1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.MMO No. 135 of 2011 . Judgment reserved on 14.11.2011. Date of decision: 19.12.2011 Satpal son of Shri Janardhan Dass, M/s Nav Durga Traders, Parwanoo, District Solan,H.P. ......Petitioner. Versus State of Himachal Pradesh through Food Inspector, Solan, District Solan,H.P. ......Respondent. Petition under Section 482 of the Code of Criminal Procedure , 1973, for quashing the complaint case No. 35/3 of 2011 dated 27.04.2011 titled as State of H.P. through Food Inspector, Solan versus Shri Satpal under Section 7/16 of the Prevention of Food Adulteration Act, 1954, Annexure -E pending in the Court of Judicial Magistrate 1st Class, Kasauli and the summoning order dated 27.04.2011, Annexure F along with all the consequential proceedings. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 Yes For the Petitioner : Mr. K.D.Sood, Advocate. For the Respondent : Ms. Ruma Kaushik, Additional Advocate General. Kuldip Singh , Judge. The petitioner under Section 482 Cr.P.C.has assailed summoning order dated 27.04.2011 and has also prayed for quashing of complaint case No. 35/3 of 2011 'State Versus Satpal' under Section 7/16 of the Prevention of Food Adulteration Act, 1954(for short Act), pending before the Judicial Magistrate Ist Class, Kasauli. 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 2. The facts as alleged in the petition are that petitioner is running business of sale and purchase of various food articles including products of 'M/s Hindustan Unilever Limited' at his premises run under the name and style of 'M/s Nav Durga Traders, Parwanoo'. The 'Kwality Walls Frozen Dessert' in different flavours is manufactured and marketed by 'M/s Hindustan Unilever Limited'. On 19.10.2010 a sample of 'Kwality Walls Frozen Dessert' (Vanilla flavour) was taken by Food Inspector from the petitioner from his premises for analysis under the Act. The Food Inspector strangely instead of correctly describing the sample as 'Kwality Walls Frozen Dessert' described the same as 'Kwality Walls Ice Cream'. The Public Analyst in his report described the sample as Amul' (Ice Cream Kwality Walls). It is not clear from where the Public Analyst has borrowed the name 'Amul'. It appears the Public Analyst has tested some other sample and not the sample taken by Food Inspector from the petitioner. 3. The Public Analyst declared the sample to be adulterated and found Butyro-Refractometer reading ( BR reading) of extracted fat to be 48* C whereas in case of milk fat it should have been 40* C to 45* C. The higher B.R. Reading indicates presence of vegetable oils. The higher B.R. Reading of the extracted fat in the present sample is only due to the presence of edible vegetable oil in Frozen Dessert in which edible vegetable oils are permitted to be added. There is no standard of fat extracted from Ice Cream or Frozen Dessert. 4. The petitioner apprehending that the Public Analyst may test the sample as Ice Cream, made a representation to the Chief Medical Officer/Local Health Authority with a request that the Public 3 Analyst may be directed to treat the sample as that of Frozen Dessert and test the same as such. The petitioner waited for some time for the reply of Chief Medical Officer, the petitioner moved an application on 19.03.2011 under the Right to Information Act,2005, to know the fate of his representation. The petitioner received the reply dated 19.04.2011 from the Chief Medical Officer to the effect that the Public Analyst concerned has been directed to test the sample as Frozen Dessert. 5. The Public Analyst despite the direction of the Chief Medical Officer/Local Health Authority still tested the sample as that of Ice Cream and declared the sample to be not conforming to the standards of Ice Cream which it was not. The report of Public Analyst is not corresponding to the sample taken from the petitioner. 6. The standards of Frozen Dessert are laid down in Item No.A.11.02.07.02 in Appendix B of the Prevention of Food Adulteration Rules, 1955, ( for short 'Rules'). The product ( Frozen Dessert) is materially different from Ice Cream, the standards for which are given in Item No.A.11.02.07. A comparative study of standards of Frozen Dessert/Frozen Confection and Ice Cream etc. would show that Frozen Dessert is specifically permitted to contain edible vegetable oils, while no such latitude has been given in respect of Ice Cream which is to be prepared with milk solids alone. Ice Cream and Frozen Dessert are two different food items. 7. The Chief Medical Officer/Local Health Authority was conversant with the facts including the representation of the petitioner, but without applying his mind, he accorded consent to the Food 4 Inspector to file complaint on the basis of report of the Public Analyst ignoring his own direction in the matter. 8. The Food Inspector after receiving written consent from the Chief Medical Officer, Solan, filed complaint against the petitioner on 27.04.2011. The learned Judicial Magistrate Ist Class, Kasauli, District Solan, took cognizance and ordered issuance of process to the petitioner vide order dated 27.04.2011 for offence punishable under Section 16(1)(a) (ii) read with Section 7(i) of the Act. 9. The Food Inspector was required to send packet as such or the empty wrapper to the Public Analyst under Rule 22 to bring to the notice of the Public Analyst that the product was Frozen Dessert. The Food Inspector has violated Rule 22 when he has not sent the packet/empty wrapper from which the sample was taken. The entire process has caused serious prejudice to the petitioner and he is required to face trial for offence which does not exist. The prayer has been made for setting aside the summoning order dated 27.04.2011 and quashing the complaint case No. 35/3 of 2011 'State Versus Satpal' under Section 7/16 of the Act pending before the Judicial Magistrate Ist Class, Kasauli. 10. The respondent has filed reply in which preliminary objections of maintainability, no cause of action, estoppel have been taken. It has been stated that the Food Inspector on 19.10.2010 visited the shop of the petitioner, disclosed his identity and served a notice in Form VI declaring his intention to take a sample of Ice cream. In reply the petitioner provided Ice cream (Kwality Walls) in the container as provided by Food Inspector and as required under the Act. The 5 petitioner never disclosed that sample as provided by him was not Ice cream and a frozen dessert. 11. On merits, it has been stated that the intention of the Food Inspector to take sample of Ice cream can be gathered from notice Form VI served on the petitioner and acceptance of the same by the petitioner. In Panchnama information given by the petitioner has been recorded and it has been duly signed by the petitioner after reading the same. The public analyst declared the sample to be adulterated. The petitioner applied under the Right to Information Act and the reply was given to the same. The consenting authority accorded his consent and thereafter complaint was filed on the basis of report of Public Analyst. The prayer was made for dismissing the petition. 12. The petitioner filed rejoinder and has stated that respondent (Food Inspector) visited the shop of the petitioner and asked for a sample of Ice cream which he pointed out and saw in the refrigerator. The petitioner produced the sealed packets of Frozen Dessert from the refrigerator as the petitioner only keeps and sells Frozen Desserts manufactured by M/s Hindustan Unilever Limited under the brand name of Kwality Walls. The respondent took a sample from the sealed packets of Frozen Dessert along with wrapper. The wrapper clearly states that the product of which the sample was taken is Frozen Dessert. The petitioner sold Frozen Dessert to the Food Inspector. The Food Inspector under Rule 22 of the Rules is required to send the packets of food articles as such to Public Analyst or if the same was opened to add a preservative than to send the empty wrapper or contents thereof to the Public Analyst. The petitioner reiterated the stand taken by him in 6 the petition. 13. I have heard the learned counsel for the petitioner and learned Additional Advocate General for the State. It has been submitted on behalf of the petitioner that on 19.10.2010 Food Inspector took sample of 'Kwality Walls Frozen Dessert' (Vanilla flavour) from the premises of the petitioner, a product of M/s Hindustan Unilever Limited The Food Inspector described the sample as 'Kwality Walls Ice cream' instead of 'Kwality Walls Frozen Dessert' (Vanilla flavour). On the representation of the petitioner Chief Medical Officer/Local Health Authority directed the Public Analyst to test the sample as 'Frozen Dessert'. 14. The standards of 'Frozen Dessert' and 'Ice cream' are different. The Chief Medical Officer/Local Health Authority without application of mind accorded consent and thereafter Food Inspector has filed the complaint. It has been argued that consent given by the Chief Medical Officer/Local Health Authority to prosecute the petitioner is against the stand of the Chief Medical Officer/Local Health Authority when he directed the Public Analyst to test the sample as Frozen Dessert instead of Ice cream. 15. The contention has also been raised that the Food Inspector has violated Rule 22 as he has not sent the packet as such or empty wrapper to the Public Analyst of the product which was purchased by him from the petitioner for purpose of sample 16. It has also been argued that it appears that the Public Analyst has tested some other sample and not the sample which was taken from the shop of the petitioner as the Public Analyst in his report 7 described the sample as 'Amul' (Ice cream Kwality Walls). 17. The learned counsel for the petitioner has relied Jagdish Chandra vs. State of Uttar Pradesh (1982) 1 SCC 350, Hindustan Lever Ltd. vs. Food Inspector and another (2004) 13 SCC 83, State of Utter Pradesh vs. Nanak Chand and another, 1974 F.A.C. 413 and Hindustan Lever Ltd. vs. State of Punjab and others 2011(1) FAC 166 and Hindustan Lever Ltd. vs. State of Punjab and others 2011(1) FAC 196. The learned counsel for the petitioner has prayed for setting aside summoning order dated 27.4.2011 and quashing of complaint under Section 7/16 of the Act. 18. On behalf of the respondent, it has been submitted that the Food Inspector had shown his intention to purchase Ice cream from the petitioner which is clear from notice on Form VI which was served on the petitioner before taking the sample. The petitioner offered for the sale Ice cream to the Food Inspector. The proceedings are recorded in Panchnama which after reading was signed by the petitioner.The sample was taken in accordance with the Act and Rules. The sample was found to be adulterated by the Public Analyst and on receipt of the report of the Public Analyst the petitioner has been prosecuted under the Act. 19. I have perused the record of the trial Court. The Food Inspector on 19.10.2010 served notice on Form VI under Rule 12 which bears Code No. and Serial No. SLN/S/62/2010 of LHA, Solan showing his intention to purchase Ice cream (Vanilla) 1200 ml.(3x400 ml) (Kwality Walls). The notice is allegedly signed by the vendor. The receipt dated 19.10.2010 indicates that vendor has allegedly received Rs.150/- from Food Inspector for selling Ice cream (vanilla). In 8 Panchnama dated 19.10.2010 against sample and code serial No. SLN/S/ 62/2010 name of the product has been written Ice cream (Vanilla) Kwality Walls (3 x400 ml) 1200 ml. Panchnama has also been allegedly signed by the vendor. Form No. VII under Rule 17 is the memo to Public Analyst addressed by the Food Inspector in which code no. and serial No. H.A.Solan SLN/S/62/2010 dated 19.10.2010 Parwanoo indicating Ice cream (Kwality Walls) has been shown. The copy of receipt of Public Analyst indicating that the Public Analyst has received sample bearing serial No. SLN/S/62/2010 on 20.10.2010 and report dated 26.10.2010 of the Public Analyst regarding sample bearing code number and serial No. SLN/S/62/2010 are also on record. The written consent dated 31.3.2011 of Chief Medical Officer, Solan for prosecuting the petitioner for violation of Act is also on record. 20. It has not been contended that the documents referred above and bearing the signatures of the vendor in fact were not signed by the vendor. Thus, all material documents such as notice on Form VI, receipt, Panchnama allegedly bear the signatures of vendor. This indicates that prima facie petitioner offered for sale Ice cream to Food Inspector and not Frozen Dessert as contended. It is a disputed fact which can be considered and decided only on the basis of the evidence during trial. Therefore, contention of the learned counsel for the petitioner that petitioner had offered for sale Frozen Dessert and not Ice cream cannot be accepted on the basis of material on record. 21. It has been contended that the Public Analyst has referred to 'Amul' Ice cream (Kwality Walls) in the public analyst report dated 26.11.2010. On this basis, it has been contended that the Public Analyst 9 has analysed some other sample and not the sample which was taken from the shop of the petitioner by the Food Inspector on 19.10.2010. This contention has also no force. No doubt, the Public Analyst has used the word 'Amul' Ice cream (Kwality Walls) but in the report dated 26.11.2010 the Public Analyst has given code number and serial No. SLN/S/62/2010. This code number and serial number is only of the sample which was taken from the shop of the petitioner on 19.10.2010 by the Food Inspector. The code number and serial number SLN/S/62/2010 is the same which finds mention on Form VI under Rule 12, receipt, Panchnama and memo of Food Inspector addressed to Public Analyst. The code number and serial number SLN/S/62/2010 also finds mention in the receipt of sample received by the Public Analyst. Thus, just by the word 'Amul' written in the Public Analyst report dated 26.11.2010 it cannot be said that Public Analyst has analysed some other sample and not the sample which was taken by the Food Inspector from the shop of the petitioner and sent to Public Analyst for analysis. 22. The learned counsel for the petitioner has contended that the office of Chief Medical Officer vide letter dated 23.11.2010 requested the Public Analyst for treating the sample as Frozen Dessert instead of Ice cream. But despite that the Public Analyst has treated the sample as 'Ice cream' and not 'Frozen Dessert'. The Chief Medical Officer/LHA gave written consent to prosecute the petitioner under the Act on 31.3.2011 mechanically knowing fully well that no sample of Ice cream was taken from the shop of the petitioner. The sample was taken on 19.10.2010 It appears that the petitioner vide letter dated 20.10.2010 addressed to the Medical Health Officer, District Solan and letter dated 10 25.10.2010 addressed to Chief Medical Officer, Solan requested for treating the sample as Frozen Dessert instead of Ice cream (Vanilla). It is not the case of the petitioner that without knowing the contents of notice, receipt, panchnama he signed these documents where sample has been described as Ice cream and not Frozen Dessert. 23. It is matter of evidence whether Food Inspector had taken the sample of Ice cream or not. The letters dated 20.10.2010 and 25.10.2010 placed on record of the petition are inconsequential when respondent has taken the stand that sample of Ice cream was taken and not of Frozen Dessert from the shop of petitioner. The letter dated 23.11.2010 from the office of Chief Medical Officer is nothing but information to the Public Analyst to treat the sample as Frozen Dessert instead of Ice cream. This letter has been allegedly written by the Medical Health Officer, Solan and not by the Chief Medical Officer who has given the written consent on 31.3.2011. The authority of Medical Health Officer, Solan for writing letter dated 23.11.2010 has not been shown. In any case the Public Analyst was bound to analyse the sample as received by him and not to treat the sample of some other food as observed in the letter dated 23.11.2010. The letter dated 23.11.2010 has not been written by the Chief Medical Officer, Solan, therefore, prima facie it cannot be said that he gave written consent for prosecuting the petitioner under the Act without application of mind. The application of mind for giving written consent by the competent authority will be considered during trial on the basis of material on record. 24. It has been contended that the Food Inspector has not 11 complied Note attached to Rule 22. It has been submitted that the said Rule provides that the Food Inspector was required to send packet as such or empty wrapper to the Public Analyst. The necessary pleadings to this effect have been made in paragraph 16 of the petition. The contention has been raised that the Food Inspector has violated Note attached to Rule 22 and, therefore, on this ground alone, the summoning order is liable to be set-aside and petition be quashed. 25. In Jagdish Chandra (supra) it has been held as follows:- “5. Furthermore, the Public Analyst revealed in his testimony that on the date when the sample was examined, there was no standard prescribed for chini dalchini. Such a standard was prescribed for chini dalchini (cassia lignea) by a government notification with effect from July 1, 1979 (Ed.: Jan.31,1979 vide Rule 1 (2) of 1st Amendment Rules, 1979)only. In the face of the serious flaws and snags, there is no escape from the conclusion that the prosecution had failed to prove beyond reasonable doubt that the article in question sold by the appellant to the Food Inspector was dalchini (Cinnamomum Zeylanicumnees). On this short ground, the appeal must succeed. Accordingly, we allow this appeal, set aside the conviction and sentence of the appellant and acquit him. Fine, if paid, shall be refunded to him. His bail bond is discharged.” In Hindustan Lever Ltd. (supra) the Supreme Court has held that no standards prescribed under the rules for the instant dairy whitener, any prosecution in regard to such an article applying the standards for other articles would not be sustainable. It is not the case of the petitioner that on the date of taking sample no standards of Ice cream or even of Frozen Dessert were fixed. The petitioner has pleaded that standards of Frozen 12 Dessert are laid down in item No.A.11.02.07.02 in Appendix B of the Rules and the standards of Ice cream are given in A.11.02.07 in Appendix B of the rules. The Appendix B provides definitions and standards of quality, Rule 5 provides standards of quality of various articles of food specified in Appendices B, C and D to the Rules are defined in those Appendices. Thus, as per the petitioner himself the standards of Frozen Dessert and Ice cream have already been prescribed, therefore, Jagdish Chandra (supra) and Hindustan Lever Ltd (supra) are not applicable in the facts and circumstances of the present case. 26. In Hindustan Lever Ltd. vs. State of Punjab and others 2011 (1) FAC 166 the sample was taken on 27.6.2002. Paragraph 13 of the report is clear that food article from which sample was drawn was Vanilla flavour frozen dessert and in paragraph 14, it has been held that after the sample was taken in the case, specified standard for frozen dessert has been prescribed in the Rules. In Hindustan Lever Ltd. vs State of Punjab and others 2011 (1) FAC 196 the sample was taken on 19.7.2003. The perusal of paragraph 7 of the report reveals that sample had been drawn from Vanilla Flavour and in paragraph 8 it has been held that after the sample was taken the specified standard for Frozen Dessert has been prescribed in the rules. In the present case in absence of evidence it cannot be said that sample taken from the petitioner was of Frozen Dessert. Therefore, 2011 (1) FAC 166 and 2011 (1) FAC 196 are not applicable. 27. Note to Rule 22 provides as follows :- “Foods sold in packaged condition (sealed container or package) shall be sent for analysis in its original condition, 13 without opening the package as far as practicable, to constitute approximate quantity alongwith original label. In case the bulk packages wherever preservative are to be added, as per the requirement under these rules, the sample shall be taken after opening sealed container or package and the contents of the original label shall also be sent alongwith the sample for analysis. However, such samples shall not be fit for microbiological analysis.” Rule 22A is as follows:- “22A. Contents of one or more similar sealed containers having identical labels to constitute the quantity of a food sample. - Where food is sold or stocked for sale or for distribution in sealed containers having identical label declaration, the contents of one or more of such containers as may be required to satisfy the quantity prescribed in Rule 22 shall be treated to be a part of the sample.” 28. In State of Kerala etc.etc. vs. Alaserry Mohammed etc.etc. 1978 (1) FAC 145, the question was whether non compliance with the requirement of Rule 22 vitiates the trial or conviction recorded under the Act. The Supreme Court after noticing Rajaldas Gurunamal Pamanani vs. The State of Maharashtra 1975(1) FAC 1 has held as follows:- “11. In Pamanani's case (supra) the Court seems to have been overwhelmed by a sense of injustice when the High Court, which had acquitted the manufacturer, convicted the appellant, a grocer, although facts of the case did indicate that the real culprit was the manufacturer. Technically, the grocer could not succeed in getting protection under Section 19(2)(a) of the Act. It is in this background, we are inclined to think that the Court's sense of justice weighed heavily in favour of the grocer and prompted it to say “that non- 14 compliance with the quantity to be supplied caused not only infraction of the provisions but also injustice.” How did it cause injustice? There is no elaboration in the judgment. There is no indication of the basis for saying - “The quantities mentioned are required for correct analysis.” A lesser quantity also could enable the Analyst to make a correct analysis. That being so, the inference, from the two premises stated above, that “shortage in quantity for analysis is not permitted by the statute”, if we may say so with great respect, is not a correct statement of the law. We may, in passing, note that the Rules have now been amended and Rule 22 B has been added in 1977, which reads as follows:- “22B. Quantity of sample sent to be considered as sufficient.- Notwithstanding anything contained in Rule 22, the quantity of sample sent for analysis shall be considered as sufficient unless the public analyst or the Director reports to the contrary.” In our opinion, the new Rule has been added for the purpose of clarifying the law and not by way of amending it. The law, as we have enunciated, it was so even without Rule 22B and it is stated here to place it beyond any debate or doubt.” 29. In State of Punjab vs. Devinder Kumar and others 1983 (I) FAC 99 the High Court allowed all the petitions quashing all the criminal proceedings filed against the petitioners before it on the ground that where the food sold or stocked for sale or for distribution was in sealed containers having identical label declaration, the entire contents of one or more of such containers as may be required to satisfy the quantity prescribed in Rule 22 should be taken as a part of sample, in the sample in a sealed form and since the sealed container had been 15 opened in each of these cases to draw the sample the prosecution