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Nutrine Confectionery Co. Ltd. Vs. State of Himachal Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1979CriLJ219
AppellantNutrine Confectionery Co. Ltd.
RespondentState of Himachal Pradesh and anr.
Cases ReferredDas Jagdish Chander v. Delhi Administration
Excerpt:
- .....pd, opined that the toffees were adulterated as they did not conform to the standard laid down for milk toffee according to the public analyst the sample contained 1.5% protein, as against the minimum prescribed 3.0% for milk toffee.3. therefore, on a complaint made by the food inspector, rajesh kumar was charged under section 16 (1)(a) read with section 7 of the act.4. in his examination under section 313 cr.p.c. the accused stated that he had purchased the toffees from m/s. voltas ltd., 7/1, asaf ali road, post box 85, new delhi. he also produced the bill and the warranty issued by m/s. voltas ltd. in favour of the accused, which is exhibit da, the learned magistrate im-pleaded m/s. voltas ltd. as the accused.5. padmanabhan of m/s. voltas ltd. on being summoned by the court appeared.....
Judgment:
ORDER

C.R. Thakur, J.

1. This petition under Section 482 of the Code of Criminal Procedure have been filed by the Nutrine Confectionery Co. Ltd. (hereinafter called the Company) for quashing the prosecution of the petitioner under Section 16 (1)(a) read with Section 7 of the Prevention of Food Adulteration Act (shortly called the Act) under the order, dated 13-12-1977, whereby the learned Chief Judicial Magistrate, Kulu, on acquittal of Rajesh Kumar ordered the prosecution of Pad-manabhan, the proprietor of M/s. Voltas Ltd., respondent No. 2, and on an application of Padmanabhan, the learned Magistrate further ordered the prosecution of Nutrine Confectionery Co. Ltd., i.e. the present petitioner in exercise of the powers under the provisions of Sec tion 190 (c) Cr.P.C. read with Section 20-A of the Act.

2. On 30th September, 1975, the Food Inspector, Kulu, purchased one packet containing one kg. of 'dairy toffee' out of a .total number of 29 packets found in possession of Rajesh Kumar for pur-poses of analysis and sample. The pac-ket was opened and after dividing the same in three equal parts as provided under the rules, one packet was sent to the Public Analyst, who, vide his report Exhibit PD, opined that the toffees were adulterated as they did not conform to the standard laid down for milk toffee According to the Public Analyst the sample contained 1.5% protein, as against the minimum prescribed 3.0% for milk toffee.

3. Therefore, on a complaint made by the Food Inspector, Rajesh Kumar was charged under Section 16 (1)(a) read with Section 7 of the Act.

4. In his examination under Section 313 Cr.P.C. the accused stated that he had purchased the toffees from M/s. Voltas Ltd., 7/1, Asaf Ali Road, Post Box 85, New Delhi. He also produced the bill and the warranty issued by M/s. Voltas Ltd. in favour of the accused, which is Exhibit DA, The learned Magistrate im-pleaded M/s. Voltas Ltd. as the accused.

5. Padmanabhan of M/s. Voltas Ltd. on being summoned by the court appeared and he moved an application that the report of the Public Analyst was defective, inasmuch as he had applied standard of milk toffee to the sample. According to him, the Food Inspector had purchased, not milk toffee, but plain toffee, and that the Public Analyst should not have applied standard of milk toffee. He had further stated that the toffees bore the label 'dairy toffee' on the packet which had been distributed by them to Rajesh Kumar. By this appellation of the dairy toffee it did not mean that they were milk toffees, rather they were milk and butter toffees. The learned Magistrate, therefore, after having examined the Public Analyst a second time found that adulteration in toffees could not be used as base for convicting the accused and, he therefore, acquitted the accused.

6. The Food Inspector during the course of the trial had moved an application that accused, Padmanabhan is liable to be prosecuted for the offence of misbranding because he had contravened the provisions of Rule 37 of the Prevention of Food Adulteration Rules, as the label on the packages of toffees contained misleading statement, i.e., words 'dairy toffees' inscribed on them and the consumer could be very easily misled that the toffees contained in the packages were either milk toffees or butter toffees because the word 'dairy' has a reference to milk or milk products. He, therefore, while acquitting Rajesh Kumar, ordered the prosecution of Padmanabhan, who also made an application for impleading the present petitioner before this Court. The learned Magistrate by his order, dated 3-2-1978 ordered that he would take cognizance under Section 190 (c) Cr.P.C. read with Section 20-A of the Act against the petitioner.

7. It is these orders of the Magistrate which are sought to be quashed by this petition under Section 482 Cr.P.C.

8. The learned Counsel for the petitioner submitted a note and he tried to stress that no offence of misbranding within the intendment of the Act and the Rules had been disclosed. In fact, according to him, the toffees in question were sold under the label of 'dairy toffee' which connote their ingredients, viz. butter and milk, and, therefore, there was nothing misleading. He has referred me to the provisions of Section 2 (ix)(a) and 2 (ix)(g), and Rule 37 of the Rules, as also to the dictionary meaning of the word 'dairy'-

9. Rule 37 of the Prevention of Food Adulteration Rules 1965 reads as under:

Labels not to contain false or misleading statements. A label shall not contain any statement, claim, design, fancy name or abbreviation which is false or misleading in any particular concerning the food contained in the package, or concerning the quantity or the nutritive value or in relation to the place of origin of the said food.' Sections 2 (ix)(a) and 2 (ix)(g) of the Act read as under.

(ix) 'misbranded' an article of food shall be deemed to be misbranded

(a) if it is an imitation of, or is a substitute for, or resembles in a manner likely to deceive another article of food under the name of which it is sold, and is not plainly and conspicuously labelled so as to indicate its true character;

(g) if the package containing it, or the label on the package bears any statement, design or device regarding the ingredients or the substances contained therein, which is false or misleading in any material particular; or if the package is otherwise deceptive with respect to its contents;

Now it is an admitted case that the package which was purchased by the Food Inspector from Rajesh Kumar bore the label of 'dairy toffee'. The meaning of the word 'dairy' as given in Webster's Third New International Dictionary is 'the department of farming or of a farm that is concerned with the production of milk, butter, and cheese'. The same meaning is given to the word 'dairy' in the Oxford Dictionary. Therefore, from the dictionary meaning it would be quite apparent that the 'dairy 'toffee' would mean nothing else except the toffee made of milk and butter. Therefore, it is wrong to say that they were milk toffees as the connotation 'dairy' would show that it means both butter and milk which are the ingredients for the preparation of dairy toffee. The Food Inspector has stated in cross- examination that neither on the packet nor on the wrapper of the toffee, the sample of which he had taken and had sent to the Public Analyst for analysis, there was any mention of the word or words 'milk toffee1. The sample which was taken and sent by him was that of dairy toffee. Therefore, this clinches the matter that the sale was not of the milk toffee rather the sale was of dairy toffee. However, according to the complainant he did not find any distinction between the two types of toffees. Once it is found that there was a clear indication that it was dairy toffee then it could not be purchased and styled as milk toffee. Therefore, there was definitely nothing misleading. The connotation of dairy toffee is, therefore, quite clear that it is made of milk and butter. In the rules, admittedly, there is no mention of 'dairy toffee' and hence the standard which is fixed for milk toffee cannot be applied to 'dairy toffee', which is made up of two constituents, Le. milk and butter. This is also admitted by the Food Inspector in his cross-examination that there is no standard laid down for the dairy toffee.

10. From Section 2 (ix)(a) and (g) also it would be clear that the misbranding for which the petitioner has been charged must be an imitation of or a substitute for, or resembles in a manner likely to deceive, another article of food under the name of which it is sold. This Sub-clause (a) of Clause (ix) of Section 2 is, therefore, not attracted because there was nothing in the appellation or label, which in any way deceived the purchaser. Similarly Sub-clause (g) would also not be applicable. The label on the package did not bear any statement, design or device regarding the ingredients of which these dairy toffees were made. 'Dairy toffee' could not mean anything except the product of dairy, i.e. milk and butter. Therefore, in these circumstances it cannot be said that there was any offence of misbranding committed by the petitioner.

11. According to the learned Counsel Sections 20 and 20-A prescribed the only mode in which the court can take cognizance of an offence under the Act. It Is an admitted fact that the prosecution against the petitioner is not under Section 20 of the Act. It is only Section 20-A under which the Magistrate could exercise the power. In order to see how and when the power can be exercised under this section it would be proper to reproduce the section itself and the same is as under.

Where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the manufacturer, distributor or dealer of any article of food, the Court is satisfied, on the evidence adduced before it, that such manufacturer, distributor, or dealer is also concerned with that offence, then, the court may, notwithstanding anything contained in Sub-section (3) of Section 319 of the Code of Criminal Procedure, 1973, or in Section 20 proceed against him as though a prosecution had been instituted against him under Section 20.

A perusal of this section would, therefore, show that the court trying an offence under the Act alleged to have been committed by any person (here Rajesh Kumar) can proceed against manufacturer, distributor or dealer if the court is satisfied on the evidence adduced before it that such manufacturer, distributor or dealer is concerned with the offence. But this power has got to be exercised or invoked only during the trial of the person, who is alleged to have committed the offence under the Act and not thereafter. In the instant case what has happened is that the learned Magistrate acquitted Rajesh Kumar and then ordered the prosecution of Padmanabhan, the Manager of the Voltas Ltd., and it was on his application that the present petitioner was also im-pleaded. Therefore, the learned Magistrate has acted in contravention of the mandatory provisions of Section 20-A, which clearly say that the power can be exercised only during the trial and not thereafter.

12. The learned Magistrate has wrongly invoked the provisions of Section 190 (c) Cr.P.C. which fall under Chapter XIV and provides for conditions requisite for initiation of proceedings. Section 20-A of the Act as a matter of fact is identical to Section 319 of the Code of Criminal Procedure, 1973, which provides for power to proceed against other persons appearing to be guilty of offence which falls under Chapter XXIV of the Code. The power is given under S, 20-A of the Act for impleading the other persons appearing to be guilty of offence. Therefore, if the power is given under the Act and the mode for exercise of that power is prescribed then the same shall be exercised in that particular manner, and in no other manner as is held in Nazir Ahmad v. King Emperor AIR 1936 PC 253 (1). The learned Magistrate, therefore, has wrongly acted in exercise of the powers under Section 190 (c), Cr, P. C.

13. The cognizance had to be taken under Section 20-A which provides that the other persons who appear to be guilty must be impleaded during the trial. In this behalf I may also refer to a case Ram Kumar v. Municipal Corporation of Delhi 1971 Cri LJ 716 (Delhi) where in a similar case the court held that order for prosecuting manufacturer or distributor from whom goods are alleged to have been purchased on warranty can be passed only before discharge or acquittal of vendor charged under Section 7/16.

14. The Supreme Court in M/s. Bhag-wan Das Jagdish Chander v. Delhi Administration : 1975CriLJ1091 also held that Section 20-A contemplates action which can be taken during the course of the trial. A separate trial would require a 'written consent of the Central Government or the State Government or a local authority or of a person authorised in this behalf by general or special order by the Central Government or the State Government or a local authority', unless it is a complaint by a purchaser, other than a Food Inspector, who could rely upon Section 12 of the Act. But, an addition of an accused under Section 20-A constitutes an expressly laid down exception to the requirement of a sanction under Section 20 (1).

15. In the instant case the trial of the petitioner and M/s. Voltas Ltd. started after 13-12-1977, when Rajesh Kumar was acquitted. Therefore, this order being in violation of the mandatory provisions of Section 20-A is not sustainable. The result, therefore, is that in the first instance there is no offence of mis-branding disclosed by the complainant, and, secondly, the manufacturer and the distributor have been prosecuted after the acquittal of the vendor who had purchased the dairy toffee from M/s. Voltas Ltd., who were the distributors and who in their turn had purchased the same from the present petitioner. The subsequent proceedings against M/s. Voltas Ltd. as also the petitioner are therefore without jurisdiction.

16. The result, therefore, is that the petitioner succeeds and the orders are hereby quashed.


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