HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is or not approved for reporting) (Chapter VIII, Rule 32(2)(b)) Description of the case C-482 No. 53 of 2003 M/ s Dharam Pal Satya Pal Vs. Food Inspector Nagar Palika Haldwani and another. Decided On 25.9.2008 Ap p r oved for r ep or tin g. Dated: 25.9.2008 Initials of Judge: IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL C‐482 No. 53 OF 2003 M/s Dharam Pal Satya Pal ……………….Applicant. Versus Food Inspector Nagar Palika Haldwani & Another. ………Respondents. Mr. S.K. Posti, learned counsel for the Applicant. Mr. S.S. Adhikari, learned A.G.A. for the State/Opp. Parites. 25th September, 2008 Hon’ble P.C. Verma, J. This application filed U/s 482 Cr..C. is directed for quashing the order dated 5th February, 2003 passed by the trial Court in Complaint No. 1729/99 Food Inspector Vs. Neeraj Kumar and others pending before the Chief Judicial Magistrate, Nainital. 2. Brief facts of the case are that the complaint case was filed by the Food Inspector under the Prevention of Food Adulteration Act, 1954 against 1) Neeraj Kumar, S/o Sri Ratan Kumar, R/o Meera Marg Haldwani (Retailer), Partner M/s Firm R.K. Agencies, Meera Marg, Haldwani, 2) Firm M/s R.K. Agencies, Meera Marg, Haldwani, 3) Sri S.P. Malakar, S/o late Sri S.S. Malakar, R/o N‐175, Sector ‐12, Noida, Assistant Manager (Administration) and nominee of Firm S.R. Fragrances A 41, Sector‐4, Noida, District Gautam Buddh Nagar PIN: 201301, 4) Firm M/s S.R. Fragrances, A‐41, Sector‐4 Noida, District Gautam Buddh Nagar PIN: 201301, 5) Sri P.S. Rana, S/o Sri A.S. Rana, R/o G‐96, Sector ‐ 56, Noida (Assistant Manager) and Nominee M/s Dharmpal Satyapal A‐85, Sector‐2, Noida, and 6) M/s Firm Dharampal Satyapal A‐85, Sector‐2, Noida, Uttar Pradesh. 3. The complaint was for violation of Rule A‐30 contained in Appendix‐B, Rule 50, Section 2 [(I‐a)](h), and Section 7/1/16 of the Prevention of Food Adulteration Act, 1954. This fact is not in dispute that the accused no. 1 and accused no. 2 are the retail sellers, accused no. 3 is noiminee of the manufacturer, accused no. 4 is the manufacturer, accused no. 5 is dead and in place of him, by impugned order the Director and all officials of accused no. 5 have been ordered to be arrayed as party, who are distributors. 4. On 7.4.1999 at about 11.45 p.m., the Food Inspector of the Area found accused no. 1 selling and storing Rajni Gandha Pan Masala for human consumption and he took three sealed packs of 100 grams each as sample from the sellers according to the procedure prescribed after paying cost of the same. He prepared all the necessary documents on the spot and got the signatures of the same and thereafter, according to the prescribed procedure, the sample was sent for analysis. Analyst carried on the analysis and reported that the sample was found to be adulterated vide his report No. 2982 dated 20.5.1999. As per the report, the samples were containing Gambier, Magnesium, and Carbonate, thus, there was violation of Rule A‐30 of Appendix –B and Rule 50 of the Prevention of Food Adulteration Rules, 1955 and section 2 (I‐a) (h) of the Food Adulteration Act, 1954 and accordingly, there was a commission of offence under Section 7(i) read with Section 16 of the Prevention of Food Adulteration Act, 1955. Section 7 of the Act is reproduced here as under: “7. Prohibition of manufacturer, sale, etc. of certain articles of fool. – No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute‐ (i) any adulterated food; (ii) any misbranded food; (iii) any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence; (iv) any article of food the sale of which is for the time being prohibited by the Food (Health) Authority [in the interest of public health;] [***] (v) any article of food in contravention of any other provision of this Act or of any rule made thereunder, [or] (vi) any adulterant. Explanation‐For the purposes of this section, a person shall be deemed to store any adulterated food or misbranded food or any article of food referred to in CI. (iii) or CI. (iv) if he stores such food for the manufacture therefrom of any article of food for sale.]” 5. A perusal of the above quoted Section shows that the prohibition is only on the manufacturer who either himself or by any person in his behalf manufacture for sale, or store, sell or distribute any adulterated food, any misbranded food or any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence or any article of food the sale of which is for the time being prohibited. Section 16 of the Act provides the punishment for commission of offence under section 7 of the Prevention of Food Adulteration Act. Thus reading of Section 7 with Section 16 of the Prevention of Food Adulteration Act makes it clear that if a sealed pouch manufactured by a Firm is found to be adulterated and on analysis, the material contained in the sealed pouch is found to be in violation of Rule A.30 of Appendix B and Rule 50 of the Prevention of Food Adulteration Rules, 1955, then it is an offence under Section 16 of the Prevention of Food Adulteration Act, 1954, which is prohibited by Section 7 of the Act. 6. Thus, in the case of sealed pouch being found adulterated, then adulteration is only attributed to the Manufacturer, it cannot be attributed to the retail‐seller or the distributor, therefore, the accused no. 1, 2 , 5 and 6 cannot be held liable for commission of an offence under Section 16 read with Section 7 (I‐a) (h) of the Act. If the sealed pouch manufactured by Manufacturer i.e. in the present case accused no. 3 and 4 is found to be adulterated and in violation of Rule A‐30 of Appendix B read with Section 50 of the Act, the prosecution against the accused no. 1, 2, 5 and 6 are not permitted under the law. They have been wrongly harassed by making accused. 7. Learned A.G.A. has invited my attention on Section 7 of the Act that Store, selling, distribute included in section 7 of the Act independently, therefore, violation thereof is selling of adulterated food and distribution of the same is also an offence under Section 16 of the Prevention of Food Adulteration Act. 8. The argument of the learned AGA is misconceived. Bare reading of Section 7 is that no person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute. The sell or distribute refers to direct sell or distribution by the Manufacturer himself. It does not refer to the agents, distributors, who work for manufacturer on commission or profit basis. In case of sealed pouch manufactured by manufacturer, there cannot be any scope of adulteration by retailer or distributors or seller to adulterate it at his behest. It is not the case that the pouches were found opened and unsealed pouches were being sold, which were sent for analysis. On the other hand, it has been reported that each pouch was found sealed. It indicates that if any adulteration was done that was done by the Manufacturer at manufacturing stage. 9. Any other person, who sells or distributes articles will be liable for prosecution if the original seal of the manufacturer is found to have been tampered by the Seller or the Agent, then the guilt of commission of offence will fasten on the seller or distributor, who works for the manufacturer on commission basis. 10. In the present case admitted fact is that the original sealed pouch was found to be untampered, therefore, the liability was only of the Manufacturer. 11. In view of the facts and circumstances of the case, the provisions of Section 7 of the Prevention of Food Adulteration Act as submitted by the learned Government Advocate is not attracted at all. 11A. Thus no offence is made out against accused Nos. 1,2, and 5 and 6. 12. For the reasons recorded above, in exercising of powers under Section 482 Cr.P.C. this Court quash the proceedings against the accused no. 1, 2, 5 and 6. The proceeding against the accused no. 3 and 4 shall continue. Since the proceedings against the respondent no. 5 could not have been proceeded, therefore, the order of the Chief Judicial Magistrate is hereby set aside. 13. Application filed U/s 482 Cr.P.C. is allowed. No order as to costs. (P.C. Verma, J.) 25.9.2008 Rathour