Orissa High Court
Sri P.C. Das vs Lalit Mohan Patel And Another .... ... on 28 February, 2023
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.2336 of 2013
Sri P.C. Das .... Petitioner
Mr. Sumit Lal, Advocate
-Versus-
Lalit Mohan Patel and Another .... Opposite Parties
Mr. Tapas Kumar Praharaj, SC
None for opposite party No.2
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:28.02.2023
1.The petitioner has questioned the sustainability of the criminal proceeding in 2(C)C.C. Case No.110 of 2006 pending in the file of learned S.D.J.M., Sambalpur in exercise of the Court's inherent jurisdiction under Section 482 Cr.P.C. on the grounds inter alia that the same is not tenable in law and hence required to be interfered with and quashed.
2. As per the pleading, the criminal proceeding has been initiated against the petitioner under Section 16(1)(a)(i) read with Section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'the Act') which is at the instance of opposite party No.1 which according to the petitioner is solely based on the report of the Public Analyst which has been superseded by the report of the Central Laboratory under Section 13(2) of the Act with an opinion that the sample of Maggi Tomato Ketchup confirmed to the food standard.
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3. Heard Mr. Lal, learned counsel for the petitioner and Mr. Praharaj, learned ASC appearing for opposite party No.1. None represented opposite party No.2.
4. The prosecution story is that on 2nd December, 2005, opposite party No.1 collected samples of Coffee (Instant) and Maggi Tomato Ketchup from the premises of opposite party No.2. In fact, opposite party No.1 served notice on opposite party No.2 with intimation that the samples have been collected for testing by the Public Analyst. The said notice was issued in Form VI (Annexure-1). As per the PR, opposite party No.1 followed the procedure of packing the samples, sealing the same and dispatching it to the Public Analyst keeping two parts of the samples as per Form VII and submitted the same to the Local Health Authority-cum-CDMO, Sambalpur.
5. The report (Annexure-2) of the Public Analyst was received with an opinion that the sample of Tomato Ketchup Maggi was found to be adulterated and thereafter opposite party No.1 prepared the prosecution report and submitted the same to the CDMO, Sambalpur along with the necessary enclosures. In the said prosecution report, the petitioner being the nominee of M/s. Nestle India Limited was added as an accused from whom the sample was collected. Accordingly, the prosecution report under Annexure-3 was filed before the court of learned S.D.J.M., Sambalpur.
6. After launching of the prosecution, opposite party No.2 exercised the right as available to him under Section 13(2) of the Act to send the sample for testing to Central Food Laboratory, Kolkata and in that respect moved an application before the learned court below on 25th April, 2006, whereafter, the sample was duly sent on 18th May, 2006. The analysis report dated 21st CRLMC No.2336 of 2013 Page 2 of 6 Sri P.C. Das Vrs. and Lalit Mohan Patel & Another June, 2006 under Annexure-4 was received from the Central Laboratory by the court below with an opinion that the Maggi Tomato Ketchup confirmed the standard prescribed as per the Appendix-B of the Prevention of Food Adulteration Rules, 1955 (in short 'the Rules') but with an observation that the manufactured date and batch number at the bottom of the table were found not mentioned and the same is misbranded.
7. Mr. Lal, learned counsel for the petitioner submits that in view of the report of the Central Laboratory under Annexure-4 and Section 13(3) of the Act, the certificate issued in respect thereof since supersedes the report of the Public Analyst, the finding of the latter under Annexure-2 that the sample to be adulterated cannot be the basis of prosecution and therefore, it should be terminated.
8. Mr. Praharaj, learned counsel for opposite party No.1 on the contrary submits that the report has been received and the petitioner cannot be allowed to rely upon a part of the report under Annexure-4 leaving the remainder which is not acceptable, inasmuch as, the same shall have to be accepted in its entirety and the issues involved can only be examined during trial on receiving evidence by the learned court below.
9. The ground is that with such a report of the Central Laboratory, the prosecution of the petitioner should not be allowed to proceed. In so far as, the misbranding of the sample is concerned as per Form VI, it is stated that the date of manufacture and batch number which are to be indicated as per Rule 12 of the Rules is revealed from the said Form itself with the following words 'Tomato Ketchup (Maggi) 6 bottles each of 200 grams originally packed and sealed. B.No. 528504511L/October 05 Mktd. by Nestle India Ltd., New Delhi' and hence, such an CRLMC No.2336 of 2013 Page 3 of 6 Sri P.C. Das Vrs. and Lalit Mohan Patel & Another observation lost its relevance. While contending so, Mr. Lal, learned counsel for the petitioner refers to Annexure-1 which is Form VI and also Annexure-4 which is the report received from the Central Food Laboratory, Kolkata. It is contended that the concerned Food Inspector while collecting the samples extracted the date of manufacture and batch number from it and reflected the same in Form VI in compliance of the mandatory provision of the Rules and thus, there has been no contravention of law and as such, the product was not misbranded. It is also submitted that opposite party No.1 never made any such allegation about the manufacturing date on the packaging label of the six sample bottles collected by him and therefore, no case of misbranding can be the basis anymore to criminally prosecute the petitioner. Not only that, according to Mr. Lal, opposite party No.1 enclosed a copy of the invoice date 26th October, 2005 indicating therein manufacture date and batch number of the product which proved due compliance of Rule 32(e) of the Rules. In such view of the matter, when the bottle of Maggi Tomato Ketchup displayed the batch number and the date of manufacture as mentioned in Form VI Annexure-1 and the invoice dated 26th October, 2005, by no stretch of imagination, the sample can be labelled as misbranded as opined by the Central Laboratory. The expression 'label' as according to Mr. Lal is very wide since declaration in that respect can be anywhere on the bottle and need not be at the bottom of the sample and therefore, the opinion of the Laboratory about its misbranding is absolutely baseless and thoroughly misconceived.
10. As per Annexure-4 which is the report of the Central Laboratory, the sample was found to be misbranded though confirming the food standard. The opinion is that the sample confirms the standard of Tomato Ketchup laid down under Item No.A.16.06 of Appendix-B of the Rules, however, with a CRLMC No.2336 of 2013 Page 4 of 6 Sri P.C. Das Vrs. and Lalit Mohan Patel & Another conclusion that it did not have the manufacture date and batch number at the bottom of the sample bottle. By referring to Anneuxre-1 Form-VI and about the invoice dated 26th October, 2005 mentioned therein, the contention of the petitioner is that there cannot be any a case of misbranding of the sample. It is contended by Mr. Lal, learned counsel for the petitioner that a label could be at any place and not necessarily at the bottom of the product and that apart, Form VI and invoice mentioned about the manufacture date and batch number and hence, the opinion of misbranding is unjustified. No doubt, Annexure-1 indicates about the manufacture date and batch number of the six bottles which was not noticed by the Central Laboratory. On a bare look, one can challenge it referring to Form VI. According to the Court, when misbranding was never an issue, the report of the Central Laboratory in that regard should not be a ground to proceed against the petitioner.
11. The prosecution was initiated after a report of the Public Analyst was received and the finding that the sample of Maggi Tomato Ketchup to be adulterated has not been found favour with the Central Laboratory, according to which, it confirmed to the standard prescribed. As per Anneuxre-4, the Maggi Tomato Ketchup (category of food sample) was falling under a specific item of Appendix B of the Rules and hence, it confirmed to the food standard. The Court is of the conclusion that the prosecution launched at the instance of opposite party No.1 would have to be brought to an end for the reason that the certificate of the Director, Central Food Laboratory under Annexure-4 shall supersede the report of the Public Analyst in view of Section 13(3) of the Act.
12. Accordingly, it is ordered.
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13. In the result, the CRLMC stands allowed. Consequently, the criminal proceeding in 2(C)C.C. Case No.110 of 2006 pending in the file of learned S.D.J.M., Sambalpur is hereby quashed.
(R.K. Pattanaik) Judge UKSahoo CRLMC No.2336 of 2013 Page 6 of 6