Bombay High Court
Hindustan Unilever Ltd And Another vs The State Of Maharashtra And Another on 11 August, 2014
Author: V.M.Deshpande
Bench: V.M.Deshpande
1 crwp983.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CRIMINAL WRIT PETITION NO. 983 OF 2013
1] Hindustan Unilever Ltd.,
Uttara, Plot No.2,
Sector-11, CBD Belapur,
Navi Mumbai,
2] Shri Udit Anil Dugar,
age years, occ. Service,
as Nominee of Hindustan
Unilever Ltd.,
Uttara, Plot No.2,
Sector-11, CBD Belapur,
Navi Mumbai ...Petitioners
VERSUS
1] The State of Maharashtra,
2] Shri S.V.Patil,
age major, Occ. Service as
Food Inspector, Beed,
Office of Additional Commissioner,
Food & Drugs Department, M.S.,
Administrative Building, Beed,. ...Respondents
W I T H
CRIMINAL WRIT PETITION NO. 984 OF 2013
1] Hindustan Unilever Ltd.,
Uttara, Plot No.2,
Sector-11, CBD Belapur,
Navi Mumbai,
2] Shri Udit Anil Dugar,
age years, occ. Service,
as Nominee of Hindustan
::: Uploaded on - 12/08/2014 ::: Downloaded on - 02/08/2016 13:39:24 :::
2 crwp983.13
Unilever Ltd.,
Uttara, Plot No.2,
Sector-11, CBD Belapur,
Navi Mumbai ...Petitioners
VERSUS
1] The State of Maharashtra,
2] Vitthal Satvaji Londhe,
age 35 years, Occ. Service as
Food Inspector, Latur,
Office of Additional Commissioner,
Food & Drugs Department, M.S.,
Administrative Building, Latur ...Respondents
.....
Shri Sunil Manohar, Senior Counsel I/b
Shri Sandeep S. Deshmukh, advocate for the petitioners
Smt. Pratibha Bharad, A.P.P. for respondents
.....
CORAM : V.M.DESHPANDE, J.
DATE OF RESERVING
THE JUDGMENT : 11.7.2014
DAT OF PRONOUNCEMENT
OF THE JUDGMENT : 11.8.2014
J U D G M E N T :-
1] Rule. Rule is made returnable forthwith. With the consent of the learned counsel for the parties taken up for final hearing.
::: Uploaded on - 12/08/2014 ::: Downloaded on - 02/08/2016 13:39:24 :::3 crwp983.13 2] These two Writ Petitions can be disposed of by this common judgment, since both involve the same question.
3] Facts in respect of Writ Petition No. 983 of 2013.
By the present petition, the petitioners are questioning the correctness of the order of issuance of process against them for violation of provisions of Section 7 (ii), Section 2 (ix) (k) of the Prevention of Food Adulteration Act, 1954 (herein after referred to as, 'the Act' for the purpose of brevity) r/w Rules 38 and 39 of the Prevention of Food Adulteration Rules, 1955 (hereinafter for short herein after referred as, "the Rules"), punishable under Sections 16 and 17 of the Act in Regular Criminal Case No. 634 of 2011 by the learned Chief Judicial Magistrate, Beed, together with the prayer that the complaint Regular Criminal Case No. 634 of 2011 be quashed and set aside.
4] Petitioner no.1 is a Company registered under the Companies Act. Petitioner no. 2 is it's nominee in view of the provisions of Section 17 (2) of the Act.
5] Respondent no.2 is the complainant. On 16.8.2011, he filed a complaint in the court of Chief Judicial Magistrate, Beed. The said complaint is registered as Regular Criminal ::: Uploaded on - 12/08/2014 ::: Downloaded on - 02/08/2016 13:39:24 ::: 4 crwp983.13 Case No. 634 of 2011.
In the said complaint, petitioner no.1 is shown as accused no.4; whereas petitioner no.2 is shown as accused no.3. One Mahesh Marotilal Bora is the proprietor of M/s Mahesh Provisions and General Stores, Beed; whereas Shri Rameshlal Puranmal Kasat is the proprietor of M/s Kailas Agencies, Beed. These two persons are arrayed as accused nos. 1 and 2, respectively in the said complaint.
It is asserted in the complaint by respondent no.2/complainant that he along with Shri A.M.Randive are duly appointed under Section 9 of the Act as Food Inspectors and their names have been published in the Gazette.
Accused no.1 is the vendor and proprietor of M/s Mahesh Provisions and General Stores, in front of Navgan College, Beed and was engaged in the business of stocking and selling various food articles including iodised salt (Annapurna) in the premises; whereas accused no.2 is the supplier of iodised salt (Annapurna) to accused no.1.
According to the complaint, on 11.10.2010 at 1345 hours Shri A.M.Randive along with the independent panchas visited the premises of accused no.1. That time, the accused no.1 himself was engaged in the business of stocking and selling food articles including iodised salt (Annapurna). Upon disclosure of his identity as a Food Inspector Shri Randive showed his intention of inspecting the premises and drawing ::: Uploaded on - 12/08/2014 ::: Downloaded on - 02/08/2016 13:39:24 ::: 5 crwp983.13 the samples. Shri Randive thereafter inspected the premises and gave the copy of inspection report to accused no.1 and obtained his acknowledgment thereon. While inspecting, the Food Inspector came across various food articles including iodised salt (Annapurna) which were stocked and kept for sale. Amongst other articles, he also purchased iodised salt (Annapurna) by making payment in cash and on obtaining the cash memo thereof. The said cash memo bears the signature of accused no.1 and the panchas. Though other articles were also purchased by way of sample, the case pertains only in respect of the food article "iodised salt (Annapurna)".
Thereafter the Food Inspector issued notice in Form No. VI to the accused about drawing of sample of iodised salt (Annapurna) for the purpose of test and analysis and obtained acknowledgment. Thereafter the Food Inspector also issued notice under Section 14-A of the Act in writing and obtained the acknowledgment of accused no.1. The complaint further asserts that thereafter the Food Inspector divided the purchased iodised salt (Annapurna) into three equal parts without breaking any of the compact packet.
The complaint further discloses that on 12.10.2010, the Food Inspector Shri Randive took one sealed part of iodised salt (Annapurna) along with the original copy of memo in Form No. VII and it was sent to the Public Analyst, State Public Health Laboratory, Pune by registered post. On the same date, ::: Uploaded on - 12/08/2014 ::: Downloaded on - 02/08/2016 13:39:24 ::: 6 crwp983.13 the Food Inspector took remaining sealed parts of iodised salt (Annapurna) along with two copies of form and packed them in one packet duly sealed along with the letter of intimation and it was sent to the Local (Health) Authority and Supervisor (Food), F.D.A., Beed by hand delivery.
As per the complaint, on 4.1.2011, the Food Inspector received the report of iodised salt (Annapurna) from the Public Analyst, State Public Health Laboratory, Pune bearing No. 1350/10073, dated 24.12.2010. In the said report, as per the complaint, the Public Analyst has opined that the said sample of iodised salt (Annapurna) is in contravention of Rules 38 and 39 of the Rules. According to the complaint, the iodised salt (Annapurna) is a "food" within the meaning of Section 2 (v) of the Act.
Thereafter, according to the complaint, steps were taken for obtaining necessary sanction from the competent authority and after obtaining the same, as stated, on 16.8.2011 the complaint was filed against the accused including the present petitioners for charges mentioned in the complaint.
6] The learned Magistrate was pleased to issue process directing the petitioners to remain present before the court.
7] Facts in respect of Writ Petition No. 984 of 2013.
::: Uploaded on - 12/08/2014 ::: Downloaded on - 02/08/2016 13:39:24 :::7 crwp983.13 In so far as this writ petition is concerned, complaint Regular Criminal Case No. 74 of 2012 was filed in the court of Chief Judicial Magistrate, Latur on 25.1.2012. In the said complaint, the petitioners are accused nos. 4 and 3, respectively. Accused no. 1 is one Arifkhan Mahmadkhan Pathan, proprietor of Meraj Trading Company, Dayaram Road, Latur; Somnath Gangadharrao Borlepawar was shown as accused no.2; whereas Western India C Brayins Private Limited, Kachha, Gujarat is shown as accused no.5.
According to the complaint, on 30.11.2010, the Food Inspector Shri Londhe along with the Assistant Food Inspector Smt. S.T.Jadhavar with panchas visited the business establishment of accused no.1 and disclosed his intention to inspect the establishment and for obtaining samples.
According, the Food Inspector Shri Londhe obtained three sealed packets of one Kg. Each of iodised salt (Annapurna) and the other food articles, however, this complaint also pertains to the iodised salt (Annapurna) only. According to the said complaint, the complainant followed the due procedure as contemplated under the Act and the Rules and sent the samples for analysis with Public Analyst at Pune. The Public Analyst report was received on 17.2.2011 bearing No. 153/12992 and according to the said report, there is violation of Rules 38 and 39 of the Rules is the assertion on the part of the complainant in the said complaint. Thereafter, the necessary ::: Uploaded on - 12/08/2014 ::: Downloaded on - 02/08/2016 13:39:24 ::: 8 crwp983.13 sanction was obtained and the complaint was lodged.
8] I have heard Shri Sunil Manohar, learned Senior Counsel with Shri Sandeep S. Deshmukh for the petitioners, and Smt. Pratibha Bharad, learned Additional Public Prosecutor for respondents.
9] Shri Manohar, learned Senior counsel strenuously urged before me that the complaints as filed against the petitioners are nothing but an abuse of process of law.
According to him, even if the entire complaint is taken at its face value, there is no contravention of Rules 38 and 39 of the Rules framed under the Act. He submitted that according to the Public Analyst report, dated 24.12.2010 in Writ Petition No. 983 of 2013 and the Public Analyst report, dated 17.2.2011 in Writ Petition No. 984 of 2013, the Public Analyst found that there is contravention of Rules 38 and 39 of the Rules. He submitted that if the words as appearing in the label, which were found to be in contravention of Rules 38 and 39 of the Rules are perused, then it is clear that there is no contravention at all in respect of those two Rules.
He further submitted that the declaration, "Right level of Iodine helps in the mental development of children" is based on scientific studies done by the Welfare Organizations like WHO/UNICEF. It is his submission that the said statement is a ::: Uploaded on - 12/08/2014 ::: Downloaded on - 02/08/2016 13:39:24 ::: 9 crwp983.13 factual submission in line with the policy of the Government of India, and therefore, there is contravention of the Rules.
He also pointed out by referring to paragraph 17 of the petition that in respect of similar allegations, the sample was picked up on 5.3.2007 and the Public Analyst report, dated 10.4.2007 therein opined that the license granted under the Rules was suspended. Feeling aggrieved thereby, the petitioners preferred an appeal before the appellate authority, namely the Commissioner vide Appeal No. 3 of 2009 and the said appellate authority found that there is no violation of Rule 39 of the Rules. It was, therefore, submitted by the learned Senior counsel that initiation of the present proceedings against the petitioners is with mala fide intention and as such, the said proceedings need to be set aside.
10] The learned Additional Public Prosecutor invited my attention to the affidavit of one Sagarkumar Dagadupant Terkar, who is a Food Safety Officer in the office of the Food and Drugs Administration, Beed in Wit Petition No. 983 of 2013 and of Balu Mahadu Thakur, Food Safety Officer, office of the Food and Drugs Administration, Latur in Writ Petition NO. 984 of 2013 and submitted there is other side to the story of iodine supplementation. Iodine induced hyperthyroidism is also a serious health concern, and in such situation, the claim on the label is beyond the basic labeling requirement. According to ::: Uploaded on - 12/08/2014 ::: Downloaded on - 02/08/2016 13:39:24 ::: 10 crwp983.13 the learned Additional Public Prosecutor, the case is made out against the petitioners, and therefore, the petition be dismissed.
11] In order to advert with the rival contentions, let us have a survey of various provisions of the Act. Section 7 of the Act reads thus : -
" 7. Prohibitions of manufacture, sale, etc., of certain articles o food : - No person shall himself or by any person on his behalf manufacture for sale or store, sell or distribute -
(i)
(ii) any adulterated food; any misbranded food;
(iii) any article of food for the sale of which a license is prescribed, except in accordance with the conditions of the license;
(iv) any article of food the sale of which is for the time being prohibited by the Food (Health) Authority in the interest of public health;
(v) any article of food in contravention of any other provision of this Act or of any rule made thereunder; or
(vi) any adulterant. "
12] The Central Government and the State Government are empowered to appoint persons as Public Analyst by notification in the official gazette; whereas the Food Inspectors are appointed under Section 9 of the Act. Section 10 deals with the powers of the Food Inspector. Procedure to be followed while taking samples of food for analysis by the Food Inspector is enumerated in Section 11 of the Act. Section 13 of the Act ::: Uploaded on - 12/08/2014 ::: Downloaded on - 02/08/2016 13:39:24 ::: 11 crwp983.13 deals with the report of the Public Analyst. Section 16 of the Act enumerates the penalties for contravention. Under Sub-
section (2) of Section 17 of the Act, a Company is empowered to nominate its nominee as a person responsible for the Company along with written consent of such person being nominated and that notice of nomination has to be given to the Local (Health) Authority in the prescribed form.
Packing and Labeling of foods is enumerated in Part VII of the Prevention of Food Adulteration Rules, 1955. Sub- clause(2) of sub-rule (b) of Rules 32 of the Rules deals with the list of ingredients, to be declared on the label and its manner.
Rules 38 and 39 reads as under : -
" 38. Labels not to contain reference to Act or rules contradictory to required particulars.-
The label shall not contain any reference to the Act or any of these rules or any comment on, or reference to, or explanation of any particulars or declaration required by the Act or any of these rules to be included in the label which directly or by implication, contradicts, qualifies or modifies such particulars or declaration.
39. Labels not to use words implying recommendations by medical profession.- There shall not appear in the label of any package containing food for sale the words "recommended by the medical profession" or any words which imply or suggest that the food is recommended, prescribed, or approved by medical practitioners or approved for medical purpose."
13] In the backdrop of the afore said statutory provisions ::: Uploaded on - 12/08/2014 ::: Downloaded on - 02/08/2016 13:39:24 ::: 12 crwp983.13 as made in the Act and the Rules, let us examine the Public Analyst reports. The Public Analyst report in Writ Petition No. 983 of 2013 is dated 24.12.2010 bearing No. 1350/10073, which is as under : -
" Label - Label of Annapurna iodissed Mfd. By Hindustan Uniliver Ltd. 165/166, Back Reclamation Mumbai-400020 at Western India Sea Brines Pvt. Ltd. S.No. 281NH no.8A Dist -
Kutch Taluka - Bauchu, Gujarat, Complies with the Label provisions of the PFA Rules 1955, except the words
1) "Right level of iodine helps in the mental development of children" - Medical claim hence contravenes rule 39.
2) "As per recommended iodine levels in salt and guidelines for monitoring their adequacy and effectiveness Based on joint WHO/UNICEF/ICCIDD consultation WHO/NUT/96.16 released by the World Health Organization WHO/NUT/96.16.Geneva 1996" - Contravenes rule 38. "
In Writ Petition No. 984 of 2013, the Public Analyst report is dated 17.2.2011 bearing No. 153/12992, which reads thus : -
" Label - Label of Annapurna iodissed Mfd. By Hindustan Uniliver Ltd. 165/166, Back Reclamation Mumbai-400020 at Western India Sea Brines Pvt. Ltd. Sangita Complex, C.G.Road, Ahmedabad, Complies with the Label provisions of the PFA Rules 1955, except the words ::: Uploaded on - 12/08/2014 ::: Downloaded on - 02/08/2016 13:39:24 ::: 13 crwp983.13
1) "Right level of iodine helps in the mental development of children" - Medical claim hence contravenes rule 39.
2) "As per recommended iodine levels in salt and guidelines for monitoring their adequacy and effectiveness Based on joint WHO/UNICEF/ICCIDD consultation WHO/NUT/96.16 released by the World Health Organization WHO/NUT/96.13.Geneva 1996" - Contravenes rule 38. "
14] The learned Senior counsel, in my view, has rightly pointed out in so far as contravention of Rule 38 of the Rules is concerned, that the Public Analyst report is completely silent as to why the said statement appearing on the label contravenes Rule 38.
In so far as Rule 39 is concerned, the prohibition is that nothing shall appear in the label of any package containing any food meant for sale that it is recommended by the medical profession or even suggests impliedly that the food is recommended, prescribed or approved by the medical practitioner or approved for medical purpose.
The label which is placed on record along with the report containing the statement, "Right level of iodine helps in the mental development of children" is only a statement of fact.
::: Uploaded on - 12/08/2014 ::: Downloaded on - 02/08/2016 13:39:24 :::14 crwp983.13 15] In order to bring the case within the mischief of Rule 39 of the Rules, there should be appearing on the label even for a statement or word, which would suggest either directly or impliedly that the said food is recommended, prescribed or approved by the medical practitioner. Obviously the mandate of Rule 39 is to prevent the ultimate consumer of a food, so that the said consumer shall not get swayed away or impressed from misleading the claim of the manufacture.
16] In this context, if the label which is found to be in contravention of Rule 39 of the Rules by the Public Analyst and for which the prosecution is launched against the present petitioners, is scrutinized very minutely, it nowhere suggests that the said product is either recommended by the medical practitioner or recommended for medical purpose by the medical practitioner.
17] Therefore, I am in full agreement with the submissions of the learned Senior counsel that allowing to continue the proceedings against the present petitioners is nothing but an abuse of process of law, because the complaints fail to disclose even prima facie any triable case against the present petitioners on the touchstone of Rules 38 and 39 of the Rules as alleged by the complainant in the complaint.
::: Uploaded on - 12/08/2014 ::: Downloaded on - 02/08/2016 13:39:24 :::
15 crwp983.13
18] Hence, I pass the following order.
(i) Both the Writ Petitions are allowed.
(ii) Regular Criminal Case No. 634 of 2011,
pending on the file of Chief Judicial Magistrate, Beed and Regular Criminal Case No. 74 of 2012, pending on the file of Chief Judicial Magistrate, Latur are hereby quashed and set aside in so far as present petitioners are concerned.
(iii) Rule is made absolute in the above terms.
(iv) No costs.
(V.M.DESHPANDE, J.)
dbm/crwp983.13
::: Uploaded on - 12/08/2014 ::: Downloaded on - 02/08/2016 13:39:24 :::