Research › Search › Judgment

Punjab High Court · body

2003 DIGILAW 1135 (PNJ)

State of Haryana v. Jai Parkash

2003-08-13

S.S.SARON

body2003
JUDGMENT S.S. Saron, J. - This appeal has been filed by the State of Haryana against order dated 7.4.1992 passed by Sub Divisional Judicial Magistrate, Mahendergarh, whereby he has acquitted respondent-Jai Parkash. 2. A complaint under the provisions of Prevention of Food Adulteration Act, 1954 (herein referred to as "the Act") was filed by the Food Inspector for the local area of Mahendergarh in the Court of Sub Divisional Judicial Magistrate. As per the allegations in the complaint, the Food Inspector found two packets of Hard Boiled Confectionary for sale, contained in a wooden box belonging to the accused lying in the shop-M/s Parkash Confectionary and General Store. The samples of the said Hard Boiled Confectionary was taken and it is alleged in the complaint that there has been contravention of Food (Health) Authoritys notification dated 9.7.1986, which provides for restricting the packing and labelling of any article of food and the design of any such package or label with a view to prevent the public or the purchaser being deceived or misled as to the character quality or quantity of the article. The learned trial Court, on the basis of evidence and material on record, held that notification dated 9.7.1986 could not have been issued by the Director, Health Services, Haryana and that it was an exclusive jurisdiction of the Central Government under Section 23 of the Act. It was further observed that the sample sent for analysis was passed by the analyst and the defect that was there was of not mentioning the colour on the wrapper which could only be pointed out by the Central Government under Section 23 of the Act. Accordingly, the accused was acquitted. 3. Shri J.P. Dhull, Assistant Advocate General, learned counsel appearing for the State-appellant has contended that Section 2(vi) of the Act defines "Food (Health) Authority" to mean the Director of Medical and Health Services or the Chief Officer Incharge of Health Administration in a State and includes any officer empowered by the Central Government or the State Government by a notification in the official Gazette to exercise powers and perform the duties of the Food (Health) Authority under this Act with respect to such local areas as may be specified in the notification. Therefore, the Food (Health) Authority is stated to be competent to issue the notification in respect of any article of food, the sale of which is prohibited by the said authority in terms of Section 7(iv) of the Act. 4. In response, Shri H.S. Gill, learned Senior Advocate appearing with Shri R.K. Dhiman, Advocate contends that a reading of Section 23 of the Act shows that it is only the Central Government, which is competent to issue the notification for the restrictions as aforenotices. 5. I have given thoughtful consideration to the respective contentions of the learned counsel appearing for the parties. It is not in dispute that the allegation, attributed to the respondent is that he controvened the notification dated 9.7.1986 for which he is liable to be proceeded against for having committed an offences under Section 16(1)(d) of the Act. The notification dated 9.7.1986, which is the bone of contention between the parties reads as under: "In exercise of the powers conferred by Section 7(iv) of the Prevention of Food Adulteration Act, 1954, I, Dr. Ghanshuam Sharma, Food (Health) Authority Haryana hereby notify that no person in Haryana State shall manufacture for the sale or store, sell or distribute sweets (Hard boiled Sugar confectionary) in which there is permitted coaltar dye except in packet container bearing clear label indicating use of the permitted coaltar due as per rule 2 and the same is also within the limits prescribed under Rule 30 of the P.F.A. Rules 1955. No person shall manufacture for sale, or store, sell or distribute any articles of food having silver or gold or any other metallic foils." 6. As already noticed, the said notification has been issued by the Food (Health) Authority in exercise of powers under Section 7(iv) of the Act. Section 7(iv) of the Act provides for prohibitions of manufacture sale etc. of certain articles of food. It is provided therein that no person shall himself or by any person on his behalf manufacture for sale or store, sell or distribute any article of food the sale of which for the time being is prohibited by the Food (Health) Authority, in the interest of public health. of certain articles of food. It is provided therein that no person shall himself or by any person on his behalf manufacture for sale or store, sell or distribute any article of food the sale of which for the time being is prohibited by the Food (Health) Authority, in the interest of public health. In terms of the notification aforesaid, it has been provided that no person in the State of Haryana shall manufacture for sale or store, sell or distribute sweets (Hard Boiled Sugar Confectionary) in which there is permitted coaltar dye except in packet contained bearing clear label indicating use of the permitted coaltar dye as per Rule 32 of the Prevention of Food Adulteration Rules, 1955 (for short "the Rules") and the same is also within the limits prescribed under Rule 30 thereof. The contravention that has been attributed to the respondent is that the Food Inspector found two packets of Hard Boiled Confectionary for public sale contained in a wooden box lying in the shop of respondent. As per the report of the Public Analyst Exhibit PF; permitted Amaranth and SSY coaltar dues were detected. It was opined there was contravention of the Food (Health) Authority notification dated 9.7.1986. Otherwise in respect of the other ingredients of the article of food no violation of the provisions of the Act or the Rules framed thereunder has been indicated. Therefore, the contravention, it at all there is, is in respect of the packing. The provisions of Section 23, (1)(1A)(d) of the Act may be noticed which read as under :- "3. Power of the Central Government to make rules. Therefore, the contravention, it at all there is, is in respect of the packing. The provisions of Section 23, (1)(1A)(d) of the Act may be noticed which read as under :- "3. Power of the Central Government to make rules. - [(1) The Central Government may, after consultation with the Committee and after previous publication by notification in the Official Gazette, make rules to carry out the provisions of this Act : Provided that consultation with the Committee may be dispensed with if the Central Government is of the opinion that circumstances have arisen which render it necessary to make rules without such consultation, but, in such a case, the Committee shall be consulted within six months of the making of the rules and the Central Government shall take into consideration any suggestions which the Committee may make in relation to the amendment of the said rules.] [(1-A) [In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely : - ] (a) x x x x (b) x x x x (c) x x x x (d) "Restricting the packing and labelling of any article of food and the design of any such package or label with a view to preventing the public or the purchaser being deceived or misled as to the character, quality or quantity of the article [or to preventing adulteration]." 7. A perusal of the above Section 23(1), (1-A)(d) shows that the Central Government may after consultation with the Committee i.e. the Central Committee for Food Standards constituted under Section 3 of the Act and after previous publication by notification in the Official Gazette make rules to carry out the provisions of the Act. In particular and without prejudice to the generality of the foregoing power such rules may provide for all or any of the matters indicated therein which amongst others includes restricting the packing and labelling of any article of food and the design of any such package or label with a view to preventing the public or the purchaser being deceived or misled as to the character, quality or quantity of the article or to prevent adulteration. The violation, therefore, comes within the ambit of Section 23(1), (1A) (d) of the Act for which a notification is required to be issued by the Central Government and the Food (Health) Authority had no jurisdiction to issue such a notification. The Food (Health) Authority in terms of Section 7(iv) of the Act provides for prohibition of manufacture, sale of certain articles of food. "Food" has been defined in Section 2(v) of the Act as follows :- (v) "food" means any article used as food or drink for human consumption other than drugs and water and includes - (a) any article which ordinarily enters into or is used in the composition or preparation of human food. (b) any flavouring matter or condiments, and (c) any other article which the Central Government may, having regard to its use, nature, substance or quality declare, by notification in the official Gazette, as food for the purposes of this Act;] 8. In view of the above, an article of food for which prohibitions can be imposed by Food (Health) Authority relates to "food" as defined in terms of Section 2(v) of the Act. In the case in hand, the substance of accusation as put to the respondent is that, there is a contravention of Food (Health) Authority Notification dated 9.7.1986. As to what is the specific contravention has not been spelt out either in the complaint or in the substance of accusation. The notification dated 9.7.1986, as already noticed, provides that no person in Haryana shall manufacture for sale or store, sell or distribute sweets (hard boiled sugar confectionary) in which there is permitted coaltar dye except in packet container bearing clear label indicating the use of the permitted coaltar dye as per Rule 32 and that the same is also to be within the limits prescribed under Rule 30 of the Rules. Therefore, it is not a case where coaltar dye has been prohibited. However, it has to be in packet container and is to be within the prescribed limits. The case of the prosecution is not with respect to the coaltar dye being beyond the prescribed limits. It is with respect to presence of coaltar dye. This was required to be in packet but was found in a wooden box. However, it has to be in packet container and is to be within the prescribed limits. The case of the prosecution is not with respect to the coaltar dye being beyond the prescribed limits. It is with respect to presence of coaltar dye. This was required to be in packet but was found in a wooden box. With respect to packing and labelling the provisions of Section 23(1), (1-A)(d) of the Act are applicable for which the Central Government may after consultation with the Committee i.e. the Central Committee for Food Standards constituted under Section 3 of the Act, and after previous publication by notification in the official gazette, make rules to carry out the provisions of the Act. Besides, such rules may provide for restricting the packing and labelling of any article of food. Therefore, for packing and labelling the necessary rules are to be made by the Central Government and not by the Food (Health) Authority. This having not been done, no fault can be found with the order of acquittal passed by the learned trial Magistrate. Keeping in view the above facts and circumstances, I find no infirmity with the order of learned Sub Divisional Judicial Magistrate, Mahendergarh. In view of the above, this appeal is dismissed. Appeal dismissed.