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2012 DIGILAW 227 (HP)

Joginder Pal v. State of Himachal Pradesh

2012-04-27

KULDIP SINGH

body2012
JUDGEMENT Kuldip Singh, Judge This petition has been filed under Section 482 Cr.P.C. for quashing order dated 10.9.2010 passed in Case No. 187-3 of 07/02 by learned Judicial Magistrate 1st Class (IV), Shimla. 2. It has been stated in the petition that petitioner started wholesale liquor business in Shimla under the name and style of M/s Sunrise Enterprises as its Proprietor. The business was stopped on 31.3.2004. The respondent No.2 being retailer in liquor business was the customer of M/s Sunrise Enterprises, as such, was lifting the wholesalepackages of the liquor from the premises of M/s Sunrise Enterprises. 3. The petitioner was served with a bailable warrant requiring his presence on 30.12.2011 before Judicial Magistrate 1st Class (IV), Shimla. At that stage, the petitioner came to know from respondent No.2 that on its application under Section 20-A of the Prevention of Food Adulteration Act, 1954 (for short ‘Act’) the learned Judicial Magistrate 1st Class (IV) has impleaded petitioner on 10.9.2010 as co-accused. 4.It has been stated that Food Inspector on 11.4.2002 allegedly took sample of ‘Gold Riband Whisky’ for the purpose of analysis. The sample was sent to Public Analyst, who found the sample to be mis­branded. The concerned Chief Medical Officer gave written consent under Section 20 of the Act to launch prosecution and as such case was instituted in the trial Court. 5.In the impleadment application it has been stated that respondent No.2 had purchased ‘Gold Riband Whisky’ from petitioner. The Court below has erred in taking cognizance of the application and passing the impugned order. The term ‘mis-branded’ has been defined in Section 2 (ix) of the Act. The sub clause (k) of Clause (ix) of Section 2 provides that if an article of food is not lebelled in accordance with the requirements of the Act or rules, the same shall be deemed to be mis-branded. The provision pertaining to packing and labelling of foods finds mention in Part VII of the Prevention of Food Adulteration Rules, 1955 (for short ‘Rules’). 6.The Rule 32 provides that every package of food shall carry a label, Clause (i) of Rule 32 provides the month and year in capital letters up to which the product is best for consumption be specified. 6.The Rule 32 provides that every package of food shall carry a label, Clause (i) of Rule 32 provides the month and year in capital letters up to which the product is best for consumption be specified. However, first proviso to clause (i) provides that in case of ‘whole sale packages’ the particulars under clauses (b), (f), (g) and (h) including clause (i) need not be specified. The petitioner has also taken the help of Explanation VI of Rule 32. The submission has been made for setting aside the impugned order. 7.Heard. The learned counsel for the petitioner has submitted that the learned Magistrate has erred in impleading the petitioner under Section 20-A of the Act. The learned Magistrate has not appreciated Rule 32. The petitioner being whole-seller is exempted from putting month and year on the label up to which the product is best for consumption, therefore, sample in present case cannot be said to be mis-branded as opined by the Public Analyst. The learned counsel for the respondents have supported the impugned order. The learned counsel for respondent No.2 has submitted that respondent No.2 had purchased ‘Gold Riband Whisky’ from petitioner whole seller. He has relied Section 19 (2) of the Act. The submission has been made for dismissal of the petition. 8.In the complaint it has been stated that on 11.4.2002 the Food Inspector had purchased 3 x 180 ml.Gold Riband Whisky quarters on payment of ‘ 180/- as a sample for analysis. In the complaint submission has been made that accused was having mis-branded Gold Riband Whisky under Section 2 (ix) (k) of the Act in his possession for sale to the general public and sold the same to the Food Inspector and thereby committed an offence punishable under Section 16 (1) (a) (i) read with Section 7 of the Act. The Public Analyst in the report has given the following opinion:- “I further certify that I have/had caused to be analyzed the aforementioned sample and declare the result of the analysis to be as follows: 1 to 7 : xx xx xx and am of the opinion that the month and year upto which the product is best for consumption has not been mentionedon the label and hence the sample is misbranded”. 9. 9. The respondent No.2 filed an application under Section 20-A of the Act stating therein that respondent No.2 was retailer to sell the products which were duly passed by the Excise Department of H.P. in its shop and same products were sold which were purchased from the whole seller. The article against which the case has been filed was Gold Riband Whisky and the same was purchased from M/s Sunrise Enterprises whole seller through its Proprietor Joginder Singh Mann, who is required to be impleaded as party. The reply was filed by the Food Inspector. 10. The learned Magistrate in the impugned order has observed that respondent No.2 has annexed the original bill showing the purchase of ‘Gold Riband Whisky’ from M/s Sunrise Enterprises. He has observed there is sufficient material to show that disputed articles were purchased from M/s Sunrise Enterprises. As such, Joginder Singh Mann Proprietor of M/s Sunrise Enterprises was ordered to be impleaded as co-accused in the case. The application was accordingly allowed on 10.9.2010. 11.The Section 2 (ix) of the Act defines “mis-branded” - an article of food shall be deemed to be misbranded –(a) to (j) xx xx xx(k) if it is not labeled in accordance with the requirements of this Act or rules, made thereunder; The “package” has been defined in clause (x) as follows:- Package means a box, bottle, casket, tin, barrel, case, receptacle, sack, bag, wrapper or other thing in which an article of food is placed or packed.” 12Part VII of the Rules is of Packing and Labelling of foods. The learned counsel for the petitioner has relied Rule 32 Clause (i) first proviso to clause (i) alongwith Explanation VI (a), which was at the relevant time, as follows:- “32. 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) to (h) xx xx xx (i) the month and year in capital letters up-to-which the product is best for consumption, in the following manner, namely:-BEST BEFORE MONTH AND YEAR OR Provided that in case of wholesale packages the particulars under clauses (b), (f), (g), (h) and this clause need not be specified. Explanation I to V. xx xx xx Explanation VI: Wholesale package means a package containing-(a) a number of retail packages, where such first mentioned package is intended for sale, distribution or delivery to an intermediary and is not intended for sale direct to a single consumer”.xx xx xx 13. The contention of the learned counsel for the petitioner is that petitioner is whole-seller and whole sale package is exempted from giving on the label of package month and year up to which the product is best for consumption. The learned Magistrate has erred in allowing the application under Section 20A of the Act of respondent No.2. In the first blush the contention raised by the learned counsel for the petitioner appears to be attractive but close scrutiny of the Act and Rules reveals that the contention has no force. 14.In the complaint, the Food Inspector has alleged that he had purchased 3 x 180 ml. Gold Riband Whisky quarters on payment of ‘ 180/- for analysis. The definition of package includes bottle etc. The Explanation VI (a) of Rule 32 provides whole sale package means a number of retail packages, where such first package is intended for sale, distribution or delivery to an intermediary and is not intended for sale direct to a single consumer. Thus, Rule 32 exempts the whole sale package providing particulars mentioned in clause (i) of Rule 32 but does not exempt providing particulars of clause (i) of Rule 32 on every label of package of food. The contention raised by the learned counsel for the petitioner, if accepted, will have far reaching consequences. It is not the intention of the Act, Rules to put the package not in conformity with the Act and Rules in whole sale package and supply the whole sale package to the retailer for ultimate use of the consumer and then take the plea that manufacturer or dealer is not required to put on the label of the package of food particulars required under Rule 32 under the shelter that once the package(s) are converted into whole sale package then compliance of Rule 32 is not required. The Rule 32 (i), Explanation VI (a) operates in narrow field, this exempts the whole sale package but not the package(s) inside the whole sale package. 15. The petitioner has relied invoice No. 595 dated 9.4.2002 supplying Gold Riband Whisky to respondent No.2. The Rule 32 (i), Explanation VI (a) operates in narrow field, this exempts the whole sale package but not the package(s) inside the whole sale package. 15. The petitioner has relied invoice No. 595 dated 9.4.2002 supplying Gold Riband Whisky to respondent No.2. Thus, there is no dispute that Gold Riband Whisky quarters in question were purchased by respondent No.2 from the petitioner. The Section 14 of the Act provides that no manufacturer or distributor of, or dealer in any article of food shall sell such article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor. The proviso to Section 14 further provides that a bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer or distributor of, or dealer in, such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under this Section. 16. The Section 20A provides that where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food, the court is satisfied, on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with that offence, then, the Court may, proceed against him. 17.The sub section 2 of Section 19 of the Act provides that a vendor shall not be deemed t o have committed an offence pertaining to the sale of any adulterated or misbranded article of food if he proves (a) that he purchased the article of food from a manufacturer, distributor or dealer with a written warranty and (b) that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it. It has not been denied by the petitioner that quarters in question were supplied by the petitioner to respondent No.2. The petitioner has projected that in view of Rule 32 (i), first proviso, Explanation VI (a), the petitioner is exempted from giving the particulars of clause (i) of Rule 32 on every label of package of food month and year up to which the product is best for consumption, which contention as noticed above, has no force. The petitioner has projected that in view of Rule 32 (i), first proviso, Explanation VI (a), the petitioner is exempted from giving the particulars of clause (i) of Rule 32 on every label of package of food month and year up to which the product is best for consumption, which contention as noticed above, has no force. There is no merit in the petition.18.view of above, the petition fails and is accordingly dismissed. The pending applications are also dismissed.