T.R. Handa, J.
1. In all these five petitions, the petitioners seek the quashing of the criminal proceedings initiated against them and others under Section 7 read with Section 16(1)(a)(i) of the Prevention of Food Adulteration Act (hereinafter referred to as 'the Act') at the instance of the Government Food Inspectors and which proceedings are presently pending in different Subordinate Courts. The main ground urged in support of all these petitions being the same, it is considered expedient to dispose of all these petitions by this common order.
2. Three of these petitions, namely, Criminal Revisions Nos. 78 to 80 of 1979 are at the instance of M/s. Brooke Bond India Limited Calcutta, a Company incorporated under the Indian Companies Act and engaged in the manufacture and sale of tea under the trade name of 'Brooke Bond'. Samples of Brooke Bond tea marketed by this petitioner were taken by the Food Inspectors from the various dealers/vendors who have been impleaded as respondents in these petitions. These samples were of course taken and dealt with in accordance with the relevant provisions of the Act and the Rules made there under. On being analysed by the Public Analyst, these samples were found to contain traces of iron filings though otherwise they conformed to the specifications and standard prescribed for tea in the relevant rule, namely, para A-14 of Appendix B of the Rules made under the Act. The Public Analyst in his various reports while mentioning the detection of iron filings in these samples refrained from opining if the samples were adulterated in terms of Section 2(i-a) of the Act.
3. The Food Inspectors, however, assumed that as per reports of the Public Analyst the samples were adulterated and hence they filed compLalnts against the vendors/dealers impleading the present petitioner also as co-accused under Section 20 of the Act. The details of the compLalnts in which this petitioner has been joined as co-accused are as under:
1. CompLalnt No. 5-1 of 1979 pending in the Court of J.M.I.C Sarkaghat, Distt Mandi(H.P.)
2. CompLalnt No. 25/1 of 1979 pending in the Court of J.M.I.C. Ghumarwin, Distt. Bilaspur (H.P.)
3. CompLalnt No. 6-1 of 1979 pending in the Court of J.M.I.C. Sarkaghat, Distt. Mandi(H.P.)
4. Similarly M/s. Lipton Tea (India) Ltd., Calcutta, petitioner in Criminal Revision No. 105 of 1979 is also a company incorporated under the Indian Companies Act and engaged in the manufacture and sale of tea under its trade name 'Lipton'. Sample of the tea supplied by this company was also picked up by the Food Inspector from the shop of one Amar Chand Gupta who cLalmed to have purchased such tea from the dealer M/s. Dhani Ram Amrit Lal of Sarkaghat who is petitioner. in Criminal Misc. Petition (Main) No. 223 of 1979. Analysis of this sample by the Public Analyst also revealed that it contained traces of iron filings though otherwise it conformed to the standard prescribed for tea in the relevant rule. In this case also the Public Analyst did not opine if the sample was adulterated within the meaning of the Act. The Food Inspector, however, assuming that as per this report the sample was adulterated, filed his complaint under Section 16(1)(a)(i) of the Act in the Court of the Judicial Magistrate 1st Class, Sarkaghat, against Shri Amar Chand Gupta, M/s. Dhani Ram Amrit Lal and M/s. Lipton Tea (India) Ltd.
5. In all these complaints the concerned Judicial Magistrate apparently acting in a mechanical manner summoned the persons who had been arrayed as respondents in the complaints.
6. Now it is not disputed by the petitioners that the tea out of which the samples in question were purchased by the Pood Inspectors from the various vendors had been marketed by them through their dealers. Nor it is disputed that the samples were taken and dealt with in accordance with the provisions of the Act and the Rules made thereunder. The sole contention of the petitioners which is common in all the cases is that in terms of the reports of the Public Analysts who analysed the samples, the same could not be termed as 'adulterated' within the meaning of the Act so as to attract the penal provisions. In view of this, the allegations made in the complaints which were based on no other material except the relevant reports of the concerned Public Analysts did not disclose the commission of any offence on the part of the petitioners and the proceedings initiated against them on the basis of such complaints by the Magistrate were, therefore, illegal and deserved to be quashed.
7. The prosecution, it may be observed, also relies upon these very reports of the Public Analysts in support of the charges levelled against the petitioners and others i.e. vendors and dealers. The short question which, therefore, falls for consideration is whether in view of the results of the analysis of the samples made by the Public Analysts and as given in their reports, the samples in question could be called 'adulterated' so as to attract the penal provisions of the Act.
8. Inasmuch as the result of these petitions depends upon the interpretation of the reports of the Public Analysts it is considered expedient to extract the relevant portion of one of such reports. I would extract such portion from the report involved in Criminal Revision No. 78 of 1979:
I further certify that I have caused to be analysed the aforementioned sample and declare the result of analysis to be as follows:Macro & MicroAnalysis = Two Iron filings(Metalic lusture)detected.The size of the twoIron pieces is 1.7 m.m.and 0.6 m. m.Total Iron filingcontents = 6 parts permillion.Moisture = 8.12%Total Ash = 6.30%Ash Insol. in dil.HCL = 0.33%Water Soluble Extract = 41.80%Alkalinity = 1.91%Water Soluble Ash = 63.75%Crude Fibre = 10.00%Added Colur = No coaltardye detected by wooldouble dyeing test andby paper charomato-graphy.
And I am of the opinion that the contents of the sample contain two Iron pieces. The size of the Two Iron pieces is 1.7 m.m. and 0.6 m.m. Total Iron filing contents is 6 parts per million.
9. It is an admitted position that except for the presence of iron filings the other contents of the samples as found as a result of the analysis do not violate the specifications and standard prescribed for tea in the relevant rule. In so far as the contents of iron filings are concerned, the sizes thereof found in the different samples varies from 0.5 m.m. to 1.7 m.m., the number of such iron filings found in these samples varied from 2 to 6 and the total quantity thereof varied from 3 parts in million to 13 parts in million.
10. As observed earlier the permissible contents of tea are given in paragraph A-14 of Appendix B of the Rules framed under the Act. This paragraph makes no mention of iron filings. The presence of iron filings in the sample would therefore make it adulterated only if it can be shown that such presence affects injuriously the nature, substance or quality thereof (See Section 2 (i-a)(b) of the Act).
11. Now admittedly there is no allegation whatever in either of the complaints if the presence of iron filings of the extent found therein would affect injuriously the nature, substance or quality of the tea. The learned Counsel for the petitioner's on the other hand brought to my notice that the matter of presence of iron filings in tea had been taken by the Central Committee for Food Standards constituted under Section 3 of the Act and as per recommendations of this committee which had been accepted by the Central Government, the presence of iron filings up to a tolerance limit of 250 parts per million subject to iron particles being not more than 2 m. m. in size would not be injurious to the human system. Shri Chan del, the learned Asstt. Advocate General, appearing for the State very frankly and fairly not only accepted this position but produced before me a copy of the relevant letter of the Government of India addressed to all the State Governments and the Union Territories. This letter is dt. 24.1.1981 and may be extracted for ready reference:
No. P 15025/3/80-DMS & PFA
Government of India
Min. of Health & Family Welfare
All Secretaries of State Governments/U.Ts. (Medical and P.H. Departments)
Subject: Iron Filings in tea.
It has been reported that in certain samples of tea taken under the Prevention of Food Adulteration Act, iron filings were found. Accordingly, State Governments are considering launching prosecutions against the offenders concerned. The Tea Industry has brought it to the notice of the Central Govt. that during the processing of tea, a certain quantity of iron filings is left in the tea powder due to friction of machinery parts and despite all efforts, the entire quantity of iron filings deposited during the processings cannot be removed.
2. The matter has been considered by the Central Committee for Food Standards, who have come to a provisional conclusion that iron filings cannot be completely removed from tea. The question of fixing a tolerance limit was referred to a Sub-Committee of the Central Committee for Food Standards. The Sub-Committee has recommended a tolerance limit of 250 parts per million subject to iron particles being less than two mm. in size, as they would not be injurious to the human system.
3. In partial modification of para 3 of this Department's letter dated 30.6.76, it has been decided that in view of the position explained above, whenever samples of tea are analysed, the tolerance limit of 250 parts per million subject to iron particles being not more than 2 mms in size should be kept in view. Prosecutions may, in future, be launched only in those cases where the above mentioned tolerance limits exceeded. It is requested that prosecutions may not please be launched in those cases also where the samples have already been taken and found to contain iron filings below the tolerance limit of 2 mms indicated above.
4. I am to request that instructions may be issued accordingly to the enforcements staff and the public analysts appointed under the Prevention of Food Adulteration Act.
Under Secretary (D)
12. It is clear from the language of the letter extracted above that the Central Government had directed all the State Governments that no prosecution be launched under the Act in cases where samples of tea taken were found to contain iron filings below the tolerance limit of 2 mms in size and 250 parts per million in quantity. These directions were obviously issued because the Central Government had accepted the view that the presence of iron filings in tea within the tolerance limit mentioned in the letter was not injurious to the human system and would not render the substance 'adulterated1 for the purposes of the Act. Such directions could of course be issued by the Central Government under Section 22-A of the Act and being statutory in nature are binding on the State Governments.
13. In view of what has been stated above the conclusion is irresistible that not only the prosecutions against the petitioners were launched in violation of the statutory directions of the Central Government but also without any foundation inasmuch as the samples of tea picked up in these cases were not adulterated within the meaning of the Act. The allegations made in the complaints filed against the petitioners never disclosed the commission of any offence and the Magistrate, therefore, had no jurisdiction to issue process against the petitioners or other vendors and dealers involved. I would accordingly accept all these petitions and quash the criminal proceedings pending in the various Subordinate Courts as detailed above.
14. Before parting with these petitions, I would like to impress upon the State Government the necessity of circulating copies of the Government of India letter of 24.1.1981 amongst the members entrusted with the enforcement of the Act including the Public Analysts, if not already done.