Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure praying to call for the records in S.T.C No. 156 of 2008, on the file of the Judicial Magistrate, Periyakulam and quash the same.
JUDGMENT:
1. The petitioners, who have been arrayed as A1 to A5, are facing trial for the alleged offences under Sections 16(1)(i) r/w. 7(ii) and Section 2(ix)(a) and (k) of the Prevention of Food Adulteration Act, 1954 and Rules 32(a) of the Prevention of Adulteration Rules, 1955, on the allegation of sample viz., “SAKTHI KULAMBU CHILLI POWDER” seized from the accused, said to be misbranded as per the Analyst's Report and as such, the package of the sample is not in accordance with Rule 32(a) of the Prevention of Food Adulteration Rules, 1955, and they have come forward with this Petition seeking for the relief of quashing the proceedings initiated against them in S.T.C No. 156 of 2008 on the file of the learned Judicial Magistrate, Periyakulam.
2. A-1 is the salesman of a Grocery shop and A-2 is the owner and licensee of the Grocery shop; A-3 is the dealer; A-4 is the nominee of the manufacturer; A-5 is the manufacturer of the food article, namely, “SAKTHI KULAMBU CHILLI POWDER”.
3. A perusal of the impugned Complaint discloses that the respondent/complainant (Food Inspector) inspected the grocery shop owned by A-2 situated at 2/25, Kattamettu Street, Thenkarai, Periyakulam, along with Sanitary Supervisor by name Radhakrishnan on 27.06.2007 It is alleged that at that time, A-1.Salesman was doing business in the shop of A-2. The Food Inspector on suspicion decided to take the sample of the food article “SAKTHI KULAMBU CHILLI POWDER” for sending the said article for analysis. The Food Inspector also informed A-1 about his inclination to take the sample for sending analysis and obtained the signature of A-1 in Form VI in the presence of witnesses. Thereafter, he purchased six packets of “SAKTHI KULAMBU CHILLI POWDER” (each containing 200 gms) weighing 1200 gms from A-1 for Rs. 96/- and he also obtained cash receipt signed by the accused. Thereafter, the Food Inspector has separated the “SAKTHI KULAMBU CHILLI POWDER” into three equal parts, namely, 400 gms (two packets each containing 200 gms) and packed, sealed and sent the same to the Analyst as contemplated under the provisions of the Prevention of Food Adulteration Act and the Rules. The Food Inspector also prepared Form VII and sent to the Public Analyst, Food Analysis Laboratory, King Institute Campus, Guindy, Chennai.
4. The Public Analyst received the sample on 03.07.2007 and analysed the food sample from 06.07.2007 to 17.07.2007 After analysis the Public Analyst sent his report dated 30.07.2007 to the Local Health Authority, Periakulam Municipality, namely, the Municipal Health Officer, Periakulam Municipality and the Municipal Health Officer, in turn, sent the analyst report to the Food Inspector to take further action. The analyst is of the opinion that the sample is found to be “misbranded” since it is not labelled in accordance with the requirement of Section 2(ix)(a) of the Act and Rule 32(a) of the Rules. The Food Inspector thereafter, sent the notice to all the accused and after obtaining sanction to prosecute the accused/A-1 to A-5 in this case filed the present impugned Complaint before the Judicial Magistrate Court, Periakulam, which was taken on file in S.T.C No. 156 of 2008.
5. Mr. R. Gandhi, learned Senior Counsel appearing for the petitioners contended that the allegations contained in the impugned Complaint do not disclose the ingredients of the contravention or violation under Sections 16(1)(i) r/w. 7(ii) and Section 2(ix) (a) and (k) of the Act and Rule 32(a) of the Rules. It is submitted that the Food Inspector/the respondent herein merely reproduced the opinion of the Public Analyst as per the report stating that the sample is found to be misbranded since it is not labelled in accordance with the requirement of Section 2(ix)(a) of the Act and Rule 32(a) of the Rules and filed the impugned Complaint. The learned Senior Counsel would further submit that the Food Inspector taken the sample, namely, “SAKTHI KULAMBU CHILLI POWDER” containing in 200 gms packets and the said six packets containing each 200 gms clearly labeled as “SAKTHI KULAMBU CHILLI POWDER” and on the back side of the cover of the packet the ingredients of the “SAKTHI KULAMBU CHILLI POWDER” also stated both in English and in Tamil and as such the label and the declaration of the ingredients not at all stated to be a imitation of, or is a substitute for, or resembles in a manner likely to deceive, another article of food. It is further submitted by the learned Senior Counsel that the “SAKTHI KULAMBU CHILLI POWDER” packets plainly and conspicuously labelled indicating its true character and as such it cannot be stated that the sample, viz., “SAKTHI KULAMBU CHILLI POWDER” is a misbranded one as per the definition under Section 2(ix)(a) of the Act. Therefore, it is contended by the learned Senior Counsel that the respondent/Food Inspector initiated the prosecution against the petitioner arbitrarily and mechanically without any application of mind and the allegations contained in the Complaint do not make out a prima facie case to proceed against the petitioners and as such the impugned Complaint is liable to be quashed.
6. The learned Senior Counsel would place reliance on the following decisions:
(i) Bal Kishan Thapar v. Municipal Corporation Of Delhi ., 1948-1997 Supreme Court on Food Adulteration Cases 559;
(ii) Glaxo India Limited and others v. State of Assam and others, 2003 (1) FAC 232 (High Court of Gauhati) for the proposition that the Complaint preferred solely on the basis of the report of the Public Analyst, without disclosing any offence and as such, the said Complaint is liable to be quashed; and
(iii) Hatsun Agro Product Limited v. The State of Tamil Nadu reported in 2008 (5) CTC 40 (Madras High Court).
7. Per contra, the learned Government Advocate (Crl. Side) contended that there is no infirmity or illegality in the impugned Complaint preferred by the respondent/complainant. It is contended that in the Analyst Report, it is clearly stated that the sample taken from the petitioners is found to be misbranded since it is not labeled in accordance with the requirement of Section 2(ix)(a) and Rule 32(a) of the Act and Rules. It is submitted by the learned Government Advocate (Crl. Side) that there is also no violation of mandatory provisions of the Act or Rules and the complainant/Food Inspector has followed the mandatory provisions strictly at the time of taking the sample as well as at the time of filing the impugned Complaint and as such the impugned Complaint is not liable to be quashed. The learned Government Advocate (Crl. Side) further submitted that the respondent/Food Inspector, also filed a counter to this Petition.
8. I have carefully considered the rival contentions put forward by either side and also perused the impugned Complaint and other materials available on record including the analyst report.
9. At the outset, this Court is constrained to state that a perusal of the impugned Complaint discloses that the Food Inspector/the respondent herein, merely reproduced and incorporated the opinion of the Public Analyst to the effect that the sample is found to be “misbranded” since it is not labelled in accordance with the requirement of Section 2(ix)(a) of the Act and Rule 32(a) of the Rules and there is not a whisper made in the impugned Complaint to the effect as to how and in what manner the samples involved in this case is found to be misbranded. The article involved in the instant case is “SAKTHI KULAMBU CHILLI POWDER” and as per the impugned Complaint the sample was in the form of packets containing 200 gms. each. In the Public Analyst report, the label of the sample is mentioned as hereunder:
“(iii) Label Sakthi (R) Kulambu Chilli Powder
A product from ISO 9001-2000 & HACCP certified Company. Quality award winner. Net Wt.: 200g.
Back Panel: Ingredients: Coriandor, Chilli Turmeric, fried gram dhall, Mustard, Rice, Toor dhall, salt, anisood, Cumin, pepper, Fenugreek, curry leaf, Refined Groundnut oil. Contains 100 % vegetarian ingredients only.
Net wt. 200g. Max Retail Price Rs. 18.00 (inclusive of all taxes)
Pkd Month and year: 5/2007 Lot No. SMY UII Best Before six months from packaging.
Manufacturers & Licensed users: Sakthi Masala (P) Ltd., Regd. Off 6, Mamarathupalayam, Erode - 638 004. T.N India.
Factory: 76, Perumapalayam, Millampatti - 638 107.
(Proprietory food) Product of India.
Under the caption “the examination of the label” in the Public Analyst report, it is stated as follows:
“Examination of the label:
Declaration for the name, Trade name or description of food contained in the package.
Mentioned on the label as Sakthi Kulambu powder. Chillies is not the only ingredient of the sample. Sample is Mixed Masala powder.
As per Section 2(ix)(a) of PFA Act, 1954 and Rule 32(a) of the PFA Rules, 1955 the name or description of food contained in the package shall be mentioned on the label plainly and conspicuiously.”
The opinion of the Public Analyst as per the report is incorporated as hereunder:
“Opinion: I am of the opinion that the said sample is found to be misbranded since it is not labelled in accordance with the requirement of Section 2(ix)(a) of PFA Act, 1954 and Rule 32(a) of PFA Rules, 1955.”
10. It is pertinent to be noted that from the reading of the above said contents of the Public Analyst Report, it is crystal clear that no prima facie case made out to the effect that the sample is a misbranded one as the sample packets contained the label as “SAKTHI KULAMBU CHILLI POWDER” and on the backside the ingredients of the packet were clearly mentioned. It is pertinent to be noted that in the Public Analyst report, it is further stated under the column of examination of the label to the effect that “in the label it was mentioned as Sakthi Kulambu Powder. Chillies is not the only ingredient of the sample and the sample is Mixed Masala Powder”. Therefore it is the opinion of the Public Analyst that the sample is found to be misbranded since it is not labelled in accordance with the requirement of Section 2(ix)(a) of the PFA Act, 1954 and Rule 32(a) of the PFA Rules, 1955. At this juncture, it is relevant to state, as already pointed out by this Court, in the impugned Complaint there is absolutely no mention about as to how and in what manner the sample has to be called as “misbranded” and the respondent only reproduced the opinion of the Public Analyst alone. Therefore, neither in the Analyst report nor in the impugned Complaint and even in the counter filed by the respondent herein it is not stated or made out as to how and in what manner the sample is said to be the misbranded one.
11. In order to find out that from the Public Analyst Report or from the impugned Complaint whether the prosecution is succeeded in making out a prima facie case against the petitioners for the allegation that the sample is a misbranded one as per the provision under Section 2(ix)(a) and (k) of the Act and Rule 32(a) of the Rules, it is relevant to refer the very provisions of the Act and Rule which read as hereunder:
“Section 2 Definitions.—
(ix) “misbranded” — an article of food shall be deemed to be misbranded —
(a) if it is an imitation of, or is a substitute for, or resembles in a manner likely to deceive, another article of food under the name of which it is sold, and is not plainly and conspicuously labelled so as to indicate its true character”
(k) if it is not labelled in accordance with the requirements of this Act or rules made thereunder;
“Rule 32. Package of food to carry a label.— Every package of food shall carry a label and unless otherwise provided in these rules, there shall be specified on every label :—
(a) the name, trade name or description of food contained in the package;
12. It is also relevant to refer Sections 16(1)(i) and 7(ii) of the Act which read hereunder:
“Sections 16. Penalties.— (1) Subject to the provisions of subsection (1-A), if any person—
(a) Whether by himself or by any other person on his behalf, imports into India or manufactures for sales, or stores, sells or distributes any article of food —
(i) which is adulterated within the meaning of sub-clause (m) of clause (ia) of Section 2 or misbranded within the meaning of clause (ix) of that Section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority;
Section 7. Prohibition of manufacture, sale, etc., of certain articles of food — No person shall himself or by any person on his behalf manufacture for sale or store, sell or distribute —
(i) ..
(ii) any misbranded food; “
13. The reading of the above said provisions makes it crystal clear that an article of food shall be deemed to be misbranded only if it is an imitation of, or is a substitute for, or resembles in a manner likely to deceive, another article of food under the name of which it is sold, and is not plainly and conspicuously labelled so as to indicate its true character. As per Rule 32(a), it is required that every package of food shall carry a label specifying the name, trade name or the description of food contained in the package.
14. At the risk of repetition, it is to be reiterated that admittedly in the Public Analyst report it is clearly mentioned that the sample is in the form of packets containing 200 gms. each and on the label it was is mentioned as “SAKTHI KULAMBU CHILLI POWDER” and added to that on the backside of the packet, the ingredients of the packet namely, Coriander, Chilli, Turmeric, Fried gram dhall, Mustard, Rice, Toor Dhall, Salt, Aniseed, Cumin, Pepper, Fenugreek, Curry leaf, Refined groundnut oil were clearly mentioned and coupled with such particulars on the backside of the cover the Recipe for “SAKTHI KULAMBU CHILLI POWDER” also mentioned both in English as “RECIPE: Sakthi Kulambu Chilli Powder can be used for preparing Tomato Curry, Tamarind Curry, Kara Curry, Fenugreek Curry, all kind of Vegetables Curries, Vegetable Fries and Fish Curry, Dry Fish Curry, Egg Kuruma and all kind of Non-Veg. preparations and in Tamil. Therefore, it is crystal clear that by no stretch of imagination the sample packet involved in this case is an imitation of, or is a substitute for, or resembles in a manner likely to deceive, another article of food and it is stated on the label plainly and conspicuously indicating its true character. A reading of the label makes it crystal clear that it is only “SAKTHI KULAMBU CHILLI POWDER” and not a mere chillies powder as the back side of the label also contains the names of ingredients.
15. It is pertinent to be noted that the Analyst has not stated in his report as to how and in what manner the sample taken in the instant case is found to be misbranded one. The Food Inspector merely giving his own description of the sample to the effect as mixed masala powder and further stating chillies is not the only ingredient of the sample. At this juncture, it is to be reiterated that on the backside of the cover of the packet itself the ingredients were clearly mentioned to the effect that apart from chillies other ingredients also contains in the powder and added to that the name of the powder is mentioned as “SAKTHI KULAMBU CHILLI POWDER” which itself clearly shows that the said powder contains other ingredients apart from chillies and as such by no stretch of imagination, it could be stated that the sample packet involved in this case is an imitation of, or is a substitute for, or resembles in a manner likely to deceive, another article of food and it is stated on the label plainly and conspicuously indicating its true character and therefore, the sample cannot be stated to be a misbranded one attracting the ingredients of the provision under Section 2(ix)(a) and (k) of the Act.
16. Now coming to the provision under Rule 32 (a) of the Rules, it is relevant to note that the said Rule contemplates that every package of food shall carry a label and every label should specify the name, brand name or description of food contained in the package. As already pointed out, in the sample pack involved in this case it is clearly mentioned as “SAKTHI KULAMBU CHILLI POWDER” both in English and Tamil. The packets further contains the brand name as “SAKTHI” and the description of the food also contained in the packets clearly indicating the ingredients of the contents of the food and added to that the recipe also stated on the backside of the pack both in English and in Tamil. All these factors were incorporated in the Public Analyst report itself. Therefore, there is absolutely no contravention of provision under Rule 32(a) of the Rules.
17. Section 7 of the Act deals with prohibition of manufacture, sale, etc., of any misbranded food and Section 16(1)(i) of the Act is a penal provision and in view of the above findings of this Court the offence under Sections 7(ii) and 16(1)(i) of the Act also not made out against the petitioners.
18. As stated above, the impugned Complaint does not make out a prima facie case to the effect that the sample is a misbranded one and as such allowing the proceedings to continue against the petitioners would amount to a clear case of abuse of process of Court and therefore, the irresistible conclusion of this Court is that the proceedings initiated against the petitioners is liable to be quashed. Accordingly, the proceedings pending against the petitioners in S.T.C No. 156 of 2008 on the file of the Judicial Magistrate, Periyakulam, is hereby quashed.
This Petition is ordered accordingly. Consequently, connected Miscellaneous Petition is closed.