Jaykal Exports Ltd. & Ors. vs Nct Of Delhi & Anr. on 1 March, 2011

[Cites 4, Cited by 3]

Delhi High Court

Jaykal Exports Ltd. & Ors. vs Nct Of Delhi & Anr. on 1 March, 2011

Bench: Shiv Narayan Dhingra

                 * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                 Date of Reserve: 4th February, 2011
                                                      Date of Order: March 01 , 2011
+Crl. M.C. 3311of 2009
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                                                                          01.03.2011

JAYKAL EXPORTS LTD. & ORS.                         ... Petitioner
                Through: Mr Tanveer Ahmed and Mr. Dilip A. Taur,
          Advocates

               Versus

N.C.T. OF DELHI & ANR.                                       ... Respondents
                   Through: Mr. Mithilesh Kumar, Advocate for Mr. O.P.
                   Saxena, Addl. PP for the State


JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

JUDGMENT

1. By this petition the petitioner has prayed for quashing of criminal complaint No. 46/PF/DA/2002 under Section 16 of the Prevention of Food Adulteration Act ("PFA Act", for short).

2. A sample of wafer biscuits belonging to the petitioner company was picked up by Food Inspector for testing adulteration. The test report of public analyst showed that the sample contained Tilfany Banana Cream wafers in 30 gm original packet and the packet was having all declarations except „Batch Number‟ and „Best Before‟. Colour and flavor were declared as per the rules. The sample was found conforming to the norms of PFA Act. However, it was opined by Public Analyst that the sample was misbranded as there was violation of Rule 32 (e) (I), Rule 24 and Rule 64 BB of PFA Act. It is submitted by counsel for the petitioner that there was no Crl. M.C. 3311 of 2009 Page 1 of 3 adulteration as reported by Public Analyst. The petitioner had imported the packed goods and sold to G.J. Foods on high seas sale basis. The misbranding, as alleged, was merely technical in nature and as per policy of the State this prosecution should not have been initiated.

3. It is not disputed that the sample had conformed to the food standards and only issue was about misbranding. The sample was picked up on 2nd March, 2001 and the offence was thus committed allegedly on 2nd March, 2001 and petitioner was covered by a policy of non-prosecution, in force at that time.

4. This Court had considered the aspect of technical offence of mis-branding and the policy of the respondent in S.S. Gokul Krishnan Vs. NCT of Delhi (2009 Cri L.J. 1386) and observed as under:

"27. The alleged offence of violation of Rule 32 (f) and

(i) was found to have been committed in the year 2005. At the relevant time department policy no.F6(228)/85/EFF/PFA, was in force and the said policy was cancelled, modified or withdrawn vide order No.5/07 dated 14.09.2007. As per the said policy, cases of breach of Rule 32, since pertained to the particulars of the labeling on the container or packet, were technical offences, the party affected was to be given a written warning drawing its attention to Rule 32, which required of date, month and year of manufacturing to be exhibited on the labels affixed on tin or the packet. It was only if the violation was repeated after a written warning, the party committing the offence second time had to be prosecuted. As per this policy, pending cases pertaining to breach of Rule 32 being of technical nature were decided to be disposed of accordingly.

Crl. M.C. 3311 of 2009 Page 2 of 3

28. It is not the case of the prosecution that petitioners were given warning by way of a notice drawing their attention to Rule 32 which provided for particulars to be exhibited on the sampled tin or the packet, and it was a case of second breach of Rule 32, i.e. In other words the offence was committed for the second time and therefore, the petitioners were liable to be prosecuted.

29. The policy being in force at the relevant time should have been adhered to by the department before it decided to file a complaint in the court for offences under Section 7/16 of the PFA Act. The petitioners are therefore within their rights to seek protection under the said policy which was in existence at the relevant time.

5. Since in this case no adulteration was found and only offence of misbranding was allegedly committed because of non-mentioning of year of manufacture and best before the above decision was squarely applicable.

6. The petition is allowed, Complaint no. 46/PF/DA/2002 under Section 16 of the Prevention of Food Adulteration Act is hereby quashed.

March 01, 2011                                       SHIV NARAYAN DHINGRA, J.
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Crl. M.C. 3311 of 2009                                                Page 3 of 3

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