Madras High Court
Corn Products Company, Bombay vs Food Inspector, Tirunelveli ... on 11 December, 1992
Equivalent citations: 1993CRILJ1106
JUDGMENT Janarthanam, J.
1. On 25-6-1989 to 10 a.m., the Food Inspector attached to Ilanji Town Panchayat, inspected 0.2123 Crescent Co-operative Stores situate at Amman Kovil Street, Ilanji Town whose head office is situate at Kadayanallur and one T. V. Abdul Khader is its Secretary. One G. Murugan, a salesman of the said branch stores, was then stated to be transacting the business. The Food Inspector, after expressing his intention to take sample of GLUCOVITA GLUCOSE-D of Corn Products C., (India) Ltd., Bombay, for the purpose of analysis, actually took samples of the same, after complying with the formalities associated with such taking of sample. The sample sent to the public analyst turned out to be not conforming to the standard prescribed for Dextrose with respect of sulphated ash and consequently, the Public Analyst opined that the sample so sent was adulterated. The Food Inspector then laid a complaint against the said G. Murugan (salesman), the said T. V. Abdul Khader (Secretary), the Special Officer, 0.2123 Crescent Co-operative Stores, Kadayanallur (Head Office) one Prabhakaran (Proprietor, General Enterprises, Tirunelveli from whom the samples have been purchased) who got supply from, one v. Subbiah (Proprietor, Subbiah Traders Tirunelveli), Corn Products Co. (India) Ltd., Coimbatore Branch as well as its head office (manufacturer) at Bombay, after complying with the formalities of issuance of a notice under S. 13(2) of the Prevention of Food Adulteration Act, 1954 (for short 'the Act'), which was taken of file on C.C. No. 490 of 1989 on the file of the Judicial Magistrate. Tenkasi for alleged offences under Ss. 7(i), 16(a)(i) read with S. 2(ia)(a) and (m) of the Act.
2. On receipt of the process, Corn Products Co., Bombay (accused 7) came forward with the present action by invoking the inherent jurisdiction of this Court under S. 482 of the Code of Criminal Procedure, 1973 to quash the criminal proceedings so initiated against it.
3. Mr. P. S. Raman, learned counsel appearing for the petitioner-accused 7 would submit that assuming for argument's sake that the averments made in the complaint are nothing but reflection of gospel truth, even then, it cannot be stated that there is any violation or refraction of the provisions of either the Act or the Rules framed thereunder (The Prevention of Food Adulteration Rules, 1955) attracting penal consequences. In elaboration of such a submission, what he would further say is that what is manufactured and being sold in the market is not simpliciter GLUCOSE otherwise called DEXTROSE MONOHYDRATE, but GLUCOVITA GLUCOSE-D, an admixture of Dextrose Monohydrate, Calcium Phosphate and Vitamin-D3 (Cholecalciferol), which is nothing but a proprietary food, according to Explanation (b) to Rule 37-A of the Rules; that in such a situation, subjecting the sample by the Public Analyst to a test and finding out excess percentage of sulphated ash by the application of the standard, namely, A. 07.07 prescribed for Dextrose in Appendix-B is not in conformity with the statutory provisions adumbrated under the Act; that therefore, the excess percentage of the sulphated ash, as pointed out by the Public analyst is of no consequence; that the article of food sold, namely, GLUCOVITA GLUCOSE-D can, by no stretch of imagination, be stated to be not either of the nature, substance or quality demanded by the purchaser and to his prejudice or not of the nature, substance or quality which it purports or is represented to be and that therefore, the prosecution as launched has to be thrown lock, stock and barrel as of no merit, to which course, Mr. B. Sreeramulu, learned Public Prosecutor would however express strong disapproval.
4. A ritualistic exercise of the survey of certain provisions of the Act and the Rules framed thereunder is necessary to arrive at a just decision in this case. S. 2 defines various expressions used in the Act and the Rules. According to S. 2(i), 'adulterant' means any material which is or could be employed for the purposes of adulteration. This is apparently "a means" definition and no extended meaning can be given and the meaning prescribed therefor alone has to be given. It is to be mentioned here that this section starts with the phraseology, "In this Act unless the context otherwise requires, -"
thereby meaning that the expressions defined in the said section cannot at all be given any other meaning, unless the context otherwise requires.
5. Section 2(ia) defines the expression, 'adulterated' by means of a deeming provision. According to the said provision, an article of food shall be deemed to be adulterated, if it falls under any one of the categories as enumerated under sub-clauses (a) to (m) thereto. This clause covers only 'article of food', that is to say, articles generally and normally used for human consumption. Even if an article is not adulterated within the ordinary meaning of the word, it would be adulterated if it is covered by any of the sub-cls. (a) to (m). Sub-cls. (a) to (m) read as under :-
"(ia) 'adulterated' - an article of food shall be deemed to be adulterated -
(a) if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be;
(b) if the article contains any other substance which affects, or if the article is so processed as to affect injuriously the nature, substance or quality thereof;
(c) if any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature, substance or quality thereof;
(d) if any constituent of the article has been wholly or in part abstracted so as affect injuriously the nature, substance or quality thereof;
(e) if the article had been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health;
(f) if the article consists wholly or in part of any filfthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption;
(g) if the article is obtained from a diseased animal;
(h) if the article contains any poisonous or other ingredient which renders it injurious to health;
(i) if the container of the article as composed, whether wholly or in part, of any poisonous or deleterious substance which renders its contents injurious to health;
(j) if any colouring matter than that prescribed in respect thereof is present in the article, or if the amounts of the prescribed colouring matter which is present in the article are not within the prescribed limits of variability;
(k) if the article contains any prohibited preservative or permitted preservative in excess of the prescribed limits;
(l) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, which renders it injurious to health;
(m) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health;
Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability, in either case, solely due to natural causes and beyond the control of human agency, then such article shall not be deemed to be adulterated within the meaning of this sub-clause.
Explanation :- Where two or more articles of primary food are mixed together and the resultant article of food -
(a) is stored, sold or distributed under a name which denotes the ingredients thereof; and
(b) is not injurious to health, then, such resultant article shall not be deemed to be adulterated within the meaning of this clause."
6. Clause (ix) defines 'misbranded' - and it runs as under :-
"(ix) 'misbranded' - an article of food shall be deemed to be misbranded -
(a) if it is an imitation of, or is a substitute for, or resembles in a manner likely to deceive, another articles of food under the name of which it is sold, and is not plainly and conspicuously labelled so as to indicate its true character;
(b) if it is falsely stated to be the product of any place or country;
(c) if it is sold by a name which belongs to another article of food;
(d) if it is so coloured, flavoured or coated, powdered or polished that the fact that the article is damaged is concealed or if the article is made to appear better or of greater value than it really is;
(e) if false claims are made for it upon the label or otherwise;
(f) if, when sold in packages which have been sealed or prepared by or at the instance of the manufacturer or producer and which bear his name and address, the contents of each package are not conspicuously and correctly stated on the outside thereof within the limits of variability prescribed under this Act;
(g) if the package containing it, or the label on the package bears any statement, design or device regarding the ingredients or the substance contained therein, which is false or misleading in any material particular; or if the package is otherwise deceptive with respect to its contents;
(h) if the package containing it or the label on the package bears the name of a fictitious individual or company as the manufacturer or producer of the article;
(i) if it purports to be, or is represented as being, for special dietary uses, unless its label bears such information as may be prescribed concerning its vitamin, mineral, or other dietary properties in order sufficiently to inform its purchaser as to its value for such uses;
(j) if it contains any artificial flavouring, artificial colouring or chemical preservative, without a declaratory label stating that fact, or in contravention of the requirements of this Act or Rules made thereunder;
(k) if it is not labelled in accordance with the requirements of this Act or Rules made thereunder."
7. Cl. (xii-a) defines 'primary food' and it reads as under :-
"(xii-a) 'primary food' means any article of food, being a produce of agriculture or horticulture in its natural form."
8. Section 7 dealing with prohibition of manufacture, sale etc., of certain articles of food is couched in the following terms :
"7. Prohibition of manufacture, sale etc. of certain articles of food. - No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute -
(i) any adulterated food;
(ii) any misbranded food;
(iii) any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence;
(iv) any article of food the sale of which is for the time being prohibited by the Food (Health) Authority in the interest of public health;
(v) any article of food in contravention of any other provision of this Act or any Rule made thereunder; or
(vi) any adulterant.
Explanation. - For the purposes of this section, a person shall be deemed to store any adulterated food or misbranded food or any article of food referred to in Cl. (iii) or Cl. (iv) or Cl. (v) if hs stores such food for the manufacture therefrom of any article of food for sale."
9. Rule 5 prescribes standards and limits for certain articles of food by setting them out in Appendix B to the Rules. Pertinent it is to mention here that Rule 5 and Appendix B do not prescribe standards and limits for all articles of food but only for certain specified categories of food. Under sub-cls. (1) and (m) of Cl. (ia) of S. 2, an article of food will be deemed to be adulterated if its quality or purity falls below the prescribed standard or if constituents are present in quantities not within the prescribed limits of variability.
10. Rule 37-A was inserted for the first time by Notification No. GSR 205, dated 13-2-1974 and it reads as follows :-
"37-A. Labels for proprietary or fancy trade names. - In all types of proprietary foods, where fancy names or trade names are used, the name of the food or category under which it falls in these rules shall also be mentioned on the label. In case it cannot be classified in any of the standards prescribed in Appendix B, then the names of the ingredients used in the products in descending order of composition shall be indicated on the label subject to approval of the Central Committee for Food Standards.
Explanation. - Fancy trade name or proprietary name means the non-conventional type of food which has not been standardised under the Prevention of Food Adulteration Act, 1954."
The said rule came into effect from 23-5-1974.
11. The said rule was substituted by Notification No. GSR 500(E), dated 9-7-1984 and it is as under :-
"37-A. Manufacture of proprietary foods and infant food. - (1) An article of infant food whose standards are not prescribed in Appendix 'B', shall be manufactured for sale, exhibited for sale or stored for sale only after obtaining the approval of such article of food and its label from Government of India.
(2) In cases of proprietary food, the name of the food or category under which it falls in these rules shall be mentioned on the label and where such foods do not fall under any of the standards prescribed in Appendix 'B', the names of ingredients used in the product in descending order of composition shall be given on the label, provided that the labels of artificial flavouring substances may not declare the chemical names of flavours under this rule. In case of natural flavouring substances or nature-identical flavouring substances, the common name of flavour shall be mentioned on the label.
Explanation. - For the purposes of this rule -
(a) 'Infant food' means any food which may be used for partial or total replacement of breastmilk, commonly called breastmilk substitute and includes infant milk food and any food suitable as a complement to breastmilk, to meet the nutritional needs of the infant after 4 months of age, commonly called 'complementary food', 'breastmilk supplement' or 'weaning food'.
(b) 'proprietary food' means a food which has not been standardised under the Prevention of Food Adulteration Rules, 1955."
This rule came into effect from 9-7-1984.
12. Sub-rule (2), as extracted above, had again been substituted by Notification No. GSR 422(E), dated 29-4-1987 as under :-
"(2) In case of proprietary foods, the name of the food or category under which it falls in these rules shall be mentioned in the label."
13. The rule as originally framed pertains to non-conventional type of food, that is to say, proprietary food, which had not been standardised under the Act. What was required of a manufacturer in the case of preparation of such food was that he should mention the name of the food or the category under which it falls in the rules on the label. This apart, he should also specify the names of the ingredients used in the products in descending order of composition. Top of all, he should get the prior approval of the Central Committee for Food Standards before ever the manufacturing operation starts.
14. The said rule underwent a radical change by substitution by Notification No. GSR 500(E). The substituted rule contains certain salient provisions prescribing certain conditions for the manufacture of infant food, besides making a radical change in the manufacture of proprietary foods, by deleting the condition of obtaining prior approval of the Central Committee for Food Standards before ever manufacturing operation starts.
15. A metamorphic change had been effected by the substitution of sub-rule (2) by Notification No. 422(E) as respects proprietary food, making it sufficient to print on the label, the name of the food or category under which it falls in the Rules.
16. It is obvious from the perusal of old Rule 37-A that the ingredients used in the product manufactured have to be indicated in descending order of composition on the labels subject to the approval of the Central Committee of Food Standards. This implies that approval for the addition of the ingredients should be obtained prior to the inclusion of the ingredient in the project. The said rule would become redundant or meaningless if a manufacturer is permitted to add an ingredient to the product first and obtain permission of the Central committee of Food Standards subsequently. The object of this rule is that it should guard against inclusion of the ingredients which should be injurious to the health of the community at large. Therefore, before the ingredients is added, permission should be obtained from the Central Committee for Food Standards. I am at a loss to understand as to why such a sanguine provision, which is preventive in nature in safeguarding the health of the community at large had been amended drastically to take a final shape, as is now available, as reflected in sub-rule (2) of the said Rule, according to which, there is no necessity for the manufacturer to obtain the prior approval of the Central Committee for Food Standards for the addition of an ingredient to the product to be manufactured and sold in the market for consumption to the public at large. When such a prior approval of the Central Committee for Food Standards were deleted for proprietary food, it is not know why a prior approval of the Government of India respecting the manufacture of infant food is still insisted. The rationale or logic adopted in enactment of sub-rule (1) respecting the manufacture of infant food sub-rule (2) respecting manufacture of proprietary food is quite irreconcilable. If the old R. 37-A had been retained, the health of community at large could have been protected in a large measure, inasmuch as such a provision could have prevented the risk of the hazard to the health of the community.
17. The effect of the amended sub-rule (2) of the said rule, as is now available, is that a culprit manufacturer for the production of an article of proprietary food injuriously affecting the health of the community is liable to be prosecuted for violation or refraction of the provision of either of sub-cls. (a) to (c) and (h). To put it otherwise, the preventive aspect of risk or hazard to the health of the community is altogether omitted by the amended sub-rule (2) and it takes care of the preventive aspect of the matter. The situation brought about by such an amended rules is likely to cause a serious repercussion in the sense of causing injury to the health of the community as a whole by consumption of such an article of food, besides prosecuting the offender, who commits the mischief, - undoubtedly he too happens to be a member of the society at large.
18. Section 16 prescribes penalties for refractions or violations of the provisions of the Act and the Rules.
19. Admittedly, all the three packets of 100 grams, each of GLUCOVITA GLUCOSE-D, of Corn Products Co., (India) Ltd., stored for sale in the premises of the branch of Crescent Co-operative Stores, Ilanji Town, were taken away by the Food Inspector as sample for the purpose of analysis. On the carton of each sample packet, it is printed in capital letters GLUCOVITA GLUCOSE-D, besides mentioning the constituent elements making up the product. The constituent elements are three in number and they are :
"Dextrose Monohydrate 99.4 g.
Calcium Phosphate 0.6 g. Vitamin-D3 881.1 U" (Cholecalciferol)
20. From the above printed material, what is purported to be sold is GLUCOVITA GLUCOSE-D containing three constituent elements as stated therein and not GLUCOSE simpliciter, otherwise called DEXTROSE. As such the product GLUCOVITA GLUCOSE-D is an admixture of three constituent elements. This product, as such cannot at all be called either as a 'primary article of food' or 'an article of food under a misbranded name'. If at all the same can be called as a 'proprietary food' falling within the four corners of Explanation (b) to Rule 37-A.
21. Once it became a proprietary food, it goes without saying that in respect of such a food, no standard had been prescribed in Appendix B. The Public Analyst, as revealed by his report, applied standard A. 07.07 prescribed for dextrose, by subjecting the sample to analysis and such analysis revealed excess percentage of sulphated ash content. Such a report is of no consequence, inasmuch as, as already stated, no standard had been prescribed in Appendix B as respects an article of food like GLUCOVITA GLUCOSE-D, a proprietary food. Does it mean that a proprietary food like GLUCOVITA GLUCOSE-D can be manufactured and sold without attracting any penal consequences under the provisions of the Act ? At first sight, it appears as though the manufacturer or seller of such proprietary food is immune from prosecution under the provisions of the Act. But in reality, it is not so.
22. If a careful analysis of the definition of 'adulterated' in Cl. (ia) of S. 2 is made, it emerges that even a manufacturer and seller of a proprietary food are liable to be caught and penal consequences to be visited on them in accordance with the provisions of the Act, if the article of proprietary food manufactured or sold is not satisfying the conditions prescribed in sub-cls. (a) to (c) and (h) of sub-cl. (ia) of S. 2 of the Act.
23. An article of food will be deemed to be adulterated within the meaning of sub-cl. (a) if it is not of the nature, substance or quality -
(i) which is demanded by the purchaser and is to his prejudice, or
(ii) which is purports to be, or
(iii) which it is represented to be.
The meaning of this sub-clause need not be further elucidated inasmuch as the said sub-clause had been couched in the simplest language conveying the meaning without any ambiguity and if at all, if any explanation is needed, the word 'prejudice' has to be given its due meaning in the context in which the same had been used.
24. The word 'prejudice' in this sub-clause has a wide amplitude and is not limited only to injury or deleterious effect on the health of the purchaser or consumer. If an article of a particular variety is asked for by a purchaser and an article of another nature, substance or quality is sold to him, it is so his 'prejudice'. The term 'prejudice' connotes both the 'pecuniary prejudice' as well as from the 'point of view of health'. Where the substance added to the article sold is not injurious to the health but reduces the money value of the article demanded, it will be a case of 'pecuniary prejudice. If the matter or ingredient added to the article of food is not injurious to the health of the purchaser and if it is shown that the addition was required for the production or preparation of the article the sale would not be deemed to the prejudice of the purchaser. Further, the 'prejudice' contemplated therein has to be construed to mean prejudice to the generality of purchasers and not prejudice to the actual purchaser in a particular case. A particular person in a given case may not be prejudiced by the purchase, but if an ordinary person who purchases an article of food was likely to be prejudiced by the purchase, an offence would be committed.
25. Under sub-clause (b), presence of extraneous matter obviously affects the nature, substance and quality of an article and will make it adulterated and in such cases, it is not necessary to show that the nature etc., of the article has been injuriously affected.
26. In order that sub-cl. (c) may apply the substituted article must be a cheaper or inferior substance and such substitution must injuriously affect the nature, substance or quality of the article.
27. Pertinent it is to mention here that 'adulterated' in sub-cl. (b) is by addition of another substance and in sub-cl. (c) substitution of an inferior or cheaper substance.
28. Sub-clause (h) deals with the situation of an article of food containing any poisonous or other ingredient, which renders it injurious to health. It would appear that some mixing of one article with another does not make it adulterated. But in order to bring the article within this sub-clause, it is but necessary not only to show that the article contains some foreign matter but also that the presence of such foreign matter injuriously affected the nature, substance or quality of the article.
29. In the instant case, it cannot at all be stated that any sub-clauses (a) to (c) and (h) is getting attracted, on the face of the very averments adumbrated in the complaint, in the sense of the product GLUCOVITA GLUCOSE-D, a proprietary food, shall be deemed to be adulterated falling under anyone of those sub-clauses.
30. For the reasons as above, it goes without saying that the prosecution, as launched, is not at all sustainable not only as against the petitioner-accused 7 but also as against six others too, namely, accused 1 to 6, who are now not before me.
31. In the result, the petition is allowed and the proceedings initiated against all the accused 1 to 7 in C.C. No. 490 of 1989 on the file of the Judicial Magistrate, Tenkasi shall stand quashed.
32. Petition allowed.