Case: M/S. ALKEM LABORATORIES LTD Vs. THE STATE OF MADHYA PRADESH

3. The facts giving rise to this appeal are as follows: The Appellant was the marketer of packed food article ‘Orange Tammy Sugarless Jelly? (‘Jelly?). The Jelly was manufactured separately by one Cachet Pharmaceuticals Private Limited (‘Manufacturer?), which is not connected to the Appellant entity. On 3.10.2008, Respondent No. 2 Food Inspector, (from the Food and Drugs Administration, Bhopal District), conducted inspection in Valecha Enterprises in Bhopal, the proprietor of which is one Mr. Dinesh Valecha (‘Retailer?). Respondent No. 2 purchased three company packed jars of the Jelly, weighing 350 grams each, from the Retailer and the said samples were deposited with the State Food Testing Laboratory (‘State Laboratory?) and the Local Health Authority, Bhopal for the purpose of testing. At this stage, the Retailer did not have receipt of purchase from the Appellant/marketer and stated that they would produce it before Respondent No. 2 at a laterLocal Health Authority by letter dated 26.11.2008 informed Respondent No. 2 that the Report of the Public Analyst, State Laboratory had found ‘sugar? in the Jelly sample, hence the Jelly was misbranded. Notably, it was pursuant to this letter that, Respondent No. 2 made further query and the Retailer produced a receipt showing that the Jelly was purchased from the Appellant. Respondent No. 2 sent a letter to the Local Health Authority and to the Indore branch of the Appellant company, for information as regards the Manager/Director/Partner or nominee of the Appellant. However, as the Respondents claim, the Appellant did not respond to this query and the letter was received back. The attempts of Respondent No. 2 to obtain information about the Appellant from the Office of the Deputy Director, Food and Drugs Administration and the Commissioner, Nagar Nigam, Indore alsoRespondent No. 2 filed a complaint in the Court of the Judicial Magistrate, First Class, Bhopal for the offence of selling a misbranded food article under Section 16(1)(a)(ii) read with Sections 2(ix)(g) and 7(ii) of the Prevention of Food Adulteration Act, 1954 (‘1954 Act?). During the course of the trial, after the closing of the prosecution evidence, the Retailer examined himself as a witness for the defence under Section 315 of the CrPC. Subsequently on 26.8.2014, the Retailer moved an application under Section 20A of the 1954 Act for impleading the Appellant as an accused, which was allowed by the Special Magistrate (Prevention of Food Adulteration Act), Bhopal by order dated 1.9.2015. Hence the Appellant approached the High Court under Section 482 of the CrPC for quashing the saidHigh Court in the impugned judgment held that firstly, mens rea was not an ingredient of the offence under Section 7 of the 1954 Act. Therefore the Appellant could not avail of the defense that since they were only the marketer of the Jelly, they were not privy to the ingredients thereof. Secondly, that the Appellant could not have availed of the right to get the sample re-tested by the Central Food Laboratory (‘Central Laboratory?) under Section 13(2) of the 1954 Act as the same was only available to the vendor of an ‘adulterated? food article and not a ‘misbranded? one. Hence the denial of the said right would not prejudice the case against thethat the delay of 5 years in arraying the Appellant as co- accused would also not be fatal inasmuch as Respondent No. 2 had made best attempts to contact the Appellant, and the Appellant?s name was probably omitted to avoid delay in filing the complaint. Lastly, that the application under Section 20A was maintainable as the Court may be satisfied on the basis of evidence adduced by either of the parties, including the prosecution, that the distributor/dealer of a food article is also concerned with the offence and such evidence need not be adduced by the applicant only. In any case the applicant/Retailer had given his evidence prior to impleadment. Hence the High Court declined to exercise its inherent powers under Section 482 of CrPC and quash the impleadment order dated 01.09.2015. However, this Court has directed stay of proceedings before the trial court against the Appellant during pendency of this appeal.

Reasoning:
7. It can be seen from the above-mentioned provisions that under the scheme of the 1954 Act, the accused has to be given prior notice, as provided under Section 11, that samples of a food article manufactured and/or sold by them have been sent for analysis, before the Public Analyst prepares their report. The 1954 Act does not envisage a situation such as the present case where the sample is sent for analysis, and the Public Analyst?s report is also prepared, but the marketer is informed several years later that prosecution is sought to be instituted against them. During such period, the food article being perishable in nature would most probably be incapable of being sent for re-testing to the Centralis not an exhaustive list of examples, but it suffices to say that in certain situations, even for the purpose of proving the offence of ‘misbranding?, samples of the article would have to be taken according to the procedure prescribed under Sections 11-13 of the 1954 Act. This is because in such cases it would not be possible to conclude whether or not the manufacturer, marketer or vendor has put a deceptive label/package on the food article, without making a finding as to whether there has been any adulteration in the contentswe are of the considered opinion that where examination of the contents/ingredients of the food article is integral to proving the offence ‘misbranding?, the procedure prescribed under Sections 11-13 of the 1954 Act has to be complied with, regardless of whether ‘adulteration? is alleged or not. This includes the right to obtain a second opinion from the Central Laboratory under Section 13(2). The same test would apply in respect of any other offence for which penalty is prescribed under the 1954is needless to say that this rule would not apply if proving the offence does not necessarily require sampling of the food article. For example, if the offence is one of ‘bearing the name of a fictitious individual or company as the manufacturer or producer of the article? under Section 2(ix)(h) it may not be necessary to analyse the contents of the food article to prove the offence so long as the prosecution is able to establish that the real manufacturer has deceptively concealed their identity.Applying the above-mentioned test to the present case, it has to be seen whether first, the Appellant was entitled to apply for testing of the Jelly by the Central Laboratory under Section 13(2); second, whether the denial of the right was the Respondents? fault and third, whether such denial is prejudicial to the Appellant?s case. With respect to the first point, the Respondents have relied upon the Public Analyst?s Report which states that the Jelly contains ‘sugar/sucrose?, so as to institute a complaint for misbranding under Section 2(ix)(g) of the 1954 Act. This is because the label on the packaging claims that the Jelly is ‘sugarless?. Hence, the Public Analyst?s finding on whether ‘sugar? as an ingredient is present in the Jelly sample is crucial to proving the offence of ‘misbranding? against the Appellant. Thus, the Appellant ought to have had the opportunity to make an application under Section 13(2) for a second opinion from the Central Laboratory on the contents of the Jellyrespect to the second point, we are of the view that Respondent No. 2 erred in not making query to the Retailer, at the first instance, about the marketer of the Jelly, as she was empowered to do under Section 14A of the 1954 Act. If she had done so, the Appellant could have been notified in 2008 itself that the Jelly is being taken for analysis. Even if this lapse is condoned, once the Retailer had intimated the Respondents that the Appellant was the marketer of the Jelly, they ought to have made more efforts in notifying the Appellant of the alleged irregularity found in the Jelly sample, as per Section 13(2). We do not find merit in the Respondents? submission that the delay in informing the Appellant was because the Appellant was deliberately avoiding service of notice. Even if the address produced by the Retailer was of the Appellant?s Indore Branch, the label on the packaging of the Jelly clearly indicated that the official address for communication would be ?Alkem House, Senapati Bapat Marg, Lower Parel, Mumbai-400013?. Hence even if no response was being received from the Indore branch, the Respondents could have attempted to send the details of the Public Analyst?s Report to the Appellant?s Mumbai address. Thus it is clear that the Appellant lost their chance to get the Jelly sample re-tested under Section 13(2) on account of the Respondents?with regard to the third point, it is true that non- compliance with Section 13(2) would not be fatal in every case, if it is found that the sample is still fit for analysis (T. V. Usman v. Food Inspector, Tellicherry Municipality, Tellicherry, (1994) 1 SCC 754 ). However the Respondents have not disputed that the shelf life of the Jelly sample would have, in all probability, expired at this stage. Hence we find that this is a fit case for quashing of proceedings against the Appellant on account of denial of their valuable right under Section 13(2).