CRM No. M-21646 of 2010 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CRM No. M-21646 of 2010 (O&M) Date of Decision :15.02.2011 Sanjeev Kumar .......... petitioner Versus State of Punjab ...... Respondent CORAM : HON'BLE Ms. JUSTICE RITU BAHRI Present : Mr. G.S. Sawhney, Advocate for the petitioner. Mr. Raghbir Chaudhary, Sr. DAG, Punjab. **** RITU BAHRI, J. Present petition has been filed under Section 482 Cr.P.C. for quashing the complaint dated 16.3.2009 under Section 16 of the Prevention of Food Adulteration Act, 1954 (Annexure P-4) and the summoning order dated 20.3.2009 (Annexure P-5). Brief facts of the case are as follows :- On 20.8.2008, Dr. Madan Lal Food Inspector along with one Dr. H.S. Gupta, DHO inspected the premises of the petitioner and found him having 16 bottles of Mustard oil Kamal Brand (Agmark). The said bottles of mustard oil, which were sealed, were purchased from M/s Ajit Singh Om Parkash Dana Mandi, Nawanshahr as the name of the stockiest /dealer finds mention in the complaint. After disclosing his identity, the said Food Inspector gave CRM No. M-21646 of 2010 -2- a notice in form VI to the petitioner and showed his intention to have a sample of mustard oil (Kamal Brand). The said Food Inspector purchased 1500 ml (500ml x 3 sealed bottles) of mustard oil and after dividing the same into three equal parts, sent one of the part to the Public Analyst, Chandigarh for analysis. The sanctioning authority i.e. the Civil Surgeon-cum-Local Authority SBS Nagar, vide letter dated 20.10.2008 asked the Food Inspector to launch a complaint in the Court of Chief Judicial Magistrate Nawanshahr for misbranding and said Food Inspector launched the complaint accordingly under section 16 of the Prevention of Food Adulteration Act, 1954 (herein after referred to as 'the Act”). As per the report of the Public Analyst, the sample does not have Agmark label number as required under Rule 15 of the P.F.A. Rules, 1955. In this case, the petitioner is a vendor and not the manufacturer, has sold the article of food to the Food Inspector in the same conditions, in which he had bought the same from the stockiest / dealer M/s Ajit Singh Om Parkash, as mentioned in the complaint. In the complaint there is no mention that the said bottles of mustard oil has been tampered with or any mishandling has been done by the petitioner. The affidavit of Amit Kumar dated 20.3.2009, special messenger who took the sample to the Public Analyst, also stated that there was no tampering of the sample. Even the Food Inspector had stated in the complaint that the bottles were sealed and there was no tampering and as such the CRM No. M-21646 of 2010 -3- petitioner is protected by warranty under Section 19(2) of the Act and Rule 12-A of the Rules. Rule 12-A of the Rules provides that every manufacturer, distributor or dealer selling an article of food to a vendor shall give either separately or in the bill, cash memo or label, a warranty. In the present case, it is not the case of the complainant that the petitioner had not sold the article of food to the Food Inspector in the same state in which he had purchased from the manufacturer. In the complaint also it has been clearly stated by the Food Inspector that the article purchased was sealed pack and were purchased in the same condition in which it were. Mr. G.S. Sawhney, learned counsel for the petitioner has argued that as per the report of the Public Analyst the sample does not have Agmark label number as required under Rule 15 of the P.F.A. Rules, 1955. While referring to Rule, 15 of the Rules, 1955, which reads as under :- “15. Bottles of containers to be labeled and addressed : All bottles or jars or other containers containing samples for analysis shall be properly labeled and the parcel shall be properly addressed. The label on any sample of food sent for analysis shall bear :- (a) Code number and serial number of the Local (Health Authority); (b) Name of the sender with official designation, if any,; (c) ***** (d) Date and place of collection. CRM No. M-21646 of 2010 -4- (e) Nature of article submitted for analysis; (f) Nature and quantity of preservative, if any, added to the sample. PROVIDED that in the case of a sample of food which has been taken from Agmark sealed container, the label shall bear the following additional information; (a) Grade; (b) Agmark label No. / Batch No.; (c) Name of packing station.” Mr. G.S. Sawhney, learned counsel for the petitioner has argued that as per proviso to Rule 15, in case a sample which has been taken from Agmark sealed container, the label shall bear the additional information i.e. (a) Grade; (b) Agmark label No. / Batch No. and (c) Name of packing station. As per the report of the Public Analyst (Annexure P-2) dated 22.9.2008, in the sample collected Batch No. A-500/786/8 has been mentioned. Hence there is due compliance of Rule 15(b) of the Act. The report of the Public Analyst dated 22.9.2008 has not been sent to the petitioner as contemplated under Section 13(2) of the Act. As per the said Section the report is to be sent within ten days. It is a mandatory provision and prejudice to the vendor / petitioner is writ large and would vitiate the trial. There is no allegation against the petitioner. The manufacturer has not complied with the provisions of Rule 15 of the PFA Rules and it is the manufacturer who is liable to face the proceedings initiated. Affixing of label is the duty of the manufacturer and the petitioner could not CRM No. M-21646 of 2010 -5- be prosecuted to face trial for not labeling the articles of food in accordance with the provisions of the Act or the Rules. Admittedly, three bottles of 500 ml. each was taken as sample by the Food Inspector and the Food Inspector has not mentioned anything about the label in the complaint. Mustard oil could not be adulterated as contemplated under Rule 15 of the Rules. The Food Inspector has relied upon the Analyst Report for misbranding of the label. The petitioner is not liable to be prosecuted, as the Food Inspector, who had the occasion to see the mustard oil bottle did not mention anything about the misbranding. The sample was drawn only for the purpose of analysis and not for the purpose of looking into violation of Rule 15 of the Rules, 1955. Mr. G.S. Sawhney, learned counsel for the petitioner has argued that Rule 15 falls under part V of the Prevention of Food Adulteration Act / Rules, which deals with sealing, fastening and sending of the sample by the Food Inspector for the purpose of analysis to the public analyst. Petitioner being the vendor was not liable for this act on behalf of the manufacturer. In view of the above, the summoning order dated 20.3.2009 is without application of mind and is liable to be set aside. Learned counsel for the parties have been heard. A reply has been filed by the State. The stand taken in the reply is that as per the report of the public analyst the mustard oil was found to be misbranded as the product though claimed to be Agmark but Agmark label number had not been given as required under the provisions of Rule 15 of the CRM No. M-21646 of 2010 -6- PFA Rules, 1955. The petitioner has been prima facie found guilty of offence under Section 16 of the Prevention of Food Adulteration Act, 1954. It has been admitted that the sample collected bore Agmark label but its number was conspicuous by its absence. The report of the Public Analyst has been sent within ten days to the petitioner. Reliance has been placed by the learned counsel for the petitioner on the judgments of this Court in the cases of M/s Lochen Kheti Sewa Centre, Behrampur Bet vs. State of Punjab 2008(2) RCR (Criminal) 22, M/s Ram Dhan Rikhi Ram vs. State of Punjab 2001(4) RCR (Criminal) 529, Gurmej Singh and another vs. State of Punjab 2008(2) RCR (Criminal) 24 and a unreported judgment of this Court in Anil Kumar vs. State of Punjab & another CRM No. M-13035 of 2009 decided on 15.12.2009. Learned State counsel ha s not been able to dispute the settled law in the abovesaid judgments. Once the goods have been manufactured the dealer / vendor can not be held liable for any offence on the ground of misbranding. In the present case, admittedly from the perusal of the Public Analyst report one thing is clear that Batch No. A-500/786/8 has been mentioned on the label. A perusal of Section 15(b) provides that in the case of a sample of food which has been taken from Agmark sealed container, the label shall bear the following additional information; (a) Grade; (b) Agmark label No. / Batch No.; (c) Name of packing station.” The information as contemplated under Rule 15 is CRM No. M-21646 of 2010 -7- available on the label as per the Public Analyst report. In view of the above, there is no violation by the petitioner / vendor. The complaint is liable to be quashed. 15.02.2011 (RITU BAHRI) 'sp' JUDGE