Madhya Pradesh High Court
Shri Prakash Desai, The Then Production ... vs State Of M.P. on 21 September, 2015
MCRC No.629/2012 1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Misc. Criminal Case No.629/2012
Sri Prakash Desai and another
vs.
State of MP
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Shri Surendra Singh, Senior Advocate with Shri Sourabh
Agarwal, Advocate for the petitioner.
Shri Amit Bansal, Deputy Govt. Advocate for the
respondent/State.
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ORDER
(21/09/2015 ) This petition filed under Section 482 of the Code of Criminal Procedure (CrPC), challenges the order dated 11.8.2011 passed by JMFC, Ganj Basoda, whereby the application of the petitioner filed under Section 245 (1) CrPC (Annexure P/9) is rejected by the court below.
2. Draped in brevity, the admitted facts are that on 16.5.2001, the complainant/Food Inspector visited the premises of retailer at Ganj Basoda and obtained the sample of Kinley Packaged Drinking Water. The sample was sent to public analyst. The said analyst opined that the sample is misbranded as per the Prevention of Food Adulteration Act, 1954 (for short, the "PFA Act"). Based on the said report, the instant complaint was filed. The court below took cognizance of the matter and other party was summoned. In the said case, the analyst's report dated 25.6.2005 is filed (Annexure P/4). In the report, it is mentioned that "sample is clear free from suspended matter". However, in the opinion, it is mentioned that sample is "misbranded".
3. Shri Surendra Singh, learned senior counsel contended that the public analyst's report is vague. It does not specify as to how product was 'misbranded'.
MCRC No.629/2012 2Thus, the petitioner filed an application for discharging him under Section 245(1) CrPC (Annexure P/9).
4. In reply to this application, it is stated by the complainant that "prosecution was lodged as on the label of Kinley Packaged Drinking Water the word 'pure' was mentioned, which is not permissible and hence, the application filed by the accused is liable to be dismissed".
5. Learned senior counsel criticized the order dated 11.8.2011, whereby the aforesaid application of petitioner was rejected by the court below. It is urged that neither prosecution nor the court below was aware as to how product can be treated as "misbranded". He submits that the sample was taken on 16.5.2001 whereas complaint was filed on 22.9.2003. It is evident from the declaration mentioned in statutory Form VI under Rule 12 (Annexure P/3) that the shelf life of the water bottle in question was only for six months. The bottle in question was packed on 12.4.2001. He submits that the court below opined that if the petitioner was not satisfied with the report of public analyst, he could have invoked Section 13(2) of the PFA Act and should have got his product examined in Central Food Laboratory. He submits that since shelf life of the product came to an end before filing of complaint, the petitioner could not have invoked Section 13(2) of PFA Act. In nutshell, he challenged the impugned order and prosecution on following grounds:-
(i) The use of word "pure" does not fall within the ambit of "misbranding".
(ii) As per the letter of Directorate General of Health Service, dated 20.9.2001, the permission was accorded to use the word "pure" on the packed bottle till 31.12.2001.
Thus, the petitioner used the same during the MCRC No.629/2012 3 permissible limit.
(iii) Remedy under Section 13(2) of the PFA Act was not available to the petitioner because of inordinate delay in filing the complaint.
(iv) The complaint proceedings cannot be permitted to continue unless it is made clear as to what is the exact nature of accusation against the petitioner. On the basis of vague and tangent allegation, which does not fall within the ambit of "misbranded", the complaint proceeding can not be permitted to continue.
In support of contentions, learned senior counsel relied on certain High Court judgments.
6. Per Contra, Shri Amit Bansal, learned Deputy Government Advocate supported the order passed by the court below. It is urged that the court below earlier passed the order dated 11.8.2011 and opined that the petitioner has not made any effort to get the product tested from Central Food Laboratory and, therefore, he has waived his right. This order of court below dated 11.8.2011 has attained finality. Thus, the petitioner cannot be permitted to raise the same point again. In addition, Shri Bansal relied on rule 41 of the Prevention of Food Adulteration Rules, 1955 (for short, the "Rules"), and submitted that as per this rule, the use of word "pure" is prohibited. Lastly, it is urged that at this stage no interference is warranted. There are disputed questions of fact, which can be decided by the court below after recording evidence.
7. No other point is pressed by the parties.
8. I have heard learned counsel for the parties and perused the record.
9. Delhi High Court in Pepsico India Holdings Pvt. Ltd. vs. The Bureau of Indian Standards and others (129 (2006) DLT 522), considered the question whether use of words "pure", MCRC No.629/2012 4 "crisp", "refreshing", "purified" and "purity guaranteed"
contravene any provision of law ? Hon'ble Vikramajit Sen, J. (as His Lordship then was) considered the dictionary meaning of said words and opined that use of the words "pure", "crisp", "refreshing", "purified" and "purity guaranteed" on a label pertaining to packaged drinking water does not offend any provision of law. The said judgment of Delhi High Court is followed by this Court in 2012 (4) MPHT 26 (Shri Prakash Desai vs. State of MP). Interestingly, the said case (M.Cr.C.No.11475/2011) was filed by the present petitioner and was pertaining to same product, i.e., Kinley Pure Drinking Water. After considering the judgment of Delhi High Court, this Court opined that even if allegations made against the petitioner in the complaint are taken at their face value and accepted in their entirety, no offence under the PFA Act would be made out. Thus, by applying the ratio of AIR 1992 SC 604 (State of Haryana vs. Bhajanlal), this Court set aside the complaint proceedings.
As per the judgment of Pepsico India Holdings Pvt. Ltd. (supra), followed by this Court in Shri Prakash Desai (supra), it is clear that use of word "pure", by no stretch of imagination, can amount to "misbranding". Thus, in my judgment, the petitioner should not be compelled to undergo the rigmarole of criminal proceedings. Apart from this, the letter dated 20.9.2001 of Directorate General of Health Service makes it clear that the petitioner was even otherwise entitled to use the word "pure" till 31.12.2001. Admittedly, the sample was taken before the said date on 16.5.2001. For this reason also, the complaint has no basis.
10. This is trite law that charge must be specific, precise and pregnant with necessary details in order to make the accused aware as to what are specific allegations against him so that he can meet those MCRC No.629/2012 5 charges and put forth his defence. See (2014) 8 SCC 340 (Chandra Prakash vs. State of Rajasthan).
11. Admittedly, in the present case, the whole case of prosecution is based on the alleged use of word "pure" on the bottle. As analyzed above, the said action of the petitioner does not fall within the ambit and scope of "misbranded". Thus, the prosecution is like house of cards and cannot sustain judicial scrutiny.
12. Shri Bansal, learned Deputy Government Advocate heavily relied on Rule 41 of the Rules. Rule 41 reads as under:-
"41. Imitations not to be marked "pure".-- The word "pure" or any word or words of the same significance shall not be included in the label of a package that contains an imitation of any food."
(Emphasis supplied) A plain reading of this rule makes it clear that it is applicable to "imitations". It is not the case of the prosecution that sample taken from the petitioner was an "imitation". Thus, the said rule is of no assistance to the respondent.
12. The court below opined that if the petitioner was not satisfied with the report of public analyst, he should have invoked Section 13 (2) of the PFA Act. This point is no more res integra. The Bombay High Court in Shivkumar alias Shiwalamal Narumal Chugwani Proprietor of Kanhaiya General Stores vs. State of Maharashtra, (Criminal Application No.3439/2006, decided on 21.6.2010) dealt with this aspect. In the said case, the complaint was instituted by Food Inspector after a reasonable period from the date of taking sample. Pertinently, the complaint was filed after the shelf life of the product. When this action was challenged by contending that valuable right under Section 13 (2) of the PFA Act was lost and prosecution has become worthless, the complainant urged that the delay was for administrative reason. This administrative MCRC No.629/2012 6 delay cannot at all mitigate the valuable right of accused to have a sample reanalyzed or retested from the Central Food Laboratory. The Bombay High Court after considering AIR 1967 SC 970 (Municipal Corporation of Delhi vs. Ghisa Ram); (1999) 8 SCC 190 (State of Haryana v. Unique Farmaid (P) Ltd.); 2008 (3) Scale 563 (Medicamen Biotech Ltd. v. Rubina Bose), opined that the valuable right of accused persons under Section 13(2) of the PFA Act is violated because the complaint was filed after shelf life of the product. The justification of delay on the basis of administrative reasons and limitation of three years for filing complaint was not accepted by the High Court. For this reason also, the impugned order cannot sustain judicial scrutiny. This judgment of Bombay High Court was put to test before Supreme Court in State of Maharashtra vs. Shivkumar @ Shiwalamal N. Chugwani, reported in 2011 (1) FAC 41 (Special Leave to Appeal (Cri) No. 6332/2010). The said SLP was dismissed on merits by Supreme Court on 13th September, 2010. Suffice it to say that after shelf life of a product is over, remedy under Section 13(2) of the PFA Act is of no use to the accused. Even if by order dated 11.8.2011, the court below rejected similar contention of the petitioner, it is of no help to the respondent. In view of the law laid down in Shivkumar @ Shiwalamal N. Chugwani (supra) and affirmed by Supreme Court, the said objection pales into insignificance.
13. As per forgoing analysis, impugned order and complaint proceedings have become vulnerable. Accordingly, the impugned order dated 11.8.2011 is set aside. The application of petitioner preferred under Section 245(1), CrPC, (Annexure P/9) is allowed. Consequently, complaint Case No.494/2003 (renumbered as 534/2004) is set aside.
14. Petition is allowed. No cost.
(Sujoy Paul)
(yog) Judge