IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.M.M.O. No. 166/2009 Date of decision: 23. 4. 2010 Aradhna Soft Drinks Company ….Petitioner Versus State of H.P. and others ……Respondents. Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 Yes . For the petitioner : Mr. Janesh Gupta, Advocate. For respondents : Mr. A.K. Bansal, Addl. Advocate General, for respondent No.1. Mr. Y.P.Sood & Balwant Kukreja, Advocates, for respondents No.3, 4 & 5. None for respondent No.2. Surinder Singh (Oral): 1. In this petition, the petitioner company has challenged the orders of taking cognizance by the learned Judicial Magistrate Ist Class, Court No.1, Shimla, for the offence punishable under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, in short ‘the Act’, in a case No.100-3 of 2009/2004, titled F. I. vs. Beli Ram and others and summoning the petitioner as an accused. 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. - 2 - 2. Facts in brief, can be stated thus. On 16th August, 2003, Food Inspector intercepted the premises of hotel Wood Park, Woodrina Estate, Dhalli, Shimla and found accused Beli Ram conducting the business of ‘Deep Wood Restaurant’, located within the hotel premises. The said accused was having 5x300 ml bottles of “PEPSI”(sweetened carbonated water) in crates exhibited for sale to the general public. Food Inspector revealed his identity, issued a notice declaring his intention to take the sample of Pepsi for the purpose of analysis, thus, purchased 3x300 ml. bottles thereof. Each of the bottles were separately labeled and wrapped into thick papers. Paper slips issued by the Local Health Authority, Shimla were also affixed on each of the bottles and thereafter they were fastened with a strong thread and sealed with sealing wax as per procedure. Four seal impressions were put on each packet and all the knots were covered with seal in the presence of the witnesses. One part of the sample was sent to the Public Analyst, Kandaghat for analysis. Copy of Form-VII alongwith impression of seal was sent separately through the Peon. Second part of the sample was deposited with L.(H) A. 3. After the analysis, the report dated 25th September, 2003 was received. The Public Analyst was of the opinion that the quantity of the sugar added in the product was not mentioned in the label, hence the sample was found to be misbranded, as such prosecution was - 3 - launched after obtaining consent from the concerned authority and it was thereafter the present petitioner was also made an accused alongwith others. 4. It is ventilated by the learned counsel for the petitioner that when the sample of ‘Pepsi’ was picked up by the Food Inspector on 16th August, 2003, there was no law, such as Act and Rules that the prescribed quantity of added sugar either on the cap or crown of the bottle was required to be mentioned. Such law came into force thereafter i.e. from 1st October, 2003. Therefore, in view of this, it cannot be said that the petitioner had committed the alleged offence. To substantiate his arguments reference has been rightly put on Partha Sarthi Kumar and another v. State of Jharkhand and another: II (2005) Current Criminal Reports, 598. 5. Mr. J.S. Rana, learned Assistant Advocate General, fairly and squarely conceded the above position, that the said provision came into force w.e.f. 1st October, 2003 by a notification, issued by the Ministry of Health And Family Welfare. 6. In this case the prosecution of the accused persons including the petitioner is sought for infraction and a mandatory requirement is mentioned in the amended Rules. Although, the Prevention of Food Adulteration Rules, 1955 were amended from time to time, the last amendment of the Rules was made vide Prevention of Food Adulteration (8th Amendment) Rules, 2002. The said amended rule came into - 4 - force from 1st April, 2003. As is evident from sub-rule (2) of Rule 1 of the amended Rules, 2002, sub-rules (ii), (iii) and (iv) of sub-rule (2) came into effect from later date that is from 1st October, 2003 as is evident from Rule 1 of amended Rules, 2002 quoted hereunder:- “1. (1) These rules may be called the Prevention of Food Adulteration (8th Amendment) Rules, 2002. (2) They shall come into force on the Ist April, 2003 except sub-rules (ii) (iii) and (iv) of rule 2 which shall come into force on the 1st October, 2003.” 7. By sub-rule (iii) of rule (2) of Amended Rules, 2002 the original Rule 42 of 1995 was amended. The label of the bottle/ container, as was prescribed under sub-rule (zzz) (1) and (12) of Rule 42 was amended and substituted by Amended Rules, 2002 and for the first time, it was made mandatory to mention that ‘quantity of added sugar’ or ‘no sugar added in product’ which is clear from the amended Sub-rule (iii) of Rule (12) quoted hereunder:- “(iii) in rule (42)- (a) in sub-rule (zzz) (1), for the existing label, the following label shall be substituted, namely:- (i) This………(Name of food) contains…………..(Name of artificial sweetener) (ii) Not recommended for children (iii) *(a) Quantity of sugar added…….gm/100gm. - 5 - (b) No sugar added in the product. (iv) *Not for Phenylketoneurics (if aspartame is added) (*strike out whatever is not applicable) Xxx xxxx xxxx (b) for sub-rule (zzz) (2), the following shall be substituted, namely- (zzz) (2) Every package of Aspertame (Methyl ester) Accsulfame K and Saccharin Sodium marketed as Table Top Sweetener and every advertisement for such Table Top Sweetener shall carry the following label, namely:- (i) Contains…………(name of artificial sweetener) (ii) Not recommended for children. Provided that the package of aspartame (Methyl ester) marketed as Table Top Sweetener and every advertisement for such Table Top Sweetener shall carry the following label, namely:- “Not for Phenylketoneurics” Xxx xxxx xxxx ( c) in sub-rule (zzz) (12), for the existing lable, the following shall be substituted, namely:- (i) This….(Name of food) contains………….contains an admixture of Aspertame (Methylk Ester and Acsulfame Potassium. (ii) Not recommended for children. (iii) *(a) quantity of sugar added……..gm/100 gm. - 6 - (b) No sugar added in the product. (iv) *Not for Phenylketoneurics ( if Aspertame is added).” (*strike out whatever is not applicable) [Emphasis supplied]. 8. The item No.A.01.01 of the first proviso of the Appendix B to the sub rules, wherein it was prescribed that the quantity of added sugar shall be declared on the container/ bottle and if no sugar is added that also shall be declared on the container/ bottle as laid down in sub-clause (1) and (12) of sub-rule (zzz) of Rule 42. It was further provided that in case of returnable bottles, which are recycled or refilled the declaration of quantity of added sugar and no sugar added may be given on the crown and ‘carbonated water (plain soda)’ stood exempted from providing a declaration of ‘no sugar added’, as quoted hereunder:- “3.in Appendix B to the said rules (i) in item A.01.01 for the first proviso, the following provisos shall be substituted, namely:- “Provided that the quantity of added sugar shall be declared on the container/ bottle and if no sugar is added that also shall be declared on the container/ bottle as laid down in sub-clause (1) and (12) of sub- rule (zzz) of rule 42. In case of returnable bottles, which are recycled and refilling the declaration of quantity of added sugar and no sugar added may be given on the crown. - 7 - Provided also that the declaration of ‘no sugar added’ shall not be applicable for ‘carbonated water (plain soda)’.” The Amended Rules, 2002 thus makes it clear :- (i) The Amended Rules 2002 came into force on and w.e.f. Ist April, 2003, except sub rule (ii), (iii) and (iv) of sub-rule2 of the Amended Rules 2002; (ii) Sub-rule (ii), (iii) and (iv) of sub-rule 2 to the Amended Rules, 2002 whereby Rule 42 was amended and label prescribed under sub- rules (zzz) (1) and (12) came into force later date w.e.f. 1st October, 2003; (iii) 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. 9. From the above, it is now clear that in the instant case, said requirement was made mandatory w.e.f. 1st October, 2003 and it was not in existence on the date when the sample was taken. Therefore, no case against the accused persons including the petitioner is made out for the offence under Section 16(1)(a)(i) of the Act. Thus, the petition, for the reasons aforesaid is allowed and the entire criminal proceedings including the order taking cognizance by the learned trial court of the aforesaid offence in Criminal complaint No.100-3 of 2009/2004, titled F. I. vs. Beli Ram and others, are hereby quashed and set-aside. - 8 - Consequently, the complaint pending trial in the Court of Judicial Magistrate stands dismissed. 10. In view of the above, all pending applications stand disposed of. 11. Record of the learned trial court be returned. April 23, 2010 (Surinder Singh),J. (Pds)