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Madhya Pradesh High Court · body

2007 DIGILAW 761 (MP)

K. Bhattacharya v. State of M. P.

2007-07-19

B.M.GUPTA

body2007
Judgment ( 1. ) THE instant petition is for invoking the inherent powers of this Court under Section 482 of Crpc for the purpose of quashing and setting aside the complaint bearing case No. 1/03 filed by respondent No. 2, against the petitioners in the Court of JMFC, Gohad, Distt. Bhind for the offence punishable under Section 7 (II and III) read with 16 (1) (A) (I and II) of Prevention of food Adulteration Act 1954, (hereinafter referred to as the act) alleging the breach of Rule 32 (c) (1) and Rule 50 of the Prevention of Food Adulteration rules, 1955 hereinafter referred to as the Rules ). ( 2. ) THE facts in brief as admitted by both the parties during the course of arguments, are that one private complaint dated 3rd January, 2003 has been filed against the petitioners. Cadbury India Limited the petitioner No. 8 and its Directors, Managers the petitioner No. 1 to 7 for aforementioned offences, putting allegations against them that one A. K. Bhadoria, duly authorized Food inspector inspected the establishment of petitioner No. 8 situated at Malanpur, distt Bhind. He collected samples of its two products namely 1. "milk treat" and 2 "eclairs". Both of these samples were sent for Analysis and vide report of public Analyst dated 24th April, 2001, the sample of "eclairs" was found as per standards prescribed, but the sample of "milk treat" was opined as misbranded as per Rule 32c (1)of the rules. It was also found that no valid licence was available with the petitioners at the time of inspection. When the petitioners were summoned by the trial Court, two applications were moved by them one under Section 245 (2) of Crpc and second under Section 17 (1) of the Act praying therein to discharge the petitioners. Vide order dated 29th June 2004 both the applications were rejected by the trial Court. Feeling aggrieved, Criminal revision No. 144/04 was preferred but the same has also been dismissed by first Additional Sessions Judge, Gohad, District Bhind vide order dated 8th september 2005. Thereafter the instant petition has been preferred by the petitioners. ( 3. ) SHRI A. K. Chitale, learned Sr. Feeling aggrieved, Criminal revision No. 144/04 was preferred but the same has also been dismissed by first Additional Sessions Judge, Gohad, District Bhind vide order dated 8th september 2005. Thereafter the instant petition has been preferred by the petitioners. ( 3. ) SHRI A. K. Chitale, learned Sr. Advocate has assailed the prosecution on the following grounds: (i) that, the Rule 32 (c) (1) of the Rules, has been added on 20th November 2000 vide GSR No. 877 (3) which came into force on 20th November, 2001 and onwards. In view of this, at the time of inspection or date of incident that is on 11th April, 2001, this rule was not in force. Hence, the prosecution for the alleged breach of this rule is erroneous. In support Shri Chitale has drawn attention on a judgment of the Apex court rendered in Dinesh Kumar v. State of M. P. It is further submitted by Shri Chitale in this regard, that prior to this amendment, rule 32c of the Rules was in existence and according to this rule the name and complete address of the manufacturer, importer, vendor or packer on the product alongwith manufacturing unit was not required. Vide aforementioned amendment, it has been made obligatory on the manufacturer to mention the name and complete address of the manufacturer and the manufacturing unit, if it is located at different place and also that in case the manufacturer is not the packer or bottler mentioning the name and complete address of the packing or bottling unit as the case maybe. (ii) While highlighting Annexure-I (Colly) and Annexure J. Shri Chitale has submitted that the licence was already renewed upto 31st March 2001, which was subsequently renewed on 15th March, 2001 for a period upto 31. 3. 2002. In view of this, the allegation about having no valid licence is also erroneous. It is further submitted by him, that the allegations mentioned in Clause B to F of para 5 of the complaint are with regard to some irregularities in the licencing procedure. He has submitted that once the licence was renewed, the petitioners cannot be held responsible for such irregularities. It is further submitted by him, that the allegations mentioned in Clause B to F of para 5 of the complaint are with regard to some irregularities in the licencing procedure. He has submitted that once the licence was renewed, the petitioners cannot be held responsible for such irregularities. In view of all, it is submitted by him that the allegation with regard to the charge under rule 32c (1) and Rule 50 are groundless and as observed by the Apex court in Ajay Mitra v. State of M. P. and Others and Zandu pharmaceutical Works Ltd. v. Mohd. Sharaful Hague this Court can quash the complaint under its inherent powers. (iii) That, in alternative he has submitted that vide Annexure-K, as per the provisions of Rule 12b read with Section 17, Mr. A. J. Philip, general Manager of the petitioner No. 8, was nominated to be in-charge and responsible to the company for its conduct of business about its factory situated at Malanpur and the same was communicated to the competent authority. The round seal affixed on the office of the competent authority, indicates that it was received by the authority on 27th June, 1999. On this basis, except petitioners no. 7 and 8, the complaint ought to be quashed about petitioners No. 1 to 6, as there appears no specific averments in the complaint with regard to their involvement in the offence. In support, he has drawn attention on the following judgments of the Apex Court in: R. Banerjee and others v. H. D. Dubey; Municipal Corporation of Delhi v. Ram kishan Rohtabi and Pepsi Foods Ltd. and others v. Special Judicial magistrate and others. ( 4. ) SHRI D. R. Sihare, while drawing attention at para 4 of the impugned order dated 29th June, 2004 has submitted that as observed by the learned magistrate, there was no compliance of the provisions of GSR No. 422 (3) issued on 29th April, 1987 which came into force from 29th April, 1988. According to which place of manufacture was to be indicated but the same was not mentioned on the product. He has further submitted that on Annexure-K at page 67 and 68, it is not mentioned that Mr. A. J. Philip was nominated for the purpose that on behalf the company, he will be responsible for all the offences. According to which place of manufacture was to be indicated but the same was not mentioned on the product. He has further submitted that on Annexure-K at page 67 and 68, it is not mentioned that Mr. A. J. Philip was nominated for the purpose that on behalf the company, he will be responsible for all the offences. He has further submitted that the renewed licence was not available with the petitioners on the date of inspection. In the last, he has submitted that the petition is in the shape of second revision which is barred under Section 397 (3)of Crpc. What ever the objections raised in the petition, the same can be raised by petitioners before the trial Court at the relevant time. ( 5. ) FOR ready reference, the relevant provisions of Rule 32 (c) and 32 (c) (1)are quoted herein below: 32 (c) - 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 ). . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . (0. . . . . . . . . . . . . . . . The name and complete address of the manufacturer or importer or vendor or packer. (d ). . . . . . . . . . . . . (e ). . . . . . . . . . . . . . (f ). . . . . . . . . . . . . . . Explanation I: The term label means a display of written marked, graphic, printed, perforated, stenciled, embossed or stamped matter upon the container, cover lid or crown of any food package. Explanation 2: complete address means in the case of a company, the address at which its registered office is situated and, in any other case, the name of the street number (if any) assigned to the premises of the manufacturer or packer and either the name of the city and state where the business is carried on by the manufacturer or packer or the pin code. For the purpose of this explanation, shorter address registered under Rule 36 of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977, shall also be treated as complete address. (g ). . . . . . . . . . . . . (h ). . . . . . . . . . . . . . . (Emphasis supplied) ( 6. ) THIS provision remained in force till the new provision Rule 32 (c) (1) came into force. Vide notification dated 20th November 2000, G. S. R. 877 E published in the Gazette of India "extra-ordinary para 2-Section 3 (1), the amended provision Rule 32" (C) (I) has been added, which goes as under: "in the Prevention of Food Adulteration Rules, 1955, " (c) (i) The name and complete address of the manufacturer and the manufacturing unit, if these are located at difference places and in case the manufacturer is not the packer or bottler, the name and complete address of the packing or bottling unit as the case may be; (ii) Where an article of food is manufactured or packed or bottled by a person or a company under the written authority of some other manufacturer or company, his or its brand name, the label shall carry the name and complete address of manufacturing or packing or bottling unit as the case may be, and also the name and complete address of the manufacturer or the company, for and on whose behalf it is manufactured or packed or bottled; (iii) Where an article of food is imported into India, the package of food at all also carry the name and complete address of the importer in India, provided that where any food article manufactured outside India is packed or bottled in India, the package containing the such food article shall also bear on the label, the name of the country of origin of the food article and the name and complete address of the importer and the premises of the packing or bottling in India. Explanation-II shall be omitted. " (Emphasis supplied) ( 7. ) ON perusal of this new provision, it appears that it was published in the gazette on 20th November 2000 and was to come into force after one year of such publication. Meaning thereby, this amended provision came into force after 19th November 2001 and onwards. Explanation-II shall be omitted. " (Emphasis supplied) ( 7. ) ON perusal of this new provision, it appears that it was published in the gazette on 20th November 2000 and was to come into force after one year of such publication. Meaning thereby, this amended provision came into force after 19th November 2001 and onwards. Admittedly, the establishment was inspected by the Officer on 11th April 2000. At the time of the inspection, Rule 32 (c) (1) was not applicable. In view of this, filing of the complaint for breach of this Rule is erroneous. ( 8. ) ALTHOUGH it is not necessary, as the complaint has not been filed for any breach of the existing provision of Rule 32 (c) yet as argued by Shri Sihare and observed by the learned Magistrate, it requires consideration. The learned magistrate in the last para of page 4 of his order dated 29th June 2004, as observed that the place of manufacture of the product has not been mentioned which was required under J. S. R. No. 422 E dated 29. 4. 1987; enforced from 29. 4. 1988. This order has been confirmed by learned Additional Sessions Judge vide impugned order. On perusal of this provision, the contention of Shri Sihare as well as the observation of the Courts below appears erroneous. Vide G. S. R. No. 422e dated 29. 4. 1987, the prevention of Food Adulteration (3rd Amendment)Rules, 1987 were published. Vide Rule 3 of these Rules, the then existed rule 32 of the Rule was substituted. As per this amendment, the relevant Rule 32 (c) was published as under: "the name and complete address of the manufacturer or importer or vendor or packer. " vide explanations 1 and 2, the term label and the term complete address were defined which are same as these have been quoted hereinabove under the caption Rule 32 ( c) of the rules. ( 9. ) ON perusal of this highlighted G. S. R. No. 422 (E) and the provision of rule 32 (c) as it was existed prior to the amended Rule 32 (c) (1) became applicable, both appear same. During the course of arguments, when these provisions were shown to Shri Sihare. he could only mention that the words complete address of manufacturer require the complete address of the local manufacturing unit also. But, this contention cannot be sustained. During the course of arguments, when these provisions were shown to Shri Sihare. he could only mention that the words complete address of manufacturer require the complete address of the local manufacturing unit also. But, this contention cannot be sustained. Reason being, if the intention of Rule 32 (c), was to include the complete address of the local manufacturing unit also, there was no need to amend and incorporate this new provision in the newly amended Rule 32 (c) (1 ). While comparing the provisions of Rule 32 (c) With amended provisions of Rule 32 (c) (1), this difference becomes clear. Vide amended Rule 32 (c) (I), now it has been made obligatory for a manufacturer to mention the complete address of the manufacturer and the manufacturing unit, if these are located at different places. Such requirement as per the highlighted words was not in existence prior to 20. 11. 2001. Vide affidavit of the authorized nominee of the petitioner/company J. Boy phillips dated 10th July 2007 and the label of Milk Treat attached therewith, it appears that complete address of the company has been printed. As per para 4 of the affidavit in compliance of Rule 32 (c), this rapper was being used by the company at the time of the incident. It is pertinent to mention here that during the course of arguments on 19th July 2007 when specific question was put to shri D. R. Sihare, learned P. P. for State, as to whether he puts any objection about the correctness of the documents filed on behalf of the petitioners, he fairly conceded that he puts no objection about the correctness of their face value. Thus, neither the complaint has been filed for breach of the provision of rule 32 (c) of the Rules nor any breach of the same appears. To conclude, the rule 32 (c) (I) was not applicable at the time of the incident hence filing of complaint under this provision appears abuse of the process of the Court. ( 10. ) THE second allegation is of breach of Rule 50 of the Rules, that no valid licence was possessed by the petitioners at the time of incident. On perusal of the copy of the licence, it appears that the petitioners were having valid licence at the time of the incident. ( 10. ) THE second allegation is of breach of Rule 50 of the Rules, that no valid licence was possessed by the petitioners at the time of incident. On perusal of the copy of the licence, it appears that the petitioners were having valid licence at the time of the incident. For this purpose, Annexure I (Colly) which runs from page 61 to 66 on the record, it is apparently clear that the earlier licence was valid from April 2000 to 30th March 2001. This licence was renewed for this term on 29th February 2000. Thereafter, before expiry of the period i. e. 31st March 2001, on 15th March 2001 this licence was got renewed from the legal Health Authority for a period from 1st April 2001 to 31st March 2002. The face value of these documents has also not been disputed by the State during the course of arguments. It clearly shows that at the time of the inspection or happening of the incident, the petitioners were having valid licence. ( 11. ) IN para 5, some mentioned complainant with regard to ambiguity in dates of filing of challan, signatures on the receipt of the application for renewal of the licence, name printed in the licence and the procedure of renewal etc. It is rightly argued by learned Senior Counsel Shri Chitley, that once the licence has been issued or renewed by the competent authority, the petitioners cannot be held responsible on these procedural irregularities if any. Rule 50 of the Rules deals with breach of the conditions of licence, and not the procedural irregularities. As discussed hereinabove, possession of valid licence by the petitioners at the time of incident has been established. Breach of any of the conditions of the licence neither has been highlighted in the complaint nor has been mentioned during the course of the arguments. In view of this the allegation with regard to breach of Rule 50 also appears baseless. ( 12. ) LAST argument of Shri Sihare is that this petition under Section 482 of crpc is nothing but a second revision which is not permissible under Section 397 (3) of Crpc. It is true that under Section 397 of Crpc only one revision is permissible. But this petition has not been filed under Section 397 of Crpc that is for revising under Section 397 of Cr PC. It is true that under Section 397 of Crpc only one revision is permissible. But this petition has not been filed under Section 397 of Crpc that is for revising under Section 397 of Cr PC. This petition has been filed under Section 482 of Crpc which is an independent provision available to the party as observed by the Apex Court in the case of Krishnan and another v. Krishnaveni and another. While dealing with such a situation, the Apex Court in para 10 as observes as under: "10. Ordinarily when revision has been barred by Section 397 (3) of the code, a person accused/complainant cannot be allowed to take recourse to the revision to the High Court under Section 397 (1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397 (3) or Section 397 (2) of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of the process of the Courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensure. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under Section 397 (1)read with Section 401 of the Code". The factual as well as the legal aspect of the case as elaborately high lighted in the order it appear that prosecution of the petitioners for the alleged offences appears nothing but a grave miscarriage of justice as the same appears to be baseless. Permitting the prosecution any further will tantamount to permit the prosecution of the petitioners which is nothing but an abuse of the process of the Court. Permitting the prosecution any further will tantamount to permit the prosecution of the petitioners which is nothing but an abuse of the process of the Court. As observed by the Apex Court in para 28 in the of Pepsi food Ltd. and another v. Special Judicial Magistrate and Others, 1998 (5) SCC 749 , summoning of an accused in a criminal case which is a serious matter. Criminal law cannot be set into motion as a matter of cause. ( 13. ) IN (View of all, as discussed hereinabove, the petition deserves to be allowed. Hence, it is allowed. Criminal proceedings in the shape of Criminal case No. 1/03 pending in the Court of J. M. F. C. , Gohad, District Bhind are quashed. Petition allowed.