JUDGMENT Hon’ble Chandra Dhari Singh, J.—The applicant, by means of this application under Section 482 Cr.P.C. has invoked the inherent jurisdiction of this Court with prayer to quash the summoning order dated 15.9.2009 passed by the Additional Chief Judicial Magistrate-I, Lucknow in complaint case No. 3924 of 2009, P.S. Mahanagar (Lucknow), State v. Usman and others, under Section 7/16 of the Prevention of Food Adulteration Act, 1954. The prayer has also been made to quash the entire proceedings of the aforesaid complaint case. 2. Heard Sri Vikas Bhatnagar, learned counsel for the applicant, learned counsel for the Government of India-respondent No. 4 and learned A.G.A. for the State and perused the record. 3. Briefly stated the facts of the case are that the applicant is a company duly incorporated under the provisions of Companies Act, 1956 and is having its registered office at 165/166 Backbay Reclamation, Mumbai-400020. The company is having its Branch office at Block No. A, Plot No. B, South City-I, Delhi Jaipur Highway, Gurgaon-122001 (Haryana). On 1.6.2009 the Food Inspector, Lucknow visited the premises of one Mr. Usman having its business at Gopalpurva, P.S. Mahanagar, Lucknow and lifted a sample of “Kwality Wall’s Medium Fat Frozen Dessert”, a Proprietary Milk Product for analysis under the provisions of the P.F.A. Act, 1954. Thereafter the sample of the ‘Medium Fat Frozen Desert’ has been sent to the laboratory and the Public Analyst has given its report on 9.7.2009. The opinion of the Public Analyst was that the Milk Fat content is less than the prescribed minimum limit of 5% for ‘Medium Fat Frozen Desert’ and wt/volume (gram/lit) is also less then the prescribed minimum limit of 475.0 and the sample is adulterated. On the basis of the inspection report and the report given by the Public Analyst, Mr. Dilip Kumar Dey, Food Inspector, Nagar Nigam, Lucknow has filed a complaint before the Additional Chief Judicial Magistrate-I, Lucknow under Section 7/16 of Prevention of Food Adulteration Act, 1954. Thereafter Additional Chief Judicial Magistrate-I, Lucknow has taken cognizance and issued summons to the applicant company on 15.9.2009. Thereafter, on various dates, summons have been issued to the applicant company but the applicant could not receive the summons issued by the Court below. As soon as the applicant company came to know about the said complaint and the cognizance order including summons, the applicant approached this Court. 4. Thereafter, on various dates, summons have been issued to the applicant company but the applicant could not receive the summons issued by the Court below. As soon as the applicant company came to know about the said complaint and the cognizance order including summons, the applicant approached this Court. 4. Learned counsel for the applicant contended that whole complaint made against the applicant is baseless and misconceived as it has been filed on the basis of an imaginary standards which has not been enforced. He further contended that the standard for item ‘Medium Fat Frozen Dessert’ is given in Appendix B of Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as ‘the Rules, 1955’) as Item No. A.11.02.7.02. The standard for total Fat for ‘Medium Fat Frozen Desser/Frozen Confections’ is given not less than 5% but less than 10%. 5. Learned counsel for the applicant submitted that Government of India exercising its power under Section 23 of the Prevention of Food Adulteration Act published Notification No. G.S.R. 356 (E) dated 7.6.2005 stating therein the draft standards of “Medium Fat Frozen Dessert” and also notified that any objections from the general public will be considered and thereafter, the final standards will be published and enforced with effect from the date of the publish in the official Gazette. The Notification reads as follows : “G.S.R. 356 (E) Whereas a draft of certain rules further to amend the prevention of Food Adulteration Rules, 1955, were published, as required by sub-section (10 of Section 23 of the Prevention of Food Adulteration Act,1954 (37 of 1954) at pages 1 to 94 in the Gazette of India, Extraordinary, part II, Section 3, sub-section (I) dated 20.6.2003, under the notification of the Government of India in the Ministry of Health and Family Welfare (Department of Health), number G.S.R.497 (E), dated 20.6.2003, inviting objections and suggestions from all persons likely to be affected thereby before the expiry of a period of sixty days from the date on which copies of the Official Gazette containing the said notification, were made available to the public; And whereas the copies of the said Gazette were made available to the public on the 25th June, 2003; And whereas, objections and suggestions received from the public within the specified period on the said draft rules have been considered by the Central Government;’ Now, therefore, in exercise of powers conferred by Section 23 of the said Act, the Central Government, after consultation with the Central Committee for Food Standard, hereby makes the following rules further to amend the Prevention of Food Adulteration Rules, 1955, namely : 1) These rules may be called the Prevention of Food Adulteration (Fourth Amendment) Rules, 2005. 2) They shall come into force after six months from the date of their publication in the Official Gazette.” 6. Learned counsel for the applicant contended that a bare perusal of Clause-2 of the above said draft Notification, the same shall come into force after six months from the date of the Notification but before it came into force another Notification No. G.S.R.706 (E) dated 6.12.2005 has been published by the Government of India and every time the date of enforcement of the final standards has been extended. 7. The submission of the learned counsel for the applicant is that the public analyst, by applying wrong standards of the Rules for testing the sampled article, has submitted its report, which cannot form the basis of criminal prosecution. 8. 7. The submission of the learned counsel for the applicant is that the public analyst, by applying wrong standards of the Rules for testing the sampled article, has submitted its report, which cannot form the basis of criminal prosecution. 8. Finally the said Rules were again sought to be enforced vide G.S.R. 41 (E) dated 19.1.2011 which is stated as under: “In the notification of Government of India, Ministry of Health and Family Welfare (Department of Health) No. G.S.R.356 (E), 2005] published in Part II, Section 3, Sub-section (I) at pages 1-77 of the Gazette of India, Extraordinary and read with Corrigendum G.S.R.706 (e) dated 6.9.2005, G.S.R. 131 (E) dated 3.3.2006, G.S.R., 532 (E), dated 5.09, G.S.R. 575 (E) dated 5.9.2007, G.S.R.591 (E) dated 13.8.2008 G.S.R. 805 (E) dated 20.11.2008, G.S.R. 117 (E) dated 24.2.2009, G.S.R. 329 (E) dated 15.5.2009, G.S.R. 606 (E) dated 28.8.2009 G.S.R. 175 (E) dated 5.3.2010, G.S.R. 706 (E) dated 27.8.2010 2006 published in Part II, Section 3, Sub-section (i) of the Gazette of India, Extraordinary, at page 44, sub-rule (2) of rule I, shall read as follows: (2) They shall come into force after nine months except clause (a) item No. A. 11.02.206, A. 11.02.06.01, A.1102.06.02 of clause (f) item No. A. 11.02.06.02 of clause (f), item No. A. 11.02.07, A. 11.02.07.01, A.11.021. 07.02 A.11.02.08 of clause (g) and clause (m) of sub-rule (ii) of 2 and entries relating thereto in Table 14 of Appendix-C and Table 3 of Appendix-D, which shall come into force on 31st July, 2011" 9. In view of the above Gazette Notification/Corrigendum G.S.R. 41 (E) dated 19.1.2011, the said standards for “Frozen Desert” is intended to be enforced w.e.f. 31.7.2011. The submission of the learned counsel for the applicant is that the Public Analyst has applied standards of a product which had not even been enforced on the date of taking of the sample or filing of the complaint. The Public Analyst has not justified in testing the sample on the basis of a standards which was yet in the stage of a draft and has not yet been incorporated in the Appendix-B of the PFA Rules, 1955. 10. The Public Analyst has not justified in testing the sample on the basis of a standards which was yet in the stage of a draft and has not yet been incorporated in the Appendix-B of the PFA Rules, 1955. 10. Learned counsel for the applicant submitted that the standards of the “Frozen Dessert” were made applicable for the first time from 5.2.2012, under the New Act i.e. Food Safety and Standards Act, 2006, therefore, the sampled commodity being a ‘proprietary food’ till 5.2.2012, the standards prescribed for ice-cream could not have been applied by the public analyst while analyzing the sampled commodity, which was admittedly Frozen Dessert and not the Ice Cream. 11. On the aforesaid grounds it is submitted that the sampled commodity being a ‘proprietary food’ till 5.2.2012 the standard of the ice-cream or Kulfi could not have been applied by the public analyst while analyzing the sampled commodity, therefore, the prosecution of the applicant, which has been made by the Food Inspector just to malign his image and goodwill, is unsustainable and the impugned summoning order passed by the Magistrate mechanically and without considering all these facts is liable to be quashed. 12. Learned counsel for the Government of India submitted that the Prevention of Food Adulteration Rules, 1955 framed under the Prevention of Food Adulteration, Act, 1954 prescribes standards for a number of food items, the list of which remains under constant review, addition and/or subtraction. The items enumerated in the list, the standards of which were laid down, did not include frozen desserts/frozen confections till the year, 2005. A decision to include the standards for the items of frozen dessert/frozen confections was taken for the first time in the year, 2005. The Central Government issued Notification No. GSR 356(E) dated 7.6.2005 containing proposal to amend the said rules for the purpose of inviting objections from the public. Initially a time period of six months from the date of its publication in the Official Gazette was given for implementation of these amended provisions. 13. He further contended that the Expert Group constituted by the Sub-committee met on 22.5.2006 at NDRI, Karnal and submitted its report which was examined by the Food Additives & Contaminants Sub-committee in its meeting held on 15.12.2006. 13. He further contended that the Expert Group constituted by the Sub-committee met on 22.5.2006 at NDRI, Karnal and submitted its report which was examined by the Food Additives & Contaminants Sub-committee in its meeting held on 15.12.2006. The matter was also considered by the Central Committee for Food Standards in its 54th meeting held on 28th August, 2006 and the implementation of deferred provisions as amended vide Notification G.S.R.356 (E) dated 7th June, 2005 was further deferred for one year more vide Notification G.S.R.532 (E) dated 5th September, 2006. 14. It is submitted that issues relating to milk product were also examined by the Milk & Milk Product Sub-committee in its meeting held on 10.1.2007. With regard to microbiological parameters for milk products, the Sub-committee deliberated and reached a consensus that for implementing the regulatory provisions. It was very important to put in place the sampling procedure to ensure that the samples are taken under aseptic condition and the same be maintained during transportation to the laboratory. 15. He further submitted that legislation was finally passed by the Parliament under the title Food Safety and Standard Act, 2006 (Act 34 of 2006). The said Act has provision to lay down science based food standards and provide for process of setting, review and revision of the existing standards. Section 4 of the said Act further provides for establishment of a Food Safety and Standards Authority of India (FSSAI). To lay down the said food standards and to undertake the process of setting review and revision of the same. He further submitted that the draft Notification was re-notified vide G.S.R.No. 603 (E) dated 19.7.2010 for inviting objections and suggestions from all persons likely to be affected thereby before the expiry of sixty days from the date on which copies of Official Gazette containing the said Notification, were made available to the public. He further submitted that the Central Government has been actively pursuing the process of bringing new legislation as well as updating old Rules and Regulations throughout but as it involves a number of stakeholders and is a time consuming statutory process, the completion of the said task did consume time. 16. I have considered the rival submissions made by the learned counsel for the parties and perused the material on record. 17. 16. I have considered the rival submissions made by the learned counsel for the parties and perused the material on record. 17. It is not disputed by the prosecution that the sample collected by the Food Inspector and sent for analysis to public analyst was of “Kwality Walls Frozen Dessert” and not Ice Cream. The report of the public analyst shows that the Milk Fat content is less than the prescribed minimum limit of 5% for ‘Medium Fat Frozen Desert’ and wt/volume (gram/lit) is also less then the prescribed minimum limit of 475.0 and the sample is adulterated 18. It is the admitted case of the opposite parties that the Rules prescribing standards in respect of ‘frozen dessert’, were not in force at the time when the Food Inspector took the sample and sent it for analysis to the public analyst and the Rule came into force for the first time in the year 2012. It is my considered view that the seized product was a ‘proprietary food’ meaning thereby a food for which no standards were prescribed. Therefore, it cannot be said that the food item, which was “Kwality Walls Frozen Dessert” was adulterated. 19. In the case of Pepsico India Holdings Pvt. Ltd. v. Food Inspector and anothers, 2011 (1) SC 176, the Hon’ble Supreme Court has held as under : “12. In support of his submissions, Mr. Chagla referred to the decision of this Court in Hindustan Lever Limited v. Food Inspector and another [ (2004) 13 SCC 83 ], wherein, this Court was considering the judgment of the Kerala High Court rejecting petitions filed by the Appellants therein for quashing the proceedings pending before the Judicial Magistrate, First Class, Alwaye. The proceedings had been initiated on the complaint filed by the Food Inspector, Edapally Circle, Ernakulam District, under Sections 2(ia)(a) and (m), 7(1) and 16(1)(a)(i) and Section 17(1) of the Prevention of Food Adulteration Act, 1954 read with Rule 5 of the Prevention of Food Adulteration Rules, 1955, which were ultimately quashed, inter alia, on the ground that no prosecution would be maintainable where no standard is prescribed under the Rules. It was urged that the report not having disclosed any material to support the opinion, stood clearly vitiated and ought not to have been relied upon. 38. It was urged that the report not having disclosed any material to support the opinion, stood clearly vitiated and ought not to have been relied upon. 38. Both the questions regarding the failure of the Central Government to frame Rules to define the Laboratories, where samples of food could be analysed by the Public Analyst, or to define the validated methods of analysis and the liability of the Directors, who are the Appellants before us, are of great importance for the purpose of bringing home a charge against the accused for violation of the provisions of Rule 65 of the 1955 Rules and Section 2 (ia)(h) of the 1954 Act and for holding that the Sweetened Carbonated Water manufactured by the Appellants was adulterated in terms of the said Rules. Since the range indicated as to the limits of tolerance of the presence of pesticides in different articles of food, including Sweetened Carbonated Water, which was included in the Table appended to Rule 65(2) with effect from 17th June, 2009, provides very little or practically no margin for error, the selection of Laboratories and the prescription of tolerance limits for different articles of food acquires great significance. The High Court does not appear to have considered the implications of the failure of the Central Government to frame Rules for the aforesaid purpose. Even the view taken by the High Court with regard to Grounds 3, 4 and 5 is not very satisfactory, as the mere presence of pesticide residue does not ipso facto render the article of food adulterated. Tolerance limits have been prescribed in the Table for this very purpose and the subsequent inclusion of Sweetened Carbonated Water seems to indicate so and leans more in favour of the Appellants. The High Court also appears to have overlooked the fact that the percentage of pesticides found by the Public Analyst in the Sweetened Carbonated Water manufactured by the Appellants was within the tolerance limits subsequently prescribed in respect of such product. 20. In Hindustan Lever Ltd. v. Food Inspector and another, (2004) 13 SCC 83 , the Hon’ble Supreme Court has held as under : “7. Clause (b) of sub-rule (2) of Rule 37-A clearly indicates that proprietary food means food which has not been standardized. 20. In Hindustan Lever Ltd. v. Food Inspector and another, (2004) 13 SCC 83 , the Hon’ble Supreme Court has held as under : “7. Clause (b) of sub-rule (2) of Rule 37-A clearly indicates that proprietary food means food which has not been standardized. The learned counsel for the respondents, however, submits that in view of sub-rule (1) the applicant was supposed to have approval of such articles of food from the Government of India. We, however, find no merit in the submission of the learned counsel for the respondents, since it applies only to infant dairy milk products or the infant diary milk food, the sample which has been taken and has been analysed is neither infant milk substitute /infant food nor it is skimmed milk powder, an article for which standards have been prescribed the Prevention of Food Adulteration Rules. Any prosecution in regard to an article for which no standards have been laid, applying the standards for other articles would not be sustainable. 21. In the case of M.V. Krishnan Nambissan v. State of Kerela, AIR 1966 SC 1676 , the Hon’ble Apex Court has held that when no standard for the contents of buttermilk is prescribed and the rule making authority for reasons, which is obvious, has not thought fit or feasible to prescribe any standard in regard to the contents of buttermilk, the High Court erred in holding that in absence of standards for buttermilk, the standards of milk were applicable to Curd and that as Butter Milk was in essence curd from which butter had been extracted and that the Butter Milk should contain same quantity of solids and fat as curd should contain. It was further held that wherever the rule making authority intended to prescribe a specific standard for the contents of a product, it definitely states so. Hence, a person selling butter milk cannot be convicted for an offence under Section 16(1)(a)(i) and Section 7 of the Prevention of Food adulteration Act, 1954. 22. In the light of the above discussion and considering the fact that no standards was fixed for ‘Frozen Dessert’ under the Prevention of Food Adulteration Act and Rules at the time when the sample was collected and analyzed. The standards were prescribed and made effective for the first time from 5.2.2012, therefore, the proceedings initiated against the applicants cannot survive. 23. The standards were prescribed and made effective for the first time from 5.2.2012, therefore, the proceedings initiated against the applicants cannot survive. 23. Accordingly, the application is allowed and the summoning order as well as entire proceedings of the aforesaid complaint case are hereby quashed.