Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 381 (MP)

Shri Prakash Desai v. State of M. P.

2012-04-04

R.C.MISHRA

body2012
JUDGMENT : Thisis a petition, under Section 482 of the Code of Criminal Procedure (for brevity'the Code'), for quashing of the criminal proceedings pending as Complaint CaseNo. 4837/2006, before Shri B.R. Yadav ,JMFC, Sagar . 2.The petitioner stands prosecuted as the person nominated by the manufacturingcompany under Section 17 (1) (a) ( i ) of thePrevention of Food Adulteration Act, 1954 (hereinafter referred to as 'theAct') for the offence punishable under Section 7 (ii) read with Section 16 (1)(a) ( i ) of the Act. Cognizance of the offence hasbeen taken upon complaint made by Shivraj Pawak , Food Inspector, Food and Durg Administration, Distt . Sagar against the petitioner, Vinod Kumar and Prafulla Patel (arraigned as accused No. 2, 1 and 3respectively). 3.Relevant contents of the complaint, filed on 25-9-2006 , may be summarised as under : - "( i ) On 8-6-2001 at about 2.30 p.m., R.K. Jain, the FoodInspector, inspected the shop run by Vinod Kumarunder the name and style of ' Natraj Sweets' situatedin Civil Line at Sagar . By paying an amount of Rs . 30/-, the Inspector purchased 3 bottles containingwater, each carrying label specifying these particulars : - " Kinley Pure Drinking Water, packaged drinking water bottledby Hindustan Coca-cola Beverages Pvt. Ltd., Regd . Office at linkay Towers , Udyog Vihar , Phase 5, Gurgaon , Ilaryana under theauthority of Coca-cola Company Net quantity 1 litre .Batch No. 012, Mfd . date 18-4-2011 MRP? 10.34 best before 6 months fromPacking Unit at Nadiad , Gujarat ." (ii)One of the bottles, thus purchased, was forwarded for analysis to the PublicAnalyst, State Food Laboratory, Bhopal .The corresponding report dated 10-7-2001 indicated that the product was misbranded in view of contravention of Rule 49(29) of the Prevention of Food Adulteration Rules, 1955 (for short ' the Rules'). 10.34 best before 6 months fromPacking Unit at Nadiad , Gujarat ." (ii)One of the bottles, thus purchased, was forwarded for analysis to the PublicAnalyst, State Food Laboratory, Bhopal .The corresponding report dated 10-7-2001 indicated that the product was misbranded in view of contravention of Rule 49(29) of the Prevention of Food Adulteration Rules, 1955 (for short ' the Rules'). (iii)The follow up action, for ascertaining the names of the persons liable for theoffence and for obtaining consent of Local Health Authority for their prosecution,took a considerable period of more than 5 years." 4.Before proceeding further, it would be necessary to advert to Rule 49 (2)(above), which reads thus : - "Noperson shall manufacture, sell or exhibit for sale mineral water except underthe Bureau of Indian Standards Certification Mark." 5.As rightly contended by learned Senior Counsel, even initiation of theproceedings was clearly an abuse of process of the Court in view of thefollowing facts : - ( i ) Report of Public Analyst could not have formed basis ofthe prosecution as sub-rule (29) of Rule 49 of the Rules is applicable toMineral Water, for which standards are prescribed under Item A.32 and not toPackaged Drinking Water, for-which standards are laid down under Item A.33 ofAppendix B to the Rules. (ii)Even if it is assumed, for the sake of arguments, that the bottle sent to thePublic Analyst contained mineral water, no case for violation of Rule 49 (29)of the Rules would be made out simply because the Rule, though inserted by wayof Notification Nov GSR -759 (E) with effectfrom 29-3-2001, remained inoperative/, till 30-6-2001 by virtue of order dated3-4-2001 issued by Joint Secretary and CVO, Government of India, Ministry ofHealth and Family Welfare, where under the products of the Companies listed inthe annexure were permitted to be in the market without the requisitecertificate from the BIS and name of the manufacturing unit, viz., M/s Kothari Beverages Pvt. Ltd., Nadiad (Gujarat), nominee of which has been prosecuted as accused No. 3, figured inthe list. In other words, even the products containing mineral water andexhibited for sale during the period from 29-3-2001 to 30-6-2001 ,stood wholly exempted from operation of the rule by reason of the order dated 3-4-2011 (supra), whereas, as pointedout already, the sample in question was sold on 8-6-2001 . In other words, even the products containing mineral water andexhibited for sale during the period from 29-3-2001 to 30-6-2001 ,stood wholly exempted from operation of the rule by reason of the order dated 3-4-2011 (supra), whereas, as pointedout already, the sample in question was sold on 8-6-2001 . (iii)Use of words such as 'pure', 'crisp', 'refreshing', 'purified' and 'purityguaranteed', on labels does not offend any provision of law [ Pepsico India Holdings Pvt. Ltd. Vs. The Bureau of IndianStandards, 2006 (1) FAC 202 referred to). (iv)Since the offence of misbranding is punishable for a term which may extend tothree years, the complaint ought to have been filed within a period of 3 years,commencing from the date of the offence, i.e., 8-6-2001 [See : Clause (c) ofSection 468 of the Code]. The complaint presented on 25-9-06 , therefore, was apparently time-barred inabsence of a proper explanation for delay or the order of the Magistrate,extending the period of limitation on the facts and in the circumstances of thecase, as contemplated under Section 473 of the Code." 6.Even though, the report of the Public Analyst, including his opinion on thispoint, super se evidence by virtue of Section 13 of the Act yet, this does notmean that his ipse dixit would be conclusive andbinding on the Court. To treat it so, would be to leave the determination ofthe guilt of the accused to the whims and fancies of the Public Analyst(Municipal Corporation of Delhi Vs. Kacheroo Mai, AIR1976 SC 394 relied on). Accordingly, it is for the Court to weigh his opinionand/each its own finding. 7.To sum up, even if the allegations made against the petitioner in thecomplaint, are taken at their face value and accepted in their entirety, nooffence under the Act would be made out. As such, the case against thepetitioner falls under categories (1) and (3) of the cases, as enumerated inState of Haryana Vs. Bhajan Lal , AIR 1992 SC 604 , attracting interference underthe inherent powers. 8.For these reasons, the petition stands allowed and the proceedings in ComplaintCase No. 4837/2006 (ibid) are hereby quashed.