Madras High Court
A.Ramachindir vs State Rep. By Its on 18 July, 2017
Author: R.Mahadevan
Bench: R.Mahadevan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.07.2017 CORAM THE HONOURABLE MR. JUSTICE R.MAHADEVAN Crl.O.P.No.1549 of 2011 and M.P.Nos.1 and 2 of 2011 1.A.Ramachindir Nominee, MTR Foods Pvt. Ltd. 2.M/s.MTR Foods Pvt. Ltd rep. by its Nominee A.Ramachindir ... Petitioners Vs State rep. by its Food Inspector Zone VII, Chennai Corporation Chennai. ... Respondent Criminal Original Petition filed under Section 482 Cr.P.C. to call for the records in SMMF No.6 of 2010 on the file of the learned XX Metropolitan Magistrate, Rippon Buildings, Chennai 600 003 and quash the same. For Petitioners : Mr.R.Karthikeyan For Respondent : Mr.C.Iyyapparaj, APP ORDER
Questioning the criminal proceedings initiated against the petitioners, arraying them as A3 and A4, in SMMF No.6 of 2010 on the file of the learned XX Metropolitan Magistrate, Rippon Buildings, Chennai 600 003, the present Criminal Original Petition came to be filed.
2. In brief, the case relating to this petition, is as follows:
The respondent herein has filed a private complaint against the petitioners herein and 2 others for the alleged offences punishable under Section 16(i)(a)(i) of the Prevention of Food Adulteration Act, 1954 r/w Sections 7 (ii) and 2 (ix) (k) and Rules 32(b)(2)(vi)(B) of the Prevention of Food Adulteration Rules, 1955. The complaint proceeds as if on 17.12.2009, the respondent had gone to Green Supermarket in Egmore and introduced himself as the Food Inspector, Zone VII and made inspection. During the course of the same, suspecting about 20 packets of MTR Chilli Powder to be adulterated, he took 9 packets each weighing 100 gms, of MTR Chilli powder as samples and obtained the signature of one K.Jamal /A1 who was working as Salesman and divided the samples into 3 parts and sealed it. Subsequently, he brought the same to his office and informed about the same to the Local Health Authority. Thereafter, he sent the samples to the Laboratory, Chennai Corporation for examination and informed the same vide Form VI to the manufacturer of the product. After receipt of the samples on 17.12.2009, the Public Analyst examined the same and sent his report dated 22.01.2010 to the effect that the samples were found to be misbranded as the amount of protein carbohydrate (Specify quantity of sugar) and fat in grams (g) to be mentioned on the label, was not found and thereby Rule 32(b)(2)(vi)(B) of PFA Rules, 1955, had been violated. Based on the same, the respondent, after obtaining requisite sanction from the Joint Director of Public Health on 29.09.2010, has launched prosecution against the salesman, owner of the shop, nominee and the manufacturer of the product, before the learned XX Metropolitan Magistrate, Rippon Buildings Chennai-3. After receipt of the notice under Section 13(2) of the Prevention of Food Adulteration Act, 1954 (hereinafter shortly referred to as PFA Act), the petitioners are before this Court with the present petition.
3. It is contended by the learned counsel for the petitioners that as per Rule 32(b)(2)(vi)(B) of the PFA Rules, the quantity of Sugar specified in Carbohydrate was not found on the label and the same is misbranded. However, the same is not a ground for initiating the prosecution, as the proviso to the said Rules came to be amended in the year 2008, as per which, the nutritional information may not be necessary in the case of foods, such as, raw agricultural commodities, like, wheat, rice, cereals, spices, spice mixes, herbs, condiments, table salt, sugar, jiggery etc. In the present case, the Chilli powder falls under the category of Spices, as such, the nutritional information need not be mentioned on the label. Even otherwise, the report of the Public Analyst does not indicate as to how and in what manner, the sample was misbranded. In such circumstances, the criminal proceedings initiated against the petitioners is liable to be quashed.
4. In support of his contention, learned counsel for the petitioner placed reliance on the decision of this Court reported in 2010 (3) MWN (Cr.) 57 (M.N.Katharmytheen and another v. State), wherein, this Court under similar circumstances, quashed the complaint lodged against the petitioners therein on the ground that there must be specific averment that customers being misled on account of misbranding.
5. Learned Additional Public Prosecutor appearing for the State fairly submitted that there is no reason in the report of the Public Analyst as to how and in what manner, the sample was misbranded.
6. I have considered the submissions made on either side and perused the materials placed before this Court.
7. There is no dispute with regard to the inspection made by the respondent and also the samples taken and sent for analysis. What was disputed is the report of the Public Analyst, based on which, the criminal proceedings is initiated against the petitioners and two others, for the offences under Section 16(i)(a)(i) of the Prevention of Food Adulteration Act, 1954 r/w Sections 7 (ii) and 2 (ix) (k) and Rule 32(b)(2)(vi)(B) of the PFA Rules, 1955.
8. In order to determine the issue involved herein, it is pertinent to look into the the contents of the report of the Public Analyst and the relevant provision of law, for which, the petitioners are facing criminal prosecution, which read thus:
Report of the Public Analyst:
Examination of the Label:
Declaration of the Under Nutritional As per Rule 32(b)(2)(vi)(B) quantity of sugar facts per 100 gm of the PFA Rules 1955, in Carbohydrate carbohydrate (g) amount of Protein 32 Carbohydrate (specify quantity of sugar) and fat in gram (g) to be mentioned on the label. (The quantity of sugar not specified in carbohydrate) Opinion: I am of the opinion that the sample is found to be misbranded since it is not labelled in accordance with the requirements of Rule 32(b)(2)(vi)(B) of PFA Rules 1955.
Rule 32 of the PFA, Rules, 1955:
32.Every prepackaged food to carry a label:-
(a)General -
(1)...(2) (3) (4)
(b)Labelling of prepackaged foods:-
(1)...
(2)List of ingredients:-
(i)...
(ii)...
(iii)...
(iv)...
(v)...
(vi)the nutritional information or nutritional facts per 100 gm or 100ml or per serving of the product shall be given on the label containing the following: -
(A)energy value in kcal;
(B)the amounts of protein, carbohydrate (specify quantity of sugar) and fat in gram (g);
(C)...
(D)...
(E)...
Provided that -
(a)the 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, like, soluble tea, coffee, soluble coffee, coffee-chicory mixture, packaged drinking water, packaged mineral water, alcoholic beverages or fruit 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 by food services vendors or halwais, or food shipped in bulk which is not for sale in that form to consumers;
(b)...
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:
9.At this juncture, it is appropriate to consider the decision of this Court made in Crl.O.P.(MD) No.5765 of 2009, where, the learned Judge cited the view of his Lordship Justice Malai Subramanian in an earlier occasion, which read as follows:
"The petitioner seeks to quash the proceedings pending against them in all the matters where they were prosecuted for the offence of misbranding under the provisions of the prevention of Food Adulteration Act.
2. According to the learned senior counsel, the label pasted on the containers of the food products do not contain the term "up to" as ordered in the letter of the State Local Health Authority and joint Director in his communication dated 28.09.2001. The petitioner plead that they are not aware of the distinction between new label and the old one. They also undertake to paste the new labels on the food products hereafter. It does not appear to be a grave offence of misbranding. There is not much distinction between the contents of the earlier label and the new label except incorporation of certain words. It is also appropriate to consider the decision of this court made in Crl.O.P.(MD) No.11867 of 2009, wherein, this Court has held as follows: "A perusal of the complaint would reveal that it has been merely stated that 'sample is misbranded as it is not labelled in accordance with Rules 32(f)(i) and 42 (zzz) 17 of P.F.A. Rules, 1955. It is not quite clear as to how the sample is misbranded and the averments made in the complaint are also bereft of any particulars. There must be a specific averment that the customers are being mislead on account of misbranding and in the absence of any such clear averments, it cannot be said that the customers are mislead or misdirected."
10.But, here, the Public Analyst has simply stated that the sample was misbranded since it is not labelled in accordance with the requirements of Rule 32(i) and Rule 42 (zzz) (17) of the P.F.A. Rules 1955, but he has not mentioned as to how and what manner the sample was misbranded. There must be a specific averment that the customers being mislead on account of misbranding and in the absence of any such clear averments, it cannot be said that the customers are mislead or misdirected.
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 event 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.
13. In the result, this Criminal Original Petition is allowed and the criminal proceedings in SMMF No.6 of 2010 on the file of the learned XX Metropolitan Magistrate, Rippon Buildings, Chennai 3, is quashed. Consequently, connected Miscellaneous Petitions are closed.
18.07.2017 Index:Yes/No rk To
1. The XX Metropolitan Magistrate, Rippon Buildings, Chennai 600 003,
2.The Food Inspector Zone VII, Chennai Corporation Chennai.
3.The Public Prosecutor, High Court, Madras.
R.MAHADEVAN, J.
rk CRL.OP.No.1549 of 2011 18.07.2017