V.K. Shali, J.(Oral) ;— 1. These are two petitions bearing No.2675/04 and 2679/04 filed by Ms/Pepsi Food Pvt. Ltd. and M/s Pepsico India Holdings Ltd., respectively under Section 482 Cr.P.C. for quashing of a complaint under Section 16 of Prevention of Food Adulteration Act, 1954, respectively. 2. Both these cases are taken up together as the facts and the points of law raised in these two petitions for quashing of the complaints and the consequent proceedings are identical. 3. In Crl.M.C. 2679/04, a sample of `Lehar Pepsi Mango Fruit Drink’ was taken on 12.7.2002 from M/s Pearl Drinks Ltd., B-42, Lawrence Road, Industrial Area, Delhi-35. The said sample was analyzed by the Public Analyst and it was found to be not conforming to the standards because being fortified with Vitamin `C’ the quantity of Ascorbic Acid was less than the prescribed minimum limit of 40 mgm/100 gms and thus in violation of Rule 40(3) of the Prevention of Food Adulteration Rules, 1955. In addition to this, the sample was also misbranded for alleged violation of Rule 32(e) and 32A of the Rules. 4. The complaint against both the petitioners came to be filed after obtaining the requisite sanction from the Secretary Medical on 26.2.2004. The accused persons had put in their appearance in response to the summons having been issued to them and they exercised their right under Section 13(2) of the Prevention of Food Adulteration Act, 1954, accordingly, the second counter part of the respective sample was sent to the Central Food Laboratory (hereinafter referred to as `CFL’), Pune and a report was received. By virtue of Section 13(3) of PFA Act as prayed, the report of the CFL supersedes the report of the public analyst. According to the report of CFL, the said sample was found conforming to the standards, however, so far as the labeling of the sample was concerned, it opined that the sample contravenes Rule 32(e) of the PFA Rules inasmuch as, the batch number was not mentioned on the label. 5. The petitioners filed the present petitions before this Court for quashing of the complaint on number of grounds. Mr.Virmani, learned senior counsel has contended that the violation of Rule 32(e) of PFA Rules in the instant case, could not have lead to the prosecution of the petitioners on account of the fact that the Govt. 5. The petitioners filed the present petitions before this Court for quashing of the complaint on number of grounds. Mr.Virmani, learned senior counsel has contended that the violation of Rule 32(e) of PFA Rules in the instant case, could not have lead to the prosecution of the petitioners on account of the fact that the Govt. of NCT of Delhi had formulated a policy bearing no.F-6(228)/85/ENF/PFA dated 29.9.1985 which was modified vide order No. 5/07 dated 14.9.2007. It has been contended that in the said policy it was envisaged that in violation of Rule 32(e) of the Rules with regard to the labeling on the container or a package, is only a technical offence and in such case, the party affected must be given, in the first instance a warning in writing drawing its attention to Rule 32 with regard to the mentioning of date, month and year of manufacturing on the label affixed and only in the event of the said offence being repeated after a written warning, the party should be prosecuted. 6. The learned senior counsel has contended that according to the report of the CFL, the Article of food in question was found to be conforming to the standard prescribed under the relevant Rules and the only violation which has been opined by the report is with regard to the non mentioning of the batch number on the label as required under Rule 32(e) of the Rules and, therefore, the respondents cannot continue with the prosecution of the petitioners as the omission on part of the petitioners tantamounts only to a technical offence. It is contended that admittedly being a first violation, a notice of warning was only required to be given. The learned senior counsel has also placed reliance on the judgments of the learned Single Judges of this Court where in similar circumstances of violation of Rule 32(e) of the PFA Rules for the first time, pertaining to the labeling, the prosecution against the said parties have been quashed. Reliance in this regard can be placed in case titled S.S.Gokul Krishnan and Ors. Vs. State Thr. Food Inspector Govt. of NCT of Delhi 2009 II AD (Delhi) 365, wherein it has been observed as under:- “8. Reliance in this regard can be placed in case titled S.S.Gokul Krishnan and Ors. Vs. State Thr. Food Inspector Govt. of NCT of Delhi 2009 II AD (Delhi) 365, wherein it has been observed as under:- “8. It is argued by the counsel for the petitioners, that the said violation of Rule 32 by the petitioners, even if admitted for the sake of arguments, is admittedly a first violation and vide policy no.F6(228)/85/ENF/PFA decision was taken by the Department of PFA, Govt. of NCT of Delhi as far back as in 1985, that in case, the contents of the sealed packet or container conformed to the standard laid down under the PFA Rules, deficiency with regard to Rule 32 which pertained to the particulars of the labeling on the container or packets is only a technical offence. In such a case the party concerned be given a written warning drawing its attention to Rule 32 and in case the practice is repeated after a written warning, the party committing the offence second time should be prosecuted.” 7. The learned APP has also placed reliance on the said authority to contend that so far as the prosecution of the petitioners for alleged violation of Rule 32(e) of the PFA Rules is concerned, this could not be stopped in the instant case by the respondents for the simple reason that the report of the public analyst which was received by the department found the article of food deficient not only on account of not meeting the standards prescribed under Rule 32 with regard to the labeling but also on account of the fact that the article of food was found deficient with regard to the other contents as prescribed in case of mango drinks. Therefore, to contend that the prosecution itself ought not to have been launched is not an argument which is sustainable in the eyes of law, however, so far as the continuance of the prosecution is concerned, it has been contended that since the petitioners have availed of the remedy by filing the present petitions, the respondents did not want to take a pre-emptive action by permitting the withdrawal of the prosecution. The learned APP has left it to the Court regarding quashing of the complaint. 8. I have carefully considered the submissions made by the respective sides. The learned APP has left it to the Court regarding quashing of the complaint. 8. I have carefully considered the submissions made by the respective sides. I find merit in the contention of the learned APP that under the facts of the present case, there was no option but to initiate the complaint under Section 7 read with Section 16 of the PFA Act because sample of mango drink was not only deficient with regard to the labeling but was also not meeting the requisite standards prescribed under PFA Rules. 9. So far as the policy is concerned, that would be applicable only in case the Public Analyst had opined that the articles of food of which sample was taken did not meet requisite standards of labeling prescribed under Rule 32(e) of the Rules and that too when it was the first offence. It is only in such circumstance that the prosecution against such parties could not have been initiated. But in the instant case, once the petitioner exercised their right to have the second counter part of the sample tested and a report of the CFL had been received superseding the report of Public Analyst report as per the mandate of Section 13(3), there is no reason for continuance of the present complaint and it is ought to have been taken back or withdrawn because this was the first offence of labeling and the petitioners in terms of the policy ought to have been warned. This was not done by the respondent but there is no impediment in Court giving the said benefit now to the petitioners. 10. The continuance of the proceedings against the petitioners on account of violation of Rule 32(e) i.e. non mentioning of the batch number on the label of the article of food, being the first violation, is not justified as per the policy, which was prevalent at the time when the sample was taken. The purpose of the Prevention of Food Adulteration Act, so far as the question of labeling is concerned was not to prosecute the first time offender, but only to bring it to the notice of the manufacturer that they are required to confirm to certain basic standards with regard to the date, year or the time of manufacturing so as to enable the customer to take the decision as to whether the product is worth consuming or not. The judgments of our own High Court which have been cited by the learned senior counsel wherein similar circumstances of first offence pertaining to the violation of Rule 32, the Court has given the benefit of circular to those parties. Although, the circular stands withdrawn as on date, but at the time when the offence is purported to have been committed the circular in question was in operation, therefore, I feel that the petitioners cannot be denied the benefit of the said circular. I feel that the prosecution against the petitioners cannot continue. 11. The learned senior counsel has made number of other valid submissions especially, pertaining to the manufacturing of the food article. In this regard, the learned senior counsel has contended that the case of the respondents is that the food article in respect of which the sample was taken was manufactured by M/s Devyani International Pvt. Ltd. It has been contended that so far as the petitioners M/s Pepsico India Holdings Ltd. and M/s Pepsi India Ltd. are concerned, they have been impleaded as parties to the complaint only on account of the fact that they are supplying the concentrate in the form of drink articles or because they owned the designing of the trademark on the pack. The learned senior counsel has contended that assuming though not admitting that both these petitioners are supplying the concentrate or are the owners of the trademark or the designing of the label, they cannot be prosecuted under the PFA Act for the simple reason that the manufacturer of the article of food is M/s Devyani International Pvt. Ltd. and moreover, no prescribed standard is prescribed under the Rule for the concentrate which is being supplied by the petitioners. It is urged that so far as the prosecution for an offence under PFA Act is concerned, the owners of the trademark cannot be prosecuted. Reliance in this regard has been on the judgment of the Apex Court in case titled Pepsi Foods Ltd. and Anr. Vs. Special Judicial Magistrate AIR 1998 SC 128. 12. In addition to this, it has also been stated that Rule 32(e) of the Rules has already been struck down by the Apex Court in case titled Dwarka Nath and Anr. Vs. MCD AIR 1971 SC 1844 . Vs. Special Judicial Magistrate AIR 1998 SC 128. 12. In addition to this, it has also been stated that Rule 32(e) of the Rules has already been struck down by the Apex Court in case titled Dwarka Nath and Anr. Vs. MCD AIR 1971 SC 1844 . It has been contended since the rule itself has been struck down by the Apex Court, the same could not have been invoked at all in the prosecution of the petitioners. Although, the submissions made by the learned senior counsel seems to be convincing, however, I leave these questions open as the complaint has been quashed on the first ground itself. Therefore, I do not consider it worthwhile and necessary to go into the details of examination of these submissions. 13. For the reasons mentioned above, I feel that continuance of the proceedings against the petitioners is the gross abuse of the processes of law and therefore, both the complaints and the consequent proceedings are quashed.