Punjab-Haryana High Court
Hindustan Lever Ltd vs State Of Punjab And Others on 6 October, 2010
Author: Sabina
Bench: Sabina
Criminal Misc. No.M-36194 of 2005 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Crl. Misc. No. M-36194 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 7.5.2004 (Annexure P3) filed by Government Food Inspector, complainant under Section 7/16 of the Prevention of Food Adulteration Act, 1954 (`the Act' for short) and under Rule 50 of the Prevention of Food Adulteration Rules, 1955 (`the Rules' for short) along with other proceedings arising out of the said complaint.
The case of the complainant, as per the complaint reads as under:-
Criminal Misc. No.M-36194 of 2005 2
"1. That I Dr. Harjot Pal Singh, complainant have been appointed as Govt. Food Inspector vide Punjab Government Gazettee Notification No. E.7(1) Pb/2001/3315, dated 13 July,2001 and have been authorised to institution prosecution under the Prevention of Food Adulteration Act, 1954 vide Punjab Govt. Notification dated 3.8.2001.
2.That on 19.7.2003, I the complainant Dr.Harjot Pal Singh along with Dr, Mohinder Nath, Sr., Medical Officer, Shankar, Distt. Jalandhar visited/inspected the premises of Ganga Juice Corner at Shop No. ER-140, Civil Lines, PNB Chowk Jalandahr City, where accused No.1 Shri Ranvir Sood was found present, who disclosed that he is the Prop. Of Ganga Juice Corner, Shop No. ER-140, Civil Lines, PNB Chowk, Jalandhar. The accused No.1 was having about 20 packs of 1 Litre each of Kwality Walls Classic Vanila Flavour ( Ice cream) which were kept for sale to the public for human consumption.
3.That the persons at the spot were requested to join the food sampling proceedings as Public witness but none was ready to join the same, hence, the complainant could not arrange for the Public Witness.
4.That I disclosed my identity to the accused No.1 as Govt. Food Inspector and showed my intention to take the sample of Kwality Walls Classic Vanilla Flavour (Ice Cream) for analysis. The accused No.1 disclosed me at the spot that he had purchased the said packs of 1 litre each of Kwality Walls Classic Vanilla Flavour (Ice Cream) from accused no.6 Aggarwal Traders vide Criminal Misc. No.M-36194 of 2005 3 Bill/Invoice No. 4010 dated 17.7.2003 and showed the Xerox copy of the same, which is attached herewith. I served the accused No. 1 a notice on form No. VI in writing which was duly signed by the accused no.1 and by me and the same was duly attested by Dr. Mohinder Nath, SMO aforesaid. One copy of form No. VI was duly received by the accused No. Sh.Ranvir Sood.
5. That the complainant purchased 900 gms. of Kwality Wall Classic Vanilla Flavour (Ice Cream) from a one ltr. Pack of Kwality Walls Classic Vanilla Flavour (Ice Cream) on the payment of Rs.75/- against a valid receipt after homogenizing it well. The receipt was duly signed by the accused No.1 and by me and the same was duly attested by Dr. Mohinder Nath SMO.
6.That the purchased pack of Kwality Walls Classic Vanilla Flavour (Ice Cream) was having the following label:
As per label on pack.
Kwality Walls Classic Vanilla Flavour Vanila Frozen Desert: Ingredients: Sugar, Milk Products, Vegetable oil, Liquid Fourse, emplyfying, stowlising agents, contains added flavour.
Best before 12 months from manufacturing (when stored at 18 degree C or below) Mfds.by Hindustan Lever Ltd. 165.166, Backbay Reclamation, Mumbai-400021 (Licensed Use) Net Qty. (1 Ltr.) MRP Rs.75.00 Incl. of all taxes Pkd./Batch No.... Criminal Misc. No.M-36194 of 2005 4 Mfd. By:
KIC Food Products Ltd. B-12, Lawrance Rd., New Delhi-110035.
Pkd. 06/03
7. That the purchased Kwality Walls Classic Vanilla Flavour 900 gms. Ice Cream kept in a Steel Donga and allowed to thaw. The said Ice Cream was divided into three equal parts of 300 gms.
each and put into three neat, clean and dry glass bottles. I added 30 drops of 40% formalin in each sample Bottle with the help of droper and each sample bottle was stoppered tightly, labelled, fastened and wrapped in a strong thick paper. The edges of strong thick paper were pasted on the sides of each sample Bottles with the help of gum. A paper slip having Sr. No. 94942, Code No. 102/OP/03 duly signed by the Local Health Authority, Jalandhar was pasted on each sample bottle of Kwality Walls Classic Flavour (Ice Cream) with the help of gum lengthwise covering the mouth of each sample Bottles and was further secured by means of strong thread, then each sample Bottle was sealed at the spot at five distinct places bearing the seal impression as "HBS". Then the signatures of the accused No.1 was taken partially on the paper slip of the LHA and partially on the wrapper of each Bottle and I also signed in the similar manner on each sample bottle.
8. That the spot memo was prepared at the spot which was duly signed by the accused No.1 and by me and the same was duly attested by Dr. Mohinder Nath, SMO aforesaid.
9. That I asked accused No. 1 to show the valid licence for sale of Food Articles i.e Kwality Walls Classic Vanilla Flavour (Ice Criminal Misc. No.M-36194 of 2005 5 Cream) valid for the year 2002-2004 as required under Rule 50 of the Prevention of Food Adulteration Rules, 1955 but he failed to show the same to me at the spot or afterwards.
10. That on reaching the office of the Local Health Authority Jalandhar on the same day in evening, I prepared five copies of Memorandum on form No.VII and three seal impressions of the seal used to seal the sample bottles were affixed upon it.
11. That one sealed sample was sent to the Public Analyst, Punjab Chandigarh alongwith a copy of Form No.VII bearing seal impression of the seal, used, in a sealed packet through Sukhwinder Singh, SSK (Class IV) office of Civil Surgeon, Jalandhar on the same day in the evening.
12. That a separate sealed envelop containing form No.VII bearing seal impression of the seal used was also sent to the Public Analyst, Punjab Chandigarh through the same Special Messenger.
13. That the remaining two sample portions of Kwality Walls Vanilla Classic Flavour ( Ice Cream) and two copies of Form No.VII having seals intact were deposited with the office of Local Health Authority, Jalanhdar on the same day in the evening.
14. That I, Dr.Harjot Pal Singh, complainant received the report of the Public Analyst, Punjab, Chandigarh, through the L.H A, Jalandhar, which shows that the sample is adulterated. The opinion of the Public Analyst is reproduced below:-
"That the Milk fat & Total solids of the contents of the sample are 7.99% & 35.18% against the minimum prescribed standard of Criminal Misc. No.M-36194 of 2005 6 10.0% & 36.0% respectively. Hence, the sample is adulterated."
15. That the accused have committed an offence under Section 7/16 of the Prevention of Food Adulteration Act, 1954 and under 50 of the Prevention of Adulteration Rules, 1955. As such necessary action may kindly be taken against the accused No. 1 being the seller, accused No. 2 and 3 being the manufacturer and accused No. 4 and 5 being Marketer and accused No. 6 & 7 being the supplier of Kwality Walls Classic Vanilla Flavour (Ice cream) according to law as the all are responsible for day to day sale, work and conduct of their firms/concerns. The complaint is hereby submitted for disposal in accordance with law, please,
16. That the complaint being a public servant and have to perform multifarious duties, is unable to attend this Hon'ble Court on each and every date of hearing of this case, hence my presence on each and every date of this case may kindly be exempted and the APP attached with this Hon'ble Court may kindly be allowed to appear on my behalf. However, I (complainant) may be summoned as and when so required."
Learned counsel has submitted that the articles sold by the petitioner was frozen desert and no standard had been prescribed under the Rules 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.
A perusal of the record reveals that a sample of Kwality Walls Criminal Misc. No.M-36194 of 2005 7 Classical Vanilla had been taken by the complainant-Food Inspector on 19.7.2003. Although in the complaint, the said food articles were described as Ice Cream but 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 Classical Vanilla had been taken. The said food article, 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 filled in by the Food Inspector, at the time of drawing of the sample reveals that the sample had been drawn from Vanilla Frozen Desert and ingredients of the said food articles were sugar, milk products, vegetable oil, liquid glucose emulsifying and stabilizing agents. Thus, the food article which was being sold by the petitioner was not Ice Cream but was a frozen desert. At the relevant time, the said food article 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 Criminal Misc. No.M-36194 of 2005 8 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 had been prescribed for frozen desert, the sample drawn by the Food Inspector could not have been tested qua standard prescribed for the Ice cream. Merely because it has been mentioned by the Food Inspector on the sample sent for chemical examiner that it was Kwality Walls Classical Vanilla Ice Cream does not make the sample drawn of frozen desert an Ice cream.
Accordingly, this petition is allowed. The complaint dated 7.5.2004 as well as further proceedings arising out of the said complaint are quashed.
( Sabina ) Judge October 6 ,2010 arya Criminal Misc. No.M-36194 of 2005 9