Gujarat High Court
Hasmukhbhai Dhanjibhai Patel (Vendor) vs Nitinkumar Jashvantlal Gandhi on 14 September, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/433/2008 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 433 of 2008
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HASMUKHBHAI DHANJIBHAI PATEL (VENDOR)
Versus
NITINKUMAR JASHVANTLAL GANDHI
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Appearance:
MR TUSHAR L SHETH(3920) for the PETITIONER(s) No. 1,2
MR KT DAVE(257) for the RESPONDENT(s) No. 3
MR. RAKESH PATEL, ADDL. PUBLIC PROSECUTOR(2) for the
RESPONDENT(s) No. 2
RULE SERVED(64) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 14/09/2018
ORAL ORDER
1. By this writ application under Article 226 of the Constitution of India, the writ applicants-original accused have prayed for the following reliefs;
"(A) Your Lordships may be pleased to allow the presnt petition;
(B) Your Lordships may be pleased to quash and set aside the comlaint as well as entire proceedings of Criminal Case No.2198/03 pending in the Court of Ld. Additional Chief Judicial Magistrate, Gondal against the petitioners, and further quash and set aside both the orders of Courts below, the order dt. 10.12.07 passed in Criminal Revision Application No.25/06 by which the order dt. 28.03.06 of the Ld. Additional Chief Judicial Magistrate, Gondal passed below Ex.14 is confirmed.
(C ) Pending admission, hearing and final disposal of the present petition, Your Lordships may be pleased to stay the proceeding of the Criminal Case No.2198/03 against the petitioners pending in the court of Ld. Additional Chief Judicial Magistrate, Gondal.
Page 1 of 11 R/SCR.A/433/2008 ORDER
(D) For ad-interim relief/s in terms of prayer (c ) above.
(E) Any other and further relief/s as may be deemed just, fit and proper in the facts and circumstances of the present case may kindly be granted in the interest of justice."
2. The prosecution instituted against the writ applicants herein is for the offence of misbranding punishable under the provisions of the Prevention of Food Adulteration Act, 1954 read with Rules 1955. It appears from the materials on record that the respondent No.1-original complainant collected a sample of water pouch from the shop of the writ applicants for the purpose of analysis. The report of the public analyst reads as under;
'Form III [ See Rule 7(3)] [Report of the Public Analyst] No.FDL/Food/AR/2003 Report No.Q3/416/2003 Entry No.1848 Date:-
To, Assistant Commissioner & Local Health Authority Food & Drugs Control Administration.
Rajkot.
Certified that I Shri K.A. Patel duly appointed as Public Analyst under the provisions of the Prevention of Food Adulteration Act, 1954. For Gujarat State received from Mr. N.J. Gandhi Senior Fund Inspector, Rajkot a sample of Pivanu Pani packed. Brand New Ganga Pack Pouch bearing Code No. and serial No.8/FDA/RJT/IIQ/SF1/21/03 of Local (Health) Authority on 11th July 2003 for analysis.
The condition of seals on the container and the outer Page 2 of 11 R/SCR.A/433/2008 ORDER covering on receipt was as follows;
There was one seal on the outer cover, four seals on wrapper and one seal on the container (on the box) and the seals were intact. The seals tallied with the specimen impression of the seal separately sent by the Food Inspector in sealed cover by Regd. Post, received on 7th July, 2003.
I found the sample to be Packaged Drinking Water falling under item No.A33 of Appendix B of Prevention of Food Adulteration Rules, 1955. The sample was in a condition fit for analysis and has been analysed on 16.07.03 to 28.07.03 and the results of its analysis are given below;
Analysis Report (I) Sample description- A sealed and intact. The cardboard box.
(ii) Physical Appearance: Colourless aqueous liquid.
(iii) Label: Company pack printed (plastic bag) has the following label details in English language only and not bearing the ISI/BIS certification mark. Also contains the following details as per the different provisions of Rule
33..
(a) Name of Food:-Ganga. The name of food article not mentioned.
(b) Name of ingredients (c ) Name and address of Manufacturer, packer:- Allwyn Beverages, Veraval (Shaper) Dist. Raj.
(d) Net Volume: 250ml (e) Batch No./code no./lot no.:-Not mentioned
(f) Date and Month and year of mfg./packing:- Not mentioned.
(g) Best before: 3 months. Page 3 of 11 R/SCR.A/433/2008 ORDER Sr. Quality Name of Method of test used. Result Prescribed No. Characteristic standards as per: Item A.33 of Appendix 'B' & As per provisions of the Act and Rules 1 Colour Instrumental method. Ref: Merck Absent Max 2 Hazen Instrumental Method Ref:- units IS:3025-1964 p.14/Merck Instrument Manual 2 Odour Organoleptic test Agreeable Agreeable 3 Taste Organoleptic test Agreeable Agreeable 4 pII value Instrumental method Ref: 6.9 6.5 to 8.5 IS:3025-1964 p. 16 5 Turbidity Instrumental method Ref: 0NIU Max. 2 NIU IS:3025-1964 p.14 6 Alkalinity (as Titrimetric method Ref: IS: 3025- _ Max.200 mg. IICO) 1964 p.12 Lit. 7 Chlorides (as Titrimetrid method and /Merck 21.2 Max. 200mg Cl) Instrumental method Ref: lit. IS:3025-1964 p. 34/Merck Instrument manual 8 Calcium (as Instrumental method by flame 9 Max. 75 Ca) photometer Ref: IS:3025-1964 p. mg./lit 53 9 Sodium (as Instrumental method by flame 35 Max 200mg. Na) photometer Ref: IS;3025-1964 p. lit 53 10 T.D.S Gravimetric method Ref: 363.9 Max. 500 mg IS:3025-1964 p. 19 lit. 11 E. Coli. Microbiological method Ref: ISI Absent Absent method 12 Yeast & Microbiological method Ref: ISI Absent Absent mould Count method 13 Aerobic Microbiological method Ref: ISI 84/ml & Max. 100/ml Microbial method 16/ml at 20 to 22" c Counts in 72 hrs & Max. 20 ml at 37" c in 24 hrs. 14 Orpano AOAC method by GC-ECD Absent Absent Chloride Detector Pesticides Residue 15 Mineral oil IIC test Ref: 3015-1964 p. 113 Absent Absent Opinion: The sample of Drinking Water packed is
misbranded under Sec. 2(ix) (k), as it does not comply Page 4 of 11 R/SCR.A/433/2008 ORDER with rules 32(c)(f) and 49(28) of Prevention of Food Adulteration Rules, 1955 of Prevention of Food Adulteration Act, 1954."
3. According to the report of the public analyst, the sample of drinking water is misbranded as defined under section 2(ix)
(k) of the Act as the same does not comply with the Rules 32(c)(f) and 49(28) of the Rules, 1955.
4. Mr. Sheth, the learned counsel appearing for the writ applicants would submit that the prosecution of his clients is not maintainable in law as water does not fall within the definition of "food" as defined under the Act. Mr. Sheth submitted that even otherwise the case is not of adulteration but the same is of misbranding. According to Mr. Sheth, the entire case has been now referred only for the purpose of imposing appropriate penalty.
5. On 24th July, 2008, this Court passed the following order;
"Heard learned advocates appearing for the parties.
Shri Tushar Sheth, learned advocate for the petitioner submits that definition of food in clause (v) of Section 2 of the Prevention of Food Adulteration Act, 1954 (in short the Act) does not include water and even notification dated 21st March, 2001 issued by Ministry of Health and Family Welfare in exercise of the powers conferred by sub-clause (c) of clause (v) of Section 2 of the Act cannot be said to have been issued in exercise of power conferred under sub-clause (c) of clause (v) of Section 2 of the Act inasmuch as the definition of sub-clause (c) reads as under:
(v) food means any article used as food or drink for human consumption other than drugs and water and include-Page 5 of 11
R/SCR.A/433/2008 ORDER
(a) any article which ordinarily enters into, or is used in the composition or preparation of, human food,
(b) any flavouring matter or condiments, and
(c) any other article which the Central Government may, having regard to its use, nature, substance or quality, declare, by notification in the Official Gazette, as food for the purpose of this Act;
Learned advocate for the petitioner further submits that drugs and water are specifically excluded from the definition of food, and, therefore, no notification under sub-clause (c) of clause (v) could have been issued. Learned advocate further relies on the decision in the case of State of Gujarat Through L.K.Patel v. Patel Kalpeshkumar Maganlal & Ors. reported in 2007(2) FAC 315.
Hence, Rule.
Notice as to interim relief returnable on 7th August, 2008.
Ms. Fhalguni Patel, learned APP, waives service of rule on behalf of respondent-State.
Ad-interim relief in terms of para 9 (c) till further order."
6. In Godipudi Surya Gopala Srinivasa Rao & Anr. vs. State of Andhra Pradesh & Anr., reported in 2018 Cri. LJ 896, a learned single judge of the Andhra Pradesh High Court has held as under;
"4. Learned counsel for the petitioners argued that the petitioners have not committed any offence and they are falsely implicated in the present case and, therefore, sought for quashing of proceedings against them. It is further submitted that water is excluded specifically from the definition of food and drinks under Section 2(v) of the Prevention of Food Adulteration Act, 1954 (for short, the Act), and mere conversion of water into ice without Page 6 of 11 R/SCR.A/433/2008 ORDER adding any substance to it will not bring ice within the purview of Section 2(v) of the Act. Learned counsel placed reliance on a decision of this Court in B.V.R. Reddy v. State of A.P , and submitted that this Court has considered a similar issue in that case and quashed the proceedings, holding that ice is not a food article and hence the provisions of the Act do not apply to the instant case. It is further submitted that notice under Section 13(2) of the Act was served on the petitioners on 26.11.2010, and the said notice was not sent by registered post along with copy of the analysis report received in Form III from the Public Analyst within the stipulated time of 10 days of receipt of the report from Public Analyst. It is further submitted that there is inordinate delay in serving the Section 13(2) notice, thereby, the petitioners have lost their valuable right to get the sample analysed by the Central Laboratory.
Learned counsel has also placed reliance in S.V.V. Satyanarayana Reddy v. State of A.P , Radheshyam Lohiya and another v. State of Andhra Pradesh , C.Rama Murthy and another v. State of Andhra Pradesh re. by the Food Inspector, Division I Ranga Reddy District , and M. Jaipal Reddy and another v. State of Andhra Pradesh . He has also placed reliance on the decision of this Court in Sangani Venkateswara Rao v. The State of A.P., rep. by its Public Prosecutor and another , wherein this Court observed in paragraphs 4 and 5 as under:
4. The contention of the learned counsel for the petitioner/accused is that the fact that the ice cubes were inspected and samples were taken is not in dispute, but he contended that the said product do not attract the provisions of the Prevention of Food Adulteration Act for the reason that the ice is a flexible article and is not a food article and the water is excluded specifically from the definition of food and drinks under Section 2(v) of the Act. The learned counsel for the petitioners/accused relied on a decision of this Court in B.V.R.Reddy vs. State of A.P in support of his contentions.
5. In the above said decision, learned single Judge of this court, after referring various authorities on the subject, has categorically held that ice cannot be brought within the purview of the Prevention of Food Adulteration Act in view of the specific exclusion of water from the definition of food under Section 2(v).Page 7 of 11
R/SCR.A/433/2008 ORDER
5. On these grounds, the learned counsel for the petitioners sought for quashing the proceedings in C.C.No.135 of 2010.
6. At the outset, it would be relevant to extract the provision under Section 2(v) and Section 13(2) of the Act, which read as under:
2(v): food means any article used as food or drink for human consumption other than drugs and water and includes
(a) any article which ordinarily enters into, or is used in the composition or preparation of, human food,
(b) any flavouring matter or condiments, and
(c) any other article which the Central Government may, having regard to its use, nature, substance or quality, declare, by notification in the Official Gazette, as food for the purposes of this Act.
Section 13(2) : On receipt of the report of the result of the analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.
7. In the instant case, it is evident from the record that the Food Inspector has collected the samples and sent them to Public Analyst on 07.05.2008, and the Analysts report dated 16.06.2008 was received by him on 19.06.2008. Thereafter, he has sent a letter to the Director, Institute of Preventive Medicine, on 24.10.2008 seeking consent and the Director has given consent on 31.01.2009, and the complaint has been filed on 08.07.2010. Therefore, from the date of collection of sample till the date of filing complaint, there is a delay of 26 months. As rightly contended by the learned counsel Page 8 of 11 R/SCR.A/433/2008 ORDER for the petitioners, there is violation of Section 13(2) of the Act. It is obvious that ice cannot be brought within the purview of food article in view of the specific exclusion of water from the definition of food and drinks under Section 2(v) of the Act. Therefore, the proceedings against the petitioners in C.C.No.135 of 2010 are liable to be quashed. "
7. It is not in dispute that PFA Act came to be amended by the Central Act No.34 of 1976, whereby Section 16A came to be added under which only fine is leviable.
8. The Supreme Court in the case of Nemi Chand v. State of Rajasthan, vide orders dated 10.03.2016 and 17.03.2016 passed in the Criminal Appeal No.214 of 2016, relying upon the earlier decision of the Supreme Court in the case T.Barai v. Henry Ah Hoe and Another, (1983) 1 SCC 177, wherein it was held that since the amendment was beneficial to the accused person, the same can be applied even with respect to the pending cases which came to be instituted after insertion of section 16A in the PFA Act. The Supreme Court in the aforesaid decision of T.Barai (supra) has held as under:
"22. It is only retroactive criminal legislation that is prohibited under Article 20 (1). The prohibition contained in Article 20 (1) is that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence prohibits nor shall he be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. It is quite clear that insofar as the Central Amendment Act creates new offences or enhances punishment for a particular type of offence no person can be convicted by such ex post facto law nor can the enhanced punishment prescribed by the amendment be applicable. But insofar as the Central Amendment Act reduces the punishment Page 9 of 11 R/SCR.A/433/2008 ORDER for an offence punishable under Section 16 (1) (a) of the Act, there is no reason why the accused should not have the benefit of such reduced punishment. The rule of beneficial construction requires that even ex post facto law of such a type should be applied to mitigate the rigour of the law. The principle is based both on sound reason and commonsense. This finds support in the following passage from Craies on Statute Law, 7th Edn, at pp. 387-388 :
"'A retrospective statute is different from an ex post facto statute, "Every ex post facto law ... ... .." said Chase J. in the American case of Calder v. Bull, (1798) 3 Dallas 386, 391 (US) "must necessarily be retrospective, but every retrospective law is not an ex post facto law. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive; it is a good general rule that a law should have no retrospect, but in cases in which the laws may justly and for the benefit of the community and also of individuals relate to a time antecedent to their commencement : as statutes of oblivion or of pardon. They are certainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto within the prohibition that mollifies the rigour of the criminal law, But only those that create or aggravate the crime, or increase the punishment or change the rules of evidence for the purpose of conviction .. .. .. There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime."
9. Indisputably, the sample of water has not been found to be adulterated. The case in substance is one of misbranding of the product. In such circumstances, the decision of the Supreme Court in the case of Nemi Chand (supra) is applicable to the facts of the present case on all force.
10. It is brought to my notice that the criminal case is now transferred to the court of the Judicial Magistrate, First Class, Kotda Sangani, District: Rajkot. The criminal case has been Page 10 of 11 R/SCR.A/433/2008 ORDER now renumbered as the Criminal Case No.136 of 2014. The writ of this order shall go to the court of the Judicial Magistrate, First Class, Kotda Sangani, Dist: Rajkot.
11. For the foregoing reasons, this writ application is partly allowed. The court concerned shall impose appropriate penalty in the nature of fine in accordance with law and put an end to the proceedings of the Criminal Case No.136 of 2014. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(J.B.PARDIWALA, J) Vahid Page 11 of 11