* THE HON'BLE SRI JUSTICE K.G.SHANKAR + CRIMINAL PETITION No.7596 of 2009 % Dated 21.12.2011. # Sanka Ravi Gopal and others. … Petitioners. versus $ The State of A.P., through the food Inspector, Vijayawada, Krishna District rep by its Public Prosecutor, High Court of A.P., Hyderabad. … Respondent. ! Counsel for Petitioner : Sri M.S. Srinivasa Iyengar, Advocate. ^Counsel for Respondent: GP for Home. <GIST: >HEAD NOTE: ? Cases referred: THE HON'BLE SRI JUSTICE K.G.SHANKAR CRIMINAL PETITION No.7596 of 2009 Date:21.12.2011 Between: Sanka Ravi Gopal and others. ..... Petitioners. AND The State of A.P., through the food Inspector, Vijayawada, Krishna District rep by its Public Prosecutor, High Court of A.P., Hyderabad. .....Respondent. The Court made the following : THE HON'BLE SRI JUSTICE K.G.SHANKAR CRIMINAL PETITION No.7596 of 2009 ORDER: M/s. Cadbury India Private Limited along with its officers who are arrayed as A1 to A4 in C.C.No.429 of 2009 on the file of the I Additional Chief Metropolitan Magistrate, Vijayawada seeks for quashment of the charge sheet. The Food Inspector who inspected the shop of the 1st respondent on 25-05-2007, purchased Cadbury 5 Star Chocolates from the 1st petitioner. The sample was sent for analysis. The Public Analyst issued opinion on 07-07-2007 that the sample contained vegetable oil and also contained Benzoic Acid, which was not declared on the label. The Public Analyst opined that the sample was both adulterated and misbranded. On the basis of the report of the Analyst, a case was booked against the four petitioners. 2. Sri M.S. Srinivasa Iyengar, learned counsel for the petitioners/accused contended that in view of Appendix-B Clause A.25.03 of the Prevention of Food Adulteration Rules, 1956 (‘the PFA Rules’ for short) and in view of Rule 32 (b) read with proviso after Rule 32 (f) of the PFA Rules, the petitioners are not guilty of committing the offences under Section 16 (1) (a) (i) read with Sections 7 (i) (ii) and (2) (ia) (m) of the provisions of the PFA Act 1954. 3. Smt Zareena Afsar, learned counsel representing the Additional Public Prosecutor contended that the samples were indeed adulterated as can be seen from the report of the Analyst and that it automatically is tantamount to injuries to health, so much so the offences are made out against the accused. 4. The learned counsel for the Additional Public Prosecutor drew my attention to the definition of ‘adulterated’ in Section 2 (ia) of the PFA Act and pointed out that the very meaning of adulteration is that the food article is injurious to health. The learned counsel representing the Additional Public Prosecutor strenuously contended that the adulterated food was injurious to health for the reason that the Public Analyst Report merely recorded that the sample was adulterated and misbranded but did not state that the sample was injurious to health. However, I do not wish to go into this question and would like to dispose of the case on the strength of other material. 5. Admittedly, the seized samples were 5 Star Filled Chocolate Cakes weighing 16 grams each. The learned counsel for the petitioners pointed out that A.25.03 of Appendix-B of the PFA Rules provides separate specification for Filled and White Chocolates. A.25.03, so far as Filled Chocolates reads: “Filled chocolate means a product having an external coating of chocolate with a center clearly distinct through its composition from the external coating, but does not include flour confectionery, pastry and biscuit products. The coating shall be of chocolate that meets the requirements of one or more of the chocolate types mentioned above. The amount of chocolate component of the coating shall not be less than 25 per cent of the total mass of the finished product.” 6. It is the contention of the learned counsel for the petitioners that the presence of hydrogenated vegetable oils are not permitted in the chocolate portion of the sample and not in the Filled Portion of the chocolate. He further admitted that it would be tantamount to adulteration so long as hydrogenated vegetable oils are found in the chocolate portion. 7. While so, the Public Analyst Report did not distinguish between the chocolate portion and the Filled Portion of the chocolate. It merely recorded that the sample contained hydrogenated vegetable oils, which was marked on the label and that the sample also contained Benzoic Acid, which was not declared on the label and that consequently the sample was tantamount to adulteration and misbranding. 8. Where there is a clear distinction between the White Chocolate and Filled Chocolate relating to the presence of hydrogenated vegetable oil, I am afraid that the Analyst Report cannot be accepted assuming that hydrogenated vegetable oil was found in the chocolate portion and not in the Filled Portion. 9. A similar question came up before the Jharkhand High Court in Pawan Kumar Agarwal Vs. The State of Jharkhand (in Cr.M.P. No.196 of 2011). Prashant Kumar, J referred to the specification of the filled chocolate as prescribed under A.25.03 of Appendix-B of the Rules and held that the standard fixed for preparation of the Filled Chocolate were such that there was no prohibition for the Filled Portion of the chocolate from containing hydrogenated vegetable fats and that it was only the chocolate portion, which should not contain hydrogenated vegetable fats. 10. While so, the Analyst Report disclosed that the sample contained hydrogenated vegetable oil but did not state whether hydrogenated vegetable oils were found in the chocolate portion or in the filled portion. Admittedly, the filled portion of the chocolate is not proscribed from containing vegetable oil. That being so, unless the Analyst Report specifically disclosed that the prohibited vegetable oils were found in the chocolate portion, it cannot be held that the sample was adulterated. I wholly agree with the contention of the learned counsel for the petitioners that the Analyst Report failed to show that the sample was adulterated within the meaning of the PFA Act since it was not shown that the chocolate portion contained the prohibited hydrogenated vegetable oils. 11. It may be recalled that the Analyst Report found that the sample did not confirm to standard on two grounds. The 1st of the grounds is that the sample contained vegetable oils. I have already concluded that the sample cannot be considered to be adulterated on the ground that it contained vegetable oil, for the reasons mentioned above. 12. The other ground on which the sample was considered to be adulterated is that the sample contained Benzoic Acid. The learned counsel representing the Additional Public Prosecutor submitted that Benzoic Acid is a preservative and that the failure to mention the same on the label is tantamount to misbranding punishable under the Act. The learned counsel for the petitioners referred to Rule 32 of the PFA Rules. Rule 32 (b) envisages that every packet of food shall be labeled with the ingredients used in the product. Admittedly, the label did not show that the sample contained Benzoic Acid. To show that the petitioners, however, are not liable under Rule 32 of the PFA Rules, the learned counsel drew my attention to proviso after Rule 32 (f). The proviso is to the effect that the labeling envisaged by Rule 32 (b) is not necessary when the net weight of the confectionary is 20 grams or less. Admittedly, the net weight of the samples drawn was 16 grams as can be seen from the Analyst Report itself. I, therefore, agree with the contention of the learned counsel for the petitioners that in view of Rule 32 (b) read with Rule 32 (f) proviso, it is not incumbent upon the petitioners to label the sample with the details envisaged by Rule 32 (b) as the net weight of the product was 16 grams only. Consequently, it cannot be held that the petitioners were guilty of misbranding the product. Thus it is clear that the petitioners are not guilty of either adulteration or misbranding of the sample. The claim of violation under the provisions of the Prevention of Food Adulteration Act consequently is misconceived. The prosecution against the petitioners is liable to be quashed. 13. Accordingly, this Criminal Petition is allowed. C.C.No.429 of 2009 on the file of the I Additional Chief Metropolitan Magistrate, Vijayawada, Krishna District is hereby quashed. ____________________________ JUSTICE K.G.SHANKAR Date:21.12.2011 LR Copy to be marked. mrb