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2004 DIGILAW 978 (PAT)

Jagdish Prasad Didwania v. State Of Bihar

2004-09-16

AFTAB ALAM

body2004
Judgment 1. The two petitioners before this court seek to challenge the order dated 6.10.2001 passed by the Sub-divisional Judicial Magistrate, Patna in Case No. 93(M) of 2001/ Tr. No. 1981 of 2001. By the impugned order the S.D.J.M., on the basis of a complaint filed by the Food Inspector, Patna took cognizance of an offence under section 16 (1) (A) of the Prevention of Food Adulteration Act, 1954, arising from an alleged breach of the provisions of Rule 32 of the Prevention of Food Adulteration Rules, 1955, and summoned the petitioners for trial. 2. The petitioners hold a licence to stock and sell drugs. On 17.7.2001 the Complainant-Opposite party inspected their shop under the name and style of M/s New Drugs Agency and seized from there some packets of a patent named RUFAGE (Chewable fiber granules). He sent the seized packets of the Patent to the Public Analyst, Patna. The Public Analyst in his report dated 30.7.2001 expressed the opinion that the sample of RUFAGE (Chewable fiber) was misbranded within the meaning of section 2 (ix)(k) of the Act because it violated and failed to comply with rule 32 (i) of the Prevention of Food Adulteration Rules, 1955. 3. On the basis of the opinion of the Public Analyst the Food Inspector filed a complaint alleging that the sample of RUFAGE (Chewable fiber) was misbranded for violating clause (i) of rule 32 of the Rules; learned Magistrate took cognizance of the offence under section 16 of the Act and summoned the petitioners for trial. 4. Section 2 of the Prevention of Food Adulteratiion Act, 1954 contains definition clauses; sub-section (ix) defines misbranded and clause (k) of the subsection provides that an article of food shall be deemed to be misbranded if it was not labelled in accordance with the requirements of the Act or the rules made thereunder. 5. It is thus plain and clear that the provision relates to an article of food which is defined in section 2(v) as an article used as food or drink for human consumption other than drugs and water and includes- (a) xx xx xx xx (b) xx xx xx xx (c) xx xx xx xx 6. Rule 32 of which breach is alleged deals with packing and labelling of food. 7. Rule 32 of which breach is alleged deals with packing and labelling of food. 7. From the provisions noted above, it is manifest that in order to attract the provisions of the Act or to constitute an offence under the Act the allegation of misbranding must relate to an article of Food from the statutory definition of which drug is expressly excluded. 8. That being the legal position, Mr. R.K. Agrawal strongly argued that the whole case was completely misconceived, and it bordered on malafide because RUFAGE was not an article of food at all but it was a patent drug. He invited my attention to a photo stat copy (at Annexure-4) of the wrapper on the package of the patent. On the wrapper the patents composition is described as follows: "Each 10 g contains: High-Fiber Carrot granules 9g Excipients q.s." (Excipients means an inactive substance that serves as the vehicle or medium for a drug or other active substance). 9. It is described on the wrapper as the only dietary fiber supplement in chewable granule form and as an ideal diet supplement to promote high fiber low fat diet. 10. Further claim is made in the wrapper that when added with water the granules swell several times their volume. Ten Grams (approximately 2 heaped teaspoonful) of Rufage granules with a glass of water 15 minutes before a meal helps reduce the meal size and therefore the calorie intake. 11. It is further claimed that soluble and insoluble fibers in Rufage are all derived from the same natural source, namely, Carrot root. These fibers help in bowel regulation and thereby correct irregular bowel movements, including constipation. 12. It is further claimed that Rufage is a useful diet supplement in those suffering from or at a risk of: Hypercholesterolemia (excess cholesterol in the blood) Obesity Heart Diseases Diabetes mellitus Cancer Gastrointestinal Disorders. 13. Mr. Agrawal further submitted that the patent was manufactured under a drugs manufacturing licence (Copy at Annexure-21) obtained by its manufacturer, Ajanta Pharma Limited and the petitioners hold a licence issued under the Drugs & Cosmetics Act, 1940 for stocking and selling drugs, including the patent in question. 14. 13. Mr. Agrawal further submitted that the patent was manufactured under a drugs manufacturing licence (Copy at Annexure-21) obtained by its manufacturer, Ajanta Pharma Limited and the petitioners hold a licence issued under the Drugs & Cosmetics Act, 1940 for stocking and selling drugs, including the patent in question. 14. Learned counsel submitted that apart from anything else the simple fact that the patent could be manufactured only on the basis of a licence granted by the authorities under the Drugs & Cosmetics Act would show that it was a drug and therefore excluded from the definition of food within the meaning of the Act. 15. In the counter affidavit filed on behalf of the Complainant-Opposite party it is stressed that the so-called patent was nothing but granules made from carrot or carrot root and hence, it was misleading to describe it as a drug. It was admittedly carrot in granules form and, therefore, an article of food. 16. Learned A.P.P. appearing for the State contended that the claim of the manufacturer or the petitioners that the so-called patent had a number of curative or preventive qualities would not make it a drug. He pointed out that there are many articles of food that have similar curative or preventive quality, for example Turmeric but that alone would not exclude turmeric from the definition of food and put it in the category of drug. He contended that the sale of adulterated turmeric would clearly constitute an offence under the Prevention of Food Adulteration Act. 17. In this case it is not needed to go into the more basic question as to what constitutes drug and cause the exclusion of the article in question from the definition of food because this case is fit to be allowed on another short question. 18. Clause (i) of Rule 32 as it stood at the material time was as follows: "(i) the month and year in capital letters upto which the product is best for consumption, in the following manner, namely "BEST BEFORE....MONTHS AND YEAR OR "BEST BEFORE...........MONTHS FROM PACKAGING OR "BEST BEFORE..........MONTHS FROM MANUFACTURE OR "BEST BEFORE UPTO MONTH AND YEAR...... OR FROM THE DATE OF PACKAGING/MANUFACTURE (Note: Blank be filled up)" 19. From the package wrapper it appears that it had printed/marked on it the following statement: Expiry: 2 years from the date of mfg. OR FROM THE DATE OF PACKAGING/MANUFACTURE (Note: Blank be filled up)" 19. From the package wrapper it appears that it had printed/marked on it the following statement: Expiry: 2 years from the date of mfg. The manufacturing date was indicated as follows: MFD 12/2000. 20. It is thus evident that though the expiry period of the article was not indicated exactly in the manner as required by the rule, there was more than substantial compliance of the provision. Any prosecution of the petitioners, therefore, on grounds of breach of clause (i) of rule 32 would be nothing but an abuse of process of the court. 21. I am, therefore, satisfied that both the complaint as well as the order taking cognizance passed on it basis were quite misconceived and illegal. The order taking cognizance is set aside. 22. In the result, this quashing application is allowed.