Delhi High Court

Sh. Mayur Jaykumar Vora vs Government Of Nct Of Delhi 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. 3405/2009 & CRL.M.A.11545/2009

       SH. MAYUR JAYKUMAR VORA                          ....PETITIONER

                        Through:   Mr.Sidharth Luthra, Sr. Advocate with Mr.
                                   Madhav     Khurana,      Ms.  Arundhati,
                                   Advocates.

                            Versus

       GOVERNMENT OF NCT OF DELHI           ....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. Shri Mayur Jaykumar Vora vide this petition under Section 482

Cr.P.C. has prayed for quashing of complaint case No.302/2005 titled

Food Inspector Vs. H.S. Anand & Others pending in the court of

Metropolitan Magistrate, New Delhi and the summoning order dated

22.12.2005 passed in that complaint qua him.

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

are that respondent Food Inspector on 22.12.2005 filed criminal

complaint 302/2005 under Section 7 and 16 of Prevention of Food

Adulteration Act 1954 (hereinafter referred to as the "PFA Act") against

nine persons including the petitioner for alleged violation of Section

2(a)(j) and Section 2(ix) (j) of the PFA Act 1954 and also Rule 29 of PFA

Rules 1955.

3. It is alleged in the complaint that on 24.12.2004, respondent

Food Inspector purchased a sample of "Pineapple Crush" allegedly

manufactured by M/s. Mapro Foods Pvt. Ltd, for analysis from one H.S.

Anand of the Bombay Food Court(vendor) where the said food article

was stored for sale. The sample comprised of three original sealed

bottles of "Pineapple Crush" of 700 ml each which were properly

labelled and taken into possession.

4. That on 27.12.2004, one counterpart of the aforesaid sample of

food article was sent to the public analyst, Delhi for analysis. The

public analyst vide his report dated 17.01.2005 opined although there

was no standard prescribed for pineapple crush under Appendix B to

the PFA Act 1954, the sample contained added synthetic colour which

is not permissible under Rule 29 of PFA Rules. This led to filing of the

complaint.

5. It is alleged in the complaint that the sample was allegedly

purchased by the vendor from M/s. Shivam Enterprises who allegedly

purchased it from M/s. Manish Enterprises, Mali Wara, Chandni Chowk

and M/s. Manish Enterprises had purchased the same from the

manufacturing company i.e. M/s. Mapro Foods Pvt. Ltd. Petitioner was

director of M/s. Mapro Foods Pvt. Ltld. At the relevant period.

6. That on 22.12.2005, learned Metropolitan Magistrate took

cognizance of the offence and issued summoning order against the

petitioner and others. The petitioner is aggrieved of the aforesaid

summoning order on the ground that at the relevant time there was no

prescribed standard for fruit crush and the "Pineapple Crush"

manufacture was regulated by Fruit Products Order 1955 (FPO) which

lays down the standards of quality and procedure for manufacture of

the impugned food article. The petitioner M/s. Mapro Foods Pvt. Ltd

was holding a valid licence for manufacture of "Pineapple Crush"

under the FPO 1955 and there is no violation of the terms and

conditions of said licence or the provisions of FPO 1955. Thus, there

was no occasion for summoning the petitioner for offences punishable

under Section 7 and 16 of PFA Act 1954.

7. Learned Shri Sidharth Luthra, Sr. 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 "Pineapple 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.

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

dispute that pineapple 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 "pineapple 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.

9. 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

pineapple 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.

10. 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)    ----------

11. 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. Undisputably 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."

12. 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