IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:- 18.08.2008 CORAM: THE HONOURABLE MR. JUSTICE K.N.BASHA CRL.O.P.No.38527 of 2004 and Crl.M.P.No.12203 of 2004 1. Senthil Vadivel Pepsico India Holdings Pvt.Ltd., Wise Park, Industrial Development Area Kanjikode (East) P.O. Palakkad – 678 621 Kerala State. 2. Pepsi Co., India Holdings Pvt.Ltd., Wise Park, Industrial Development Area Kanjikode (East) P.O. Palakkad – 678 621 Kerala State .. Petitioners vs. P.Nallathambi .. Respondent Prayer : Petition filed under Section 482 Cr.P.C. praying to call for records and quash the complaint S.T.C.No.244 of 2004 pending on the file of District Munsif cum Judicial Magistrate Court, Portonovo as against the petitioners. For Petitioner : Mr.Krishna Srinivasan for M/s. S.Ramasubramanian Associates For Respondent : Mr.Babu Muthu Meeran, APP., O R D E R The petitioners, who have been arrayed as A3 and A4, have come forward with this petition seeking for the relief of quashing the proceedings initiated in S.T.C.No.244 of 2004 pending on the file of the learned District Munsif cum Judicial Magistrate Court, Portonovo. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioners have been implicated on the complaint preferred by the respondent/complainant, the Food Inspector for the alleged offence under Sections 7(ii) and 16(1)(a)(i) read with Section 2(ix)(k) of PFA Act 1954 and also of first proviso of A.01.01 of Appendix B of PFA Rules 1955. 3. The sum and substance of the allegation levelled in the complaint is to the effect that the respondent/ complainant purchased six bottles of Pepsi cool drinks from the first accused. Thereafter, by following the procedure contemplated under the Prevention of Food Adulteration Rules and Act, packed, sealed and sent the samples for analysis to the analyst. The report of the analyst dated 26.6.2003 stated that the sample is "misbranded" as "the sample is not labeled in accordance with the requirement of the first proviso under item A.01.01 as the quantity of sugar added is not declared on the bottle or the crown", i.e. the quantity of sugar added to the beverage is not mentioned on the Bottle or the Crown as required in item A-01.01 of Appendix B of the Prevention of Food Adulteration Act, 1954 and Sub- clause 1 and 12 of Sub-Rule (ZZZ) of Rule 42 of the Prevention of Food Adulteration Rules, 1955. Based on the said report of the Public Analyst, the respondent filed a complaint against Accused A1 to A4. 4. The only contention raised by the learned counsel for the petitioners is to the effect that the sub-clause 1 and 12 of Sub Rule (ZZZ) of the Prevention of Food Adulteration Rules require the declaration regarding the sugar contents in the beverage was notified under notification No.G.S.R. 853(E) dated 30.12.2002 came into force only from 1.10.2003 as per the clarification obtained by the petitioners herein from the Directorate General of Health Services dated 15.10.2004. Therefore, it is contended that on the date of taking the samples of the Pepsi Bottles i.e., on 28.5.2003, there is no Rule whatsoever requiring the petitioners to declare the sugar contents on the bottle or the cap. As such, the question of misbranding the sample not at all arise and on the sole ground, the proceedings initiated against the petitioners is liable to be quashed. The learned counsel for the petitioners would also place reliance on the decision of Jarkand High Court reported in 2005 Crl.L.J. 2309 and another decision of the High Court of Punjab and Haryana dated 3.3.2006 made in Crl.M.P.No.42462-M of 2005. 5. Per contra, the learned Additional Public Prosecutor contended that item A-01.01 of Appendix B of the Prevention of Food Adulteration Act, 1954 and Sub-clause 1 and 12 of Sub-Rule (ZZZ) of Rule 42 of the Prevention of Food Adulteration Rules, 1955 came into force on 1.4.2003 and the sample was taken only on 28.5.2003 and as such, the petitioners contravened Clause 1 and 12 of Sub-Rule (ZZZ) of Rule 42 and they are liable to be proceeded with the allegation of misbranding the sample. The learned Additional Public Prosecutor in support of his contention https://hcservices.ecourts.gov.in/hcservices/ placed reliance on the dismissal of the petition filed for the discharge of the petitioners dated 30.9.2004 wherein it was observed by the learned Magistrate that there are two contradictory views in respect of rule coming into force namely whether it was on 1.10.2003 or 1.4.2003 and such a question is to be clarified and decided only at the time of trial by examining and cross-examining the Food Inspector, P.W.1. 6. I have carefully considered the rival contentions put forward by either side and also perused the impugned complaint and the other materials available on record. 7. As already pointed out, the sum and substance of the allegation levelled against the petitioners is that they have misbranded the samples namely Pepsi Cool Drinks and Beverages by not labeling in accordance with the requirement of the first proviso under Item A.01.01 of Appendix B of the Prevention of Food Adulteration Act, 1954 and Sub- clause 1 and 12 of Sub-Rule (ZZZ) of Rule 42 of the Prevention of Food Adulteration Rules, 1955, as the quantity of sugar added to the beverages was not mentioned on the bottle and thereby said to have committed the offence as stated above. 8. The only contention put forth by the petitioners as stated above is to the effect that the said Rule requiring the declaration regarding the sugar contents in the beverage was notified as per notification No.G.S.R.853 (E) dated 30.12.2002 and the said notification came into force only from 01.10.2003, whereas the sample was taken as early as on 28.05.2003 and therefore, the petitioners cannot be held liable for contravention of such notification and first proviso under A.01.01 of Appendix B of the Prevention of Food Adulteration Act, 1954 and Sub- clause 1 and 12 of Sub-Rule (ZZZ) of Rule 42 of the Prevention of Food Adulteration Rules, 1955. 9. The learned counsel for the petitioners rightly placed reliance on the date of coming into force of the above said Rule on the clarification obtained by the petitioners from the Directorate General of Health Services dated 15.10.2004. As per such clarification, the rule came into force only from 1.10.2003 and not from 1.4.2003. It is pertinent to be noted that this clarification was issued by a competent authority and such clarification was communicated to the petitioner by the Assistant Director General (PFA). Added to such clarification from the authenticated and competent authority, learned counsel also rightly placed reliance on the two decisions rendered by the High Court of Jarkand reported in 2005 Crl.L.J.2309 (Partha Sarathi Kumar and another vs. State of Jharkhand and another) and the decision of High Court of Punjab and Haryana made in Crl.M.No.4242-M of 2005 dated 3.3.2006. 10. The Jharkhand High Court in Partha Sarathi Kumar V. State of Jharkhand reported in 2005 Cri.L.J.2309 has held that, https://hcservices.ecourts.gov.in/hcservices/ "5. Thus, from the plain reading of the Amended Rules, 2002, the following facts emerges : (a) The Amended Rules, 2002 came into effect from 1st April, 2003, except sub-rules (ii)(iii) and (iv) of rule-2 of the Amended Rules, 2002. (b) Sub-rules (ii)(iii) and (iv) of Rule-2 of Amended Rules, 2002 whereby Rule-42 was amended and label prescribed under sub-rule (zzz)(1) and (12) came into effect from later date w.e.f. 1st October, 2003. (c) Appendix-B to the said rule cannot be given effect independently till sub-rule (zzz) of Rule-42 is given effect. Thus, the Appendix-B to the amended Rule also came into effect from 1st October, 2003. I have noticed the original sub-rule (zzz) of Rule-42 of 1955. Therein, no condition laid down to mention 'quantity of added sugar' or 'no sugar added'. It was only required to mention the name of 'artificial sweetener'. 6. In these cases, the day, i.e., 18th August, 2003, the bottles of 7-UP ; 'Pepsi (sweetened carbonated water)' and "Mirinda Orange' were seized and the day, the Public Analyst of MADA, Dhanbad submitted its report, i.e., 11th September, 2003, the provisions of sub-rules (ii)(iii) and (iv) of Rule-2 and the Appendix-B of Amended Rules, 2002 having not come into effect and such amendment having come into effect from later date i.e., 1st October, 2003, the accused persons (petitioners) cannot be held to have violated the amended sub-rule (zzz)(1) and (12) of Rule-42 or the Appendix - B to the Amended Rule, as quoted above. There being no provision, the accused persons (petitioners) were not required to declare 'quantity of added sugar' or 'no sugar added' on the cap/crown of the bottles and thereby, the question of misbranding of any one or other product aforesaid cannot be alleged. In the circumstances, as no case is being made out against the accused persons (petitioners) to prosecute for the offence u/2 16(1)(a)(i) of the Act, 1954, it is desirable to set aside all the criminal proceedings in question." 11. The Punjab and Haryana High Court has also taken a similar view in an unreported decision in Aradhna Soft Drinks Company V. State of Haryana and another dated 03.03.2006 made in Crl.Misc.No.42460-M of 2005 by placing reliance on the decision of the Jharkhand High Court as cited supra. https://hcservices.ecourts.gov.in/hcservices/ 12. As far as the instant case is concerned, it is not disputed by the prosecution that the sample was taken on 28.5.2003 and as such, it is crystal clear the sample in this case was taken much earlier to the provision came into force i.e., on 1.10.2003 and as such the petitioners are not liable to be prosecuted for the alleged contravention of Rule A.01.01 of Appendix-B of Prevention of Food Adulteration Rules 1955 which itself came into force only on 1.10.2003 and therefore, allowing the proceedings to continue against the petitioners would amount to a clear case of abuse of process of Court. 13. For the aforesaid reasons, this Court Court is constrained to quash the proceedings in so far as the petitioners, who have been arrayed as A-3 and A-4. In view of the specific findings and reasons assigned by this Court to the effect that the alleged contravention of Rule or provision itself came into force subsequent to the date of taking sample of the PEPSI beverage involved in this case, this Court is of the considered view that in the interest of justice, the other accused, who have been arrayed as A-1 and A-2 are also entitled to the benefit of the decision rendered by this Court and as such the entire proceedings pending in S.T.C.No.244 of 2004 pending on the file of the District Munsif-cum-Judicial Magistrate Court, Portonovo. Accordingly, the same is quashed and the criminal original petition is allowed. Consequently, Crl.M.P.No.12203 of 2004 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vsi To 1. The District Munsif cum Judicial Magistrate Court, Portonovo. 2. The Public Prosecutor, High Court, Madras.104. CRL.O.P.No.38527 of 2004 MSM(CO) RVL 16.09.2008 https://hcservices.ecourts.gov.in/hcservices/