M/S Pepsico India Holdings Ltd vs State & Anr.
2012 Latest Caselaw 2152 Del

*             HIGH COURT OF DELHI AT NEW DELHI

+                  CRL. M.C. No.2675/2004
                   CRL.M.C. No.2679/2004


                                    Date of Decision : 29.3.2012

CRL.M.C. 2675/2004

M/S PEPSI FOOD P.LTD.                  ..... Petitioner
                 Through Mr. R.K.Virmani, Sr.Adv. with
                 Mr.Rajesh Batra, Adv.

                     versus

STATE & ANR.                        ..... Respondents
                           Through Ms.Jasbir Kaur, APP

CRL.M.C. 2679/2004

M/S PEPSICO INDIA HOLDINGS LTD        ..... Petitioner
                Through Mr.R.K.Virmani, Sr.Adv. with
                Mr.Rajesh Batra, Adv.

                     versus

STATE & ANR.                              ..... Respondents
                           Through Ms.Jasbir Kaur, APP

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (Oral)

1. These are two petitions bearing No.2675/04 and 2679/04

filed by Ms/ Pepsi Food Pvt. Ltd. and M/s Pepsico India

Holdings Ltd., respectively under Section 482 Cr.P.C. for

quashing of a complaint under Section 16 of Prevention

of Food Adulteration Act, 1954, respectively.

2. Both these cases are taken up together as the facts and

the points of law raised in these two petitions for

quashing of the complaints and the consequent

proceedings are identical.

3. In Crl.M.C. 2679/04, a sample of „Lehar Pepsi Mango

Fruit Drink‟ was taken on 12.7.2002 from M/s Pearl

Drinks Ltd., B-42, Lawrence Road, Industrial Area, Delhi-

35. The said sample was analyzed by the Public Analyst

and it was found to be not conforming to the standards

because being fortified with Vitamin „C‟ the quantity of

Ascorbic Acid was less than the prescribed minimum limit

of 40 mgm/100 gms and thus in violation of Rule 40(3)

of the Prevention of Food Adulteration Rules, 1955. In

addition to this, the sample was also misbranded for

alleged violation of Rule 32(e) and 32A of the Rules.

4. The complaint against both the petitioners came to be

filed after obtaining the requisite sanction from the

Secretary Medical on 26.2.2004. The accused persons

had put in their appearance in response to the summons

having been issued to them and they exercised their

right under Section 13(2) of the Prevention of Food

Adulteration Act, 1954, accordingly, the second counter

part of the respective sample was sent to the Central

Food Laboratory (hereinafter referred to as „CFL‟), Pune

and a report was received. By virtue of Section 13(3) of

PFA Act as prayed, the report of the CFL supersedes the

report of the public analyst. According to the report of

CFL, the said sample was found conforming to the

standards, however, so far as the labeling of the sample

was concerned, it opined that the sample contravenes

Rule 32(e) of the PFA Rules inasmuch as, the batch

number was not mentioned on the label.

5. The petitioners filed the present petitions before this

Court for quashing of the complaint on number of

grounds. Mr.Virmani, learned senior counsel has

contended that the violation of Rule 32(e) of PFA Rules in

the instant case, could not have lead to the prosecution

of the petitioners on account of the fact that the Govt. of

NCT of Delhi had formulated a policy bearing no.F-

6(228)/85/ENF/PFA dated 29.9.1985 which was modified

vide order No. 5/07 dated 14.9.2007. It has been

contended that in the said policy it was envisaged that in

violation of Rule 32(e) of the Rules with regard to the

labeling on the container or a package, is only a technical

offence and in such case, the party affected must be

given, in the first instance a warning in writing drawing

its attention to Rule 32 with regard to the mentioning of

date, month and year of manufacturing on the label

affixed and only in the event of the said offence being

repeated after a written warning, the party should be

prosecuted.

6. The learned senior counsel has contended that according

to the report of the CFL, the Article of food in question

was found to be conforming to the standard prescribed

under the relevant Rules and the only violation which has

been opined by the report is with regard to the non

mentioning of the batch number on the label as required

under Rule 32(e) of the Rules and, therefore, the

respondents cannot continue with the prosecution of the

petitioners as the omission on part of the petitioners

tantamounts only to a technical offence. It is contended

that admittedly being a first violation, a notice of warning

was only required to be given. The learned senior

counsel has also placed reliance on the judgments of the

learned Single Judges of this Court where in similar

circumstances of violation of Rule 32(e) of the PFA Rules

for the first time, pertaining to the labeling, the

prosecution against the said parties have been quashed.

Reliance in this regard can be placed in case titled

S.S.Gokul Krishnan and Ors. Vs. State Thr. Food

Inspector Govt. of NCT of Delhi 2009 II AD (Delhi)

365, wherein it has been observed as under:-

"8. It is argued by the 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/PFA 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."

7. The learned APP has also placed reliance on the said

authority to contend that so far as the prosecution of the

petitioners for alleged violation of Rule 32(e) of the PFA

Rules is concerned, this could not be stopped in the

instant case by the respondents for the simple reason

that the report of the public analyst which was received

by the department found the article of food deficient not

only on account of not meeting the standards prescribed

under Rule 32 with regard to the labeling but also on

account of the fact that the article of food was found

deficient with regard to the other contents as prescribed

in case of mango drinks. Therefore, to contend that the

prosecution itself ought not to have been launched is not

an argument which is sustainable in the eyes of law,

however, so far as the continuance of the prosecution is

concerned, it has been contended that since the

petitioners have availed of the remedy by filing the

present petitions, the respondents did not want to take a

pre-emptive action by permitting the withdrawal of the

prosecution. The learned APP has left it to the Court

regarding quashing of the complaint.

8. I have carefully considered the submissions made by the

respective sides. I find merit in the contention of the

learned APP that under the facts of the present case,

there was no option but to initiate the complaint under

Section 7 read with Section 16 of the PFA Act because

sample of mango drink was not only deficient with regard

to the labeling but was also not meeting the requisite

standards prescribed under PFA Rules.

9. So far as the policy is concerned, that would be

applicable only in case the Public Analyst had opined that

the articles of food of which sample was taken did not

meet requisite standards of labeling prescribed under

Rule 32(e) of the Rules and that too when it was the first

offence. It is only in such circumstance that the

prosecution against such parties could not have been

initiated. But in the instant case, once the petitioner

exercised their right to have the second counter part of

the sample tested and a report of the CFL had been

received superseding the report of Public Analyst report

as per the mandate of Section 13(3), there is no reason

for continuance of the present complaint and it is ought

to have been taken back or withdrawn because this was

the first offence of labeling and the petitioners in terms

of the policy ought to have been warned. This was not

done by the respondent but there is no impediment in

Court giving the said benefit now to the petitioners.

10. The continuance of the proceedings against the

petitioners on account of violation of Rule 32(e) i.e. non

mentioning of the batch number on the label of the

article of food, being the first violation, is not justified as

per the policy, which was prevalent at the time when the

sample was taken. The purpose of the Prevention of

Food Adulteration Act, so far as the question of labeling

is concerned was not to prosecute the first time offender,

but only to bring it to the notice of the manufacturer that

they are required to confirm to certain basic standards

with regard to the date, year or the time of

manufacturing so as to enable the customer to take the

decision as to whether the product is worth consuming or

not. The judgments of our own High Court which have

been cited by the learned senior counsel wherein similar

circumstances of first offence pertaining to the violation

of Rule 32, the Court has given the benefit of circular to

those parties. Although, the circular stands withdrawn as

on date, but at the time when the offence is purported to

have been committed the circular in question was in

operation, therefore, I feel that the petitioners cannot be

denied the benefit of the said circular. I feel that the

prosecution against the petitioners cannot continue.

11. The learned senior counsel has made number of other

valid submissions especially, pertaining to the

manufacturing of the food article. In this regard, the

learned senior counsel has contended that the case of

the respondents is that the food article in respect of

which the sample was taken was manufactured by M/s

Devyani International Pvt. Ltd. It has been contended

that so far as the petitioners M/s Pepsico India Holdings

Ltd. and M/s Pepsi India Ltd. are concerned, they have

been impleaded as parties to the complaint only on

account of the fact that they are supplying the

concentrate in the form of drink articles or because they

owned the designing of the trademark on the pack. The

learned senior counsel has contended that assuming

though not admitting that both these petitioners are

supplying the concentrate or are the owners of the

trademark or the designing of the label, they cannot be

prosecuted under the PFA Act for the simple reason that

the manufacturer of the article of food is M/s Devyani

International Pvt. Ltd. and moreover, no prescribed

standard is prescribed under the Rule for the concentrate

which is being supplied by the petitioners. It is urged

that so far as the prosecution for an offence under PFA

Act is concerned, the owners of the trademark cannot be

prosecuted. Reliance in this regard has been on the

judgment of the Apex Court in case titled Pepsi Foods

Ltd. and Anr. Vs. Special Judicial Magistrate AIR

1998 SC 128.

12. In addition to this, it has also been stated that Rule 32(e)

of the Rules has already been struck down by the Apex

Court in case titled Dwarka Nath and Anr. Vs. MCD

AIR 1971 SC 1844. It has been contended since the rule

itself has been struck down by the Apex Court, the same

could not have been invoked at all in the prosecution of

the petitioners. Although, the submissions made by the

learned senior counsel seems to be convincing, however,

I leave these questions open as the complaint has been

quashed on the first ground itself. Therefore, I do not

consider it worthwhile and necessary to go into the

details of examination of these submissions.

13. For the reasons mentioned above, I feel that continuance

of the proceedings against the petitioners is the gross

abuse of the processes of law and therefore, both the

complaints and the consequent proceedings are quashed.

V.K. SHALI, J

MARCH 29, 2012 RN