S.S.Gokul Krishnan & Ors. vs State Thr. Food Inspector Govt. Of ...
2009 Latest Caselaw 383 Del

                  "REPORTABLE"
*           HIGH COURT OF DELHI AT NEW DELHI

+                       Crl.M.C.3307/2007

                              Reserved on : October 3, 2008
                          Pronounced on : February 06, 2009


#     S.S. GOKUL KRISHNAN & ORS.             ..PETITIONER

!           Through :         Mr. P.R. Thakur,Adv.

                             Versus

$     STATE THR. FOOD INSPECTOR
      GOVT. OF N.C.T. OF DELHI  ...RESPONDENTS

^           Through :         Mr. Lovkesh Sawhney,APP

%
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not?          Yes

     (3) Whether the judgment should be reported
         in the Digest ?                                 Yes

ARUNA SURESH, J.

1. By way of this petition under Section 482 of Code

of Criminal Procedure (hereinafter referred to as

Cr.P.C.) the petitioner has sought quashing of

complaint case no. 232/2006 titled Food Inspector

(PFA) vs. Ashok Chhabra and Ors. and order of the

trial court dated 06.10.2006 summoning the

petitioners herein and all the proceedings

emanating from the aforesaid complaint.

2. On 24.09.2005 at 4.00 p.m., Food Inspector Arun

Kumar purchased a sample of „processed cheese‟

for analysis from Sh. Ashok Chhabra, son of Sh.

B.R. Chhabra of M/s. New Cake Palace, 36, J Block

Market, Saket (vendor) where the said food article

was stored for sale. Sample consisting of three

sealed tin packs of 400 gms. each bearing identical

declaration, was taken under the supervision and

direction of Sh. Manish Garg, SDM/LHA. Vendor

disclosed that the sample article was supplied

through M/s. NGS Commerce vide bill no. 1677

dated 22.09.2005 and accordingly a notice was also

sent to the supplier by registered post. Notice was

given to the vendor and price of the sample was

also paid to the vendor vide receipt dated 24.9.05.

All documents prepared by the Food Inspector

were signed by the vendor and other witness Sh. S.

Massey, F.A. The sample was divided into three

equal parts i.e. one sealed tin pack in each

counterpart and each packet was separately

packed, fastened and sealed.

3. On 26.09.2005 one counter part of the sample

bearing LHA code No. 72/LHA/13788 was received

by Public Analyst, Delhi. Report of public analyst

dated 10.10.2005 stated:- "the sample is

misbranded because it gives misleading statement

regarding BEST BEFORE. However, processed

cheese conforms to standard." "Best before

declared 9 months from the date of packing but

date of packing not declared on label."

4. In the notice in Form IV prepared on 24.09.2005 it

is stated that the month and year of manufacturing

was declared on the label as August, 2005.

5. On investigation it was revealed that M/s NGS

Commerce is a partnership concern. Sh. Uttam

Kumar Shah and Sh. Soma Shah are its partners,

who are accordingly made accused in the

complaint. The said sample was supplied to NGS

Commerce by M/s. Gujrat Co-operative Milk

Marketing Federation Ltd., Barakhamba Road, New

Delhi, now shifted to Institutional Area, Janak Puri,

New Delhi, who in turn was supplied cheese by

Kaira District Co-operative Milk Producers Union

Ltd., Kheda Satellite Dairy Khatraj, Gujrat. Sh. S.K.

Chopra is the nominee of petitioner No. 4 under the

provisions of the Prevention of Food Adulteration

Act (hereinafter referred to as „PFA Act‟) and Sh.

S.S. Gokul Krishnan is the Deputy Manager

(Quality Assurance) of petitioner no. 2. Both are

accordingly made accused in the complaint.

6. On 26.09.2006 K.S. Wahi, Director, Prevention of

Food Adulteration, Govt. of NCT of Delhi, in

exercise of power vested vide Section 20 PFA Act,

gave consent for instituting prosecution against the

accused.

7. On 6.10.2006 complaint under Section 16 PFA Act

was filed in the court of Sh. Pritam Singh MM for

the violation of Section 2(ix)(g) & (k) PFA Act and

also Rule 32(f) and Rule 37 of PFA Rules

punishable under Section 16(1)(a) read with

Section 7 of PFA Act. The Court took cognizance of

the offence under Section 7/16 PFA Act vide order

dated 6.10.2006 and summoned the accused to

appear on 3.7.2007.

8. It is argued by Mr. P.R. Thakur, counsel for the

petitioners, that the said violation of Rule 32 by the

petitioners, even if admitted for the sake of

arguments, is admittedly a first violation and vide

policy No. F6(228)/85/ENF/P.F.A. decision was

taken by the Department of PFA, Govt. of NCT of

Delhi as far back as in 1985, that in case, the

contents of the sealed packet or container

conformed to the standard laid down under the PFA

Rules, deficiency with regard to Rule 32 which

pertained to the particulars of the labeling on the

container or packets is only a technical offence. In

such a case the party concerned be given a written

warning drawing its attention to Rule 32 and in

case the practice is repeated after a written

warning, the party committing the offence second

time should be prosecuted.

9. It is further submitted that the consent accorded

for launching the prosecution against the

petitioners is wholly mechanical and without

application of mind; even a passing reference to the

existing policy decision who not made.

10. It is further urged by the counsel for the petitioners

that in modern times manufacturing and packaging

are continuous and uninterrupted process in

automatic plants, and there is no noticeable time

gap between the two processes of manufacturing

and packaging and therefore non mentioning of the

date of packaging on the packing of the product

will not amount to violation of PFA Act. Also that

the month and year of manufacturing being already

mentioned, the date of manufacturing is not

required to be mentioned as it is only the month of

manufacturing or packinging from which the best

consumption period is to be reckoned. Under these

circumstances, prima facie no offence under the

PFA Rules has been made out against the

petitioners. Hence the complaint and summoning

order dated 6.10.2006 being bad in law are

required to be quashed.

11. Counsel for the petitioners has relied on the

following judgments:

a. Dwarka Nath and another v. The Municipal Corporation of Delhi - 1972 FAC 1.

b. Municipal Corporation of Delhi v. Modern Flour Mills and General Industries and others - 1984 (II) FAC 144.

c. Inderjeet v. State of Uttar Pradesh and another -1979 SCC (Crl.) 966.

d. Mahashian Di Hatti Pvt. Ltd v. State (Delhi Administration) - 1993 (2) FAC 245. e. K. Ranganatha Reddiar v. the State of Kerela -1973 FAC 270.

12. Mr. Lovkesh Sawhney, learned APP for the State

(respondent), has submitted that by Order No. 5/07

dated 14-09-07 the Directorate of Prevention of

Food Adulteration, Govt. of NCT of Delhi has

ordered that Section 20 of the PFA Act does not

confer any power on the consenting authority to

issue warning to vendors found violating Rule 32 of

PFA Rules for the first time for commission of an

offence the practice which was being followed

earlier in view of the order of the year 1985 and

therefore all cases for violation of Rule 32 of PFA

Rules have to be processed for obtaining consent of

F(H)A to prosecute the offenders u/s 20 of the PFA

Act. It is argued that the policy No.

F6(228)/85/ENF/P.F.A. has been subsequently

withdrawn by the department and is no longer in

existence. Therefore Rule 37 under the facts and

circumstances of the case is otherwise also

attracted as the said policy is not applicable to

cases pertaining to violation of Rule 37.

13. It is further submitted by the learned APP for the

State that the petitioners have not declared the

date of manufacturing nor the date of packaging.

The manufactured products are packed later on

and the declaration contained is "BEST BEFORE 9

MONTHS FROM DATE OF PACKING" and the date

of packing is not given. Therefore, prima facie an

offence is made out against the petitioners. The

petitioners are required to prove in evidence that

the date of packaging and the date of

manufacturing is in close proximity. Therefore it is

a case for trial.

14. Complaint has been filed by the respondent-

department against the petitioners and other

accused persons on the basis of report of public

analyst. Relevant part of report reads as follows:

"The sample is misbranded because it gives misleading statement regarding best before. However Processed Cheese conforms to Standard."

This report is dated 10.10.2005.

15. The sample was lifted on 24.09.2005 at about 4

p.m. It contained the following information :

"Best before 9 months from packing when stored refrigerated at 40C Net wt 400 gm. MRP (incl.of all taxes)Rs.83.00

Month & year of manufacture Aug.05"

16. Thus it is clear that the year and month of

manufacture has been disclosed on the packet but,

the date of manufacturing is not mentioned. The

declaration regarding best before is 9 months from

packaging. The date of packaging is not disclosed

on the packet.

17. Rule 32(f) of the PFA Rules framed under the PFA

Act requires for a manufacturer to declare the date,

month and year in which the commodity is

manufactured, packed or pre-packed on the packet.

This declaration is required to be given if the „best

before‟ date of the product is more than 3 months.

18. Rule 32(i) of the PFA Rules, demonstrates the

manner in which the said information is required to

be displayed on the packet.

19. In the instant case, declaration under rule 32(i) is

„best before‟ 9 months from packing. Since the

month and year of manufacture of the food article

i.e. processed cheese is clearly disclosed on the

packet, it cannot be said that the consumer would

be mislead from the terms „best before 9 months

from packing‟. The consumer, under these

circumstances, would be clear in his mind to

consider the best before from the date of

manufacturing. The processed cheese conformed

the standard on analysis.

20. Prima facie, therefore, it cannot be said that the

sample was misbranded because misleading

statement was given on the label with respect to

best before date. The consumer is provided with

sufficient information as required under the Act

and Rule 32 to know about the genuineness of the

product and also to enable him to make a decision

whether to purchase the said food article or not.

Even if, the words „best before 9 months from

manufacturing or packing‟ are not contained on the

packet; instead the words best within 4 months are

mentioned on the packet, it would not in any way

mislead the consumer. Hence by no stretch of

imagination the product could be termed as

misbranded. There is no adulteration in the

product. As per the information disclosed on the

packet, it cannot be said that there is misbranding,

only because the date of packaging has not been

disclosed; specially when the month and year of

manufacturing is specifically disclosed.

21. Section 95 of the Indian Penal Code can also be

invoked to support the case of the petitioner, as the

law takes no account of trifles and the proceedings

based on such flimsy grounds like the one in the

present case, should be quashed.

22. Dwarka Nath and another v. The Municipal

Corporation of Delhi (supra) is of no relevance

to the facts and circumstances of this case as in the

said case, Rule 32 (b) and (e) and not Rule 32(f)

were under challenge.

23. Similarly, Municipal Corporation of Delhi v.

Modern Flour Mills and General Industries

and others (supra) is of no assistance to the

petitioner as the said case dealt with adulterated

Besan having a mixture of Kesari Dal and the

question before the Bench was if only a negligible

amount of Kesari Dal was found in the sample, was

it correct to say that the sample was a mixture of

Kesari Dal and Besan and the Besan was

adulterated.

24. Inderjeet v. State of Uttar Pradesh and

another (supra) also has no bearing to the facts

and circumstances of the present case as it deals

with the sentencing policy adopted by the

legislature for offences under the PFA Act.

25. In Mahashian Di Hatti Pvt. Ltd v. State (Delhi

Administration) (supra), the question for

consideration before this Court was if deficiency of

3% or so of common salt in Chane Ka Masala than

indicated on the label would detriment the product

to misbranding and it was observed that there was

no misleading statement with regard to any

material particulars made on the label so as to

condemn the sample as misbranded. It was further

observed that the mis-statement must be with

regard to material particulars and then only it

could be covered by the definition given in clause

(g).

26. K. Ranganatha Reddiar v. the State of Kerela

(supra) pertained to a case in which the

declaration given in the cash memo as „quality is

upto the mark‟ was in question.

27. The alleged offence of violation of Rule 32 (f) and

(i) was found to have been committed in the year

2005. At the relevant time department policy No.

F6(228)/85/ENF/P.F.A. was in force and the said

policy was cancelled, modified or withdrawn vide

order No. 5/07 dated 14.09.2007. As per the said

policy, cases of breach of Rule 32, since pertained

to the particulars of the labeling on the container

or packet, were technical offences, the party

affected was to be given a written warning drawing

its attention to Rule 32, which required of date,

month and year of manufacturing to be exhibited

on the labels affixed on tin or the packet. It was

only if the violation was repeated after a written

warning, the party committing the offence second

time had to be prosecuted. As per this policy,

pending cases pertaining to breach of Rule 32

being of technical nature were decided to be

disposed of accordingly.

28. It is not the case of the prosecution that petitioners

were given warning by way of a notice drawing

their attention to Rule 32 which provided for

particulars to be exhibited on the sampled tin or

the packet, and it was a case of second breach of

Rule 32, i.e. in other words the offence was

committed for the second time and therefore, the

petitioners were liable to be prosecuted.

29. The policy being in force at the relevant time

should have been adhered to by the department

before it decided to file a complaint in the court for

offences under Section 7/16 of the PFA Act. The

petitioners are therefore within their rights to seek

protection under the said policy which was in

existence at the relevant time.

30. In view of my discussion as above, it is not a case of

misbranding within the meaning of Rule 32 of the

Act. Also there is non-compliance of the policy No.

F6(228)/85/ENF/P.F.A. by the department. The

complaint deserves to be quashed and is

accordingly quashed. The impugned summoning

order dated 6.10.2006 and other proceedings

conducted therein also stand quashed. Petition

stands allowed accordingly.

Attested copy of the order be sent to the trial court

as well as to the State.

(ARUNA SURESH) JUDGE February 06, 2009 rd