THE HIGH COURT OF UTTARANCHAL AT NAINITAL Court’s order whether the case is or not approved for reporting (Chapter VIII, Rule 32(2) (b) Description of Case Criminal Misc. Application No.861 of 2001 AND Criminal Misc. Application No.805 of 2001 AND Criminal Misc. Application No.860 of 2001 AND Criminal Misc. Application No.804 of 2001 AND Criminal Misc. Application No.803 of 2001 Date of decision :-24.03.2006 A.F.R. (Approved for Reporting) Not approved for reporting Date :- 24.03.2006 Initials of Judge Note :- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. HIGH COURT OF UTTARANCHAL, AT NAINITAL Criminal Misc. Application No.861 of 2001 1. Brij Nandan Maheshwari S/o Dharam Kirti Firm Maheshwari & Com. Chowk Bazar, Pithoragarh 2. Hari Ballabh Sharma, Firm M/s Hari & Company, Siltham Pithoragarh 3. P.R. Sharma Assistant Manager Sales 31 Basant Lok, Basant Vihar New Delhi (Nominee) of Manufacturers Food Specialties Ltd. Connaught Circus, New Delhi …….Applicants Versus 1. State of Uttaranchal 2. Food Inspector, Mobile Food Squad Kumaun, Garhwal Division ………Respondents AND Criminal Misc. Application No.805 of 2001 M/s Food Specialties Ltd. M-5 Connaught Circus New Delhi – 110001 ……..Applicants Versus State of Uttaranchal …….Respondents AND Criminal Misc. Application No.860 of 2001 Sh. Khila Nand S/o Sri R. D. Zukaria Shopkeeper Loha Ghat Tehsil Champavat District Pithorgarh ……...Applicant Versus 1. State of Uttaranchal 2. Food Inspector Pithoragarh ………..Respondent AND Criminal Misc. Application No.804 of 2001 M/s Food Specialties Ltd. M-5A, Connaught Circus New Delhi – 110001 ………Applicant Versus State of Uttaranchal ………Respondent AND Criminal Misc. Application No.803 of 2001 M/s Food Specialties Ltd. M-5A Connaught Circus New Delhi – 110001 Through Mr. Purvez Billimoria Legal Executive ……….Applicant Versus State of Uttaranchal ……..Respondent Sri Rajesh Batra learned Advocate and Sri Hari Mohan Bhatia learned counsel for the revisionists. Sri Rajeev Mohan learned A.G.A. Hon’ble J. C. S. Rawat, J. 1. Since there is a common question of law involved in all the petitions, therefore, all the aforesaid cases have been heard together and are being disposed of by the single judgment. 2. Criminal Misc. Application Nos.861/2001 and No.860/2001 have been filed for quashing the proceedings in criminal case No.108/1990 & Case No. No.259/1989 respectively under section 7/16 of the Prevention of Food Adulteration Act pending before the Chief Judicial Magistrate, Pithoragarh. 3. Criminal Misc. Application No.805/2001 and No. 803/2001 have been filed for quashing the proceedings in Case No. 1379/1988 & Case No.672/1989 respectively under section 7/16 pending before the Chief Judicial Magistrate, Nainital. 4. Criminal Misc. Application No.804/2001 has been filed for quashing the proceedings in Case No.451/1989 under section 7/16 pending before the Chief Judicial Magistrate, Chamoli. 5. Brief facts of Criminal Misc. Application Nos.861/2001 are that on 25.12.1989 the Food Inspector took the sample of Maggi Noodle and its taste maker from the applicant-Brij Nandan Maheshwari after taking necessary formalities. Then, the Food Inspector sent the said sample to the Public Analyst for examination and it was reported that the taste maker contained mono-sodium glutamate, but this fact was not mentioned in the declaration on the label. Consequently, the article of food did not comply with the requirements of the Prevention of Food Adulteration Act and the Rules made thereunder and was found adulterated within the meaning of the Act. After the receipt of this report, the Chief Medical Officer granted sanction for prosecution of the accused persons. Thereafter, a complaint was filed before the Magistrate by the Food Inspector alleging therein that the accused persons had committed the offence as defined under Rule 32 and 37A(ii) of the said Rules which is punishable under section 16 of the Food Adulteration Act. It was alleged that these noodles were vegetarian. 6. In Criminal Misc. Application No.805/2001, the Food Inspector inspected the shop of Masud Ahmed and took three packets of Maggi Noodles weighing 100 grams each. These packets were manufactured by M/s Food Specialties Ltd. The Food Inspector sent the said samples to the Public Analyst for examination and it was reported that the test for mono-sodium glutamate in tastemaker position showed positive but its presence was not declared on the label. After the receipt of this report, the Chief Medical Officer granted sanction for prosecution of the accused. Thereafter, a complaint was filed before the Magistrate by the Food Inspector. It was alleged that these noodles were vegetarian. 7. In C482 No.860/2001, the Food Inspector took the sample of packets of Maggi Noodles and its Masala taste maker. Then, the Food Inspector sent the said sample to the Public analyst for examination and it was reported that the Masala taste maker contained mono-sodium glutamate, but this fact was not mentioned in the declaration on the label and consequently, the article of food did not comply with the requirements of the Prevention of Food Adulteration Act 1954and the Rules made thereunder and was found adulterated under the provision of the P.F.A. Act. After the receipt of this report, the Chief Medical Officer granted sanction for prosecution of the accused. Thereafter, a complaint was filed before the Magistrate by the Food Inspector alleging therein that the accused had committed the offence as defined under Rule 32A and 37A of the said Rules which is punishable under section 16 of the Food Adulteration Act. It was alleged that these noodles were vegetarian. 8. C482 No.803/2001 pertains to the non-vegetarian noodles. In this case, the Chief Food Inspector inspected the shop of Masud Ahmed and during his inspection he took the samples of 9 packets of Maggi (Chicken taste maker). Then, the Chief Food Inspector sent the said sample to the Public Analyst for examination and it was reported that the test for mono- sodium glutamate was found positive and the presence of mono-sodium glutamate was not declared by the manufacturer on the label and thus violated the provisions of the Rules 32 & 37A of the Rules framed under the P.F.A. Act. After the receipt of this report, the Chief Medical Officer granted sanction for prosecution of the accused. Thereafter, a complaint was filed before the Magistrate by the Chief Food Inspector. It was alleged that these noodles were non-vegetarian. 9. C482 No.804/2001 also pertains to the non- vegetarian noodles. In this case, the Food Inspector inspected the shop of Ashok Kumar and during the inspection he took the sample of Maggi Noodles Chicken. Then, the Food Inspector sent the said sample to the Public analyst for examination and it was reported that the taste maker portion showed mono-sodium glutamate positive but it was not declared on the label. After the receipt of this report, the Chief Medical Officer granted sanction for prosecution of the accused. Thereafter, a complaint was filed before the Magistrate by the Food Inspector. It was alleged that these noodles were non- vegetarian. 10. Feeling aggrieved by the said prosecutions, the aforesaid petitions have been filed before this Court. 11. Heard Sri Rajesh Batra and Sri Hari Mohan Bhatia learned counsel for the applicants and Sri Rajeev Mohan learned A.G.A. and perused the record. 12. Learned counsel for the applicants contended that Chapter 6 of the Prevention of Food Adulteration Rules 1955 beginning from Rule 32 to 43 pertain to the packing and labeling of the food articles. There is nothing in these Rules which requires the declaration about the mono-sodium glutamate to be made on the label. It was pointed out the Rule 32 prescribes all what should be mentioned on every label of packed food. Mono-sodium glutamate is a taste enhancer and it does not fall in any of the categories which requires its addition to any food articles mentioned on the label. He further pointed out that mono-sodium glutamate is found in the onion etc. as a natural phenomenon. He further pointed out that Rule 64(b) of the Rules made under the Food Adulteration Act specifically permits the use of mono-sodium glutamate and it also contains the limitation and restrictions of its use. He further pointed out that only restriction on the use of mono-sodium glutamate in the food article like Maggi Noodles is that it should not exceed the prescribed quantity. It was also pointed out that the report shows that no quantitative test was performed by the public analyst and the same was declared ‘adulterated’ without holding any quality test. The report of the public analyst does not show that the mono-sodium glutamate was added in the said article. As such, mere presence of mono-sodium glutamate does not make the article adulterated. Learned counsel for the applicants pointed out that the prosecution against the applicants is liable to be quashed and the complaint does not disclose the offence of Food Adulteration Act. In case of Maggi Noodles Chicken, the labeling as provided under Rule 42(s) is required. Whereas the case of vegetarian articles, no such label is required under any of the Rules. 13. Learned counsel for the applicants further pointed out that the said Rule has been changed by virtue of the amendment of G.S.R. 101E dated 18.02.1992 w.e.f. 19.8.1992 as amended by subsequent G.S.R. 11.03.1996. It was further pointed out that the said amendment was made on the basis of the recommendations of the Committee constituted under section 3 of the Food Adulteration Act. He further pointed out that the Committee had recommended that the old provisions should be deleted and the new should be added in view of the difficulties enumerated in its report. It was pointed out that no methodology was available for differentiation between the natural occurring and added glutamate in the food. It was also noted that food items generally contain mono-sodium glutamate arising out of the protein and free glutamate which may exceed the total limit of one percent. It is also admitted to the parties that in case of non- vegetarian noodles i.e. C482 Nos.803/2001 & No.504/2001 the provisions of old Rule 42(s) was applicable. According to the old Rule, the applicants were required to fulfill the condition as laid down under the old Rule. However, the learned counsel for the applicants contended that new subordinate legislation by amending the said Rule 42(s) is an ex-poste facto legislation and it is beneficial to the manufacturer and in view of the said amendment it is not an offence punishable under section 7/16 of the P.F.A. Act. He further pointed that the said notification by which the said Rule 42(s) was amended is not retrospective, but it is prospective. Learned counsel for the applicants pointed out that the amendment in the Rules was made with the recommendations of the Committee and the Committee was of the view that there is a defect in the subordinate legislation and the legislation was amended accordingly. The benefit of the said amended rule may be provided to the cases pending on the enforcement of the said amended Rule 42. Learned A.G.A. pointed out that the offence was punishable under the Rule 32 & 37 and the Rules clearly emphasize that he ingredients used in the product should be described on the label. He further pointed out that mono-sodium glutamate was available in the sample and that was not displayed on the label. As such, it is a violation of Rule 32 of Food Adulteration Rules, therefore, the offence is also punishable apart from the violation of Rule 42(s). 14. Before dealing with the contentions of the parties, I would like to discuss the position of law on this subject. Under Article 20 of the Constitution of India, no person will be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. But an ex-post facto law which only mollifies the rigour of a criminal law does not fall within the said prohibition. If a particular law makes a provision to that effect, though retrospective in operation, it will be valid. The question whether such a law is retrospective and if so, to what extent depends upon the interpretation of a particular statute, having regard to the well settled rules of construction. The statutes had to be seen with regard to the language and particularly in the criminal statutes with a more rational regard to the aim and intention of the legislature. It is unquestionably right that the distinction should not altogether erased from the judicial mind , for it is required by the spirit of our free institutions that the interpretation of all statutes should be favourable to personal liberty, and this tendency is still evinced in a certain reluctance to supply the defects of language, or to eke out the meaning of an obscure passage by strained or doubtful influence. The effect of the rule of strict construction might almost be summed up in the remark that, where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the rules of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself. But it yields to the paramount rule that every statue is to be expounded according to its expressed or manifest intention and that all cases within the mischiefs aimed at are, if the language permits, to be held fall within its remedial influence. 15. The Hon’ble Supreme Court has hled in Rattan Lal Vs. State of Punjab 1965(1) Cri. L.J. p/360 that :- “Even so the statue affects an offence committed before it was extended to the area in question. It is, therefore, a post facto law and has retrospective operation. In considering the scope of such a provision we must adopt the rule of beneficial construction as enunciated by the modern trend of judicial opinion without doing violence to the provisions of the relevant section.” 16. In that case, the accused was convicted by the trial court prior to the enforcement of the First Offenders Act. When the appeal was pending the said Act was made enforceable. The question was that as to whether the benefit of said Act can be given to the accused though the offence relates to the period when this Act was not enforceable. In that case, the Hon’ble Supreme Court extended the benefit of First Offenders Act to the accused. Perusal of the said judgment reveals that the phraseology used in the notification and the Act was wide enough to enable the High Court to extend the benefit of this Act and to make such an order. It is also pertinent to mention here that the said Act does not challenge the quantum of sentence, but only introduces a provision under a different Act to reform the offender. There was no reason why the legislature should have prohibited to exercise such power even if the case was pending against the accused at one stage or other in the High Courts. The said judgment was came up for consideration before the Hon’ble Supreme Court in Dayal Singh Vs. State Rajasthan 2004(5) SCC p/721. The Hon’ble Supreme Court while interpreting the judgment has held that the phraseology of the section was wide enough to enable the appellate court or the High Court to made such an order under the new Act. The Hon’ble Supreme Court has also held that an ex-post facto law which only mollifies the rigour of a criminal law does not fall within the said prohibition and if a particular law made a provision to that effect, though retrospective in operation, it will be valid. The High Court had the jurisdiction to exercise the power at the appellate stage to extend the benefit of such Act at any stage. If a particular statue provides an Act to be done in a particular manner then that Act would be done accordingly. If the law is silent then the court has the power to extend the benefit. If the law also permits to mollify the rigour of a criminal law does not fall within the said prohibition. The decisions delivered in Dayal Singh (supra) and Rattan Lal (supra) have been considered by the Constitution Bench of the Apex Court in Pratap Singh State of Jharkhand & another 2005 (3) SCC p/551 in which a question before the Apex Court came for consideration whether the Juvenile Justice (Care & Protection of Children) Act 2000 would be applicable in cases where proceedings were initiated under the Juvenile Justice Act 1986 and same was pending when the Act 2000 had came into force on 1.4.2001. The distinction between the Juvenile Justice Act 1986 (hereinafter referred as ‘1986 Act’) and the Juvenile Justice (Care & Protection of Children) Act 2000 (hereinafter referred as ‘2000 Act’) is that under the 1986 Act a juvenile means a male Juvenile who has not attained the age of 16 years and a female juvenile who has not attained the age of 18 years. In the 2000 Act no distinction has been drawn between the male and female juvenile. The limit of 16 years in the 1986 Act has been raised to 18 years in the 2000 Act. Section 20 of the 2000 Act deals with the special provision in respect of pending cases and begins with a non obstinate clause. The sentence “notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act came into force” has great significance. The proceedings in respect of a juvenile pending in any court referred to in section 20 of the Act are relatable to proceedings initiated before the 2000 Act came into force and which are pending when the 2000 Act came into force. The term “any court” would include even ordinary criminal courts. If the person was a ‘juvenile’ under the 1986 Act the proceedings would not be pending in criminal courts. They would be pending in criminal courts only if the boy had crossed 16 years or the girl had crossed 18 years. This shows that section 20 refers to cases where a person had ceased to be a juvenile under the 1986 Act but had not yet crossed the age of 18 years then the pending case shall continue in that court as if the 2000 Act has not been passed and if the court finds that the juvenile has committed an offence it shall record such finding and instead of passing any sentence in respect of the juvenile shall forward the juvenile to the Board which shall pass orders in respect of that the juvenile. There is a specific provision under the above Act that the benefit of said Act would only be provided to those delinquents and juvenile who were below 18 years of age on 1.4.2001. Thus, the provision of this Act was prospective. The Hon’ble Supreme Court had held that the remedial statute would not apply in the pending proceedings even though it is beneficial legislation. It was further held that it has no retrospective effect and it would only apply to those under-trial accused, who had not completed 18 years of age on 1.4.2001. Thus, this beneficial legislation was not found applicable to other delinquents. The entire law was discussed in the said judgment. 17. In the case of P.P. Fathima Vs. State of Kerala 2003 (8) SCC p/726, 750mg of brown sugar was recovered from the possession of the accused and the accused was convicted by the trial court as well as by the High Court for a period of 10 years and a fine of Rs.1 lakh was imposed on him. In that case, the recovery was made on 3.8.1999. During the pendency of the appeal, a notification dated 19.10.2001 was issued by the Government making a distinction between a ‘small quantify’ and ‘commercial quantity’. The recovered quantity was exempted as per the notification. The argument was advanced before the Hon’ble Supreme Court that the recovery of 750mg of brown sugar was made from the possession of the accused and by virtue of new notification issued under the Act, the same cannot be treated as a commercial quantity and could only be for personal consumption. The Hon’ble Supreme Court held that the notification dated 19.10.2001 would not been applicable in the case because the notification was issued after the date of incident. Therefore, the benefit of the ‘small quantify’ was not given to the accused. It was not disputed that the said notification was a prospective. It was not disputed that the said Rule was amended after the date of occurrence. It was also not disputed that there was an ambiguity in the Rules and in the notification with regard to the prospectively. In view of the above decisions, the Apex Court has held that the said Rules are not retrospective and it cannot be held that it is an ex-post facto legislation. 18. Learned counsel for the applicants relied upon the decisions i.e. Municipal Corporation of Delhi Vs. Mai Ram @ Bhaya Ram 1974 Prevention of Food Adulteration Cases p/19, Sunder Lal Vs. Municipal Corporation of Delhi 1974 Prevention of Food Adulteration Cases p/21, B. L. Kohli Vs. Delhi Administration 1987(2) C.L.R. p/324, Prem Chand Vs. State of Haryana 1993(3) Recent Criminal Reprots p/617 and M/s Lucas Indian Service Ltd. Vs. State of Andhra Pradesh 1999 Cri.L.J. p/1647. In view of the decisions of the Apex Court, the judgment referred above are distinguishable on facts and law. 19. In the instant cases, the prosecution has filed the complaints for violation of Rule 32 and 37 of the Food Adulteration Act. The prosecution has not stated that there is any violation of Rule 42. Rule 32 and 37 of the Food Adulteration Act provide as under:- “32. Package of food to carry a label:- Every package of food shall carry a label and unless otherwise provided in these rules, there shall be specified on every label: (a) the name, trade or description of food contained in the package; (b) the names of ingredients used in the product in descending order or their composition by weight or volume as the case may be: Provided that in the case of artificial flavouring substance, the label may not declare chemical names of the flavours, but in the case of natural flavouring substances or natural identical flavouring substances, the common name of flavours shall be mentioned on the label. 37. Labels not to certain false or misleading statements:- A label shall not contain any statement, claim, design, device, fancy name or abbreviation which is false or misleading in any particular concerning the food contained in the package, or concerning the quantity or the nutritive value or in relation to the place or origin of the said food: Provided that this rule shall not apply in respect of established trade or fancy names of confectionery, biscuit and sweets, such as, barley ginger beer or gold spot or any other name in existence in international trade practice.” 20. Learned counsel for the applicants relied upon the decision of the Hon’ble Supreme Court in T. Barai Vs. Henry Ah Hoe AIR 1983 SC p/150 in which the Food Inspector lodged a complaint against the accused under section 16(1)(a) read with Section 7 of P.F.A. Act as amended by the West Bengal Amendment Act. The said amendment was in force in the State of West Bengal on the date of commission of offence. On 01.04.1976 the Parliament enacted the Prevention of Food Adulteration (Amendment) Act, 1976 which reduced the maximum punishment of life imprisonment as provided by the West Bengal amendment of section 16(1)(a) to three years’ imprisonment. The accused was charged and convicted prior to the enforcement of the Central Act. Thereafter, the question arose whether the benefit of Central Act may be given to the accused or not. Ultimately, the benefit