Gujarat High Court
State Of Gujarat vs Rasikbhai Popatlal Patel & on 25 February, 2013
Author: N.V.Anjaria
Bench: N.V.Anjaria
STATE OF GUJARAT, ON BEHALF OFH K DHOKIA FOOD INSPECTOR....Applicant(s)V/SRASIKBHAI POPATLAL PATEL R/CR.RA/342/2001 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION NO. 342 of 2001 With CRIMINAL MISC.APPLICATION NO. 6119 of 2003 In CRIMINAL REVISION APPLICATION NO. 342 of 2001 ================================================================ STATE OF GUJARAT, ON BEHALF OFH K DHOKIA FOOD INSPECTOR....Applicant(s) Versus RASIKBHAI POPATLAL PATEL & 7....Respondent(s) ================================================================ Appearance: MR LR PUJARI, LD. APP for the Applicant(s) No. 1 MR PM THAKKAR, LD. SR. ADVOCATE FOR M/S TRIVEDI & GUPTA, ADVOCATE for the Respondent(s) No. 1 - 4 , 8 RULE SERVED for the Respondent(s) No. 6 RULE UNSERVED for the Respondent(s) No. 5 , 7 ================================================================ CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA Date : 25/02/2013 ORAL ORDER
The afore-mentioned Criminal Revision Application preferred by the State through the Food Inspector, Office of the Assistant Commissioner of Food and Drugs Control Administration, Bhavnagar, is directed against order dated 29th December, 1999 passed by the learned Chief Judicial Magistrate, Bhavnagar in Criminal Case No.6523 of 1998, whereby the learned Chief Judicial Magistrate has discharged the accused persons dropping the charges against them in respect of offences under Section 2(9)(k) of the Food Adulteration Act, 1984 (hereinafter referred to as 'the PFA Act') read with Rule 32-E of the Food Adulteration Rules, 1985 (hereinafter referred to as 'the PFA Rules'). This Court issued Rule in the Revision Application on 07th July, 2003.
1.1 Criminal Miscellaneous Application No.6119 of 2003 came to be filed by the original respondent No.6 with a prayer to recall the aforesaid order dated 07th July, 2003 passed in above Criminal Revision Application, on the ground that Revision Application could not have been entertained as it was beyond limitation for more than 400 days. It was inter alia stated in the said application that prior to filing of the Revision Application, respondent-State had preferred Criminal Appeal No.460 of 2000 under Section 378(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code ) in which there was delay of three days, and for condoning the same, Criminal Miscellaneous Application No.5778 of 2000 was filed. The delay was refused to be condoned by this Court on the ground that proper remedy was to file Revision Application and not the acquittal appeal since the order passed by the learned Magistrate was one of discharge under Section 245 of the Code. It was thereafter that the present Revision Application came to be filed after delay of 400 days without being accompanied by the application and prayer for delay condonation. In that context, it was prayed that the order dated 07th July, 2003 passed in the Revision Application deserves to be recalled.
1.2 Both, Criminal Miscellaneous Application and Criminal Revision Application, are listed on board today. As consented and requested by learned advocates appearing for the respective parties, and as agreed between them, the main Revision Application itself is considered and taken up for final hearing.
2. On behalf of the applicant-State, learned Additional Public Prosecutor Mr.L.R. Pujari appeared whereas on behalf of the respondents learned senior counsel Mr.Prakash Thakkar assisted by learned advocates Mr.Abhishek Mehta and Mr.Nimesh Patel for M/s.Trivedi & Gupta appeared.
3. Necessary facts needs to be outlined. The proceedings leading to the filing of this Revision Application originated by a complaint filed by the Food Inspector registered as Criminal Case No.6523 of 1998 before the Court of learned Chief Judicial Magistrate, Bhavnagar, in respect of the alleged offences under the provisions of the Prevention of Food Adulteration Act, 1954 and Rules made thereunder. The Food Inspector took sample of iodized salt of Nirma brand from packing of one kilogram from the dealer who was running firm in the name of Madhav Traders in Bhavnagar, engaged in storing, purchasing and selling of food items. The sample was taken on 28th March, 1998 at the place of firm from one Rasiklal Popatlal Patel, partner of the firm, who is respondent No.1 herein. The sample taken was thereafter sent to the Public Analyst after undergoing necessary procedure of keeping the same in the clean glass jar, duly packing it and applying seal thereon. On 23rd April, 1998 the report of the Public Analyst was received through the Local Health Authority & Assistant Commissioner, Food and Drugs Control Administration, Bhavnagar and according to the analysis report of the Public Analyst, label of the samples of the packing did not have on it the Batch Number. It amounted to breach of Rule 32-E of the Prevention of Food Adulteration Rules, 1985. In the circumstances, the sample was treated as misbranded under Section 2(9) of the Act as which, according to the report, was offence under Section 7(2) punishable under Section 16 of the Act.
3.1 The respondent Nos.1 to 3 are the partners of the firm whereas respondent No.6 is a supplier, which is represented by respondent No.5. The respondent No.8 is the producing company represented by respondent No.7. The respondent Nos.1 to 8 were shown and arraigned as accused in their such respective capacities. By order dated 08th December, 1999, the learned Chief Judicial Magistrate directed that trial is required to be proceeded as warrant case.
3.2 In the said proceedings, all the respondent-accused filed Application Exhibit 6 praying for their discharge and dropping of the proceedings, on the ground that the complaint was filed for the offence under the PFA Act in connection with breach of Rule 32-E of the PFA Rules, which Rule has been declared as invalid. The learned Chief Judicial Magistrate relying upon the decision of the Apex Court in Dwarka Nath Vs. Municipal Corporation of Delhi [AIR 1971 SC 1844] held that no offence was made out and the accused persons were not liable to be charge-sheeted. It is against the said order, the State has approached this Court by way of above-captioned Revision Application.
4. Learned Additional Public Prosecutor straggled in vain in assailing the impugned order, as it was not possible for him to dispute the ratio of Dwarka Nath (supra) on the other hand, learned Senior Counsel submitted that in view of the only ground which stands answered by the said decision of the Supreme Court, the Revision Application of the state has to be dismissed. He also relied on oral judgment dated 23rd April, 2012 of this Court in Jaswantbhai Ishwarbhai Patel & 3 Vs. State of Gujarat and another passed in Criminal Miscellaneous Application No. 5709 of 2008. Another oral order dated 22.12.2003 in Wrigley India Pvt. Ltd. Vs. State of Gujarat passed in Criminal Miscellaneous Application No. 232 of 2002, in which this Court relied on Dwarka Nath (supra) was also produced in furtherance of the submissions.
5. Having considered the facts and having heard the learned counsel for the respective parties, amongst the main facts not in dispute, the first is that the case against the account persons-respondents herein was only that on the packing of iodised salt of which sample was taken, Batch Number was not mentioned. In that sole context, offence was alleged based on the non-compliance of the provision of Rule 32-E of the PFA Rules. The Apex Court in case of Dwarka Nath (supra) dealt with the vires of Rule 32-E of the Rules and the said Rule to be ultra vires as under:
This leaves us for consideration the question whether R. 32 (b) and (e) fall within the ambit of rule making power under cl. (e) of S. 23 (1). We will first take up for consideration the vires of cl (e) of Rule 32. There cannot be any controversy that the object of a rule framed under cl. (d) must be with a view to preventing the public or the purchaser being deceived or misled as to the character, quality or quantity of the article. We have already pointed out that in this case the label contained the words "pure ghee" and on analysis of the sample it has been found to conform to the standard.
It is difficult for us to appreciate how the giving of the batch number or the code number alone without giving any further particulars such as date of manufacture of the article of food and the period within which the said article has to be utilised, used or consumed and the quantity of the article in a container, will prevent the public or the purchaser being deceived or misledas to the character, quality or quantity of the article. No attempt has been made by the respondent to establish any relation between the giving of the batch number or the code number with the public or the purchaser being prevented from being deceived or misled in respect of the matters referred to in cl. (d). We are not able to find any rational or even a remote connection between the batch or code number artificially given by a packer and the public or the purchaser being prevented from being deceived or misled as to the character, quality or quantity of the article, contained in a sealed tin.
[Para 20] There is no definition of the expression "batch number" or "Code number" either in the Act or the Rules. It is also admitted that even assuming that the batch or code number has to be given, there is no further obligation to specify in the label the date of packing and manufacture of the article of food or the period within which the article of food has to be utilised, used or consumed. In the absence of any obligation to give the particulars mentioned by us above, the public or the purchaser will not be able to find out even the freshness of the contents of a container. Therefore, it follows that merely giving an artificial batch number or code number will not be of any use to the public or to the purchaser. In view of all these circumstances we are of the opinion that rule 32 (e) is beyond the rule making power even under S. 23 (1) (d) of the Act. The appellants could not be convicted for any violation of cl. (e) of R. 32 as the said provision, as pointed out above, is invalid.
[Para 21] 5.1 The other relevant details such as name of manufacturer, his address, weight and ingredients of the commodity were mentioned. It also mentioned the month and the year of manufacturing and the price. It is also not in dispute that the report of the Public Analyst revealed that there was no adulteration. It cannot be gainsaid that since all the relevant details were mentioned, there was no likelihood that purchaser would be deceived or was being misguided. The purchaser/consumer is not concerned with the Batch Number.
5.2 It may also be noticed that the sample was taken as back as in March, 1998. Almost 15 years has passed when the Revision of the State against the discharge of the accused comes up for consideration. The passage of time rendered the issue stale, coupled with the clinching aspect that Rule 32 E in the context of which offence was alleged, is held ultra vires as above. The Apex Court categorically held that there is no rational or even connection between Batch Number given by the packer, which may deceive, misbrand or prevent the purchaser or consumer with regard to the character or quality of the article packed only because of non mentioning of Batch Number, so as to treat the reach amounting to offence. Another important aspect is that there was no adulteration. The report of the Public Analyst that the salt of which the sample was taken had no adulterated contents. Therefore, the foodstuff in question was not one, which could cause threat to the health of the consumer/purchaser.
6. In light of all aspects considered above spearheaded by the point that since Rule 32-E is held ultra vires and in the present case and the offence is alleged only for breach of the said Rule, no offence can be said to have been made out. It cannot be said that there is any ground, muchless sufficient ground, to proceed against the accused. In the circumstances, it could be safely stated that even if the respondents-accused are to be tried for the offence for which they were sought to be charged, it is unlikely that their trial would result in conviction. As already mentioned hereinabove, only because the Batch Number was not indicated, breach of Rule 32 E was found and offence under the Act was alleged against the respondents. The said Rule having been declared to be ultra vires, it could not have been the basis for framing the very charge, bringing out a situation were there is no ground to proceed.
7. The order is, therefore, eminently just, proper and correct leaving no scope for interference under the revisional jurisdiction of this Court.
8. Accordingly, the Revision Application is dismissed. Rule stands discharged.
9. As the Revision Application is dismissed, no orders are required to be passed in Criminal Miscellaneous Application NO.6119 of 2003. The same is accordingly disposed of.
(N.V.ANJARIA, J.) Anup Page 9 of 9