Research › Search › Judgment

Himachal Pradesh High Court · body

2010 DIGILAW 1024 (HP)

Onkar Chand v. STATE OF H. P.

2010-08-06

DEEPAK GUPTA, SANJAY KAROL

body2010
JUDGMENT : DEEPAK GUPTA, J. 1. The following question has been referred on 4th August, 2003 for consideration by the Division Bench:- "Whether a sample purchased by a Food Inspector of a food such as Haldi and sealed in polythene bag can be said to have been put and sealed in a suitable container within the meaning of Rule 14 of the Prevention of Food Adulteration Rules, 1955." 2. Briefly stated the facts of the case are that on 16th December, 1992 the food inspector inspected the Karyana shop of appellant No.2 Rajender Kumar, who was absent and his brother Onkar Chand was present. The food inspector purchased three packets of "S-mark" Haldi powder bearing lot No.900 for the purpose of analysis. All the packets of Haldi were identically labelled and sealed and each packet of Haldi was a sample in terms of Rule 22-A of the Rules. Each packet of Haldi powder so purchased was put in a polythene bag and then sealed in a paper packet. 3. The contention raised on behalf of the petitioners in the Criminal Revision Petition is whether by packing the Haldi packets in a polythene bag the food inspector had complied with the provisions of Rules 14 and 16 of the Prevention of Food Adulteration Rules, 1955, which read as follows:- 14. Manner of sending sample for analysis.-- Samples of food for the purpose of analysis shall be taken in clean dry bottles or jars or in other suitable containers which shall be closed sufficiently tight to prevent leakage, evaporation or in the case of dry substance, entrance of moisture and shall be carefully sealed. Xxx xxxx xxxx 16. Manner of packing and sealing the samples.-- All samples of food sent for analysis shall be packed, fastened and sealed in the following manner, namely:-- (a) The stopper shall first be securely fastened so as to prevent leakage of the contents in transit; (b) The bottle, jar or other container shall then be completely wrapped in fairly strong thick paper. Manner of packing and sealing the samples.-- All samples of food sent for analysis shall be packed, fastened and sealed in the following manner, namely:-- (a) The stopper shall first be securely fastened so as to prevent leakage of the contents in transit; (b) The bottle, jar or other container shall then be completely wrapped in fairly strong thick paper. The ends of the paper shall be neatly folded in and affixed by means of gum or other adhesive; (c) A paper slip of the size that goes round completely from the bottom to top of the container, bearing the signature and code and serial number of the Local (Health) Authority, shall be pasted on the wrapper, the signature or the thumb impression of the person from whom the sample has been taken being affixed in such a manner that the paper slip and the wrapper both carry a part of the signature or thumb impression: Provided that in case, the person from whom the sample has been taken refuses to affix his signature or thumb impression, the signature or thumb impression of the witness shall be taken in the same manner; (d) The paper cover shall be further secured by means of strong twine or thread both above and across the bottle, jar or other container, and the twine or thread shall then be fastened on the paper cover by means of sealing wax on which there shall be at least four distinct and clear impressions of the seal of the sender, of which one shall be at the top of the packet, one at the bottom and the other two on the body of the packet. The knots of the twine or thread shall be covered by means of sealing wax bearing the impression of the seal of the sender. 4. The contention of the petitioners was that a sample of food can only be taken in clean dry bottles or jars and sent for analysis. Reliance is placed on the provisions of Rules 14 and 16 and it is contended that the sample could only be sent in jars or bottles and not in a polythene bag, as has been done in the present case. Reliance is placed on the provisions of Rules 14 and 16 and it is contended that the sample could only be sent in jars or bottles and not in a polythene bag, as has been done in the present case. The learned Single Judge while making reference to the larger Bench has found that there is conflict between the judgement of a Single Judge of this Court rendered in J.L. Jindal v. State of H.P. 1989 (1) Sim.L.C. 161 and a Full Bench decision of the Punjab and Haryana High Court in State of Punjab v. Raman Kumar, 1998 Vol.1 FAC 9. 5. In J.L.Jindals case (supra) also three sealed packets of Haldi (turmeric) were seized and the contention raised was that since they had not been sealed and sent for analysis in clean dry bottles or jars the Rules have been violated. The learned Single Judge of this Court rejected this contention and held as follows:- "Thus it is apparent that where the Food is sold in a sealed container like the one in question, the sealed container as such must be sent to the Public Analyst for analysis of the contents of the container and it is only when they are sent in that condition that the container shall be treated to be part of the sample. If the contents are taken out from the sealed container, there would be a clear violation of the mode prescribed for taking the sample for analysis. The contention, therefore, is devoid of any force." 6. In the present case also Haldi was admittedly kept for sale in a sealed container and the sealed container was treated to be a sample and wrapped in a polythene bag and then in thick paper and sent for analysis. It is a settled principle of law that when interpreting the Rules they should be interpreted in a manner which is reasonable and fulfills the purpose of the Act. The purpose of Rules 14 and 16 is that the sample of food stuff should be sealed in such a manner that it cannot be tampered with and the sample is not affected by improper storage, moisture, etc. from the date it has been taken into possession till analysis. The purpose of Rules 14 and 16 is that the sample of food stuff should be sealed in such a manner that it cannot be tampered with and the sample is not affected by improper storage, moisture, etc. from the date it has been taken into possession till analysis. In case, Haldi powder was being sold, not in packets, but in loose form then the food inspector must ensure that the sample is taken in the manner provided under Rules 14 and 16. However, when the food stuff is being sold in a sealed packet it obviously means that the manufacturer is selling the same in a sealed packet by ensuring that the food stuff will not be tampered with and will remain in the same condition as it was when it was packed. We are in total agreement with the judgement of the learned Single Judge that in such an eventuality it is not necessary to pack the food stuff in clean dry bottles or jars. 7. Rule 14 itself envisages that the sample of food shall be taken in a clean dry bottles or jars or any other suitable container which shall be closed sufficiently tight to prevent leakage, evaporation or in the case of dry substance entrance of moisture and shall be carefully sealed. It is not necessary that the packing has to be done in glass bottles or jars. Even in a polythene packet the food stuff can be packed air tight to prevent the mischief which is envisaged under Rule 14. 8. The Rule itself envisages that the container should be of such a nature that when it is tightly closed it shall prevent leakage, evaporation or in the case of dry substance entrance of moisture. A polythene bag can serve all the aforesaid purpose. While interpreting the Rules we must also take into consideration changes which occurred over a period of time. The Rules were framed in the year 1955 when polythene was not in existence. Today, when best quality polythene and plastic containers are available it would be totally inappropriate to insist that the only glass bottles and jars should be used. However, the prosecution must ensure that whatever wrapping material is used it prevents leakage and evaporation and in the case of dry substance entrance of moisture. Today, when best quality polythene and plastic containers are available it would be totally inappropriate to insist that the only glass bottles and jars should be used. However, the prosecution must ensure that whatever wrapping material is used it prevents leakage and evaporation and in the case of dry substance entrance of moisture. In cases of sealed packets, like in the present case, which are already in the container using a plastic bag and thick paper would be sufficient. The air tight polythene packages are available freely in the market and they by themselves are suitable containers. 9. It would be pertinent to mention that when food is sold or put up for sale in sealed containers like in the present case then each container itself constitute a separate sample under Rule 22-A. Therefore, all that is required is that the sample container should be wrapped in such a manner that there is no leakage or evaporation and moisture is prevented from entering into the packet. 10. Coming to the full Bench judgement of the Punjab and Haryana High Court in State of Punjab v. Raman Kumar, 1998 Vol.1 FAC 9 even a polythene bag was not used. The packets were straightway wrapped in a thick paper. It is apparent that the decision of the Punjab and Haryana High Court has been given in the peculiar facts and circumstances of that case. In any event, we are not in agreement with the view of the Punjab High Court that polythene container or wrappers do not confer to a definition of container as contained in Rule 14. 11. The question is accordingly answered by holding that the polythene bag can be said to be a suitable container within the meaning of Rule 14 of the Prevention of Food Adulteration Rules, 1955. 12. The case may now be listed before the learned Single Judge for hearing.