Punjab-Haryana High Court
Gujrat Cooperative Milk Marketing ... vs State Of Punjab And Others on 7 September, 2012
Author: Paramjeet Singh
Bench: Paramjeet Singh
CRM M-12559 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM M-12559 of 2011 (O&M)
Date of Decision: September 07, 2012
Gujrat Cooperative milk Marketing Federation Ltd.
.. Petitioner
Versus
State of Punjab and others
... Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see
the judgment ?
2) To be referred to the Reporters or not ?
3) Whether the judgment should be reported in the Digest ?
Present: Mr. Joginder Sharma, Advocate,
for the petitioner.
Ms. Jaspreet Kaur, AAG, Punjab.
Paramjeet Singh, J.
The petitioner seeks to invoke the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure to quash the criminal case launched against it and others in Criminal Complaint/ sample No.8/JS of 2000 on the file of Learned Chief Judicial Magistrate, Ludhiana. The petitioners are accused No. 2 and 3 in the said complaint case, filed by the Govt. Food Inspector (for brevity hereinafter to be referred as "GFI") office of Civil Surgeon, Ludhiana.
Briefly stated the facts are that on 01-02-2000 at about 4 PM the complainant GFI along with Manoj Khosla under the supervision of Dr. CRM M-12559 of 2011 2 R. C. Garg inspected the premises of Harsimarn Agencies, situated at 16- Field Ganj, Ludhiana. Sarbjit Singh, Sole Proprietor of the agency was found transacting business at that time and was found in possession of 100 bricks of Amul Strawberry Ice-cream contained in sealed packets of 900 gms each meant for sale for human consumption. Each packet contained a label printed thereon with the information as under, "Mfd. By Mother Diary, Bhat-382428 Code GK2912 Pkd.Oct.99 and Mktd. By : Gujarat Co- operative Markt. Food Diet Amul Sr. No and Code No. of L (H)A". GFI disclosed his identity. The GFI purchased a sealed brick for analysis by paying its cost of Rs.60-00 to Sarbjit Singh accused under a cash receipt. Manoj Kumar Khosla a person along with GFI, attested it and the GFI served Form VI notice on Sarbjit Singh accused expressing his intention to send the samples for analysis and obtained an acknowledgment from Sarbjit Singh which was attested by Manoj Kumar Khosla. The original seal of the brick was intact when purchased by the GFI. The GFI opened sealed brick of ice cream for analysis in front of accused Sarbjit Singh and divided into three equal parts i.e 300 gms each and placed them in three clean, dry and empty glass jars, 24 drops of formaline were added in ice cream and the jars were closed tightly with stopper, labeled and wrapped in a strong thick paper ends of which were joined with tight adhesive in accordance with the procedure laid down in the Prevention of Food Adulteration Rules. A signed slip of Local Health Authority, Ludhiana bearing serial no.35439 and code RKS/2000/13 was packed in each sample portion length wise covering the top and bottom of the sample. Sarbjit Singh disclosed that he is the sole proprietor of the said agency. He was not having purchase bill and warranty. CRM M-12559 of 2011 3 GFI then prepared a spot memo, signed by Sarbjit Singh accused, Manoj Kumar Khosla and GFI. On 01.02.2000, the GFI prepared Form VI notice and it was signed by the vendor On the same day i.e. 01.02.2000, Food Inspector sent one part of the samples along with Form VII in a sealed packet through Malkiat Singh to the Public Analyst, Punjab, Chandigarh, under intimation to the Local Health Authority. He then handed over the remaining containers and the two copies of Form VII in sealed packet to Local Health Authority, Ludhiana. Simultaneously, he sent a copy of memorandum and specimen impression of the seal used to seal the packet separately in a sealed cover to the public analyst. The public analyst, after having analyzed the sample, by his report No.23 February 2000, dated 10- 03-2000, opined that "Milk of the contents of the sample is 8.24% against the minimum prescribed standard of 10.0%. the contents of the sample are, therefore, adulterated." On 22.08.2000, the GFI wrote letter to Sarbjit Singh accused. GFI sent details of this case to the Local Health Authority, who, after perusing the details, accorded written consent authorizing him to launch prosecution against the accused. Thus,Sarbjit Singh, who was the vendor and the proprietor of Harsimran Agencies and petitioner No. 1 is the supplier, who marketed the product, Accused petitioner No 2, manufacturer are liable for prosecution.
Pursuant to the summons issued, all the accused appeared before the Court. The aforesaid petitioners have filed the instant petition.
The contention of the learned counsel for the petitioners is two- fold, namely, the petitioners cannot be prosecuted firstly having regard to Section 14 and 14A of the Prevention of Food Adulteration Act and CRM M-12559 of 2011 4 secondly in the absence of any purchase bill and warranty with the vendor.
It would be appropriate to reproduce Sections 14, 14-A and 20- A of the Prevention of Food Adulteration Act, 1954 and relevant Rules framed their under:
"14. Manufacturers, distributors and dealers to give warranty:- No manufacturer or distributor of, or dealer in, any article of food shall sell article to any vendor unless he also gives a warranty in writing in the prescribed form about the nature and quality of such article to the vendor :
Provided that a bill, cash memorandum or invoice in respect of the sale of any article of food given by a manufacturer or distributor of, or dealer in, such article to the vendor thereof shall be deemed to be a warranty given by such manufacturer, distributor or dealer under this section.
Explanation :- In this section, in sub-section (2) of Section 19 and in Section 20A, the expression"distributor"shall include a commission agent.
14A. Vendor to disclose the name, etc, of the person from whom the article of food was purchased :- Every vendor of an article of food shall, if so required, disclose to the food inspector the name, address and other particulars of the person from whom he purchased the article of food. 20-A. Power of court to implead manufacturer, etc: Where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food, the court is satisfied, on the evidence adduced before it, that such manufacturer, distributor or dealer is also concerned with that offence, then the court may, notwithstanding anything contained in sub-section (3) of section 319 of the Code of Criminal Procedure, 1973 [2 of 1974) or in section 20 proceed against him as though a prosecution had been instituted against him under section 20".CRM M-12559 of 2011 5
Rule 32 of the Prevention of Food Adulteration Rules, 1955 reads as under:
"32. Package of food to carry a label.-Every package of food shall carry a label and unless otherwise provided in these rules, there shall be specified on every label:
xxx xxx xxx xxx
(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.
(f) the month and year in which the commodity is
manufactured or prepacked:
Provided that in case of package weighing 20 g. less and liquid products marketed in bottles which are recycled for refilling, particulars under clause (b) need not be specified:
Provided further that such declaration shall be given on the lebel of multipiece package either on the label of multipiece package or in a separate slip inside the multipiece package in such a manner the same is readable even without opening the package:
Provided also that in case of carbonated water containers and the packages of biscuits, confectionery and sweets, containing more than 60 g. but not more than 120 g. and food packages weighing not more than 60 g. particulars under Clauses (d) and (e) need not be specified:
Provided also that in case of package containing bread and milk including sterilized milk, particulars under Clause CRM M-12559 of 2011 6
(e) need not be specified:
Provided also that in case of any package containing bread or liquid milk, sterilized or Ultra High Temperature treated milk, soya milk, flavoured milk, any package containing dhokla, bhelpuri, pizza, doughnuts, khoa, paneer or any uncanned package of fruits, vegetables, meat, fish or any other like commodity which has a short shelf life, the date, month and year in which the commodity is manufactured or prepared or prepacked shall be mentioned, on the label:
Provided also that in case of package containing confectionery weighing 20 g. or less the particualrs under this clause need not be specicied;
(g) the date of expiry in case of packages of aspartame which shall not be more than three years from the date of packing."
The perusal of Rule 32 of the Rules, makes it clear that every package of food shall carry a label and label shall contain the name, trade name or description of food, the names of ingredients used in the product, the name and complete address of the manufacturer or importer or vendor or packer, the net weight or number or measure of volume of content, a distinctive batch number or lot number or code number, either in numericals or alphabets or in combination, presenting the batch number or lot number or lot or any distinguishing prefix, the month and year in which the commodity is manufactured or pre-packed, the date of expiry in case of packages as per time which shall not be more than three years from the date of package and the purpose of irradiation and licence number in case of irradiated food.
Now coming to the first contention of the learned counsel, it is appropriate at the outset to consider Section 14 of the Prevention of Food CRM M-12559 of 2011 7 Adulteration Act,1954 (for short, 'the Act') and then Section 14-A of the Act, Section 20-A of the Act and the provisions of Section 2 of the Act. The expression 'misbranded' is defined under clause (ix) of Section 2 of the Act. Clause (ix) contains as many as 11 sub-clauses . As per the said provision, an article of food shall be deemed to be misbranded, if it is 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 the Act and when a package containing it or the label on the package bears any statement, design or device regarding the ingredients or the substances contained therein, which is false or misleading in any material particular or package is otherwise deceptive with respect to its contents or if the package containing it or the label on the package bears the name of a fictitious individual or company as the manufacturer or the producer of the article etc., If the necessary particulars, as enjoined under Rule 32 of the Rules, are lacking on the label affixed to the package as per Section 2 (ix) of the Act, it is a misbranded food item. It may be reiterated that the allegation against the petitioners and others is that label is conspicuously absent in the necessary particulars as enjoined under Rule 32 (e) of the Rules and is, therefore, misbranded as opined by the public analyst.
Here in the instant case, the vendor, the marketeer and the manufacturer have been impleaded as accused simultaneously. Section 7 of the Act prohibits expressly that no person shall manufacture for sale or store, sell or distribute any adulterated food or any misbranded food. It is CRM M-12559 of 2011 8 obvious in the said provision that the prohibitions equally apply to the manufacturer, seller, the person who stores or distributes any adulterated food or misbranded food. Violation of Section 7 of the Act is punishable under Section 16 of the Act. Under Section 14 of the Act, the manufacturer, distributor or dealer is obliged to give the vendor a warranty in writing in the prescribed form about the nature and quality of the article sold to the vendor. Under Section 14-A of the Act, every vendor is obliged to disclose to the Food Inspector, the name, address and other particulars of the person from whom he purchased the article of food. While Section 14 of the Act is meant to protect the ultimate vendors before the food reaches a consumer, Section 14-A of the Act mandates the vendor to furnish the particulars of the person from whom he purchased the article of food. Section 14 of the Act, which protects the interest of the ultimate vendor, is obviously not in the nature of excluding the dealer or the manufacturer from the purview of the Act, nor it is in the nature of carving out an exception in favour of the manufacturer or the dealer. In the case of Bhagwan Das Jagdish Chander V. Delhi Administration, AIR 1975 SC 1309, it was held in paras 12 and 13 thus:
"12. We are not impressed by the argument that a distributor could only be prosecuted for selling without giving a warranty to a vendor which is a separate offence under Section 14 of the Act. It is clear from Section 14 itself that a manufacturer as well as a distributor can sell. The definition of Sale, given in sub-section (xiii) of the Act, is wide enough to include every kind of seller. Every seller can be prosecuted of an offence created by Section 7 of the Act which prohibits a sale as well as distribution of an adulterated article of food. The mere fact that, for the purposes of Section 14, the person who could be CRM M-12559 of 2011 9 the last seller, in the sense that he sells to the actual consumer, is described as the vendor, could not affect a liability for an offence under Section 7 of the Act of a sale of an article of food which is found to be adulterated. A sale of an article of food by a manufacturer, distributor, or dealer is a distinct and separable offence. Section 14 was not meant to carve out an exemption in favour of a distributor or a manufacturer who sells articles of food, found to be adulterated, irrespective of the question whether any warranty was given for them. It is true that the manufacture of an adulterated article of food for sale is also an offence under Section 7 of the Act. But, neither Section 7 nor Section 14 of the Act bars trial of several offences by the same accused person, be he a manufacturer, a distributor, or a last seller, referred to as the vendor in Section 14 of the Act.
13. We are also unable to accept as correct a line of reasoning found in V.N. Chokra v. State1 and Food Inspector, Palghat Municipality v. Seetharam Rice & Oil Mills; and in P.B. Kurup v. Food Inspector, Malappuram Panchayat, that, in every case under the Act, there has to be initially a prosecution of a particular seller only, but those who may have passed on or sold the adulterated article of food to the vendor, who is being prosecuted, could only be brought in subsequently after a warranty set up under Section 19(2) has been pleaded and shown to be substantiated. Support was sought for such a view by referring to the special provisions of Section 20-A and Section 19(2) and Section 20 of the Act. A reason for Section 20-A seems to be that the prosecution of a person impleaded as an accused under Section 20-A in the course of a trial does not require a separate sanction. Section 20-A itself lays down that, where the Court trying the offence is itself satisfied that a manufacturer, distributor, or dealer is also concerned with an offence, for which an accused is being tried, the necessary sanction to prosecute will be deemed to have been given.CRM M-12559 of 2011 10
Another reason seems to be that such a power enables speedy trial of the really guilty parties. We are in agreement with the view of the Delhi High Court that these special provisions do not take away or derogate from the effect of the ordinary provisions of the law which enable separate as well as joint trials of accused persons in accordance with the provisions of the old Sections 233 to 239 of Criminal Procedure Code. On the other hand, there seems no logically sound reason why, if a distributor or a manufacturer can be subsequently impleaded, under Section 20-A of the Act, he cannot be joined as a co- accused initially in a joint trial if the allegations made justify such a course."
Section 14 of the Act, therefore, shall have to be understood in proper perspective for which reference is necessary to Section 19 of the Act. Section 19 of the Act enumerates the defences that can be taken validly by an accused. No defence can be taken by the vendor about his ignorance of the nature, substance or quality of the food sold by him. However, it also simultaneously takes care of the ultimate vendor, who innocently purchases the food item from a dealer or manufacturer. Therefore, it is open to him to take the defence under a written warranty from the manufacturer, distributor or a dealer in the prescribed form that the article of food while in his possession was properly stored and that he sold it in the same state as he purchased it. Such a defence, if is proved, would absolve him from the penal consequences of the Act. Thus, Sections 14 and 19 of the Act, if read together, make it crystal clear that they are meant to protect the interests of the ultimate vendor, who in turn purchased innocently the article of food, which eventually found to be adulterated or misbranded from any manufacturer, distributor or dealer. At the same time, the provisions tell us CRM M-12559 of 2011 11 that they are not in the nature of allowing the manufacturer, distributor or a dealer to escape from the liability with impunity. Section 14 A states that every vendor of an article of food shall, if so required, disclose to the food inspector, the name, address and other particulars of the person from whom he purchased the article of food. The form VII clearly indicates that on package details about the petitioners are mentioned as required under Rule 32 of the Rules. Section 20-A of the Act is the provision which enables the Court to implead, during the course of the trial of any offences under the Act, the alleged manufacturer, distributor or dealer of any article of food, which is eventually found to be adulterated or misbranded. The stage for such impleading is laid down under the Act specifically, which is obviously the stage of evidence during the course of trial. That does not mean that always and at all times the manufacturer, distributor or dealer shall be impleaded only at a later point of time, but not simultaneously along with the ultimate vendor. Section 20-A of the Act can be invoked only when the manufacturer, distributor or dealer has not been impleaded initially and it has come to light in the evidence during the course of trial, the details about such manufacturer, distributor or dealer of the food article, which is eventually found to be adulterated or misbranded. An overview of these provisions and the scheme of the Act clearly tell us that the vendor, the manufacturer or the distributor or the dealer can simultaneously be prosecuted. In view of clear legal position discernible from a combined reading of the provisions and the scheme of the Act, it requires to be seen what is the material that warrants the inclusion of the manufacturer or distributor or dealer or all of them together along with the vendor in a CRM M-12559 of 2011 12 complaint filed by the Govt. Food Inspector alleging either adulteration or misbranding of the article in question. In the absence of the warranty, which is obliged to be given by the manufacturer, distributor or dealer to the vendor, it does not mean that no such person can be legitimately prosecuted. What is required is the evidence, which links or connects the manufacturer, distributor or dealer with the food article, which has been eventually purchased by the Food Inspector from the vendor in his shop. In the instant case, as can be seen from its matrix, a label is affixed on the packet containing ice cream. That label is obliged to be affixed on the packet in accordance with Rule 32 of the Rules. That label contains the address particulars of the manufacturer and marketeer, other particulars as are required under Rule 32 (e) of the Rules. Prima facie those particulars constitute the necessary material to connect the manufacturer and the marketeer i.e petitioners in this case, to the offence along with the vendor. If there is any written warranty with the vendor and if he is able to show before the Court that he stored the food article purchased under that warranty in a good condition and kept it in the same condition before it was purchased by the Food Inspector, he would be exonerated from the liability. In the absence of any such warranty, he cannot take any such valid defence as is allowable under Section 19 of the Act. But, insofar as the manufacturer or distributor or dealer is concerned, once the article of food is shown to be adulterated, they cannot escape the liability until they are able to show before the Court that the food article which has been sold by them, or anyone of them has not been kept in the same condition when it was sold to the vendor and therefore the adulteration or misbranding must be at the CRM M-12559 of 2011 13 point of the vendor. Thus, the defences to be taken by the vendor, the manufacturer, the distributor or dealer, as the case may be, would ultimately fix the liability on any one of them. This is obvious from the provisions of the Act, as discussed herein above. Therefore, the contention that as much as Sarbjit Singh accused represented before the GFI that the product was delivered at his doorstep and he had no purchase bill would not warrant any exoneration of petitioners on that premise. Till such time it is shown before the Court that the container which contains the label and the particulars mentioned on the label are not accurate or false and that the food article found therein is not the article manufactured, distributed or sold to the vendor, the manufacturer, distributor and dealer, cannot legitimately contend before the Court that they cannot be prosecuted along with the vendor.
Lastly learned counsel for the petitioner argued that summoning order is non speaking. Learned Chief Judicial Magistrate has not considered the evidence before passing impugned summoning order .
I have considered the contention of the learned counsel for the petitioner. This is complaint filed by public servant and leading of evidence by the complainant had been dispensed with but the learned CJM has taken into account the evidence annexed with the complaint.
In a decision of the Supreme Court it has been pointed out that the legislature has stressed upon the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons vide Kanti Bhadra Shah vs. State of West Bengal (2000)1 SCC 722, from which the following passage will be CRM M-12559 of 2011 14 apposite in this context:
"If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, why should the already burdened trial courts be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages, the snail-paced progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial." (Emphasis supplied) I have myself considered the documents annexed with this petition , the complaint , Copy of form VI, payment receipt, spot memo, report of the public analyst Punjab and copy of order for launching prosecution. The compliant itself is by a public servant. Section 200 of the Code of Criminal Procedure reads as under:
"200. Examination of complainant. -A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-CRM M-12559 of 2011 15
(a) if a public servant acting or- purporting to act in the discharge of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re- examine them."
Section 200 of the Code does not require examination of complainant and witnesses if complaint is by public servant. Here in this case GFI has filed written complaint in discharge of his official duties.
There was no necessity for the Magistrate to examine witnesses and complainant.
Furthermore under Section 200 aforesaid, a Magistrate has to form an opinion that there was sufficient ground for proceeding and in present case learned CJM has formed such opinion from perusal of documents attached with complaint. So this contention of the petitioner also fails.
Under Section 482 of Cr. P.C all the pleas raised cannot be decided and these can only be proved by leading evidence before the trial court and then decided. Whenever there is a report of the Analyst that the food article is adulterated, by the date of filing of the complaint, there was prima facie material to show that the accused committed the offence. In order to prove his innocence, it is for the accused to prove his innocence by leading cogent evidence and prove their defence as permitted under the provisions of the Act. The petitioners are not entitled for quashing the CRM M-12559 of 2011 16 proceedings without showing that prejudice has been caused to them and there is no sufficient material before the Magistrate to proceed against them.
The Prevention of Food Adulteration Act, 1954 was enacted by the Parliament to prevent the adulteration of food. Pure, fresh and healthy food is essential for the health of the people. Adulteration of food stuffs was/is so rampant, widespread and persistent and as there was/is need to take a drastic remedy in the form of a legislation, which is the need of the hour, to check this kind of anti-social evil, this Act was enacted to correct and remedy the widespread evil of food adulteration to ensure the sale of wholesome food to the people. It is well settled that wherever possible, without unreasonable stressing and straining all such statutes should be construed in a manner, which would not suppress the mischief, advance the remedy, promote its object, prevent its subtle evasion and foil its artful circulation. As per the various judgments of the Hon'ble Supreme Court, the provisions of the Act are required to be observed in the strict adherence to safeguard the interest of the consumers of the articles of food. Stringent laws will have no meaning if the offenders get away on some or the other technicalities.
For the reasons recorded above, the Criminal Misc. Petition must fail and is hereby dismissed.
September 07, 2012 [Paramjeet Singh] vkd Judge