Delhi High Court

M/S Amalgamated Bean Coffee ... vs Delhi Administration on 21 April, 2011

Author: Ajit Bharihoke

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Judgment reserved on: April 04, 2011
                                   Judgment delivered on: April 21, 2011

+     CRL.M.C. 3455/2009 & CRL.M.A. 11735/2009

      M/S. AMALGAMATED BEAN COFFEE TRADING CO.
      LIMITED & ANR.                   ....PETITIONERS

                        Through:   Mr.Shivam Sharma, Advocate with Mr.
                                   Trideep Pais, Advocate.

                            Versus

      DELHI ADMINISTRATION                             ....RESPONDENT

                        Through:   Ms. Fizani Husain, APP.


       CORAM:
       HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.    Whether Reporters of local papers
      may be allowed to see the judgment?

2.    To be referred to the Reporter or not ?
3.    Whether the judgment should be
      reported in Digest ?

AJIT BHARIHOKE, J.

1. M/s Amalgamated Bean Coffee Trading Co Limited and its

employee Sh. Sumit Girdhar vide this petition under Section 482 Cr.P.C.

have prayed for the quashing of the complaint case titled Food

Inspector Vs. Sumit Girdhar & Others pending in the court of

Metropolitan Magistrate and for discharge of the petitioners.

2. Briefly stated, the facts relevant for the disposal of this petition

are that M/s. Amalgamated Bean Coffee Trading Co Limited is engaged

in operating and running Cafes in the name and style of "Cafe Coffee

Day" all over India. Second petitioner Sumit Girdhar is an employee of

petitioner No.1 company and was responsible for management of "Cafe

Coffee Day", N-11, Connaught Place, New Delhi.

3. It is alleged in the complaint that on 15.10.2004, Food Inspector

purchased a sample of "Mango Crush", a food article stored at "Cafe

Coffee Day", N-11, Connaught Place for sale. The sample comprised of

three original bottles of "Mango Crush" which were packed and sealed

separately. On 18.10.2004, one counterpart of the sample, code

32/LHA/10062, was sent to public analyst, Delhi for analysis. The

public analyst vide its report dated 09.11.2004 opined as under:

"Although there are no standards of Mango Crush under Appendix B, it contains added synthetic colour which is not permitted under Rule 29 of PFA Rules 1955."

4. In view of the aforesaid report opining violation of Rule 29 of

PFA Rules 1955, the Food Inspector filed a complaint under Section

16 of PFA Act 1954 against six accused persons including the

petitioners. It is alleged by the petitioners that the complaint filed

by the Food Inspector is misconceived as it does not disclose

violation of the provisions of PFA Act 1954 and the Rules framed

thereunder in particular Rule 29. Thus, the petitioners have pressed

for quashing of the FIR and discharge in the complaint case.

5. Learned Shri Shivam Sharma, Advocate appearing for the

petitioner submitted that from the report of public analyst as also

Appendix B to the PFA Rules, no quality standard for "Mango Crush"

was provided and that being the case there could be no violation of

provision of PFA Act and the rules framed thereunder. Learned counsel

further submitted that there is no allegations of violation of quality

standard in terms of "Fruit Products Order 1955", as such no offence

can be said to have committed by the petitioner. It is argued that

initiation of prosecution of the petitioner is under misconception of law

as there is no violation of Section 2(j) of the PFA Act as the sample that

allegedly used in the food sample as per the public analyst is tartrazine

which is a permissible colour under Rule 28 of PFA Rules. Further,

learned counsel for the petitioner relying upon the judgment of

Supreme Court in Hindustan Lever Ltd. Vs. Food Inspector and

Another, (2004) 13 SCC 83 submitted that since no standards were

prescribed under the PFA Act and PFA Rules for the fruit crush,

prosecution of the petitioner with regard to the impugned food article

applying the standards for other food articles would not be sustainable.

Thus, the learned counsel for the petitioner have strongly urged for

quashing of the complaint as well as the summoning order qua the

petitioner.

6. Learned APP, on the contrary, submits that there can be no

dispute that mango crush squarely falls within the definition of food

article as defined under Section 2(v) of PFA Act 1954. Learned APP has

referred to Rule 28 and 29 of PFA Rules 1955 and submitted that user

of tartrazine sunset yellow in food articles other than detailed in Rule

29 is prohibited and fruit crush does not fall within any of the food

articles enumerated in Rule 29, as such by using the prohibited colour

in the "mango crush" the manufacturing company of which the

petitioner is the director has violated the provisions of Food

Adulteration Act and the rules framed thereunder. Therefore, the

petitioner is rightly being prohibited under Section 7 and 16 of PFA Act.

Thus, learned APP has urged for dismissal of the petition.

7. I have considered the rival contentions and perused the record.

Copy of the report of public analyst is annexed to the petition. Its

correctness is not disputed by the respondent. As per this report, the

public analyst has opined that there is no standards prescribed for

mango crush under Appendix B but the food sample contains added

synthetic colour which is not permitted under Rule 29 of PFA Rules.

The public analyst has not found any other defect or flaw in the

sample. Perusal of this report indicates that the colour used in the

sample is tartrazine.

8. Rule 29 of PFA Rules 1955 reads thus:

      (a)     --------
      (b)     ---------
      (c)     Peas, strawberries and cherries in hermaticlly sealed container, preserved or

processed oapaya, canned tomato juice, fruit syrup, fruit squash, fruit cordial, jellies, jam, marmalade, candied crystallised or glazed fruits;

(d) Non-alcoholic carbonated and non- carbonated ready-to- serve synthetic beverages including synthetic syrups, sherbets, fruit bar, fruit beverages, fruit drinks, synthetic soft drink concentrates;

      (e)    ----------
      (f)    ----------

9. On reading of the aforesaid provision, it is clear that user of

yellow tartrazine is permissible in fruits syrup, fruit squash and fruit

cordial etc. Indisputably fruits squash and fruits syrups are the product

prepared from fruit juice/puree or concentrate clear or cloudy obtained

from any fruit or several fruits by blending it with nutritive sweeteners,

water and with or without salt. Fruit crush is also a product made from

the fruit or fruit juice/puree or concentrate of fruit juice only difference

is that it contains mere pulp. Thus, there can be no distinction

between the fruit squash, fruit syrup or fruit crush so far as

applicability of the PFA Act and the Rules prescribed thereunder is

concerned. My aforesaid view finds support from the definition of

squashes, crush, fruit syrups/fruit sarbats and barley water given in

A.16.21 of Appendix B incorporated in the Appendix B subsequently by

an amendment in the year 2005, which reads thus:

"A.16.21- SQUASHES, CRUSHES, FRUIT SYRUPS/FRUIT SHARBATS AND BARELY WATER means the product prepared from unfermented but fermentable fruit juice/puree or concentrate clear or cloudy, obtained from any suitable fruit or several fruits by blending it with nutritive sweeteners, water and with or without salt, aromatic herbs, peel oil and any other ingredients suitable to the products."

10. Taking into account that fruits squash/fruit syrup as also the fruit

crush are derived from the ripe fruit, the standard applicable to all

these products ought to be similar. Admittedly, at the relevant time,

when the sample was taken, there was no standard prescribed for fruit

crush. Therefore, under the circumstances it has to be treated at par

with fruit products detailed in Rule 29(c) of PFA Rules and the

standards applicable fruit squash/syrup/cordially ought to have been

applied in the instant case. Otherwise also, it falls within the category

of non-alcoholic fruit drink and is covered under Rule 29 of PFA Rules.

Indisputably, as per Rule 29 (c) and (d) of PFA Rules, user of tartrazine,

sunset yellow in manufacture of fruit squash, fruit syrup etc. and non-

alcoholic fruit drink etc. is permissible. Therefore, by no stretch of