Himachal Pradesh High Court
Representative Mr. Sushil Sharma vs Unknown on 30 September, 2021
Bench: Anoop Chitkara
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 30th DAY OF SEPTEMBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE ANOOP CHITKARA
CRIMINAL MISC. PETITION (MAIN) U/S 482 CrPC No. 225 of 2019
Between:-
M/S PEPSICO INDIA HOLDINGS
PRIVATE LIMITED HAVING ITS
REGISTERED OFFICE AT LEVEL 3-6,
PIONEER SQUARE, SECTOR 62,
NEAR GOLF COURSE EXTENSION ROAD,
GURUGRAM-122101
THROUGH ITS AUTHORIZED
REPRESENTATIVE MR. SUSHIL SHARMA.
....PETITIONER
(BY SHRI RAJESH BATRA &
SHRI JANESH GUPTA, ADVOCATES)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH SH. L.D. THAKUR,
FOOD INSPECTOR, OFFICE OF
CHIEF MEDICAL OFFICER
DISTRICT SHIMLA,
HIMACHAL PRADESH.
2. SHRI BELI RAM SHARMA,
S/O K.R. SHARMA, MANAGER,
M/S DEEP WOODS RES
TAURANT
AT HOTEL WOOD PARK,
WOODRINA ESTATE DHALLI, SHIMLA.
3. M/S DEEP WOOD RESTAURANT
AT HOTEL WOOD PARK,
WOODRINA ESTATE DHALLI,
SHIMLA THROUGH ITS
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2
NOMINEE/PARTNERS/DIRECTORS.
4. M/S MALOOK SONS,
MALOOK COTTAGE,
.
LOWER BAZAR SHIMLA
BEING DISTRIBUTOR THROUGH
ITS PROPRIETOR SMT. GURMEET MAKIN.
....RESPONDENTS
(1. SHRI NAND LAL THAKUR, ADDITIONAL ADVOCATE
GENERAL, WITH SHRI KUNAL THAKUR, DEPUTY
ADVOCATE GENERAL , FOR R-1.
2.
3.
SHRI Y.P. SOOD, ADVOCATE, FOR R-2 AND R-3
SHRI BALWANT KUKREJA, ADVOCATE, FOR R-4.)
RESERVED ON: 28.09.2021
DECIDED ON : 30.09.2021
This petition coming on for hearing this day, the Court passed
the following:
ORDER
Challenging the order to implead as an accused under Section
20-A of Prevention of Food Adulteration Act, 1954, and also the original
complaint, based on which, the distributor has arraigned M/s Aradhana Soft
Drink Company, as an accused, which the petitioner Company subsequently
took over, came up before this Court under Section 482 of the Code of
Criminal Procedure, 1973.
2. The brief facts of the case are that on 16th August 2003, the
Food Inspector (R-1) collected samples of Lehar Mountain Dew (Sweetened
Carbonated Water) from the premises of respondent No.3. The Food Inspector
purchased three bottles against a proper receipt. After that, the Food Inspector
sent the memorandum in form No.VII to Public Analyst at Kandaghat for
.
analysis. The Public Analyst gave its report on 25.09.2003, which reads as
under:
"The month and year of manufacture and packing is not
legible and the quantity of added sugar in the product has not
been mentioned on the label and hence the sample is
misbranded."
3. The Food Inspector sought sanction for prosecution from Chief
Medical Officer Shimla. The Chief Medical Officer, Shimla, vide his order
dated 23.12.2003, found a prima-face case for the commission of offenses
punishable under Section 16(1)(a)(i) read with Section 7 of PFA Act against
respondents No.2 and 3.
4. Based on the above report, the Food Inspector filed a complaint
on 31.12.2003, before the Court of learned Chief Judicial Magistrate, Shimla
and the learned Court issued process on 6th June 2004 against respondent
No.2, Manager of Hotel Wood Park and also respondent No.3, restaurant of
Wood Park.
5. On 8th March 2006, respondent No.3 filed an application under
Section 20-A of PFA Act to implead respondent No. 4, M/s Malook Sons,
distributor of Lehar Mountain Dew. Vide order dated 28th August 2006,
learned trial Court allowed the application and impleaded M/s Malook Sons as
an accused in the proceedings.
6. On 27th August 2007, the newly arraigned accused, M/s Malook
Sons, applied Section 20-A of the PFA Act to implead the manufacturer
.
company, i.e., M/s Aradhana Soft Drinks Company. Vide order dated 30th
November 2007, learned trial Court allowed the application and impleaded
M/s Aradhana Soft Drinks Company, as an accused in the said complaint.
7. Feeling aggrieved, M/s Aradhana Soft Drinks Company filed a
petition before this Court being CrMMO No.167 of 2009. Vide order dated
23rd July 2012, Annexure P-8, the said petition was partly allowed, and the
accusation to the extent of non-mentioning of the quantity of added sugar on
the label was quashed.
8. Paragraph-16 of the order passed by a Co-ordinate Bench of this
Court in Cr.MMO No.167 of 2009, reads as follows: -
"16. Accordingly, in view of the observations and analysis
made hereinabove, the petitions are partly allowed. The
notice of accusation so far it pertains only to the extent of
non-mentioning of 'quantity of added sugar' on the label, is
concerned, is quashed, however, the rest of the part of notice
of accusation will be tried by the Magistrate in accordance
with law."
9. During the pendency of the trial, the Legislature repealed the
Prevention of Food Adulteration Act, 1954 and, in its place, introduced Food
Safety and Standards Act, 2006, with effect from 23rd August 2006. However,
this Court had partly allowed the petition on 23rd August 2007, that is, after
coming into force the Food Safety and Standards Act, but the main ground for
which the Company has again come up before this Court is the notification
dated 2nd August 2016, issued by the Food Safety and Standards Authority of
India, the said notification is extracted as under: -
.
"F. No. P. 15017184/2015-FSSAI/Legal
Food Safety and Standards Authority of India
A Statutory Authority established under Food Safety and
Standards Act, 2006 FDA Bhawan, Kotla Road, New Delhi -
100002-
_________________________________________________
Dated, the 2nd August 2016
То
The Commissioners of Food Safety,
All States/UTs Governments.
Subject: Cases pending under PFA Act and other orders
repealed by FSS Act, 2006 (Schedule 2)-reg.
Sir,
It is understood that a large number of cases under the
Prevention of Food Adulteration Act & other orders specified
in Schedule 2 of the Food Safety and Standards Act, 2006, are
still pending in various courts and tribunals across the
county. In a sizable number of such cases, the offences
alleged to have been committed may not be very serious in
nature and the penalties/punishments prescribed for such
offences are also not substantial. The pendency of such cases
for a long time not only burdens the judicial system, but also
diverts the scarce resources of the government in pursuing
these matters rather than deploying them in effective
implementation of the provisions of the FSS Act to ensure safe
and wholesome food for the consumers.
2. In the view of the above, Commissioners of Food
Safety of all States/ UTs may like to examine all pending
cases against Food Business Operators under provisions of
various enactments & orders repealed on enactment of Food
Safety and Standards Act, 2006 and take a view on
withdrawal of the same, if considered appropriate. The
results of this exercise may please be shared with FSSAI from
time to time.
Yours faithfully,
Sd/-
(Raj Singh)
Head (Legal)"
10. A perusal of the executive order reveals that the executive is
.
aware of the burden on the judiciary because of the pendency of cases under
the old Act and new Act for petty offenses. The subject of this notification
reads that it pertains to the cases under the PFA Act and FSS Act, 2006, that
is, the old Act and the new Act. On the failure of the concerned Commissioner
to consider the present case, the trial is continuing for the last eighteen years,
that is, from 2003.
11. The accused had filed a Special Leave Petition (SLP) before the
Hon'ble Supreme Court, challenging the judgment dated 23rd July 2012;
however, vide order dated 14.12.2012, the same was dismissed in limine.
12. During the pendency of the petiton, i.e., of CrMMO No.167 of
2009 before this Court, Hon'ble High Court of Punjab and Haryana sanctioned
a scheme of amalgamation of M/s Aradhana Soft Drinks Company Limited
(Transferor Company) with M/s PepsiCo India Holdings Private Limited
(Transferee Company) in Company Petitions No.9 and 55 of 2011. This order
was passed on 14.10.2011, that is, before the decision of quashing the petition
before this Court.
13. After that, the name of transferee company M/s Aradhana Soft
Drinks Company Limited accused No.4 in the present case was changed to
M/s PepsiCo India Holdings Private Limited.
14. Consequently, on 19.11.2015, M/s PepsiCo India Holdings
Private Limited filed an application for discharge from the prosecution.
15. Vide order dated 2ndMarch 2019, learned trial Court dismissed
the said application and directed the applicant-M/s PepsiCo India Holdings
.
Private Limited to furnish the addresses of the Directors of M/s Aradhana Soft
Drinks Company Limited.
16. The applicant, instead of filing the address of its Director, has
filed another application, and vide order dated 6th April 2019, the learned trial
Court again directed the transferee Company M/s PepsiCo India Holdings
Private Limited either to furnish the addresses of the Directors of M/s
Aradhana Soft Drinks Company Limited or to file original nomination letter,
issued in the name of Hasmukh Maweda. The relevant portion of the order
dated 6th April 2019, is extracted as follows:-
" ......Since, Aradhana Soft Drink Company has amalgamated
with Pepsico India Pvt. Ltd., they were directed to file the
address of Director of Aradhana Soft drink company which is
them. Instead of filing of the address of the said Director, present
application has been filed mentioning reasons why Director
should not be summoned. Further, it has been alleged in the
application that one Hasmukh Maweda was the nominee at the
time of commission of offence and photocopy of nominee letter
has been filed regarding his nomination. In view of the fact that
original nomination letter has not been produced before the
court, this court again directs Pepsico India Pvt. Ltd. either to
file address of the Directors of Ardhna Soft Drink company
which is with them or to file original nomination letter issued in
the name of Hasmukh Maweda and also produce him before the
court as he is now there employee for 20.04.2019."
17. Challenging this order, the M/s PepsiCo India Holdings Private
Limited, has come up before this Court with the following substantive
prayers:-
"(a) Quash the complaint and proceedings in case RBT No.244/3
of 07/04 renumbered as Food Act/9005384/2004 titled "State
of H.P. Versus Sh. Beli Ram Sharma & Others".
(b) In the alternate, set-aside the impugned order dated
.
02.03.2019 dismissing the deletion of name/discharge
application filed by Petitioner Company and direct the trial
Court to consider the application on its merits."
18. I have heard learned counsel for the parties and have also gone
through the record with utmost care.
19. The present prosecution is currently confined to the report of the
Public Analyst, according to which, month and year of manufacture and
packaging were not legible. The remaining part of the report was already
quashed by this Court earlier in CrMMO No.167 of 2009.
20. Thus, the prosecution is pending only for misbranding, and that
too because the month and year of manufacture and packaging were not
legible.
21. The notification issued by the Central Government on 2nd
August 2016 (supra) specifically asked the Commissioners of Food Safety of
all States/UTs to examine all pending cases against food business operators
and take a view on withdrawal of the same. However, the concerned authority
did not examine the present case.
22. The Hon'ble Supreme Court in Nemi Chand Vs State of
Rajasthan 2016 SCC OnLine SC 1715, dealt with the similar issue and held
as follows:-
"[2]In the instant appeal, the appellant was tried and
convicted for offence under Section 7/16 of the Prevention of
Food Adulteration Act, 1954 (hereinafter referred to as 'Act')
by the trial court vide judgment dated 19.10.1995 and was
sentenced to undergo six months' Rigorous Imprisonment as
well as fine of Rs.1,000/- and in default, further Rigorous
.
Imprisonment for one month. This order was challenged by
the appellant by filing appeal before the Sessions Judge
which was dismissed on 11.09.1996, thereby confirming the
order of the trial court. The appellant filed Revision Petition
thereagainst in which also he failed as the said petition has
been dismissed by the High Court vide the impugned
judgment dated 06.11.2012.
[3] It is not in dispute that the charge against the appellant
was only of sub-standardization of goods. Mr.Sushil Kumar
Jain, learned senior counsel appearing for the appellant,
submits that though the appellant has some prima facie case
even on merits, he would be giving up the plea on merits and
his only submission is about the sentence which has been
imposed by the courts below. He has, in this behalf, argued
that there has been an amendment in the Act by the Central
Amendment Act 34 of 1976 whereby Section 16A was added
and under the said section, only a fine is leviable. He has
drawn our attention to the judgment of this Court in 'T. Barai
v. Henry Ah Hoe and Another, 1983 1 SCC 177' wherein this
Court held that since the amendment was beneficial to the
accused persons, it can be applied even with respect to
earlier cases as well which are pending in the Court. In the
said judgment, the Court held as under:
"22. It is only retroactive criminal legislation that is
prohibited under Article 20(1). The prohibition contained in
Article 20(1) is that no person shall be convicted of any
offence except for violation of a law in force at the time of the
commission of the act charged as an offence prohibits nor
shall he be subjected to a penalty greater than that which
might have been inflicted under the law in force at the time of
the commission of the offence. It is quite clear that insofar as
the Central Amendment Act creates new offences or enhances
punishment for a particular type of offence no person can be
convicted by such ex post facto law nor can the enhanced
punishment prescribed by the amendment be applicable. But
insofar as the Central Amendment Act reduces the
punishment for an offence punishable under Section 16(1)(a)
of the Act, there is no reason why the accused should not have
the benefit of such reduced punishment. The rule of beneficial
construction requires that even ex post facto law of such a
type should be applied to mitigate the rigour of the law. The
principle is based both on sound reason and common sense.
This finds support in the following passage from Craies on
Statute Law, 7th Edn., at pp. 388-89:
.
A retrospective statute is different from an ex post facto
statute. "Every ex post facto law...." said Chase, J., in the
American case of Calder v. Bull "must necessarily be
retrospective, but every retrospective law is not an ex post
facto law. Every law that takes away or impairs rights vested
agreeably to existing laws is retrospective, and is generally
unjust and may be oppressive; it is a good general rule that a
law should have no retrospect, but in cases in which the laws
may justly and for the benefit of the community and also of
individuals relate to a time antecedent to their
commencement: as statutes of oblivion or of pardon. They are
certainly retrospective, and literally both concerning and
after the facts committed. But I do not consider any law ex
post facto within the prohibition that mollifies the rigour of
the criminal law, but only those that create or aggravate the
crime, or increase the punishment or change the rules of
evidence for the purpose of conviction.... There is a great and
apparent difference between making an unlawful act lawful
and the making an innocent action criminal and punishing it
as a crime."
[4] From the facts of the present case, we have no doubt in
mind that the aforesaid judgment squarely applies thereon.
This appeal is, therefore, partly allowed and the sentence
imposed upon the appellant is modified by imposing fine of
Rs. 50,000/- which shall be deposited within two months with
the trial court. On deposit of the aforesaid amount, the bail
bonds furnished by the appellant shall be discharged."
23. Similar stand was taken by the Hon'ble High Court of Gujarat at
Ahmadabad in case PepsiCo India Holdings Pvt. Ltd. Vs UOI R/Special
Criminal Application No.2281 of 2008 and also the Hon'ble High Court of
Rajasthan in Ramkishan Agarwal Versus State of Rajasthan through PP S.B.
Criminal Miscellaneous (Petition) No.2223 of 2013 and connected matters.
24. The judgment passed by the Hon'ble Supreme Court in Nemi
Chand's case (supra) applies to the present case on all fours. The trial for
.
misbranding is continuing from 31st December 2003. The original company
M/s Aradhana Soft Drinks Company Limited, stands amalgamated with M/s
PepsiCo India Holdings Private Limited. The concerned Officers and the
Directors of erstwhile M/s Aradhana Soft Drinks Company Limited would not
have any excess to its record, which would seriously prejudice them at this
belated stage. The accused were not responsible for delaying the trial. In the
entirety of the facts and circumstances of the case, it is a fit case where a
petition can be allowed, and the complaint and all consequential proceedings
are required to be quashed.
25. Since, the original accused had filed application under Section
20-A of PFA Act to implead the person, from whom they had purchased the
stock, eventually pushing down the responsibility to the manufacturer,
therefore, there would be no justification to continue proceedings even against
them. The silence of manufacturer about the product being spurious and
absence of any allegation that the company was not a manufacturer would also
be valid reasons to terminate prosecution of the retailers, suppliers and the
dealers. Given above, the complaint and proceedings deserve to be quashed in
entirety.
26. Given above, the instant petition is allowed, and the complaint
and all the consequential proceedings are quashed and set aside. The bail
bonds are accordingly discharged. All pending application(s), if any, stand
closed.
.
In the facts and circumstances peculiar to this case, the petition
is allowed in the aforementioned terms.
(Anoop Chitkara),
Judge
September 30, 2021
(R.Atal)
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