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2004 DIGILAW 509 (GAU)

Deepak Sharma Tamuli v. State of Assam

2004-09-02

P.G.AGARWAL

body2004
JUDGMENT P.G. Agarwal, J. 1. In this revision under Section 482 Code of Criminal Procedure, the Petitioner accused Shri Deepak Sharma Tamuli and the manufacturer, M/s Milk Food Ltd., have approached this Court for quashing the proceeding in CR case 309c/2000 pending in the court of the Special Judicial Magistrate, Kamrup, Guwahati. 2. We have heard Mr. O.P. Bhati, learned Counsel for the Petitioner and the learned Public Prosecutor for the Respondents. 3. On 8.9.1999, the Food Inspector collected sample of Milk Food brand ghee from the shop premises of the Petitioner No. 1 and the sample was sent to the public analyst, who submitted a report to the effect that the sample of ghee (Milk Food) is misbranded as per Rule 32(e) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act) and the Rules of 1955 (hereinafter referred to as the Rules). Subsequently the Petitioner as well as the manufacturer were prosecuted in the above proceeding for manufacturing and storing for sale of misbranded ghee. 4. We, thus, find that in the present case the allegation is regarding misbranding of the food item 'ghee'. Under Section 2(IX)(k) , it is provided that an article of food shall be deemed to be misbranded 'if it is not labelled in accordance with the requirements of this Act or Rules made thereunder'. In the report of the Public Analyst, the finding is that the article of food in question i.e. ghee is misbranded under Rule 32(e) of the Rules of 1955. Rule 32(e) reads as follows: 32(e) A distinctive batch number or lot number or code number, either in numerical or alphabets or in combination, the numerical or alphabets or their combination, representing the batch number or lot number or code number being preceded by the words "Batch No" or Batch or "Lot No" or "Lot" or any distinguishing prefix: Provided that in case of canned food, the batch number may be given at the bottom, or on the lid of the container, but the words "Batch No" given at the bottom or on the lid shall appear on the body of the container. 5. The learned Counsel for the Petitioner has not disputed that the batch number was not mentioned in the sample of ghee. 5. The learned Counsel for the Petitioner has not disputed that the batch number was not mentioned in the sample of ghee. The Petitioner, however, contends that the ghee in question was 'AGMARK' Ghee and the Petitioner was authorized to make the packets with the aid of automatic filling and packing machine under the General (Granding and Marking) Rules, 1937 which provides that the packet in question shall contain the following: 1. Name of packet, 2. Place of packing, 3. Melt number, 4. The date of packing, 5. Net. Weight, 6. Selling price. 6. The notice in form VI clearly shows that the packet in question did contain the melt number and net weight of the packet and the date of manufacturing. Likewise, the Public Analyst report brought on record by the prosecution, also shows that the melt No. 205 along with the date of manufacture August 99 was specifically mentioned on the label. It is also submitted on behalf of the Petitioner that Rule 32(e) as it stood earlier, was declared to be ultra virus by the Apex Court in the case of Dwarka Nath v. Municipal Corporation of Delhi AIR 1971 SC 1844 and as the present Rule is substantially pari materia, the present proceeding is liable to be quashed. 7. The batch number of a product is required to be given in the label under Rule 32(e) to identify the manufacturing process. This is a case of ghee and before the ghee is sent out for sale, the manufacturing process requires that the ghee is to be melted as such the melt number has been provided under the Ghee (Grading and Marking) Rules 1938 and this being a special Rule in respect of the item of ghee, will definitely override the general Rules under 32(e). Moreover explanation 4 to Rule 32(i) reads as follows: A batch number or code number or lot number is a mark, of identification by which the food can be traced in manufacture and identified in distribution. 8. Thus, we find that the purpose of providing the batch number or lot number etc. is meant to identify the manufacturing process and distribution. The melt number, required to be given, under the Ghee (Grading and Marketing) Rules satisfy the above purpose. Moreover, Rule 32(e) also provides that the manufacturer is required to give the batch number or lot number or any distinguishing prefix. is meant to identify the manufacturing process and distribution. The melt number, required to be given, under the Ghee (Grading and Marketing) Rules satisfy the above purpose. Moreover, Rule 32(e) also provides that the manufacturer is required to give the batch number or lot number or any distinguishing prefix. We have no hesitation to hold that the melt number given in the sample comes under the definition of 'distinguishing prefix' and as such the sample in question i.e. ghee (milk food) in the present case cannot be termed to be misbranded under Rule 32(e). 9. In view of the above, the present proceeding does not lie and this is liable to be quashed, which we do hereby. 10. In the result, this revision petition stands allowed. The proceeding in Case No. 309/2000 stands quashed. Send down the records. Petition allowed