Punjab-Haryana High Court
Aradhna Soft Drinks Company vs State Of Haryana And Another on 4 May, 2013
Author: Sabina
Bench: Sabina
Crl.Misc.No.M- 9948 of 2007 (O&M) etc. 1
In the High Court of Punjab and Haryana at Chandigarh
Date of decision: 4.5.2013
Crl.Misc.No.M- 9948 of 2007 (O&M)
Aradhna Soft Drinks Company ......Petitioner
Versus
State of Haryana and another .......Respondent
Crl.Misc.No.M- 17066 of 2011 (O&M)
Aradhna Soft Drinks Company ......Petitioner
Versus
State of Haryana and another .......Respondent
Crl.Misc.No.M- 9860 of 2010 (O&M)
Aradhna Soft Drinks Company ......Petitioner
Versus
State of Haryana and another .......Respondent
Crl.Misc.No.M- 9861 of 2010 (O&M)
Aradhna Drinks and Beverages Pvt. Ltd.and another
......Petitioners
Versus
U.T.Chandigarh and another .......Respondents
Crl.Misc.No.M- 9948 of 2007 (O&M) etc. 2
Crl.Misc.No.M- 9862 of 2010 (O&M)
Aradhna Drinks and Beverages Pvt. Ltd.and another
......Petitioners
Versus
U.T.Chandigarh and another .......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.R.S.Cheema, Sr.Advocate with
Mr.Rajesh Batra, Advocate and
Mr.Pawan Girdhar, Advocate,
for the petitioner.
Mr.Gaurav Dhir, DAG, Haryana.
Mr. P.K.Khindria, Advocate,
for U.T.Chandigarh.
****
SABINA, J.
Vide this order, the above mentioned five petitions would be disposed of as these involve same question of law.
In the present cases, samples of sweetened carbonated drinks i.e. Pepsi and Mirinda were taken. The case of the prosecution is that the soft drinks had not been labelled in terms of Rule 32 (e) of the Prevention of Food Adulteration Rules, 1955 ( the Rules for short). Batch No./ Lot No. was not mentioned/ printed on the bottles.
Learned senior counsel for the petitioners has submitted that the petitioners had not committed any criminal offence. In fact, as per Rules, prevalent at the time of taking of the samples, batch No./ Code No. was not required to be mentioned/ printed on the Crl.Misc.No.M- 9948 of 2007 (O&M) etc. 3 bottles of soft drinks. In this regard, learned senior counsel has placed reliance on proviso to Rule 32 (f) of the Rules. Learned senior counsel has further submitted that the said Rule was amended vide notification dated 21.8.2006 but the amendment came into force w.e.f.20.8.2007. Samples in the present case were drawn before the amendment in the year 2004/2006.
Learned State counsel as well as counsel for the Administration, on the other hand, have opposed the petitions and have submitted that proviso to Rule 32 (f) of the Rules was not applicable to the facts of the present case.
Rule 32 (e) and relevant proviso to Rule 32 (f) of the Rules read as under:-
32 (e) : A distinctive batch number or lot number or code number, either in numericals or alphabets or in combination, representing the batch number or lot number or code number being preceded by the words 'Batch No". or "Batch"or Lot No".or, Lot or any distinguishing prefix:
Provided, that in case of canned food, the batch number may be given at the bottom, or on the lid of the container, but the words "Batch No", given at the bottom or on the lid, shall appear on the body of the container.
32 (f) : the month and year in which the commodity is manufactured or prepacked;
Provided also that in case of carbonated water containers Crl.Misc.No.M- 9948 of 2007 (O&M) etc. 4 and the packages of biscuits, confectionery and sweets, containing more than 60g, but not more than 120g, and food packages weighing not more than 60g. particulars under clauses (d) and (e) need not be specified." As per notification dated 21.8.2006, Rule 32 (f) of the Rules was amended but the said amendment came into force w.e.f.20.8.2007 and consequently, the relevant proviso to Rule 32 (f) of the Rules was deleted. Samples were drawn in the present cases before the amendment to Rule 32 (f) of the Rules came into foce. The question that requires consideration is as to whether as per the relevant proviso to Rule 32 (f) of the Rules, petitioners were required to mention the Batch No./ Code No. on the bottles at the time of drawing the samples.
As per Appendix 'B' to the Rules A.01.01 Carbonated Water means:
"water conforming to the standards prescribed for Packaged Drinking Water under Prevention of Food Adulteration Rules, 1955, impregnated with carbon dioxide under pressure and may contain any of the following singly or in combination.
Sugar, liquid glucose, dextrose monohydrate, invert sugar, fructose, honey, fruits and vegetables extractives and premitted flavouring, colouring matter, preservatives, emulsifying and stabilising agents, citric acid, 3[fumaric acid, and sorbitol,] tartaric acid, phosphoric acid, lactic acid, ascorbic acid, malic acid, 4 Crl.Misc.No.M- 9948 of 2007 (O&M) etc. 5 [edible gums such as guar, karaya, arabic, carobean, furcellaran, tragacanth, gum ghatti], edible gelatin, albumin, licorice and its derivatives, salts of sodium, calcium and magnesium, vitamins, [caffeine not exceeding 200 parts per million ], Estergum (Glycerol esters of wood rosin) not exceeding 100 parts per million, and] quinine salts not exceeding 100 parts per million [ expressed as quinine sulphate] It may also contain Saccharin Sodium not exceeding 100 ppm or Acesulfamer not exceeding 300 ppm,[ or sucralose not exceeding 300ppm ."
As per Rule 2 (l) of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 (for short 1977 Rules), "pre-packed commodity" means a commodity, which without the purchaser being present, is placed in a package of whatever nature, whether sealed or opened, so that the commodity contained therein has a pre-determined value and includes those commodities which could be taken out of the package for testing or examining or inspecting the commodity.
As per rule 5 of the 1977 Rules, the commodities specified in the Third Schedule shall be packed for sale, distribution or delivery in such standard quantities as are specified in that Schedule.
As per rule 12 (d) of the 1977 Rules, in case, the commodity is in liquid form its quantity shall be in terms of unit of volume.
Crl.Misc.No.M- 9948 of 2007 (O&M) etc. 6
As per rule 13 (2) of the 1977 Rule, in case of liquids when expressing a quantity less than 1 litre, the unit of volume shall be milliliter.
As per 3rd Schedule to the 1977 Rules at Sr.No. 18, quantity of aerated soft drinks has to be packed in milliliters/ litre.
Thus, as per 1977 Rules, whenever, quantity of a liquid commodity is to be described, it has to be in litres or milliliters (if the quantity is less than litre). When the relevant proviso to Rule 32 (f) of the Rules, which was in existence at the time when sample was drawn, is read, it leads to the inference that no quantity has been limited qua carbonated water containers for its exemption of Rule 32
(e) of the Rules. So far as packages of biscuits, confectionery, sweets and food packages are concerned, their quantities with regard to exemption of Rule 32 (e) of the Rules has been specifically mentioned. As per the relevant proviso, the packages of biscuits, confectionery and sweets containing 60 grams but not more than 120 grams and food packages weighing nor more than 60 grams are exempted to comply with the provision of Rule 32 (e) of the Rules. The argument raised by learned State counsel as well as counsel for the Administration that the carbonated water containers were to be read along with the quantity of commodity prescribed for biscuits, confectionery and sweets is without any force. In case the quantity with regard to carbonated water containers was to be specified in the proviso, the same should have been provided in milliliters or litres. Since the quantity with regard to carbonated water containers has not been mentioned in the relevant proviso, it is evident that the Crl.Misc.No.M- 9948 of 2007 (O&M) etc. 7 legislation in its wisdom did not want to limit the quantity of carbonated water containers for exemption to provisions of Rule 32
(e) of the Rules.
A reading of relevant proviso to Rule 32 (f) of the Rules reveals that the said proviso is to be read in three parts. Proviso provides that Rule 32 (e) of the Rules was not required to complied in case of :
" (i) carbonated water containers;
(ii) packages of biscuits, confectionery and sweets, containing more than 60g, but not more than 120g and
(iii) food packages weighing not more than 60g."
Thus, when the samples were drawn at that time, proviso to rule 32 (f) of the Rules was in force and as per the said provisio, petitioners were not required to mention Batch No. or Lot no. on the bottles of sweetened carbonated drinks. It has transpired during the course of arguments, that after the deletion of the proviso to Rule 32
(f) of the Rules, now the petitioners are mentioning Batch no./ Lot no. on the bottles of sweetened carbonated soft drinks.
In the case of State of Haryana vs. Bhajan Lal,, 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:-
"The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr.P.C. Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to Crl.Misc.No.M- 9948 of 2007 (O&M) etc. 8 secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:-
(1) Where the allegations made in the first information report or the complainant/respondent No.2, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint Crl.Misc.No.M- 9948 of 2007 (O&M) etc. 9 are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted)to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice." Accordingly, these petitions are allowed. Criminal Crl.Misc.No.M- 9948 of 2007 (O&M) etc. 10 complaint Nos. 13/3/06; 83 of 10.3.2005; 659-I of 2006 dated 31.10.2006, 659-II of 2006 dated 31.10.2006, 80 of 2005 dated 10.3.2005 as well as summoning orders passed by the trial Court in the said complaints and all the subsequent proceedings arising therefrom are quashed.
(SABINA) JUDGE May 04, 2013 anita