IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.06.2008 CORAM : THE HONOURABLE MR. JUSTICE K.N.BASHA CRL.O.P.No.848 of 2007 and M.P.No.1 of 2007 1. Dr.A.C.Mohan 2. T.Rajan .. Petitioners/Accused 1 and 2 Vs. The Food Inspector, Division No.134, Zone 9, Corporation of Chennai, Chennai. .. Respondent/Complainant * * * Prayer : Petition filed under Section 482 Cr.P.C. praying to call for the records in S.M.M.F.No.4 of 2006 on the file of the learned XX Metropolitan Magistrate, Rippon Buildings, Chennai and quash the proceedings pending against the petitioners. * * * For Petitioners : Mr.S.Ashok Kumar, SC for Mr.N.Senthil Murugan For Respondent : Mr.P.Kumaresan, APP O R D E R The petitioners have come forward with this petition seeking for the relief of quashing the proceedings initiated against them for the alleged offence under Sections 7(ii) & 16 (1) (a) (i) & Section 2 (ix) (a) & (k) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as "the Act") r/w Rule 32 of Prevention of Food Adulteration Rules 1955 (hereinafter referred to as "the Rules) on the allegation of misbranding the turmeric powder. 2. Mr.S.Ashok Kumar, learned Senior counsel appearing for the petitioners submitted that the petitioners have been implicated as https://hcservices.ecourts.gov.in/hcservices/ Accused Nos.1 and 2 in this case on the allegation of adulteration of turmeric powder. Learned Senior Counsel contended that the samples were sent for analysis and the Analyst's report is to the effect that there is no adulteration in the samples and the same is in conformity with the standard prescribed under the PFA Act and Rules. It is contended by the learned Senior counsel that after receiving such Analyst's report in favour of the petitioners, the Food Inspector has chosen to prefer a complaint on a new allegation of misbranding and also violation of rules in respect of non-mentioning of batch number, best before use, manufacturing date, retail price etc. Learned senior counsel further contended that the proceedings are liable to be quashed on the ground that the Analyst's report itself clearly reveals that there is no adulteration in the samples said to have been seized from the petitioners. 3. It is further submitted by the learned Senior counsel appearing for the petitioners that the present allegation is mainly for the contravention of Rule 32 (e), namely, the allegation of non-mentioning of batch number and other particulars i.e., date of manufacture, best before use, retail price etc., and as such, the petitioners cannot be fastened with the liability of the above said contravention of rules. It is further submitted by the learned senior counsel that as per the allegation contained in the complaint, the petitioners have kept 5 kilograms of turmeric powder for sale to the public and out of the 5 kilograms, the Food Inspector purchased 900 grams, as per Form-6 and thereafter divided the same in 9 different packets namely 100 grams each and such packets were forwarded to Analyst for examination. Therefore, it is submitted by the learned senior counsel that only from the packets prepared by the Food Inspector, it was found that there is no mention about the batch number and other details like manufacturing date, retail price etc. 4. Per contra, learned Additional Public Prosecutor submits that there is clear violation of Rule 32(e) and (f) of the Rules to the effect that the petitioners have not mentioned the batch no., manufacturing date, best before use, retail price etc. on the samples said to have been taken from their shop by the Food Inspector. Therefore, it is submitted by the learned Additional Public Prosecutor that in view of the specific allegations, the question of quashing the proceedings not at all arises and the points raised by the petitioners relate to questions of fact and such points could be considered only at the time of trial. 5. I have carefully considered the rival submissions and perused the impugned complaint and also the materials available on record. https://hcservices.ecourts.gov.in/hcservices/ 6. The crux of the allegation is that the petitioners have not mentioned the details of batch number, manufacturing date, best before use, retail price etc., in the packets containing the turmeric powder and thereby, contravened the rule 32 of the PFA Rules and thereby committed the offences under sections 7(ii), 16 (1) (a) (i) & Section 2 (ix) (a) & (k) of the Act r/w Rule 32 of the Rules. 7. A perusal of the impugned complaint discloses that the first accused is said to be the owner of the provision store and the second accused is his employee. The second accused was present at the time of inspection by the Food Inspector. It is mentioned that during inspection, the Food Inspector found 5 Kgs. turmeric powder kept in the shop for sale to the public. He informed the second accused that he is going to take the sample as he is suspecting the sample, viz., the turmeric powder, is an adulterated one. Thereafter, the Food Inspector has prepared Form VI and stated that he is going to take 900 gms of turmeric powder for sending the same for the examination by the Analyst and also served Form VI and obtained signature from the second accused. It is seen that the Food Inspector has purchased 900 gms of turmeric powder out of 5 Kgs kept for sale in the shop and packed in 9 different packets containing 100 gms each and after affixing the seal on the packets, he sent the same to the public Analyst for examination. It is mentioned in the complaint that after the examination, the public analyst sent the report stating that the sample is found to be in conformity to the standards prescribed for turmeric powder under the PFA Rules. It is stated in the analyst report that sample is only misbranded as the sample does not contain the batch number, best before used, manufacturing date and retail price and thereby it is stated that there is a violation of Rule 32 of the Rules r/w Section 2 (ix)(a) and (k) of the Act. Therefore, it is alleged in the complaint that the petitioners said to have committed the offence punishable under Section 7 (ii) & 16(1)(a)(i) & Section 2(ix)(a) & (k) of the Act, r/w Rule 32 of the Rules. 8. Before proceeding to consider the allegations contained in the complaint against the petitioners, as stated above, it is relevant to refer the provision under which contravention was alleged against the petitioners, namely Rule 32 of the Rules and Sections 2 (ix)(a) & (k), 7(2) and 16 (1)(a)(i) of the Act. 9. Rule 32 of the Rules reads hereunder : "32.EVERY PREPACKAGED FOOD TO CARRY A LABEL:- https://hcservices.ecourts.gov.in/hcservices/ [e]Lot/Code/Batch Identification:- A batch number or code number or Lot number which is a mark of identification by which the food can be traced in the manufacture and identified in the distribution, shall be given on the label. [f]Date of manufacture or packing:- The date, month and year in which the commodity is manufactured, packed or pre-packed, shall be given on the label: Provided that the month and the year of manufacture, packing or pre-packing shall be given if the "Best before date" of the product is more than three months; Provided that in case any package contains commodity which has a short shelf life of less than three months, the date, month and year in which the commodity is manufactured or prepared or pre-packed shall be mentioned on the label. ........." 10. Section 2 (ix) (a) and (k) of the Act reads hereunder: 2. Definitions – In this Act unless the context otherwise requires, - (ix) "misbranded" – an article of food shall be deemed to be misbranded - (a) If it is an imitation of, or is a substitute for, or resembles in a manner likely to deceive, another article of food under the name of which it is sold, and is not plainly and conspicuously labelled so as to indicate its true character ; ..... (k) it if is not labelled in accordance with the requirements of this Act or rules made thereunder ; 11. Section 7 (2) of the Act reads hereunder : 7. Prohibitions of manufacture, sale, etc., of certain articles of food – No person shall himself or by any person on his behalf manufacture for sale or store, sell or distribute - (ii) any misbranded food ; https://hcservices.ecourts.gov.in/hcservices/ 12. Section 16 (1)(a)(i) of the Act reads hereunder : 16. Penalties – (1) Subject to the provisions of sub-section (1-A), if any person - (a) whether by himself or by any other person on his behalf, imports into India or manufactures for sales, or stores, sells or distributes any article of food - (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 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 ;" 13. A reading of the Rule 32 clearly shows that Rule 32 refers only in respect of every pre-packaged food to carry a label prior to 20.08.2007 and only from 20.08.2007, the word "package of food to carry a label" is substituted to "every Pre-packaged food to carry a label". However, the fact remains that rule 32 relates only in respect of prepackaged food. But as already pointed out by this Court, in view of the specific mentioning in the complaint to the effect that bulk quantity of 5 kilograms of turmeric powder was kept in the shop for sale to the public and out of the said quantity, the Food Inspector has purchased a sample of 900 grams and thereafter, divided into 9 different packets of 100 grams each and sent 3 packets each containing 100 gms by following the procedure of packing and sealing the said three packets to the Public Analyst for analysation. Therefore, it is crystal clear that the Food Inspector has not purchased any pre-packed food from the shop of the petitioners and the Food Inspector has purchased 900 gms from the bulk quantity of 5 kgs. kept in the shop and only Food Inspector packed the same in 9 different packets containing each 100 gms and sent three packets of sample containing 100 gms in different packet for analyzation by the Public Analyst. Therefore, Rule 32 of the Rules is not at all applicable to the facts and the allegations of the case on hand and on this ground alone, the entire proceedings is liable to be quashed. 14. This Court is constrained to state that in view of the finding of this Court to the effect that Rule 32 itself is not applicable to the facts and allegations of the case on hand, the question of misbranding of any article of food not at all arises. https://hcservices.ecourts.gov.in/hcservices/ 15. For the aforesaid reasons, this Court is of the considered view that allowing the proceedings to continue against the petitioners would amount to a clear case of abuse of process of Court and as such the proceedings pending against the petitioners is liable to be quashed. Accordingly, the proceeding in S.M.M.F.No.4 of 2006 on the file of XX Metropolitan Magistrate, Rippon Buildings, Chennai, pending against the petitioners is hereby quashed and the criminal original petition is allowed. Consequently, connected M.P.No.1 of 2007 is closed. ap/gg Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To 1. The XX Metropolitan Magistrate, Rippon Buildings, Chennai. 2. -do- Through The Chief Metropolitan Magistrate, Egmore, Chennai-8. 3. The Food Inspector, Division No.134, Zone 9, Corporation of Chennai,Chennai. 4. The Public Prosecutor, High Court, Madras-104. 2 ccs to Mr.V.Senthil Murugan, Advocate, SR.31535 bs (co) dv/12.8. CRL.O.P.No.848 of 2007 https://hcservices.ecourts.gov.in/hcservices/