Punjab-Haryana High Court
Hindustan Lever Ltd vs State Of Punjab And Others on 6 October, 2010
Author: Sabina
Bench: Sabina
Crl.Misc. No. M-36196 of 2005 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Crl. Misc. No. M-36196 of 2005
Date of Decision:October 6 ,2010
Hindustan Lever Ltd. ...........Petitioner
Versus
State of Punjab and others ..........Respondents
Coram: Hon'ble Mrs. Justice Sabina
Present: Mr.R.K.Garg, Advocate
for the petitioner.
Mr.Amandeep Singh Rai,Assistant Advocate
General, Punjab
Mr.Dinesh Kumar,Advocate for
Mr. M.K.Singla, Advocate for respondents No. 2 to 6
**
Sabina, J.
This petition has been filed under Section 482 of the Code of Criminal Procedure (for short`Cr.P.C.') for quashing of criminal complaint dated 25.3.2003 (Annexure P3) filed by the State through Government Food Inspector, complainant under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (`the Act' for short).
The case of the complainant, as per the complaint reads as under:-
""1. That I Dr. Harjotpal Singh,complainant have been appointed as Govt. Food Inspector vide Punjab Government Gazettee Notification No. FD(1) Pb.89/15893 dated 27th October,1989 and also been authorised to launch prosecution u/s 20 of the Crl.Misc. No. M-36196 of 2005 2 Prevention of Food Adulteration Act, 1954 vide Punjab Govt. Notification (eligible)IV-27337 dated 25th October, 1990 for all the local areas of Distt. Jalandhar.
2.That on 27.6.2002, I alongwith Dr.Harjot Singh, Govt. Food Inspector Office of civil Surgeon Jalandhar visited the Snowmen Frozen Foods Ltd. at Ganna Pind, Tehsil Phillaur, Distt. Jalandhar. The Branch Manager Sh. Sanjay Muljonkar was present on the spot. He was having about 350 packets of Kwality Wall's Vanilla Gold Ice Cream which was kept by him for sale and for human consumption. I disclosed my identity and purpose of our visit. I demanded the sample of Kwality Walls's Vanilla Gold Ice Cream by serving a Notice on form No. VI to Shri Sanjay Muljonkar which was signed by Mr. Sanjay Muljonkar and by me, thereafter, it was attested by the witnesses (1)Arvind Kumar son of Hari Ram c/o Snowman Frozen Foods Ltd., Ganna Pind, Tehsil Phiullaur, Distt. Jalandhar and (2) Dr. Harjot Singh Govt. Food Inspector office of Civil Surgeon, Jalandhar.
3.That I purchased 750 Ml. of Kwality Walls Vanilla Gold Ice Cream for Rs.65/- only against a proper receipt which was got signed by the accused No.1 and was attested by the witnesses. The Ice cream so purchased was put in a dry and clean jug and was allowed to thaw. The Ice cream was then made homogenious by stirring it well with the help of a big spoon clockwise and anti clockwise and from top to bottom.
4.That I put the so purchased Kwality Wall's Vanilla Gold Ice Cream in three dry and clean wide mouth glass bottles in equal Crl.Misc. No. M-36196 of 2005 3 parts i.e. 250 gms. in each bottle as preservative. Each sample bottle was stoppered tightly, labelled, wrapped in a thick paper and were fastened with a strong thread. A paper slip duly signed by the Local Health Authority, Jalandhar having Sr. No. 92044, Code No. 148/PL/2002, was pasted on each sample bottle with the help of gum lengthwise covering the mouth and bottom of each sample Bottle. The sample bottles were once again secured by a strong thread and were sealed at five distinct points with the seal bearing impression as DRRL. The signatures of the accused No.1 were obtained on each sample bottle partially on the slip and partially on the wrapper. I also signed on each sample bottle in the same manner.
5.That I prepared the spot memo on the spot which was got signed by the accused no.1 and was also attested by the witnesses.
6.That I sent one sealed sample to the Public Analyst, Punjab Chandigarh in a sealed cover containing a copy of Form No.VII bearing the seal impression of the seal, used to seal the samples alongwith a separate sealed envelope containing a copy of form No. VII bearing the seal impression of the seal used through a special messenger Sh.Raj Kumar S/SK in the office of Civil Surgeon, Jalandhar. The remaining two counter parts of the sample were deposited with the Local Health Authority alongwith two copies of form No.VII bearing the seal impression of the seal used on the same day.
8.That I received the report of the Public Analyst, Punjab through Crl.Misc. No. M-36196 of 2005 4 the Local Health Authority who gave his opinion that the Milk Fat and total solids of the contents of the sample are 8.12% and 33.31, against the minimum prescribed standard of 10.0% and 36% respectively. Hence, the sample is adulterated.
9.That Shri Sanjay Muljonkar being the Branch Manger/Salesman of Snowman Frozen Foods Ltd., Ganna Pind. Tehsil Phillaur, Distt. Jalandhar and the accused No.2 to 4 being the supplier committed offence under Section 7/16 of the P.F.A. Act, 1954. The accused No. 5 and 6 being the manufacturer and accused No. 7 and 8 being the marketer of their firms have jointly committed an offence under Section 7/16 of the PFA Act, 1954 because they are responsible for the day to day work and conduct of their respective firms. Therefore, necessary action may be taken against them, in accordance with law.
I, being the Govt. Servant have many duties, I may kindly be exempted to appear in the court on each and every date of hearing of the case, the Worthy APP may be allowed to appear on my behalf."
Learned counsel has submitted that the articles sold by the petitioner was frozen desert and no standard had been prescribed under the Prevention of Food Adulteration Rules. 1955 (`Rules' for short) for the said food articles at that time and hence, the said food articles fell within the definition of Proprietary Foods under Rule 37-A of the Rules. There was no violation of Rule 37-A of the Rules.
Learned State counsel, on the other hand, has opposed the petition.
Crl.Misc. No. M-36196 of 2005 5
A perusal of the record reveals that a sample of Kwality Walls Vanilla Gold had been taken by the complainant Food Inspector on 27.6.2002. Although in the complaint, the said food article was described as Ice Cream but on a perusal of the report of the Chemical Examiner as well as form VI filled by the Food Inspector reveals that the sample of Kwality Walls Vanilla Gold had been taken. The said food articles, according to the learned counsel for the petitioner was a frozen desert.
As per the Rules, Ice Cream means the product obtained by freezing a pasteurised mix prepared from milk and/or other products derived from milk with the addition of nutritive sweetening agents e.g., sugar, dextrose, fructose, liquid glucose, dried liquid glucose, maltodextrin, high maltose corn syrup, honey, fruit and fruit products, eggs and egg products, coffee, cocoa, ginger and nuts. It may also contain Chocolate, and bakery products such as case, or cookies as a separate layer and/or coating. It may be frozen hard or frozen to a soft consistency. It shall be free from artificial sweetener. It shall have pleasant taste and smell free from off flavour and rancidity.
A perusal of form VI itself reveals that the food articles from which sample was drawn was Vanilla flavour frozen desert and contained milk products, vegetable oil, sugar, liquid glucose emulsifying and stabilizing agents. Thus, the food articles which was being sold by the petitioner was not Ice Cream but was a frozen desert. At the relevant time, the said food articles came within the purview of Rule 37-A of the Rules and was a proprietary food. No standard had been provided for the proprietary food at that time. Rule 37-A of the Rules reads as under:-
"[37A. Manufacture of proprietary food.-(1) Proprietary Crl.Misc. No. M-36196 of 2005 6 food means a food which has not been standardized under the Prevention of Food Adulteration Rules, 1955. (2) In addition to the provisions including labelling requirements specified under these rules, the proprietary foods shall also conform to the following requirements, namely:-
(a) the name of the food and category under which it falls in these rules shall be mentioned on the label;
(b) the proprietary food product shall comply with all other regulatory provisions specified in these rules and in Appendixes.]] However, after the sample was taken in this case, specific standard for frozen desert has been prescribed in the Rules. Since at the relevant time, no standard has been prescribed for frozen desert, the sample drawn by the Food Inspector could not have been tested qua standard prescribed for the Ice cream.
Accordingly, this petition is allowed. Complaint dated 25.3.2003 as well as further proceedings arising out of the said complaint are quashed.
( Sabina ) Judge October 6 ,2010 arya