Madhya Pradesh High Court
Cadbury India Limited And Anr. vs Union Of India (Uoi) And Ors. on 16 August, 2007
Equivalent citations: 2007(4)MPHT183
Author: Chief Justice
Bench: Chief Justice
ORDER A.K. Patnaik, C.J.
1. Petitioner No.1 is a Company incorporated under the Indian Companies Act, 1913 and carries on the business, inter alia, in various kinds of chocolates, cocoa liquor and other cocoa based products and the petitioner No.2 is the Director of the petitioner No.1 Company. The proviso to Rule 32(e) of the Prevention of Food Adulteration Rules, 1955 (for short 'the Rules') made under the Prevention of Food Adulteration Act, 1954 (for short 'the Act') provides that in case of canned food, the batch number may be given at the bottom of the container or on the lid of the container, but on the body of the container it should be mentioned that the batch number has been given at the bottom or at the lid of the container. On 1.1.1987, the Food Inspector, Ujjain, respondent No.4 collected some samples of Cadbury Drinking Chocolate manufactured and sold by the petitioner No.1 Company and a report on the samples was submitted by the Public Analyst to the following effect:
Package label : Cadbury Drinking Chocolate Manufactured by - Cadbury India Limited, 19 B. Desai Road, Mumbai 400 026 Net wt. 200 gm (Batch No./Lot No. not appear On the body of the container and am of the opinion that the sample is misbranded vide Section 2(ix)(k).
Pursuant to the report, a complaint was filed in the Court of the learned Judicial Magistrate First Class, Ujjain which was registered as Case No.1698/03 against the Proprietor of the shop from whom the samples were collected. The petitioner No.2 appeared before the learned JMFC, Ujjain on 4th August, 2004 and thereafter filed Misc. Criminal Case No.2489/2004 under Section 482 of the Criminal Procedure Code in the Indore Bench of this Court for quashing Case No.1698/2003 pending in the Court of JMFC, Ujjain. But by order dated 6.12.2004, a learned Single Judge of the Indore Bench of this Court dismissed the said Misc. Criminal Case No.2489/2004. The petitioners have filed this writ petition challenging the proviso to Rule 32(e) of the Rules as ultra vires Articles 14, 19(1(g) and 300A of the Constitution. The petitioner has also prayed for writ of certiorari/prohibition/other writ or order directing the Judicial Magistrate First Class, Ujjain to dismiss Case No.1698/03 pending in his file.
2. Mr. S.G. Aney, learned senior counsel for the petitioners submitted that proviso to Rule 32(e) of the Rules states that in case of canned food, the batch number may be given at the bottom or on the lid of the container. He submitted that this provision in the proviso requiring the batch number to be mentioned at the bottom of the container or lid of the container is reasonable and valid but the further provision in the proviso requiring a statement to be made on the body of the container that 'batch number has been given at the bottom or lid of the container' is absolutely unnecessary and unreasonable and should be struck down by the Court as ultra-vires Articles 14, 19(1)(g) and 300A of the Constitution. In this context, he referred to the Section 23(1) of the Act which confers powers on the Central Government to make rules inter alia restricting the labeling of any article of food and the design of such label with a view to preventing a member of the public or the purchaser being deceived or misled as to the character, quality or quantity of that article and submitted that so long as the container contains a batch number either on the lid or at the bottom of the container, a member of the public or the purchaser is not deceived or misled as to the quality of the article. He submitted that the additional provision made in the proviso to Rule 32(e) of the Rules that it should be mentioned on the body of the container that the batch number is mentioned on the lid or at the bottom of the container is thus ultra-vires Section 23(1) of the Act.
3. Mr. Aney, alternatively, submitted that in the event this Court holds that the provision in the proviso to Rule 32(e) of the Rules that on the body of the container a mention is to be made that the batch number is mentioned on the lid or at the bottom of the container is not ultra-vires Articles 14, 19(1)(g), 300A of the Constitution or Section 23 of the Act, the Court should hold that where the batch number is infact mentioned either on the lid or at the bottom of the container but there is no mention on the body of the container that the batch number has been mentioned on the lid or at the bottom of the container, the proviso to Rule 32(e) is substantially complied with. He cited the decision of the Bombay High Court in Carona Ltd. and Anr. v. Union of India and Ors., in which, it was found that the petitioners instead of mentioning the month of manufacture on the box containing the footwear had mentioned the number of the week and the year in which the footwear had been manufactured and the Bombay High Court took the view that there was a substantial compliance with the rules made under the Standards of Weights and Measures Act, 1976. He also cited the decision of the Patna High Court in Jagdish Prasad Didwanja and Anr. v. State of Bihar and Anr. , in which, the expiry period of article was not indicated exactly in the manner as required by the Rule 32(1) of the Rules made under the Prevention of Food Adulteration Act and the High Court held in the facts and circumstances that there was more than substantial compliance of the rules and any prosecution of the petitioners therein on grounds of breach of Rule 32(i) of the Rules would be nothing but an abuse of process of the Court.
4. Mr. Kumaresh Pathak, learned Deputy Government Advocate, appearing for the respondents 2, 3 and 4 on the other hand submitted that the proviso to Rule 32(e) clearly required a statement to be made on the body of the container that 'the batch number has been given at the bottom or on the lid of the container and since the same has not been given on the body of the container of the samples collected by respondent No.4, the proviso to Rule 32(e) had been violated and for this reason a complaint had been filed before the Magistrate.
5. Mr. O.P. Namdeo, learned Counsel appearing for respondent No.1, submitted that under Section 23 of the Act the Central Government has been vested with the powers to make rules to carry out the provisions of the Act including those mentioning in subsection (1-A) of Section 23 of the Act and the provisions in the proviso to Rule 32(e) of the Rules requiring a statement to be made on the body of the container that the batch number has been given at the bottom or on the lid of the container is thus within the powers of the Central Government and cannot be held to be ultra-vires.
6. We find a lot of force in the submission of Mr. Namdeo that wide powers have been vested in the Central Government to make rules to carry out the provisions of the Act. Without prejudice to the generality of the powers under Sub-section (1) of Section 23 of the Act vested in the Central Government to make rules to carry out the provisions of the Act, Central Government has also been vested with the powers under Sub-section (1)(a) of Section 23 to make rules providing for all or any other matters specified therein including rules restricting the labeling of any article of food and the designing of any label with a view to preventing a member of the public or the purchaser being deceived or misled as to the character, quality or quantity of article or to prevent adulteration.
7. In exercise of these powers, the Central Government has made provisions in Rule 32 that every package of food shall carry a label and unless otherwise provided in the rules, there shall be specified on every label the various matters as mentioned in the various clause of Rule 32 of the Rules. Clause (e) and the proviso thereto of Rule 32, which is relevant for the purpose of deciding this case, is quoted herein below:
(e) A distinctive batch number or lot number or code number, either in numericals or alphabets or in combination, the numericals or alphabets or their combination, representing the batch number or lot number or code number being preceded by the words Batch No., or Batch, or Lot No., or Lot or any distinguishing prefix:
Provided that in case of canned food, the batch number may be given at the bottom, Or on the lid of the container, but the words 'Batch No.' given at the bottom or on the lid, shall appear on the body of the container.
8. A reading of Clause (e) of Rule 32 quoted above would show that the distinctive batch number or lot number or code number either in numericals or alphabets or in combination representing the batch number or lot number or code number should be mentioned on the label of the package. The proviso to Clause (e) of Rule 32 further states that in the case of canned food, the batch number may be given at the bottom or on the lid of the container. The word "may" indicates that a choice has been given to the manufacturer to place the batch number of the canned food either at the bottom of the container or on the lid of the container. To ensure that the purchaser or a member of the public is able to locate the batch number of the canned food, the proviso further requires that on the body of the container it should further be mentioned that the batch number is given at the bottom or on the lid of the container. The intention of the rule making authority in providing that the words 'batch number given at the bottom or at the lid' must also appear on the body of the container, thus appears to be that the purchaser or a member of the public is able to know where the batch number is mentioned, on the lid or at the bottom of the container. Without such provision in the proviso, the purchaser or a member of the public may not be able to know that batch number has been mentioned at the bottom or on the lid of the container. Thus it is difficult to accept the contention of Mr. Aney that the provision in the proviso to Clause (e) of Rule 32 that the words 'batch number given at the bottom or on the lid of the container' should appear on the body of the container is unnecessary and unreasonable. In our considered opinion, it is for the rule making authority namely the Central Government, to decide what provision should be made in the rules for the purposes of carrying out the provisions of the Act and the Court cannot strike down a provision as ultra-vires on the ground that in the opinion of the court the provision was unnecessary or unreasonable unless the provision said to be unnecessary and unreasonable is shown to be causing any substantial prejudice to the legal rights of a person.
9. But this is not to say that if on the body of the container, it is not mentioned that the batch number is given on the lid or at the bottom of the container, there is contravention of the provisions of the rules so as to warrant prosecution for violation of the second limb of the proviso to Clause (e) of Rule 32 of the rules. It is settled by the Supreme Court that mens rea is an essential ingredient of a criminal offence unless the statutory provision creating the offence expressly or by necessary implication excludes mens rea. Paragraph 13 of the judgment of the Supreme Court in State of Maharashtra v. M.H. George which lays down this proposition, is quoted herein below:
13. The law on the subject relevant to the present enquiry may briefly be stated as follows. It is a well settled principle on common law that mens rea is an essential ingredient of a criminal offence. Doubtless a statute can exclude that element, but it is a sound rule of construction adopted in England and also accepted in India to construe a statutory provision creating an offence in conformity with the common law rather than against it unless the statute expressly or by necessary implication excluded mens rea. To put it differently, there is a presumption that mens rea is an essential ingredient of a statutory offence; but this may be rebutted by the express words of a statute creating the offence or by necessary implication. But the mere fact that the object of a statute is to promote welfare activities or to eradicate grave social evils is in itself not decisive of the question whether the element of guilty mind is excluded from the ingredients of the offence. It is also necessary to enquire whether a statute by putting a person under strict liability helps him to assist the State in the enforcement of the law : can he do anything to promote the observance of the law ? A person who does not know that gold cannot be brought in India without a licence or is not bringing into India any gold at all cannot possibly do anything to promote the observance of the law. Mens rea by necessary implication can be excluded from a statute only where it is absolutely clear that the implementation of the object of a statute would otherwise be defeated and its exclusion enables those put under strict liability by their act or omission to assist the promotion of the law. The nature of mens rea that will be implied in a statute creating an offence depends upon the object of the Act and the provisions thereof.
10. We have perused the provisions of Section 2(ix)(a), 7 and 16(1)(a)(i) of the Act and we do not find therein any provision to show that mens rea has been expressly excluded from the offence of misbranding. In State of Maharashtra v. M. George (Supra), it has been held that mens rea by necessary implication can be excluded from the statute only where it is absolutely clear that the implementation of the object of a statute would otherwise be defeated and its exclusion enables those put under strict liability of their act or omission to assist the promotion of the law and the nature of mens rea that will be implied in the statute creating an offence depends upon object of the Act and the provisions therein. The object of the second limb of the proviso to Clause (e) of Rule 32 of the Rules requiring that the words "Batch No. given at the bottom or on the lid shall appear on the body of the container" is only to inform the purchaser or a member of the public that the batch number of the canned produce is at the bottom or on the lid of the container, as the case may be. In a given case, where the batch number is infact mentioned at the bottom or on the lid of the container but on the body of the container it is not mentioned that the batch number has been given at the bottom or on the lid of the container, all that happens is that the purchaser or the member of the public may loose sight of the fact that the batch number has been mentioned at the bottom of the container or on the lid of the container. But so long as the batch number is infact stated at the bottom or on the lid of the container, the quality and character of the food contents of the container can be traced to the batch number of the manufacturer and the provisions of the Act and the Rules in this regard can be enforced. In our view, therefore, if the words "Batch No. at the bottom or on the lid of the container" do not appear on the body of the container but the batch number is infact given at the bottom or on the lid of the container, it cannot be held that there is mens rea is not complying with the provisions of the proviso to Clause (e) of Rule 32 of the Rules.
11. With the aforesaid observations, this writ petition is disposed of. The learned Magistrate before whom Case No.1698/03 is pending will keep in mind the aforesaid observations while deciding the complaint pending before it. The LCR be sent back to the trial Court. The petitioners may raise the contention on the basis of the observations made in this judgment before the trial Court at the appropriate stage.