Madras High Court
S/O.Raj Kumar. ... Petitioner/Accused ... vs . on 5 October, 2018
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on : 12.07.2018 Pronounced on : 05.10.2018 CORAM THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR Crl.O.P.Nos.19241 & 20867 of 2011 and M.P.Nos.1, 2 & 1, 2 of 2011 Crl.O.P.No.19241 of 2011 1.Charles Mcpherson, S/o.Denzil. 2.Vipin Sachdev, S/o.Raj kumar. ... Petitioner/Accused Nos.2 & 4 Vs. 1.R.Kannan, Food Inspector, Zone-VII, Corporation of Chennai, Chennai 600 003. ... Respondent/Complainant 2.B.G.Ponnappa, Manager, Tata Coffee Ltd., Pollibeta, Kodagu, Karnataka 571 215. ... Respondent/Accused No.3 Crl.O.P.No.20867 of 2011 B.G.Ponnappa ... Petitioner/Accused No.3 Vs. R.Kannan, State represented by its Food Inspector, Zone-VII, Corporation of Chennai, Chennai 600 003. ... Respondent/Complainant COMMON PRAYER: Criminal Original Petitions are filed under Section 482 of the Code of Criminal Procedure, to call for the records relating to the complaint S.M.M.F No.26 of 2011 on the file of the XX Metropolitan Magistrate, Rippon Buildings, Chennai 600 003 and quash the same. For Petitioners : Mr.T.Arulraj (in Crl.O.P.No.19241 of 2011) For Petitioner : Mr.R.Karthikeyan (in Crl.O.P.No.20867 of 2011) For Respondent : Mr.G.Anantharangan Standing Counsel for Corporation * * * * * C O M M O N O R D E R
The petitioners in Crl.O.P.No.19241 of 2011 and the petitioner in Crl.O.P.No.20867 of 2011 are A.1 to A.3 in a complaint filed by the respondent, which is pending trial in S.M.M.F.No.26 of 2011 under section 7(ii) 16(a) (i) of the Prevention of Food Adulteration Act, 1954 herein after referred as the Act and under Rule 37, 50(i) of the Prevention of Food Adulteration Rules, 1955 herein after referred as the Rules. For the sake of clarity, the petitioners are referred to as Accused and the respondent as Complainant as found in the complaint.
2.The case of the complainant is that the complainant is a Food Inspector for Zone-VII comprising Ward 97 to 113 and he is a notified Food Inspector. On 24.03.2010, the complainant had entered into the Restaurant at No.19, 3rd Street, Wallace Garden, Nungambakkam of which the 1st accused is its Manager and the 2nd accused is the Proprietor and the complainant introducing himself as Food Inspector and on inspection of its kitchen, the complainant found 10 pkts of Coorg Filter Coffee (without chicory) 200 gms. for preparation of food items for the public. On inspection of the packets, it was found that Coorg filter coffee (without chicory), Tata Coffee Ltd., Pollibetta - 571 215 Kodagu, Karnataka address was found with manufacturing date 12/9 with Lot No.T/12. Suspecting that the packets would contain adulteration for the purpose of sending it to analysis, samples to be taken, which was intimated to the Accused Nos.1 and 2, who had also furnished the manufacturers address. The requisite forms were served to the Accused Nos.1 and 2, nobody came forward to be a witness and the complainant proceeded further. On payment of Rs.165/- he had purchased the coffee packets, thereafter, he had prepared the samples in three parts of 200 grams i.e., he had taken one packets each. After assigning mark, Code and Sl.No. and pasting wrapper and covered with paper and using thread to fasten the same and affixing the wax seal and thereafter, entering the Sl.No. and Code number, thereafter, brought the samples to his office and sent to the Corporation Analyst. Thereafter, intimated the local health authorities of the samples and deposited to the local health authority and one sample was sent to the Corporation Analyst. The analyst received the said sample on 24.03.2010 and had given a report on 26.04.2010 and the opinion of the analyst is that the sample is found to be misbranded since, false claims have been made for the energy value calculation for this food as per Rule 37 of the Rule, which was received by the complainant on 03.05.2010. Thereafter, he had written a letter to the 3rd accused to nominate a person responsible along with the written consent and as per this Thiru.B.G.Ponnappa, 3rd accused was nominated. Thereafter, on obtaining sanction on 08.04.2011 the complaint was filed.
3.The contention of the accused Nos.1 and 2 is that the 2nd accused is the Owner of the restaurant called TUSCAKANA PEZZRIA and the 1st accused is the Manager. It is submitted that the manufacture of the Coffee was the 3rd accused, which was purchased from the market. The said coffee powder was not exhibited for sale and was stored in the kitchen for the personal use of the staff of the restaurant. The complainant has no authority to collect the sample, which was kept in sealed sachets in the kitchen as per proviso 2 to Section 10. The further submission is that the procedures of the Act and the Rules have not been followed by the complainant and no notice was given to them before sending the sample for analysis. The sample was taken on 24.03.2010 and they were informed of public analyst report only on 11.07.2011 belatedly after 1 year and 4 months, the public analyst report is incomplete since one of the important parameter for caffeine falling under item No.A08.01(5) of the Appendix B of the rules is not detected. Further, there is no prescription of calories in the product to declare that the product is good or bad. Whatever calories present in the package has been mentioned and the finding of the analyst is that the sample is misbranded since false claim has been made for energy value calculation product as per Rule 37 of the Rule is not correct. Further, there is no misbranding and false claim. It is further submitted that the petitioners are not the manufacturers of the food item seized and the same was purchased from the open market and stored in the kitchen for the use of their staff and prayed to quash the proceedings.
4.The contention of the 3rd accused, the manufacturer is that on receipt of the notice as per Section 14-A and 72 of the Act, the manufacturer had intimated the nominee i.e. the 3rd accused and it had questioned the manner in which the samples have been taken. Taking into consideration, there have been nine packets and out of these nine packets it ought to have been divided into three equal parts and three packets each. In the present case the respondent herein had taken only three packets and thereafter, divided into three parts, which could not be stated as homogeneous sample. Further, the Analyst report states that he had received only one packet of 200 grams, in view of this, mandatory violation has been occurred.
5.The other contention is that as per Rule 32(b)(ii)(VI)(a) of the Rules the mention of nutritional information may not be necessary in case of foods such as raw agricultural commodities, like wheat, rice, cereals, spices, spice mixes, herbs, condiments, table salt, sugar, jaggery or non nutritive products soluble tea, coffee, soluble coffee, coffee chickery mixture, packaged drinking water, mineral water, alcoholic beverages, or fruits and vegetables, processed and pre-packaged assorted vegetables, fruits, vegetables and products that comprise of single ingredients, pickles, papad or foods served for immediate consumption such as served in Hospitals, Hotels or Food Services Vendors, Halwais or food shipped in bulk, which is not for sale in that form to consumers. In the above case the coffee powder was admittedly found in the kitchen of the restaurant and the packet was not for sale. In view of the above, the case of the prosecution to be quashed.
6.Further, submitted that there is no violation of Rule 37 since the label does not contain statement or claim or design or device or fancy name, which was false or misleading concerning the quantity or the nutritive value in the place of original of the said food. Further, it was contended that there is nothing in the Rule, Aqueous extract and energy value should be the same. The yet another contention is that the accused had lost his right of second sampling as the complaint was instituted on 06.11.2011 and the 13(2) notice dated 11.07.2011 was received much later. Further, it could be seen that the life time of the sample even according to the analyst report was six months. The date of package present in the sample was 12/2009 and the life time had expired in the month of May 2010. Admittedly, the case came to be filed beyond the period of life time of the product. The valuable right of the 2nd sampling has been denied. In view of denial of the above indefeasible right prayed that the complaint to be quashed.
7.The complainant had filed a counter in which he had reiterated about he being the Food Inspector of the jurisdiction, who had lifted the sample and send the same to Public Analyst, who had reported as misbranded except of lifting of the sample he has done nothing in the case. Admits about that A3 being nominated by the company. Further submits that it is the public analyst, who has authorized to record violation of the food sample. Other than this there is nothing much in the complaint.
8.On considering the rival submissions made on the either side and on perusal of the materials it is found that admittedly the sample taken is not as per the procedure and it is not a Homogeneous sample. The coffee power was stored in the kitchen, which was not intended for sale as Coffee power. It was not displayed in notice board for sale in the Hotel premises in the form of Coffee power to the consumers. The Analyst report does not show that aqueous extract and energy value should be same and no rule prescribe the same. The Analyst report is incomplete as there is no mention of caffeine content an important parameter.
9.In the above case the complaint was instituted on 06.07.2011 and the 13(2) notice dated 11.07.2011 was received much later. Admittedly, coffee power packed on 12/2009 and life time is six months, which would be May/2010. Thus, the indispensable right of second sampling was denied and lost as the complaint was filed on 06.07.2011 after a delay of one year and four months.
10.The learned counsel for the petitioner relied upon the citation of this Court in a case of A.Ramachindir Nominee, MTR Foods Pvt. Ltd., and Another Vs. State rep. by its Food Inspector Zone VII, Chennai Corporation, Chennai reported in (2017) 4 MLJ (Cri) 212 and the relevant paragraphs are extracted here under:
9.On conjoint reading of the contents of the Public Analyst's report and Rule 32 of the PFA, Rules, would make it clear that the Chilli Powder comes under the category of food spice mixes, as per the proviso referred to above, the nutritional information of the said food, may not printed on the label. In such view of the matter, this Court is of the opinion that the initiation of the criminal proceedings against the petitioners and others, based on the report of the Public Analyst that the amount of protein carbohydrate and fat in gram was not mentioned on the label, in accordance with the requirements of Rule 32(b)(2)(vi)(B), is arbitrary and illegal.
10.Even otherwise, the Analyst Report simply states that the sample was found to be misbranded. There is no specific averment or explanation, as to how and in what manner, the sample was misbranded, on account of which, the customers are misled or misdirected. In the absence of any specific averment, it cannot be stated that the sample was misbranded, due to which, the customers are misled or misdirected.
11.At this juncture, it is useful to refer to the decision cited by the learned counsel for the petitioners. The relevant paragraphs of the said decision are extracted hereunder:
11.In the above stated circumstances, as already stated that there is a delay in issuing 13(2) notice and the details of misbranding has not been mentioned, I am of the view that the complaint against the petitioner is liable to be quashed.
12.For the reasons stated above, this Court is of the view that the criminal proceedings initiated against the petitioners is arbitrary, illegal and unfounded. In the evnet of the same being allowed to go on, it would amount to abuse of process of law and hence, the same is liable to be quashed.
11.In view of the above citation, these Criminal Original Petitions are allowed and the complaint in S.M.M.F No.26 of 2011 on the file of the XX Metropolitan Magistrate, Rippon Buildings, Chennai600 003 is quashed. Consequently, the connected Miscellaneous Petitions are closed.
05.10.2018 Speaking order/Non-speaking order Index: Yes/No Internet: Yes/No ah To
1.The XX Metropolitan Magistrate, Rippon Buildings, Chennai 600 003.
2.R.Kannan, State represented by its Food Inspector, Zone-VII, Corporation of Chennai, Chennai 600 003.
3.The Public Prosecutor, High Court, Madras.
M.NIRMAL KUMAR,J.
ah PRE-DELIVERY ORDER IN Crl.O.P.Nos.19241 & 20867 of 2011 05.10.2018