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2013 DIGILAW 893 (RAJ)

Anshul Jain v. State of Rajasthan

2013-05-06

PRASHANT KUMAR AGARWAL

body2013
JUDGMENT : 1. By way of this criminal misc. petition under Section 482 Cr.P.C., the accused-petitioners are seeking to quash the order of cognizance dated 15.09.2010 passed by the Chief Judicial Magistrate, Dausa in Criminal Complaint Case No. 547/2010 and the subsequent proceedings arising thereunder for offence under Section 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954 (hereinafter to be referred as "the Act"). 2. Brief relevant facts for the disposal of this petition are that on 10.04.2010 at 5.25 P.M. Food Inspector Shri Shanker Lal Mali visited the shop of M/s. Vardhman Traders, Bandikui (co-accused) and in the course of inspection of that shop he took sample of fruit drink "Mango Jayanti" on the premise that the aforesaid food Articles did not conform to the standards laid down under the provisions of the Act. In due course of time, one of the samples was sent to the State Central Public Health Laboratory, Jaipur and the public analyst vide report dated 03.05.2010 opined that the sample is misbranded being in violation of clause (i) of Rule 32 of the Prevention of Food Adulteration Rules, 1955 (hereinafter to be referred as "the Rules") as the period of six months from the date of manufacture within which the food Articles was best fit to be used was given in small letters whereas the aforesaid Rule required that the same should be given in capital letters. After obtaining requisite consent from the competent authority, complaint for the aforesaid offence was filed by the Food Inspector against the petitioners being partners of the firm (Petitioner No. 4) who sold and distributed the aforesaid food Articles to the vendor as well as the manufacturer (Petitioner No. 5) and also against the vendor i.e. owner of M/s. Vardhman Traders, Bandikui from whose shop the samples were taken. On the basis of the complaint and the documents filed along with it, the Court below vide order dated 15.09.2010 took cognizance for the aforesaid offence and I issued bailable warrant against the accused including the petitioners. Feeling aggrieved, the petitioners are before this Court by way of this petition. 3. On the basis of the complaint and the documents filed along with it, the Court below vide order dated 15.09.2010 took cognizance for the aforesaid offence and I issued bailable warrant against the accused including the petitioners. Feeling aggrieved, the petitioners are before this Court by way of this petition. 3. In support of the petition, learned counsel for the petitioners has raised the following grounds : (1) The complaint has been filed on the premise that the label of the sample did not contain the period in which the food Articles was fit for consumption from the date of manufacture in capital letters as required by clause (i) of Rule 32 of the Rules and the same was written in small letters and on that basis the sample was found to be misbranded within the meaning of sub-clause (k) of clause (ix) of Section 2 of the Act. According to learned counsel the deficiency found on the label of the package of the food Articles is hyper technical and negligible and violation of mere formality prescribed under the provisions of the Act and Rules. It is required to be ignored more particularly looking to the fact that sample was not found to be adulterated. (2) The offence is of trivial nature within the meaning of Section 95 of Indian Penal Code which provides that nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause any harm, if that harm is so slight that no person of ordinary sense and temper would complaint of such harm. Looking to the fact that the sample was not found to be adulterated, in the light of this statutory mandate, the technical lapse, which could hardly cause any harm to the consumer of the food Articles, deserves to be overlooked. It is not even the cause of the prosecution that any consumer of the food Articles was misled in any manner. It is not even the cause of the prosecution that any consumer of the food Articles was misled in any manner. (3) From the provisions of the Act and Rules it is clear that public analyst is entitled only to analyse the sample of food sent to him by the Food Inspector and to find whether it is adulterated or not and he is not entitled to determine the manner in which the Articles of food has been packaged and whether it is "misbranded" within the meaning of the Act and Rules, but in the present case, the public analyst acted beyond his jurisdiction and, therefore, the report prepared by him is inadmissible in evidence and cannot be made basis of prosecution. (4) None of the documents prepared at the time of taking of samples by the Food Inspector states that the samples so taken are "misbranded" and, therefore, it could not have been reported by the public analyst that the samples sent by the Food Inspector is misbranded. (5) Although, at the relevant time the petitioners No. 1 to 3 were partners of the firm M/s. Jayanti Beverage (the petitioner No. 4) but none of them was nominated as per requirement of Section 17 of the Act and one Shri Sunil Jain was duly nominated to be in charge of, and responsible to the aforesaid firm for the conduct of the business vide resolution dated 1.04.2010 as revealed by Annexure-F filed along with the present petition. As per the requirement of Section 17 of the Act, only the nominee of the firm can be prosecuted under the provisions of the Act but in the present case nominee Shri Sunil Jain has not been prosecuted and petitioners No. 1 to 3 have been unnecessarily arrayed as accused by the reason that they are partners of the firm M/s. Jayanti Beverage and, therefore, the complaint suffers from the vice of mis-joinder of parties. The complaint also suffers from the vice of mis-joinder of accused by the reason that along with the petitioners, vendor Shri Vivek Kumar owner of M/s.Vardhman Traders from whose shop the sample was taken has also arrayed as accused although he is not responsible for "misbranding" of the sample. 4. In support of his submissions, learned counsel for the petitioners relied upon the cases of A. Rajasingh & Ors. v. Food Inspector reported in 2008 Cri.LJ. 4. In support of his submissions, learned counsel for the petitioners relied upon the cases of A. Rajasingh & Ors. v. Food Inspector reported in 2008 Cri.LJ. 642, S.S. Gokul Krishnan & Ors. v. State through Food Inspector Govt. of N.C.T. of Delhi reported in 2009 (1) FAC 132 and Vinita Bali v. State of Bihar reported in 2008 (4) FUR 135. 5. On the other hand, it was submitted by the learned Public Prosecutor that the ground raised by the petitioners cannot be considered at the initial stage of the proceedings and the same are liable to be considered after production of evidence by the respective parties. 6. I have considered the submissions made on behalf of the respective parties and perused the material made available on record as well as the relevant legal provisions and the case law. Before adverting to the grounds raised on behalf of the petitioners, it will be useful to consider the relevant legal provisions. 7. According to sub-clause (k) of clause (ix) of Section 2 of the Act, an Articles of food shall be deemed to be misbranded if it is not labelled in accordance with the requirements of the Act or the rules. Clause (xiv) of Section 2 provides that "sample" means a sample of any Articles of food taken under the provisions of the Act or the rules. Section 7 of the Act, apart from others, provides that no person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute any misbranded food. Section 10 of the Act enumerates the powers of the Food Inspectors. According to sub-section (4) of Section 10, if any Articles intended for sale appears to any food inspector to be misbranded, he may seize and take a sample of such Articles and submit the same for analysis to a public analyst. According to Section 14A of the Act, every vendor of an Articles of food shall, if so required, disclose to the food inspector the name, address and other particulars of the persons from whom he purchased the Articles of food. According to Section 14A of the Act, every vendor of an Articles of food shall, if so required, disclose to the food inspector the name, address and other particulars of the persons from whom he purchased the Articles of food. Section 16 of the Act provides for penalties and according to this provision if any person whether by himself or by any other person on his behalf, manufactures for safes or stores, sells or distributes any Articles of food which is adulterated within the meaning of sub-clause (m) of clause (ia) or misbranded within the meaning of clauses (ix) of Section 2 of the Act shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees. According to proviso appended to sub-section (1) of Section 16, if the offence is with respect to an Articles of food which is misbranded within the meaning of sub-clause (k) of clause (ix) of Section 2, the Court may for any adequate or special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which shall not be less than three months but which may extend to two years, and with fine which shall not be less than five hundred rupees. 8. Section 17 of the Act and Rule 12-B of the Rules are also relevant which are as below : "17. Offences by companies. - (1) Where an offence under this Act has been committed by a company. 8. Section 17 of the Act and Rule 12-B of the Rules are also relevant which are as below : "17. Offences by companies. - (1) Where an offence under this Act has been committed by a company. (a)(i) the person, if any, who has been nominated under sub-section (2) to be in charge of, and responsible to, the company for the conduct of the business of the company {hereinafter in this section referred to as the person responsible); or (ii) where no person has been so nominated, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company; and (b) the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge and that he exercised all due diligence to prevent the commission of such offence. (2) Any company may, by order in writing, authorise any of its directors or managers (such manager being employed mainly in a managerial or supervisory capacity) to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company of any offence under this Act and may give notice to the Local (Health) Authority, in such form and in such manner as may be prescribed, that it has nominated such director or manager as the person responsible, along with the written consent of such director or manager for being so nominated. Explanation. - Where a company has different establishments or branches or different units in any establishment or branch, different persons may be nominated under this sub-section in relation to different establishments or branches or units and the person nominated in relation tc any establishment, branch or unit shall be deemed to be the person responsible in respect of such establishment, branch or unit. (3) The person nominated under sub-section (2) shall, until - (i) further notice cancelling such nomination is received from the company by the Local (Health) Authority; or (ii) he ceases to be a director or, as the case may be, manager of the company; or (iii) he makes a request in writing to the Local (Health) Authority, under intimation to the company, to cancel the nomination [which request shall be complied with by the Local (Health) Authority], whichever is the earliest, continue to be the person responsible: Provided that where such person ceases to be a director or, as the case may be, manager of the company, he shall intimate the fact of such cesser to the Local (Health) Authority: Provided further that where such person makes a request under clause (iii), the Local (Health) Authority shall not cancel such nomination with effect from a date earlier than the date on which the request is made. (4) Notwithstanding anything contained in the foregoing sub-sections, where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, [not being a person nominated under sub-section (2)] such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation. Explanation. - For the purposes of this section (a) "Company" means any body corporate and includes a firm or other association of individuals; (b) "director", in relation to a firm, means a partner in the firm; and (c) "manager", in relation to a company engaged in hotel industry, includes the person in charge of the catering department of any hotel managed or run by it." "Rule 12-B. Form of nomination of Director or Manager and his consent under Section 17(1) A company may inform the Local (Health) Authority of the concerned local area, by notice in duplicate, in Form VIII containing the name and address of the Director or Manager, who has been nominated by it under sub-section (2) of Section 17 of the Act to be in-charge of and responsible to the company for the conduct of the business of the company or any establishment, branch or unit thereof: Provided that no such nomination shall be valid unless the Director or Manager who has been so nominated, gives his consent in writing and has affixed his signature, in Form VIII in duplicate in token of such consent. (2) The Local (Health) Authority shall sign and return on copy of the notice in Form VIII to the company to signify the receipt of the nomination and retain the second copy in his office for record." 9. Clause (i) of Rule 32 of the Rules requires that the month and year in capital letters upto which the product is best for consumption is to be mentioned on the (able of the prepackaged food. It further provides the manner in which the aforesaid information is to be furnished. 10. Now, my findings with reasons on each of the grounds raised on behalf of the petitioners are as below : (1) In the light of the relevant legal provisions and the requirement of law it cannot be said that non-mentioning of month and year upto which the product is best for consumption on the label of the package of the food Articles in capital letters in the present case does not amount misbranding within the meaning of sub-clause (k) of clause (ix) of Section 2 of the Act and the deficiency so found and indicated in the report of the public analyst is hyper technical, negligible and violation of mere formality prescribed under the provisions of the Act and Rules. According to the sub-clause (k), if the Articles of food is not labelled in accordance with the requirements of the Act or the Rules, the same shall be deemed to be misbranded. Under Section 7 of the Act, manufacture for sale or store, sell or distribution of any misbranded food is prohibited in the same manner in which manufacture for sale or store, sell or distribution of any adulterated food is prohibited and under Section 16 of the Act same sentence is provided for the misbranded food also. Clause (i) of Rule 32 requires to mention the month and year upon which the product is best for consumption in capital letters. The object beyond this requirement appears to be that it is easily visible to the consumer to safeguard his interest not to use any food Articles after the expiry of period within which it is best fit for consumption and, therefore, providing of aforesaid information in capital letters having some definite object behind it, it cannot be said that it is merely a formality and violation of the same is hyper technical, If it is held to be mere a formality only, then there is no use of enactment of the provision and the same will stand redundant. (2) In the facts and circumstances of the case and considering the violation of the legal requirement, it cannot be said that the offence is trivial in nature within the meaning of Section 95 of Indian Penal Code and the same deserves to be overlooked. When misbranding of an Articles of food carries the same sentences as provided for the adulterated food, the offence cannot be termed to be trivial. Otherwise also, the offence in the present case being under a special law i.e. the Prevention of Food Adulteration Act, the provisions of Section 95 of Indian Penal Code are not applicable. Section 5 of Indian Penal Code provides that nothing in this Act shall affect the provisions of any special or local law. When misbranding of an Articles of food is an offence punishable under the Act, the same cannot be-said to be trivial in nature irrespective of the fact that it cause no harm or little harm to the consumer. Section 5 of Indian Penal Code provides that nothing in this Act shall affect the provisions of any special or local law. When misbranding of an Articles of food is an offence punishable under the Act, the same cannot be-said to be trivial in nature irrespective of the fact that it cause no harm or little harm to the consumer. (3) From the provisions of the Act and Rules it cannot be said that public analyst is entitled to analyse the sample of food sent to him by the Food Inspector to determine whether it is adulterated or not and he is not authorised to determine and report about misbranding of "the same. Sub-section (4) of Section 10 of the Act authorises the Food Inspector to send the sample of food if the same appears to him to be misbranded. In the present case, although the Food Inspector sent the sample to the public analyst by the reason that the prima facie found the Articles of food to be adulterated but when he is authorised to send the misbranded food Articles also to the public analyst, it implies that the public analyst was empowered to determine whether the sample of Articles of food so sent by the Inspector is misbranded or not within the meaning of the Act and the Rules. Merely because under the provisions of the Act and the Rules express authority has not been conferred upon the public analyst to determine and report about the misbranding of the Articles of food, it cannot be held that he has no such power and the report prepared by him is inadmissible in evidence and cannot be made basis of prosecution. (4) Although, none of the documents prepared by the Food Inspector at the time of taking of samples states that the sample is misbranded but only by that reason it cannot be held that the public analyst at the time of analysis of the samples could not have reported that the same is misbranded. (4) Although, none of the documents prepared by the Food Inspector at the time of taking of samples states that the sample is misbranded but only by that reason it cannot be held that the public analyst at the time of analysis of the samples could not have reported that the same is misbranded. Whether the Food Inspector was bound to mention in the documents prepared by him about misbranding of the food Articles and what is the effect of non-mentioning the same is a question which can not be considered and decided at the initial stage of the proceedings and the same can be properly appreciated only after evidence is produced by the parties and explanation is sought from the Inspector. (5) Although, sub-clause (i) of clause (a) of sub-section (1) of Section 17 of the Act provides that where an offence under the Act has been committed by a firm, the person, if any, who has been nominated to be in charge of, and responsible to the company for the conduct of the business of the firm shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly but at the same time sub-clause (ii) provides that where no person has been so nominated, every person who at the time the offence was committed was in charge of, and was responsible to the firm for the conduct of the business of the firm shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. According to clause (b), the firm is also liable to be proceeded against and punished for the offence committed under the provisions of the Act. Sub-section (2) of Section 17 read with Rule 12-B of the Rules provides for the manner and procedure in which the aforesaid nomination is to be made. According to the petitioners by resolution dated 01.04.2010 one Shri Sunil Jain was nominated as the person within the meaning of sub-clause (i) of clause (a) of Sub-section (1) of Section 17 of the Act. According to the petitioners by resolution dated 01.04.2010 one Shri Sunil Jain was nominated as the person within the meaning of sub-clause (i) of clause (a) of Sub-section (1) of Section 17 of the Act. Annexure-F filed by the petitioners in support of their claim does not bear the date on which the resolution so taken by the firm was intimated to the authority concerned nor it bears the date on which Shri Sunil Jain gave his consent for the nomination but it shows that the concerned authority received the copy of nomination on 07.06.2010 i.e. after the date on which the sample of food Articles was taken in the present case and, therefore, only on the basis of Annexure-F at this stage of the proceedings it cannot be said that Shri Sunil Jain was nominated as the person responsible for the affairs of the petitioner-firm in accordance with the aforesaid provisions and the petitioners cannot be arrayed as accused. The petitioners, being partners of the firm, were in charge of, and were responsible to the firm for the conduct of the business of the firm is a question of fact which can be decided only after production of evidence by the parties during trial and the petitioners cannot claim exoneration at this stage of the proceedings. During trial petitioners will get opportunity to prove their stand that at the time of commission of the offence they were not in charge of and responsible to the firm for the conduct of its business. Therefore, it cannot be said that the complaint suffers from the vice of misjoinder of parties. If during trial the Court finds that in fact Shri Sunil Jain or any other person was duly nominated as the person responsible for the day to day conduct of the business of the firm, it by exercising its power under Section 319 Cr.P.C, may take cognizance against him to fact the trial. Similarly, the complaint cannot be said to be suffering from the vice of misjoinder of the parties by the reason that the vendor of the food Articles is not responsible for misbranding as Section 7 of the Act equally prohibits sell of a misbranded food also and, therefore, the vendor from whom the samples were taken are also liable to be prosecuted and can be tried along with the manufacturer and distributor of the food Articles in question. 11. The net result of these findings is that none of the grounds taken by the petitioners in support of their petition is legally tenable at this stage of the proceedings. So far as the case law relied upon by the learned counsel for the petitioners is concerned, for the reasons already recorded, I do not find myself to be bound by the same. 12. Consequently, the petition being devoid of any merit is, hereby, dismissed. The stay application also stands dismissed.