Madhya Pradesh High Court
Itc Ltd. And Anr. vs The State Of Madhya Pradesh on 17 February, 2023
Author: Vivek Rusia
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M.Cr.C. No.713/2013
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
nd
ON THE 2 OF FEBRUARY, 2023
MISC. CRIMINAL CASE No. 713 of 2013
BETWEEN:-
ITC LTD. AND ANR. 37, JAWAHARLAL NEHRU ROAD, KOLKATA
.....APPLICANT
(SHRI SATISH CHANDRA BAGADIYA, SENIOR ADVOCATE WITH SHRI
PANKAJ CHANDRA BAGADIYA, ADVOCATE FOR THE PETITIONER.)
AND
THE STATE OF MADHYA PRADESH GOVT. FOOD INSPECTOR DISTT.
DEWAS (MADHYA PRADESH)
.....RESPONDENTS
(SHRI BHUWAN DESHMUKH, LEARNED GOVT. ADVOCATE FOR THE
RESPONDENT/STATE.)
Reserved on : 02.02.2023
Delivered on : 17.02.2023
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This application coming on for hearing this day, the court
passed the following:
ORDER
The petitioners have filed the present petition u/s. 482 of the
Cr.P.C. against the order dated 22.3.2011 whereby the learned
Magistrate took cognizance in a complaint filed under the provisions
of the Prevention of Food Adulteration Act, 1954 (hereinafter referred
to as "the Act of 1954" for short) and also challenging order dated
29.9.2012 whereby charges u/s. 7(1) and 16(1)(1)( (i) & (ii) of the Act
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M.Cr.C. No.713/2013
of 1954 have been framed against them.
1. Petitioner No.1 is a company registered under the Companies
Act, 1956 (now 2013) engaged in the manufacture and distribution of
FMCG products, paper and paper boards, etc. The company is also
working as a dealer by way of running e-Choupals for giving better
facilities to the farmers in remote village areas. In the e-Choupal
stores, the company also keep various goods and provides services at
affordable rates to the farmers. The company has obtained a license to
work as a Dealer in food products and also filed a nomination as
required u/s. 17(2) of the Act of 1954 nominating petitioner No.2 as
the nominee.
2. On 25.1.2010, the Food Inspector of the respondent visited e-
Choupal Sagar situated at A.B. Road, District Dewas and took a
sample of "Milko's Cookies" by way of purchasing 3 sealed packages
of 250 gms. each manufactured by Relish Bakers & Confectioners,
40, Govt. Industrial Estate, Kalpi Road, Kanpur; and "Suhana Special
Chana Papad" by way of purchasing 3 sealed packages of 200 gms.
each. The staff posted in e-choupal issued Bill No. MP 10-3/8152
dated 25.1.2020 for the aforesaid products. The respondent issued
Form VI against the aforesaid collection of the product.
3. In Form VI, the date of manufacture of "Milko's Cookies" was
written as 27.10.2009 and the date "best before use" was written as
26.2.2010. According to the petitioners, the samples collected on
25.1.2010 ought to have been sent to the Public Analyst on or before
26.1.2010 but in violation of Section 11(3) of the Act of 1954, they
were sent on 27.1.2010. After examining the samples, the Public
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M.Cr.C. No.713/2013
Analyst submitted the report dated 18.2.2010 of "Milko's Cookies"
which was found to be adulterated on account of "ash insoluble in
dilute HCL was found to be 0.20% against the permissible standard
0.10%.
4. After completing the necessary investigation the respondent has
initiated criminal proceedings against Rishabh Tandon - Store In-
charge, Choupal Sagar,; Prashant Mishra - Nominee-Choupal Sagar;
and Ashok Kumar Manwani, owner of Firm Relish Bakers and
Confectioners by filling a complaint on 22.3.2011 in the Court of
Judicial Magistrate, First Class. After taking cognizance, bailable
warrants were issued against the accused persons. In support of the
complaint i.e. charge-sheet, as many as 20 documents were filed by
the Food Inspector, District Dewas. Ms Sushma Arvind Pathrol, Food
Inspector, Dewas examined herself as P.W.1 in support of the
complaint.
5. The petitioner submitted an objection in writing that, they have
wrongly been arrayed as accused in the complaint, but the learned
Magistrate rejected the objection taken by the petitioners and fixed
the case for framing of charges on 29.9.2012. Hence, this petition u/s.
482 of the Cr.P.C. before this Court.
6. Vide order dated 21.10.2013, this Court issued notice to the
respondents and stayed the further proceedings in Cr. Case No.
688/2011 till the next date of hearing which is continuing till date.
Vide order dated 2.9.2014 the M.Cr.C. was admitted for a final
hearing and the stay was continued until further orders. Thereafter,
the petitioners filed an application seeking an extension of the stay
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M.Cr.C. No.713/2013
order and vide order dated 12.3.2019 the interim order was continued.
Again on 17.6.2022, the stay order was continued with a direction to
list the case for final hearing. At any point in time, the
respondents/State did not apply for vacating the stay or opposed the
extension of the stay and because of this the trial against the
petitioners is held up since 2013 without any progress. Hence, vide
order dated 16.1.2013, instead of extending the stay order this Court
has directed to list this case at the top of the list for final arguments
on 2.2.2023.
7. Heard Shri S.C. Bagadiya, learned senior counsel appearing on
behalf of the petitioners and Shri Bhuwan Deshmukh, learned Govt.
Advocate appearing on behalf of the respondents/State.
8. Shri Bagadiya, learned senior counsel for the petitioners,
submitted that the petitioners are not the manufacturer of the food
product "Milko's Cookies". The petitioners being a dealer purchased
the said product by way of Invoice No.93 dated 29.10.2009 from
manufacturer Relish Bakers and Confectioners. Before putting the
said product for sale in e-choupal, the petitioner had checked the
warranty period written in the product and the Food Inspector
purchased the said food product during the warranty period. In the
said Invoice also the warranty period is clearly mentioned. Therefore,
the petitioners being the dealer are having immunity from prosecution
u/s. 19(2) of the Act of 1954 and Rule 12A of Prevention of Food
Adulteration Rules, 1954. The learned Magistrate has failed to
examine the aforesaid provisions of law and mechanically taken
cognizance against the petitioners.
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9. Shri Bagadiya, learned senior counsel further argued that the
date of manufacture of the food product was 27.10.2009, the sample
was collected on 25.1.2010 and it was sent to the Public Analyst on
27.1.2010. The report came on 18.2.2010 whereas the shelf life of the
product was only till 26.2.2010. The complaint was filed after 13
months from the date of expiry of the sample. The provisions of
Section 11(4) of the Act of 1954 have not been followed, which
provides that the complaint should be filed as soon as possible and, in
any case, not later than 7 days. The Relish Bakers & Confectioners
submitted an application u/s. 13(2) of the Act of 1954 on 29.6.2011,
although the same was allowed, the shelf life of the product had
already expired 16 months prior to the said order. The sample was
sent for re-analysis and the CFL report dated 19.8.2011 was received,
which has no value, hence the complaint is liable to be quashed. In
support of his contention, Shri Bagadiya has placed reliance on the
judgment passed by the Apex Court in the case of P. Unnikrishnan
V/s. Food Inspector, Palghat : 1995 Supp. (3) SCC 186; and
Rajaldas Gurunamal Pamanani V/s. State of Maharashtra : (1975)
3 SCC 375 in respect of entitlement of retailer for warranty u/s. 19(2)
of the Act of 1954. Although, other judgments have also been cited in
support of grounds regarding non-compliance of Section 11-A and
13(2) of the Act of 1954. Shri Bagadiya submits that in the given facts
and circumstances, it is a fit case in which the High Court should
exercise the inherent powers u/s. 482 of the Cr.P.C. to quash the
criminal proceedings in order to protect the petitioners from further
harassment. In support of his contention, he has placed reliance over
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the judgment of the Apex Court in the case of Prabhu Chawla V/s.
State of Rajasthan : (2016) 16 SCC 30; and Dhariwal Tobacco
Products Ltd. V/s. State of Maharashtra : (2009) 2 SCC 370.
10. Shri Bhuwan Deshmukh, learned Govt. Advocate appearing on
behalf of the respondents/State has argued in support of the impugned
order by which charges have been filed against the petitioners, and
played for dismissal of this petition.
Appreciation and Conclusion
11. It is evident from Panchanama prepared on 25.1.2010 that Ms.
Sushma Arvind Pathrol, Food Inspector visited e-Choupal Sagar and
gave her introduction to the petitioners. The Store-Incharge produced
the license and after inspecting the Choupal she purchased Milko's
Cookies and Suhana Special Chana Papad by paying Rs.115/- for 3
packages containing 250 gms. each & 200 gms. each. Thereafter, the
samples were taken and properly sealed for sending the same to
Public Analyst. The Panchanama was duly signed in presence of
witnesses . The samples were sent by registered Speed Post on
27.1.2010 i.e. after two days. The Public Analyst submitted his report
with the finding that ash insoluble in dilute HCL was found to be
0.20% against 0.10% hence same was found adulterated. The
petitioner, purchased the said food product vide Invoice dated
29.10.2009 from the manufacturer Relish Bakers & Confectioners
and in which the warranty was written.
12. After receipt of the report dated 18.2.2010 the complaint was
filed on 21.3.2011 without explaining the delay in it. The charge u/s.
7(1) and Section 16(1)(a)(i) & (ii) were proposed against the
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M.Cr.C. No.713/2013
petitioners. In the complaint, it is mentioned that the accused persons
have an opportunity to apply for a sample test by the Central Food
Laboratory u/s. 13(2) of the Act of 1954. But by that time, the shelf
life of the food product had already expired, therefore, there is a
mandatory provision for completing the investigation and filing the
charge-sheet within 7 days so that before the expiry date, the sample/s
could be re-examined by the Central Food Laboratory. Hence the
valuable statutory rights of the petitioners have been taken away by
the respondent.
13. Apart from the above , Section 19(2) clearly provides immunity
to the registered dealer when he purchased the food product in a seal
with a warranty from the Manufacturer. The Apex Court in the case of
P. Unnikrishnan (supra) has considered that the accused who sold
the article in the same form to P.W.3 and could not be expected to
verify what the actual position was regarding the existence of the firm
at a place which was 200 Kms. away. In the case of Rajaldas
Gurunamal Pamanani (supra) the Apex Court has held that Section
19(2) of the Act of 1954 will provide a defence where a vendor
purchases an article of food from a licensed manufacturer, distributor
or dealer with a written warranty in the prescribed form. Again, a
vendor shall not be deemed to have committed an offence pertaining
to the sale of any adulterated or misbranded article of food if he
proves that he purchased the article from any manufacturer,
distributor or dealer with a written warranty in the prescribed form.
Para 15 of the aforesaid order is reproduced below :
"15. The reason why a warranty is required in both the
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cases contemplated in Section 19(2)(a)(i) and (ii) and (ii) is that
if warranty were not to be insisted upon by the statute and if a
vendor would be permitted to have a defence merely by stating
that the vendor purchased the goods from a licensed
manufacturer, distributor or dealer adulterated or misbranded
articles would be marketed by manufacturers, distributors,
dealers as well as purchasers from them with impunity. That is
why a written warranty is enjoined in both the cases in 19(2)(a)
(i) and (ii). 19(2)(a)(i) and (ii) of the Act will provide a defence
where a vendor purchases article of food from a licensed
manufacturer, distributor or dealer with a written warranty in
the prescribed form. Again, a vendor shall not be deemed to
have committed an offence pertaining to the sale of any
adulterated or misbranded article of food if he proves that he
purchased the article from any manufacturer, distributor or
dealer with a written warranty in the prescribed form. These,
salutary provisions are designed for the health of the nation.
Therefore, a warranty is enjoined. No laxity should be
permitted."
14. Vide Panchanama dated 25.1.2010 the Food Inspector has only
collected the product and taken the samples. The Food Inspector was
required to collect the Invoice and verify the warranty mentioned in
it. Even in the complaint, nothing has been said about the material
u/s. 19(2) of the Act of 1954. When the language of Section 19(2)
clearly gives protection to a dealer, then if anything contrary is found
in the search and inquiry, the same ought to have been mentioned in
the Panchnana as well as in the complaint. Merely taking the samples
from the dealer's shop other than the manufacturer or supplier, and if
the product is found adulterated or misbranded, the dealer ought not
to have been arrayed as an accused unless violation of Section 19(2)
of the Act of 1954 is mentioned in the complaint. Hence, the
proceedings in the complaint case against the present petitioners are
liable to be quashed.
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15. Accordingly, this petition u/s. 482 of the Cr.P.C. is allowed and
the proceedings in the complaint case against the present petitioners
are hereby quashed. The Food Inspector is free to proceed against the
manufacturer. Copy of this order be sent to the concerned Court
forthwith.
( VIVEK RUSIA )
JUDGE
Alok/-
Digitally signed by ALOK
GARGAV
Date: 2023.02.24 17:27:28 +05'30'
