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The Prevention of Food Adulteration Act, 1954
Section 7 in The Prevention of Food Adulteration Act, 1954
Section 204 in The Indian Penal Code
The Indian Penal Code
Section 16(1) in The Prevention of Food Adulteration Act, 1954

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Himachal Pradesh High Court
Gopi Nath And Sons vs State Of Himachal Pradesh And Anr. on 14 October, 1980
Equivalent citations: 1981 CriLJ 175
Author: T Handa
Bench: T Handa



ORDER 
 

 T.R. Handa, J.

1. The petitioner seeks to invoke the inherent jurisdiction of this Court under Section 482 of the Cr. P.C. for quashing of the criminal proceedings pending against it under the Prevention of Food Adulteration Act (for short, 'the Act') as also the charge framed against it under Section 16(1)(i) read with Section 7 of the Act in such proceedings,

2. The petitioner is a firm carrying on business of general merchandise and confectionery at Solan. It is also the local distributor (whole-sale agent) of the products of Messrs Mortons Confectionery and Milk Products Factory which is owned by Messrs Upper Ganges Sugar Mills Limited, Calcutta. The petitioner firm sold four packets of one kilogram each of hard boiled sugar confectionery vide bill No. MOR 50 dated 25-6-1979 to M/s. Goyal Provision Stores, Parwanoo. Each of the packets was sealed in a polythene package. These packages when sold by the petitioner to the aforesaid firm Goyal Provision Stores contained a label with the following printed matter:

MORTON B.G. SPECIAL HARD BOILED SUGAR CONFECTIONERY ARTIFICIALLY COLOURED Permitted Colouring Agents used Net weight (including weight of Immediate Wrappers) : 2 Kg.

Packed During :              6/79
Code No.                     14-3
 

Maximum Price Rs. 28-20 Taxes Extra
 

Manufactured by: Morton Confectionery & Milk Products
 

Factory (Prop: Upper Ganges Sugar Mills Ltd.
 

MARHOWRAH-841418 (Bihar))
 

Regd. Office; 9/l R.N. Mukerjee Road,
 

Calcutta-700 001.
 

3. On 22-8-1979, the Food Inspector Solan Shri B.L. Justa visited the premises of aforesaid Goyal Provision Stores, Parwanoo which is owned by Shri Narender Parkash and after disclosing his identity expressed his desire to buy a sample of Toffees for the purposes of analysis under the Act. Shri Narender Parkash then sold to the Food Inspector 900 grams 'Toffees' which were taken out from one of the sealed packages sold by the petitioner firm to M/s. Goyal Provision Stores, Parwanoo and which package contained a label with the above mentioned specifications printed thereon. In other words although the Food Inspector had demanded a sample of Toffees from M/s. Goyal Provision Stores, the latter sold to the Food Inspector the hard boiled sugar confectionery from one of the sealed packages which had been supplied by the petitioner firm.

4. At the time of taking the sample it was disclosed by the vendor Goyal Provision Stores to the Food Inspector that the former had purchased the package out of which the sample had been sold from the present petitioner and hence a notice under Section 12 of the Act was issued by the Food Inspector to the present petitioner also.

5. The sample was purchased and dealt with in accordance with the provisions of the Act and the Rules framed thereunder. One part of the sample was sent to the Public Analyst for analysis and as a result of the analysis the Public Analyst submitted the following report:

  

FORM III 
(See Rule 7(3)) 

REPORT BY THE PUBLIC ANALYST 

Report No. 480
     XX     XX      X    XX       XX
     XX     XX            XX
 

I further certify that I have/have caused to be analysed the aforementioned sample and declare the result of my analysis to be as follows:
  

1. Labelling - The name and business address of the manufacturer or packer is not mentioned on the wrapper.
 

2. Ash Sulphated - 1.0%
 

3. Ash insol. in dil Hcl. - 0.1%
 

4. Red sugars as dextrose - 11.6%
 

5. Sucrose - 67.0%
 

6. Fat - 0.2%
 

7. SO - Absent
 

8. A2col. Matter- Nil.
 

and am of the opinion that (1) the name or business address of the manufacturer or packer is not mentioned on the label (2) The sucrose content is in excess by 7.0% than the maximum prescribed standard and the percentage of fat is deficient by 95% than the minimum prescribed standard.

XX XX X XX XX

6. On receipt of this report of the Public Analyst the Food Inspector filed a complaint under Section 16(1)(a)(i) read with Section 7 of the Act against the vendor M/s, Goyal Provision Stores, Parwanoo as also the dealer, the petitioner firm, alleging therein that the sample was found adulterated/mis-branded.

7. On the complaint being presented, the learned Chief Judicial Magistrate summoned the vendor M/s. Goyal Provision Stores as also the petitioner. Later after recording the statement of the Food Inspector, he framed charges against the vendor M/s. Goyal Provision Stores as also against the present petitioner. The charge against the present petitioner was in the following terms:

IN THE COURT OF CHIEF JUDICIAL MAGISTRATE, SOLAN State versus Narinder Parkash Shri Ajay Kumar of M/s. Gopi Nath and Sons, Solan CHARGE I, Kuldip Chand Sood, Chief Judicial Magistrate, Solan, hereby charge you aforesaid accused as follows:

That on 22-8-1979 the Food Inspector lifted the sample of Toffees from M/s. Goyal Provision Stores, Parwanoo for the purpose of analysis which you supplied to the abovesaid firm vide bill No. MOR/50 dated 25-6-1979 for sale. The same sample was found adulterated/mis-branded and thus you have committed an offence punishable under Section 16(1)(i) of the Prevention of Food Adulteration Act, 1954 as you are also liable under Section 7 of P.F.A. Act, 1954 which is (within) the cognizance of this Court.

I hereby direct that you to be tried by this Court for the abovesaid offence.

Sd/-

Chief Judicial Magistrate, Solan, District Solan (H. P.).

Obviously the charge should have been under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act and not under Section 16(1)(i) as framed by the learned Chief Judicial Magistrate.

8. The contention of the petitioner is that the charge framed against him is groundless inasmuch as the article of food sold by it to M/s. Goyal Provision Stores and out of which the sample was purchased by the Food Inspector was neither adulterated nor misbranded. There appears to be force in this contention. According to the report of the Public Analyst the sample was adulterated inasmuch as its quality or purity fell below the prescribed standard. In this connection it need only be mentioned that the sample was analysed not as hard boiled sugar confectionery but as toffees and the standard applicable for toffees and not for hard boiled sugar confectionery was applied by the Public Analyst while determining its quality and purity. It is not disputed that the petitioner never sold the package out of which the sample was taken as toffees but had sold the same as hard boiled sugar confectionery. The Food Inspector admitted in his statement that the sample purchased by him was taken out of a sealed package and the said sealed package at that time contained a label bearing printed specifications as reproduced above. There was thus a clear indication on the label of the container that the contents were hard boiled sugar confectionery and not toffees. Even the Bill No. MOR/50 dated 25-6-1979 vide which the petitioner sold this commodity to M/s. Goyal Provision Stores, Parwanoo, contains no indication if the petitioner had sold toffees to the aforesaid vendor. If therefore, the vendor sold that commodity as toffees or the Food Inspector purchased the same as toffees with full knowledge of the contents of the label present in the packet, the petitioner, who admittedly had sold the same as hard boiled sugar confectionery, cannot be held liable. In case, therefore, the standard applicable for toffees had been applied by the Public Analyst while analysing the sample which had been sold by the petitioner as hard boiled sugar confectionery and the commodity was found below that standard prescribed for toffees, it cannot be said to be adulterated. When the container clearly contained an indication that the contents were hard boiled sugar confectionery, the standard applicable for hard boiled sugar confectionery had to be applied for analysing it in order to find if it was adulterated or otherwise. The sample having been analysed by applying a different standard, the conclusion that it was adulterated cannot be accepted.

9. The other allegation that the sample was misbranded is equally groundless. The ground on which the sample has been called as misbranded is that 'the name or business address of the manufacturer or packer is not mentioned on the label'. Now the Food Inspector in his statement had specifically admitted that a label Ex. D.B. which contained the printed specifications of the type reproduced above, was found in the sealed package out of which the sample was, taken. He next stated that after the sample was taken the remaining contents of the package along with the label were sealed and handed over to the vendor, M/s. Goyal Provision Stores, It is thus clear from the statement of the Food Inspector that the container from out of which the sample was purchased had a label of the specifications mentioned above and the said label was kept with the vendor and not forwarded to the Public Analyst. The report of the Public Analyst that 'the name or business address of the manufacturer or packer is not mentioned on the label' was obviously made without the label being produced before him. A bare perusal of the label Ex. D. B. shows that the name and complete address of the manufacturer had been given on it and it also contained other particulars required to be mentioned on such label. It is not, therefore, correct to say that the label did not contain the name or business address of the manufacturer or packer. In fact, if I may say so, it was for the Food Inspector at the time of taking the sample to detect if the container out of which the sample was sold had a label containing the name or business address of the manufacturer or other particulars prescribed under the rules and it was not for the Public Analyst to whom some of the contents of the container were sent and from whom the container as also the label had been withheld, to express any opinion regarding the contents of the label.

10. It appears that each of the sugar balls had been wrapped in some cover and the name or business address of the manufacturer had not been mentioned on each of such covers and on that account the Public Analyst had remarked that the name or business address of the manufacturer or packer was not mentioned on the label. The learned Magistrate also while framing the charge against the petitioner observed in his order dated 6-6-1980 'I see no reason to hold that charge against the accused is groundless. Prima facie wrapper falls within the definition of package. Charge be framed'.

11. The term 'package' has been defined in Section 2(x) of the Act as under:

"Package" means a box, bottle, casket, tin, barrel, case, receptacle, sack, bag, wrapper or other thing in which an article of food is placed or packed. Part VII of the Rules framed under the Act and which starts from Rule 32 deals with 'packing and labelling of foods'. Rule 32 is in the following terms:

32. Contents of the label. - Unless otherwise provided in these rules there shall be specified on every label -

(a) the name, trade name or description of food contained in the package,

(b) the name and business address of the manufacturer or importer or vendor or packer,

(c) where any permitted class II preservative and/or permitted colouring agent and/or permitted antioxidant and/or vitamin is added, a statement to the effect that it contains permitted class II preservatives and/or permitted colouring agents and/or permitted antioxidants and/or vitamins,

(d) the net weight or number or measure or volume of contents as the circumstances may require except in the case of biscuits, bread, confectionery and sweets where the weight may be expressed in terms of either average net weight and/or minimum net weight,

(e) a batch number or code number either in Hindi or English numerical or alphabets or in combination:

Provided that in the case of food package weighing not more than 60 grams particulars under Clauses (d) and (e) need not be specified:

Provided further that in the case of -

(a) Carbonated water containers, and

(b) a package containing more than 60 grams but not more than 120 grams of biscuits, confectionery and sweets. Particulars under Clauses (d) and (e) need not be specified:

Provided further that in the case of a package containing bread and milk in bottles including sterilised milk particulars under Clause (e) need not be specified.

Explanation. The term 'label' means a display of written, printed, perforated, stenciled, embossed or stamped matter upon the container cover lid and/or crown cork of any food package.

12. It would be obvious from the definition of package as given in the Act (reproduced above) that package is a container in which an article of food is placed or packed. The container may be of any of the types given in the above definition such as box, bottle, casket, tJi etc. It is certainly for the manufacturer or the packer to choose and decide as to which out of the various containers mentioned in the definition he would prefer to use for packing a particular article of food. Again the explanation appended to Rule 32 quoted above similarly suggests that the label to be displayed1 on a particular package can be of different types as given in the explanation and it again would be for the manufacturer or the packer to decide as to what type of label he would prefer to display on the package selected by him. In case, therefore, in the instant case the manufacturer or the packer decided to pack the hard boiled sugar confectionery in question in polythene bags and to use the label like the one which was found in the package in question, no exception can be taken to the course adopted by the manufacturer/packer in selecting a particular type of package/label. It is difficult to say that in selecting the package in the form of a polythene bag and the label of the type found in Ex. D.B., the manufacturer committed infringement of any of the provisions of the Act or the Rules so as o render himself liable for the charge of manufacturing or selling a misbranded article of food. If in addition to selecting the polythene bag as the package, the manufacturer/packer wrapped some paper on each individual sugar ball it would not mean that each of such wrapper was intended to be used as a package as defined in the Act and that the said covering paper was the label within the contemplation of Rule 32. There is no scope for any second opinion in this case that the polythene bag in which one kilogram of hard boiled sugar confectionery was packed was the package used by the manufacturer and the label found therein was the label required to be displayed within the meaning of Rule 32. The label admittedly contains all the information which is required to be contained under the Act and the Rules. It is, therefore, too much to say that the hard boiled sugar confectionery as sold by the petitioner in the sealed package with the label on it was misbranded.

13. Before parting with this case I would like to put on record my deprecation with respect to the manner in which the proceedings in this case were conducted by the learned Chief Judl. Magistrate. The record shows that the complaint in the instant case was presented before the Chief Judicial Magistrate by the Food Inspector on 26-10-1979, when the learned Chief Judicial Magistrate passed the following order:

26-10-1979: Presented by the F I for the State.

The complaint be checked and registered, issue summons to the accused for 22-11-1979.

Sd/-

Chief Judicial Magistrate, District Solan (H. P.) It is thus apparent that the learned Magistrate did not care even to have a look into the contents of the complaint much less to apply his mind thereto with a view to satisfy himself if there was adequate justification for him to summon the accused or any of them. He straightway proceeded to pass an order summoning the accused persons without specifying for what offences they were being summoned. In case the Magistrate is under the impression that such an order is a routine and an innocuous one and he enjoys plenary powers to drag any person to answer a criminal charge merely on the ground that a complaint has been made against him, the sooner this impression is removed the better it is. It must be remembered that an order summoning a person to appear in a court of law to answer a criminal charge entails serious consequences. It has the effect of abridging the liberty of a citizen which is held so precious and sacred in our Republic. Such an order must not be passed unless it has behind it the sanction of law.

13-A. It was precisely with this end in view that the Legislature in its wisdom enacted Chapter XV of the Cr. P.C. hereinafter referred to as 'the Code'. This is a small chapter comprising of only four sections from Section 200 to Section 203. Its scope is to distinguish unfounded from genuine cases so as to root them out at the very outset without calling upon the party complained against. Section 200 makes it obligatory on the part of the Magistrate taking cognizance of an offence on a complaint to examine upon oath the complainant and the witnesses present, if any, and to reduce the substance of such examination into writing. An exception, however, is made in the case of a complaint made by a public servant acting or purporting to act in the discharge of his official duties or a complaint made by a Court. Even in such complaints though it is not obligatory for the Magistrate to examine the complainant and the witnesses present, if any, there is no bar for the Magistrate to make such examination of the complainant and the witnesses if he considers it necessary so to do. In fact in appropriate cases he must do so. The object of such examination is to ascertain if any prima facie case is made out for proceeding further with the complaint after summoning the accused. Sometimes such examination may not be sufficient to enable the Magistrate to take a decision aforesaid especially when the allegations made in the complaint are made not on the personal knowledge of the complainant but on information conveyed to him. Section 202 of the Code is intended to meet a situation of this type. This section empowers the Magistrate to hold a further enquiry into the case himself or to direct investigation to be made by a police officer or such other person as he may deem fit. The purpose of such further enquiry or investigation is again the same, namely, to enable the Magistrate to form an opinion whether or not there is sufficient ground for proceeding with the complaint.

14. Next comes Section 203 which enjoins that the Magistrate shall dismiss the complaint if after considering the examination, if any, made under Section 200 and the result of the enquiry or investigation, if any, under Section 202 he is of the view that there is no sufficient ground for proceeding further.

15. It is only when the Magistrate does not dismiss the complaint under Section 203 and is of the opinion that there is sufficient ground for proceeding, that he can commence the proceedings against the accused by compelling his attendance before the Court. The procedure for issue of process for such attendance is found in Section 204 of the Code.

16. Reading Sections 203 and 204 together and keeping in view the sequence in which these sections appear in the Code, would go to suggest that in arriving at his conclusion whether or not to issue process against the accused, the Magistrate shall have to consider the same material on a consideration of which he shall have to decide whether the complaint should be dismissed under Section 203. In fact for the purposes of Section 204 the Magistrate shall have to consider the aforesaid material more minutely and in greater details. The reason is that where for the purposes of Section 203 the Magistrate has to consider this material only for the purposes of forming an opinion whether there is no sufficient ground for proceeding, for the purposes of Section 204 he has to not only form an opinion that there is sufficient ground for proceeding but he has also to take a decision regarding the nature of process to be issued for enforcing the attendance of the accused, whether summons or warrants. Issue of summons or warrants would depend upon the nature of the case and hence the Magistrate before the issue of process shall have further to form his opinion with respect to the nature of the offence for which the accused is to be summoned. It would thus necessarily follow that before directing issue of process against an accused person, the Magistrate must apply his judicial mind to the material before him and ascertain not only that there is sufficient ground for proceeding further in the complaint but also the nature of the offence for which the accused need be summoned. It necessarily follows that under this provision the Magistrate does not enjoy an unrestricted power to summon a person at his whim, fancy or caprice simply because a complaint has been filed against him. Although strictly speaking it is no requirement of Section 204 that an order directing issue of process against the accused be supported by detailed reasons, nonetheless this order has to be made by the Magistrate after applying his judicial mind to the material on record and this application of mind must be exhibited in the order itself in one way or the other. An order passed by the Magistrate without application of such mind would be without jurisdiction and liable to be quashed.

17. For the reasons stated above I accept this petition and direct that the criminal proceedings pending against the petitioner under the Act in the Court of the Chief Judicial Magistrate, Solan as also the charge framed against it under Section 16(1)(a)(i) of the Act be quashed.