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2014 DIGILAW 3779 (ALL)

Britania Industries Ltd. v. State of U. P.

2014-12-18

VISHNU CHANDRA GUPTA

body2014
JUDGMENT Vishnu Chandra Gupta, J. 1. These four petitions under section 482 Code of Criminal Procedure (For short Cr.P.C.) have been filed by the petitioner M/s. Britannia Industries Ltd. to quash the criminal complaints with all consequential proceedings initiated against the petitioner for contravention of Rule 32(e) of Prevention of Food Adulteration Rules, 1955 (Hereinafter referred to as the 'Rules') which were framed under the authority conferred upon Central Government by section23(1) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the "Act'). Since all these petitions have almost similar facts and the question of facts and law involved therein are also similar therefore these petitions are being disposed of by a common order. 2. In Cr.M.C. No. 2800 of 2005 Criminal Complaint No. 2625 of 2004, State v. Rajesh Kumar Gupta and others, was sought to quashed. This case relates to a sample of sealed packets of 125 grams each of Britannia Tigar Biscuit taken on 13.3.2002 from the premises of Rajesh Kumar Gupta situated in Sadar Bazar, Shastri Nagar, District Unnao by Food Inspector O.P. No. 2 which admittedly does not contain batch number, the declaration of which was required on each packet in view of Rule 32(e) of Rules. For Contravention of Rule 32(e) the prosecution has been launched against the petitioner manufacture and dealer under section 7 read with section 16 of the Act, in the Court of Additional Chief Judicial Magistrate 1st Unnao. 3. In Cr.M.C. No. 1995 of 2006 criminal complaint No. 5670 of 2003, State v. Pramod Kumar and others, was sought to quashed. This case relates to a sample of sealed packets of 125 grams each of Britannia Tigar Biscuit taken on 30.1.2002 from the premises of Pramod Kumar situated in Maioraba, District Unnao by Food Inspector O.P. No. 2 which admittedly does not contain batch number, the declaration of which was required on each packet in view of Rule 32(e) of Rules. For Contravention of Rule 32(e) the prosecution has been launched against the petitioner manufacture and dealer under section 7 read with section 16 of the Act in the Court of Chief Judicial Magistrate Unnao. 4. In Cr.M.C. No. 3230 of 2008 criminal complaint No. 5671 of 2003, State v. Rahmat Ali and others, was sought to quashed. For Contravention of Rule 32(e) the prosecution has been launched against the petitioner manufacture and dealer under section 7 read with section 16 of the Act in the Court of Chief Judicial Magistrate Unnao. 4. In Cr.M.C. No. 3230 of 2008 criminal complaint No. 5671 of 2003, State v. Rahmat Ali and others, was sought to quashed. This case relates to a sample of sealed packets of 125 grams each of Britannia Tigar Biscuit taken on 13.3.2002 from the premises of Rahmat Ali situated in Hiloli, District Unnao by Food Inspector O.P. No. 2 which admittedly does not contain batch number, the declaration of which was required on each packet in view of Rule 32(e) of Rules. For Contravention of Rule 32(e) the prosecution has been launched against the petitioner manufacture and dealer under section 7read with section 16 of the Act, 1954 in the Court of Additional Chief Judicial Magistrate 1st Unnao. 5. In Cr.M.C. No. 3229 of 2008 Criminal Complaint No. 5243 of 2003, State v. Rajesh Kumar and others, was sought to quashed. This case relates to a sample of sealed packets of 125 grams each of Britannia Tigar Biscuit taken on 18.3.2002 from the premises of Rajesh Kumar situated in Chamroli, P.S. Ajgain, District Unnao by Food Inspector O.P. No. 2 which admittedly does not contain batch number, the declaration of which was required on each packet in view of Rule 32(e) of Rules. For Contravention of Rule 32(e) the prosecution has been launched against the petitioner manufacture and dealer under section 7 read with section 16 of the Act, 1954 in the Court of Additional Chief Judicial Magistrate 1st Unnao. 6. Heard Shri Amol Kumar, learned Counsel for the petitioner and learned A.G.A. for the State and also perused the record of the petitions. 7. Learned Counsel for the petitioner submitted that Hon'ble Supreme Court in Dwarka Nath and another v. Municipal Corporation of Delhi, 1971 (8) ACC 268 (SC) declared Rule 32(e) ultra vires being introduced in the Rules beyond the Rule making power conferred to the Central Government under section 23(1)(e) of the Act. 7. Learned Counsel for the petitioner submitted that Hon'ble Supreme Court in Dwarka Nath and another v. Municipal Corporation of Delhi, 1971 (8) ACC 268 (SC) declared Rule 32(e) ultra vires being introduced in the Rules beyond the Rule making power conferred to the Central Government under section 23(1)(e) of the Act. It was further submitted that though these Rules and provisions of Act had been amendment w.e.f. 1.4.1976, subsequent to the decision of the Apex Court rendered in Dwarka Nath's case (supra), but still the amended provisions of the Act and Rules could not be applied because the ratio propounded in Dwarika Nath's case (supra) still hold the field and as such the aforesaid complaints filed are nothing but an abuse of process of Court. 8. Learned Counsel for the petitioner also submitted that the packets of Biscuits are of 125g. but each packet contains 25g. biscuits free. So 125g. Biscuits were sold of for the cost of 100g biscuits. In view of this fact the petitioner would be entitled to the benefit of 3rd proviso to Rule 32(f). 9. Per contra, learned AGA submitted that after the amendment in section 23(1)(d) the words "or to prevent adulteration" have been added. In the light of the amended provisions the central Government now become competent to make rules in respect of requirement of batch number/lot number/code number. It is further submitted that petitioner himself admitted the purpose of enactment of Rule 32(e) in para 7 of petition having Criminal Misc. Case No. 1995 of 2006, which reads as under "The purpose of Rule 32(e) is for taking steps to withdraw a particular lot of any product in the event it is suspected or found to be adulterated." 10. So, if any product is found adulterated or substandard or mis-branded, the same may be withdrawn from the market with the help of particular batch or lot, the sample of which was found adulterated, substandard or mis-branded. Thus, the declaration of batch number/lot number/code number at the time of manufacturing the product would serve the legislative intent. 11. The learned AGA pointed out that if biscuits packet is of more than 120g benefit of 3rd proviso of Rule 32(f) could not be extended. 12. Thus, the declaration of batch number/lot number/code number at the time of manufacturing the product would serve the legislative intent. 11. The learned AGA pointed out that if biscuits packet is of more than 120g benefit of 3rd proviso of Rule 32(f) could not be extended. 12. Hon'ble Supreme Court in Dwarka Nath v. Municipal Corporation of Delhi, 1971 (8) ACC 268 (SC) Considered the than existing provisions of Act and Rules as contained in paras 14, 15, and 16 of the judgment, are quoted as under; "14. In order to appreciate the contentions urged before us, it is necessary to refer to the material part of S. 23 as well as the relevant rules. S. 23(1), gives power to the Central Government to make rules. We have already referred to the clauses on which reliance is placed on behalf of the Attorney-General and by the respondent, namely, clauses (c), (d), (f) and (g). Section 23(1) with those clauses reads as follows: "23 (1) Power of the Central Government to make rules: The Central Government may after consultation with the Committee and subject to the condition of previous publication, make rules-- xxxxx (c) laying down special provisions for imposing rigorous control over the production, distribution and sale of any article or class of articles of food which the Central Government may, by notification in the official Gazette, specify in this behalf including registration of the premises where they are manufactured, maintenance of the premises in a sanitary condition and maintenance of the healthy state of human beings associated with the production, distribution and sale of such article or class of articles. (d) restricting the packing and labelling of any article of food and the design of any such package or label with a view to preventing the public or the purchaser being deceived or misled as to the character, quality or quantity of the article; xxxxx (f) prohibiting the sale or defining the conditions of sale of any substance which may be injurious to health when used as food or restricting in any manner its use as an ingredient in the manufacture of any article of food or regulating by the issue of licences the manufacture or sale of any article of food; (g) defining the conditions of sale or conditions for licence of sale of any article of food in the interest of public health." 15. The Rules have been framed by the Central Government in exercise of the powers conferred by subs. (2) of section 4and sub-s. (1) of section 23 of the Act. The Rules framed under sub-s. (2) of S. 4 relate to the functions of the Central Food Laboratory and allied matters. We are not concerned with those rules. Part VII of the Rules relates to the "packing and labelling of foods". Rule 32 relating to the "contents of the label" is in this part, Rule 32 with material clauses (b) and (e) and the first proviso as well as the Explanation reads as follows, "Rule 32: Contents of the label-Unless otherwise provided in these rules there shall be specified on even label: XX X (b) the name and business address of the manufacturer or importer or vendor or packer, XX X (e) a batch number or code number either in Hindi or English numericals or alphabets or in combination: Provided that in the case of food package weighing not more than 60 grams particulars including the statement under any clause need not be specified. Explanation: The term 'label' means a display of written, printed, perforated, stenciled, embossed or stamped matter upon the container, cover lid and/or crown cork of any food package." 16. Admittedly there is no definition of the expressions "Batch number" or "Code number" either in the Act or in the Rules. Nor has any affidavit been filed on behalf if the respondent or by the Attorney General or any expert whether these expressions have any technical meaning in the trade and if so what that is. The material available on record is only the evidence of Dina Nath, one of the Food Inspectors, who has given evidence as P.W. 1 in one of the complaints. We have already adverted to his evidence which is to the effect that Batch number can start from any serial number and that what he says about serial number is only by common sense. Further, according to him Code number and Batch number is the same. From this evidence it is clear that there is no specific meaning attached to these two expressions either in the Act or in the Rules and even the Food Inspectors - are not very clear as to what those expressions mean. 13. Further, according to him Code number and Batch number is the same. From this evidence it is clear that there is no specific meaning attached to these two expressions either in the Act or in the Rules and even the Food Inspectors - are not very clear as to what those expressions mean. 13. In view of the than existing section 23 and Rule 32 their Lordships ruled in para 21 in Dwarka Naths case (supra) which reads as under; "21. There is no definition of the expression "batch number" or "Code number" either in the Act or the Rules. It is also admitted that even assuming that the batch or code number has to be given, there is no further obligation to specify in the label the date of packing and manufacture of the article of food or the period within which the article of food has to be utilised, used or consumed. In the absence of any obligation to give the particulars mentioned by us above, the public or the purchaser will not be able to find out even the freshness of the contents of a container. Therefore, it follows that merely giving an artificial batch number or code number will not be of any use to the public or to the purchaser. In view of all these circumstances we are of the opinion that Rule 32(e) is beyond the rule making power even under section 23(1)(d) of the Act. The appellants could not be convicted for any violation of cl. (e) of R. 32 as the said provision, as pointed out above, is invalid." 14. Section 23 containing power of the Central Government to make rules, has been substantially amended by Act 34 of 1976, w.e.f. 1.4.1976. Amended section 23 of the Act is now quoted herein below; "23. The appellants could not be convicted for any violation of cl. (e) of R. 32 as the said provision, as pointed out above, is invalid." 14. Section 23 containing power of the Central Government to make rules, has been substantially amended by Act 34 of 1976, w.e.f. 1.4.1976. Amended section 23 of the Act is now quoted herein below; "23. Power of the Central Government to make rules.--(1) The Central Government may, after consultation with the Committee and after previous publication by notification in the Official Gazette, make rules to carry out the provisions of this Act: Provided that consultation with the Committee may be dispensed with if the Central Government is of the opinion that circumstances have arisen which render it necessary to make rules without such consultation, but, in such a case, the Committee shall be consulted within six months of the making of the rules and the Central Government shall take into consideration any suggestions which the Committee may make in relation to the amendment of the said rules. (1-A) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely: (a) specifying the articles of food or classes of food for the import of which a licence is required and prescribing the form and conditions of such licence, the authority empowered to issue the same, the fees payable therefor, the deposit of any sum as security for the performance of the conditions of the licence and the circumstances under which such licence or security may be cancelled or forfeited; (b) defining the standards of quality for, and fixing the limits of variability permissible in respect of, any article of food; (c) laying down special provisions for imposing rigorous control over the production, distribution and sale of any article or class of articles of food which the Central Government may, by notification in the Official Gazette, specify in this behalf including registration of the premises where they are manufactured, maintenance of the premises in a sanitary condition and maintenance of the healthy state of human beings associated with the production, distribution and sale of such article or class of articles; (d) restricting the packing and labelling of any article of food and the design of any such package or label with a view to preventing the public or the purchaser being deceived or misled as to the character, quality or quantity of the article [or to preventing adulteration; (e) defining the qualifications, powers and duties of food inspectors and Public Analysts; (ee) defining the laboratories where samples of articles of food or adulterants may be analysed by Public Analysts under this Act; (f) prohibiting the sale or defining the conditions of sale of any substance which may be injurious to health when used as food or restricting in any manner its use as an ingredient in the manufacture of any article of food or regulating by the issue of licences the manufacture or sale of any article of food; (g) defining the conditions of sale or conditions for licence of sale of any article of food in the interest of public health; (h) specifying the manner in which containers for samples of food purchased for analysis shall be sealed up or fastened up; (hh) defining the methods of analysis; (i) specifying a list of permissible preservatives, other than common salt and sugar, which alone shall be used in preserved fruits, vegetables or their products or any other article of food as well as the maximum amounts of each preservative; (j) specifying the colouring matter and the maximum quantities thereof which may be used in any article of food; (k) providing for the exemption from this Act or of any requirements contained therein and subject to such conditions, if any, as may be specified, of any article or class of articles of food; (l) prohibiting or regulating the manufacture, transport or sale of any article known to be used as an adulterant of food; (m) prohibiting or regulating-- (i) the addition of any water, or other diluents or adulterant to any article of food; (ii) the abstraction of any ingredient from any article of food; (iii) the sale of any article of food to which such addition or from which such abstraction has been made or which has been otherwise artificially treated; (iv) the mixing of two or more articles of food which are similar in nature or appearance; (n) providing for the destruction of such articles of food as are not in accordance with the provisions of this Act or of the rules made thereunder. (2) Every rule made by the Central Government under this Act shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule." 15. The change in sub clause (d) appears to be significant and meaningful and in view of the insertion of word in clause (d) of present section 23(1A)(d) "or to preventing adulteration" make difference. 16. The definition of lot number, code number and batch number has also been introduced in the Rules after Dwarka Nath's case (supra) and has been given in Rule 2(s). The definition of lot number, code number and batch number introduced in the Rule 2(s) runs as under; "2. Definitions: .............. ............... (s) "Lot number" or "Code number" or "batch number" means the number either in numericals or alphabets or in combination, representing the Lot number or code number or batch number being preceded by the words "Lot No" or "Lot" or "code number" or "Code" or "Batch No" or "Batch" or any distinguishing prefix by which the food can be traced in manufacture and identified in distribution." It is also pertinent to mention here that phraseology used in Rule 32(e) has also been changed. Clause (e) of Rule 32 of Rules 1995 now reads as under: (e) A distinctive batch number or lot number or code number, either in numerical or alphabets or in combination, the numerical or alphabets or their combination, representing the batch number or lot number or "Lot" or any distinguishing prefix: Provided that in case of canned food, the batch number may be given at the bottom, or on the lid of the container, but the words "batch number" given at the bottom or on the lid, shall appear on the body of the container. 17. 17. The definition clause makes it clear that batch number or lot number or code number is a distinguishing number by which food can be traced in manufacture and identified in distribution. Therefore, it means that if any food manufactured by a manufacturer is without batch number, lot number and code number and if any packet containing any food is found adulterated, substandard or misbranded, the same must be required to be withdrawn immediately from the market through out the country so, the same may not reach to other consumer. In this way the authorities by identifying the product with the help of particular batch number or lot number or code number which might have been distributed by the manufacturer to different dealers, may prevent adulteration and may also protect the public at large from adulterated material. It is not in dispute that the particular product manufactured with a particular batch number or lot number or code number must have common contents being manufactured in the same process. 18. In view of discussion made herein above it could not be said that Dwarka Nath case (supra) still hold the field. 19. So far as the application of 3rd proviso of Rule 32(f) is concern it required to be looked into and it would be useful to quote Rule 32(f), which runs as under; (f) The month and year in which the commodity is manufactured or prepacked: Provided that in the case of package weighing 20g. or less and liquid products marketed in bottles which are recycled for refilling, particulars under Cl. (b), need not be specified: Provided further also that such declaration shall be given on the label of multi-piece package either on the label of multi-piece package or in a separate slip inside fifth multi-piece package in such manner that the same is readable even without opening the package: Provided also that in case of carbonated water containers and the packages of biscuits, confectionery and sweets, containing more than 60g. but not more than 120g. and food packages weighing not more than 60g. particulars under Cls. (d) and (e) need not be specified: Provided also that in case of package containing bread and milk including sterilized milk, particulars under Cl. but not more than 120g. and food packages weighing not more than 60g. particulars under Cls. (d) and (e) need not be specified: Provided also that in case of package containing bread and milk including sterilized milk, particulars under Cl. (e) need not be specified: Provided also that in case of package containing bread or liquid milk, sterilized or Ultra High Temperature treated milk, soya milk, flavoured milk, any package containing dhokla, bhelpuri, pizza doughnuts, khoa, paneer or any uncanned package of fruits, vegetables, meat, fish or any other like commodity which has a short shelf life, the date, month or year in which the commodity is manufactured or prepared or prepacked shall be mentioned, on the label." 20. For the application of Rule weight of packet matters and not the price. Admittedly weight of packets is 125g., which is more than 120g, so the benefit of 3rd proviso of Rule 32(f) could not be extended in these cases. 21. Therefore, on the fact and circumstances of these cases, the case of Dwarka Nath (supra) does not extend any help to the petitioner in the changed scenario i.e. after amendment of statutory provisions in the Act and Rules. Consequently, all the four petitions lack merit and are accordingly dismissed.