IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Revision No.43 of 2010. Date of decision: 17.03.2010. Suresh Kumar …Petitioner Versus State of H.P. …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Petitioner: Mr.Anup Chitkara, Advocate. For the Respondents: Ms.Ruma Kaushik, Additional Advocate General. Dev Darshan Sud,J. This revision petition has been preferred by the petitioner against the judgment and sentence imposed by the learned Additional Sessions Judge, Fast Track Court, Kullu, affirming the conviction under Section 16(I)(a)(i) of the Prevention of Food Adulteration Act, 1954 read with Rule 49(28) of the Prevention of Food Adulteration Rules, 1955, (hereinafter referred to as the `Act’ and `Rules’ respectively) and sentencing the petitioner to undergo rigorous imprisonment for a period of six 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 months and to pay fine of Rs.5,000/-,in default of payment to undergo simple imprisonment for a period of one month. The prosecution case is that a complaint was filed by the Food Inspector that on 28.8.2001 around 1.35 PM he visited the shop of Suresh Kumar Thakur who was running shop under the name and style of M/s.Kailsh Confectionary, The Mall, Manali, District Kullu and after disclosing his identity in presence of PW-1 Amar Singh, he found that respondent Suresh Kumar had stored for sale packed drinking water in the brand name of ‘Aquafina” for sale for human consumption. Accordingly he issued notice in Form-VI Ex.PW-1/B with intention of taking the sample of the water for analysis and purchased three sealed bottles each of one liter against the payment of Rs.36/- by obtaining receipt Ex.PW-1/C. At the relevant point of time Shri Suresh Kumar disclosed that he had purchased this water from Everest Enterprises. The provisions under which the petitioner has been charged may be considered. Section 16(I)(a)(i) provides:- “16. Penalties.- (I) … … … … … … … … (a) … … … … … … … … … (i) which is adulterated within the meaning of sub-clause(m) of clause(ia) of section 2 or misbranded within the meaning of clause (ix) of that 3 section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority.” Sub clause (k) of clause-(ix) of Section 2 provides:- “2. Definitions. … … … … … (ix) misbranded. … … … … (k) If it is not labeled in accordance with the requirements of this Act or rules made thereunder.” Rule 49(29) provides:- “49. Conditions for sale. … … … … … … (29) No person shall manufacture, sell or exhibit for sale mineral water except under the Bureau of Indian Standards Certification Mark. [Explanation.-For the purpose of this rule, the expression “mineral water” shall have the same meaning as assigned to it in Item A.32 of Appendix “B” to these rules.] The case of the prosecution is that the mineral water bottle was not bearing any Bureau of Indian Standards Certification. By Notification dated 29th September, 2007 the Prevention of Food Adulteration (7th Amendment) Rules, 2000 were notified 4 to come into effect w.e.f. 29th March, 2001 and sub- rule 28 to Rule 49 was added. The D.O. letter dated 3rd April, 2001 has been addressed by the Government of India, Ministry of Health & Family Welfare, Nirman Bhavan, New Delhi to all the States. The issuance of this D.O. letter and its contents are not disputed by the State. The D.O. letter has been obtained by the petitioner by filing an application under the Right to Information Act. The D.O. letter reads:- “You might be aware that Govt. of India had issued final Notifications GSR Nos.759(E) and 760(E) dated 29.9.2000 amending the Prevention of Food Adulteration Rules for setting new standards for mineral and packaged drinking water as well as requesting the manufactures of these products to obtain certification from Bureau of Indian Standards. This Notification has come into effect on 29.3.2001. We are enclosing a list of companies which have applied to the BIS for getting certification for these products (Annexure). All these applications were received by the BIS certification before 29th March. The Department of Consumer Affairs have requested for some more time to enable the Bureau to complete their process of inspection and certification. Accordingly, in consultation with them it has been 5 decided that they would finish this task within three months. Therefore, till 30th June, 2001 the products of the companies listed in the Annexure may be permitted in the market without the required certificate from the BIS. These products should, however, conform to the new standards. A view has also been expressed that products made by manufacturers which may have come into the market before the final dated, i.e. 29th March, 2001, should be allowed to remain in the market till sold as they were not bound by conditions of the new Notification. We are of the view that such accommodation should be made in the course of enforcement of the standards. Therefore, such products can be allowed in the market for six months from 29th March, 2001 subject to documentary proof and appropriate label declarations that they were manufactured and distributed before 29th March, 2001. As the standards has just been laid down, it is suggested that initially the enforcement steps may be only in the nature of investigational surveys of the standards of products being brought into the market during the first three months. Whenever there is some discrepancy, the matter should be brought to the notice of the concerned manufacturers and the 6 information sent to us. This is being suggested to provide an opportunity to the manufacturers to upgrade their quality parameters, should this be required. With this approach we would expect that in the initial period there would normally be no prosecutions. It is suggested that the above guidelines may kindly be communicated to all concerned at the field level.” (Emphasis supplied) Alongwith the D.O. letter, the names of the manufactures of Packaged Drinking Water who had applied for B.I.S. licence before 29.3.2001, have been given. `Aquafina’ is manufactured by M/s.Pepsico India Holdings Pvt. Ltd., US Nagar, whose name is figured at Sr.No.60 of the list. Turning to the other aspect of the case, I also find that there is no evidence in the case as to whether the samples were properly sealed or not. According to PW-3 Food Inspector Jagdish Ram, three bottles of `Aquafina’ packaged drinking water were purchased by him, all the bottles were separately wrapped in thick paper and the slips bearing code and Sr.No.KHD-005/2001 of Local Health Authority, Kullu, were pasted. Thereafter all the bottles were sealed with wax. The description of the impression of the seal has not been given in evidence nor has it come as to in whose custody and possession the seal was kept after its 7 use. In the report of the Public Analyst, it is stated that a sample of `Aquafina’ (packaged drinking water) bearing Code No.KHD and Sr.No.005/2001 of the Local Health Authority, Kullu, was received. It has not been mentioned that the sample was sealed with four seals or four signatures of the accused, which were properly obtained, were on the wrapper. It is a common knowledge that the `Aquafina’ bottles are easily available. All the other points urged by the petitioner do not require consideration. I hold that in view of the instructions issued by the Union of India and no proof of safe keeping of the seal and sample etc., the petitioner cannot be charged for any offence. This petition is accordingly allowed. The judgment and sentence imposed by the learned Courts below is set aside. The bail bonds furnished by the petitioner shall stand discharged. March 17, 2010. (Dev Darshan Sud) (aks) Judge.