference between "particulars" and "declarations" required by Clause (b) of Rule 32. Secondly, the Second Proviso would be confined to Clause (b) and would not cover any other clause, including Clause (f) and this appears contrary to the legislative intentions as clarified earlier.

7. It is not the case of the accused that month and year in which the commodity was manufactured was given on the label of the multi-piece package or in a separate slip inside the multi-piece package in such a manner that the same was readable even without opening the package. In absence of assertion of such a label, it is not possible to accept that there was no violation of Clause (f) in so far as the sample of three multi-piece packages of 275g. each containing 50 pouches were concerned in view of the report of the Public Analyst.

8. There cannot be any dispute about the proposition of law as submitted by Mr. Bipin Behari Lall that criminal enactment must be strictly considered on the authority of Kishan Chand v. Delhi Administration and Ors., 1979 (1) FAC 425.

9. Since month and year in which the commodity was manufactured or prepared was not mentioned on the multi-piece package in terms of the second proviso it could not be said that this is not a case of mis-branding.

10. However, in so far as violation of Clause (e) is concerned, it appears that Clause (e) had already been held invalid way back in 1972 in the case of Dwarka Nath and Anr. v. The Municipal Corporation of Delhi, 1972 FAC 1. In that case the Supreme Court has observed in paragraph 23 as under:

"23. There is no definition of the express "batch number" or "code number" either in the Act or the Rules. It is also admitted that even assuming that the batch or code number has to be given, there is no further obligation to specify in the label the date of of packing and manufacture of the article of food or the period within which the article of food has to be utilised, used or consumed. In the absence of any obligation to give the particulars mentioned by us above, the

public or the purchaser will not be able to find out even the freshness of the contents of a container. Therefore, it follows that merely giving an artificial batch number or code number will not be of any use to the public or to the purchaser. In view of the circumstances we are of the opinion that the Rule 32(e) is beyond the rule making power even under Section 23(1)(d) of the Act. The appellants could not be convicted for any violation of Clause (e) of Rule 32 as the said provision, as pointed out above, is invalid."

11. Learned Counsel for the respondent very fairly conceded on this point.

12. For the foregoing reasons, so far as offence relating to violation of Section 32(e) of the PFA Rules is concerned, the petition has to be allowed. In so far the violation of Rule 32(f) of the Rules is concerned, the petition has to be rejected. The learned Metropolitan Magistrate is directed to proceed accordingly further in accordance with law.

13. The petition stands disposed of accordingly.