1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Delay Condonation Application 104 of 2010 Restoration Application No. 45 of 2010 With Criminal Misc. Appln (C482) No. 353 of 2005 M/s Pepsico India Holdings Ltd. Through its nominees Sandeep Bhragave. Manufacturing Manager Pepsico India Holdings Pvt. Ltd. A-2 USISIDC, Industrial Area Side II Bazpur, Udham Singh Nagar, Uttaranchal. ………………………. Applicant. Versus 1. State of Uttaranchal 2. Food Inspector Khatima, District Udham Singh Nagar Uttaranchal 3. Chief Judicial Magistrate, Khatima Udham Singh Nagar …………..Opp parties Shri Rajendra Kumar Pandey Advocate, with Shri Davesh Bishnoi Advocate present for the petitioners Shri M.A.Khan, Brief Holder present for respondents Hon’ble Prafulla C. Pant, J. This is delay condonation application no. 104 of 2010, for condonation of delay in moving restoration application MCRC No. 45 of 2010. Heard and perused the affidavit. (2) Delay in filing the restoration application is condoned. The application no. 104 of 2010 is allowed. Delay is condoned. 2 (3) Heard on restoration application MCRC No. 45 of 2010, whereby, order dated 18.12.2008 is sought to be recalled, passed in the petition under section 482 of Cr.P.C dismissing the same for non-prosecution. (4) Heard and perused the affidavit filed with the restoration application. Ground for the absence is sufficiently explained in the affidavit dated 17th of February 2010, filed by Ravindra Singh, Personnel Manager, of the petitioner’s company. (5) In view of principle of law laid down in Madhumilan vs. Union of India 2007 AIR SCW 1971, the restoration application MCRC No. 45 of 2010 is allowed on the condition that the counsel for the petitioner shall argue the case today itself. (6) The petition under section C482 of Cr.P.C is accordingly restored. (7) Heard on the criminal Misc. application (C482) No. 353 of 2005, whereby, the petitioners have sought quashing of the proceedings of criminal case no. 1207 of 2004 State vs. Pradeep Kumar and others, relating to offences punishable under section 7/16, Prevention of Food Adulteration Act 1954, pending in the court of Judicial Magistrate, Khatima, District Udham Singh Nagar. (8) Brief facts of the case are that Food Inspector Khatima (respondent no.2) took a sample on 13.08.2003, at 1.30 p.m of 3 three bottles of Pepsi, Carbonated water, from the Distributor M/s Menika Agency of the petitioners i.e. Pepsico India Holding Ltd. After complying with the rules for sampling the Food Inspector got sent, one the samples for analysis to the Public Analyst, Lucknow, with the form no. VII. A report no. 10896 dated 20th of September 2003, (copy of Annexure 3 to the petition) received from Public Analyst in which no adulteration or misbranding was reported but it was mentioned that ‘Best Before Use’ date was not mentioned on the label of the bottle, as such the sample was found violative of Rule 32 of Prevention of Food Adulteration Act Rules 1955. (9) Learned counsel for the petitioner pointed out that from the report dated 20 of September 2003 (copy Annexure 3 to the petition), it is clear that date of packing i.e 4.08.2003 was clearly mentioned on the bottle. (10) Attention of this court is drawn to the amendment incorporated in Rule 32 vide G.S.R 853 (E) dated 30 of December 2002, which came into force of first of April 2003. Proviso to said G.S.R in the Rules of 1955 requires that in the bottle containing Carbonated water “date of manufacture” and “best before use” shall invariably appear on the label of the bottle. A further proviso added through the same amendment provides that in case of returnable bottle which are recycled for riffling, where the label declarations are given on the crown, the declaration referred to in the above proviso, shall be enforced as per schedule given after the provision. The schedule requires replacement of bottle after a definite period 4 so that same bottle may not be used after a particular of years. Again, thereafter two provisos are also inserted through the same G.S.R 853 (E) dated 30th of December 2002(w.e.f 1.04. 2003). Which read as under: ‘provided also that the returnable new glass bottle manufactures and used for packing of such beverages on the date of commencement of the Prevention of Food Adulteration (Eighth Amendment) Rules, 2002 shall carry these declarations on its body: Provided also that the above provisions except date of manufacture and “best before date” shall not apply in respect of carbonated water (plain soda) portable water (impregnated with carbon dioxide under pressure) packed in returnable glass bottles’. (11) In view of the above provision learned counsel for the petitioners argued that since date of manufacture was admittedly mentioned in the label of the sample of a sweetened carbonated water and it was sealed with the crown cork as such there is no violation of Rule 32. (12) Considering the fact that neither this is a case of adulteration nor that of misbranding but only of violation of Rule 32 is reported, the argument advanced on behalf of the petitioner deserves to be accepted in view of the amended proviso applicable to the present case, as it was a sample of returnable bottle of carbonated water recycled for riffling, and crown contained the “best before use” with date of manufacture on the label of the bottle. 5 (13) For the reasons as discussed above the petition under section C482 of Cr.P.C is allowed. The proceedings of criminal case no 1207 of 2004 State vs. Pradeep Kumar and others, relating to offences punishable under section 7/16 of Prevention of Food Adulteration Act, 1954, pending in the court of Judicial Magistrate, Khatima, District Udham Singh Nagar, are hereby quashed. Dt.30.04.2010 NP (Prafulla C. Pant, J.)