Food Adulteration Rules vis. a vis. the nature of misbranding
indulged by accused respondent No.3 wherefrom respondent
No.1 purchased the misbranded food item/food product without
his concerting to discover the factum of misbranding renders, all
the accused from whom the relevant food item stood transmitted
in an unbroken chain upto accused respondent No.1 wherefrom
the Food Inspector purchased the relevant food product, to be
vicariously liable for infringement of the relevant penal provisions.
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr. Appeal No. 113 of 2007
Decided on : 26.10.2016
State of H.P
V
Chaman Lal and another
Coram
Mr. Justice Sureshwar Thakur, Judge.
Citation: 2017 CRLJ 69
The instant appeal stands directed by the State of
Himachal Pradesh against the impugned judgment rendered on
26.9.2006 by the learned Sub Divisional Judicial Magistrate, Arki,
District Solan, H.P. in Criminal Case No. 32/3 of 2001, whereby
the learned trial Court acquitted the respondents (for short
‘accused’) for the offences charged.
2. The brief facts of the case are that on 16.12.2000, Food
Inspector, S.C. Joshi inspected the premises of Chaman Lal
Malhotra, proprietor of General Merchant and Confectionary
Works at Kunihar at about 1.20 p.m. where he was found
conducting the business of the shop and at the time of inspection
he was having 170 sealed packets of Glucose-V-Biscuits of 250
grams each in his possession meant for sale to the general public
for human consumption, which were manufactured by ‘Surya
Food and Agro Limited, Noida, Priya Gold Industries (India) Ltd,
Noida’. After disclosing his identity being Food Inspector, he
served notice to accused No. 1 declaring his intention to take the
sample of sealed Glucose-V-Biscuits out of these sealed packets
and purchased six sealed packets of Glucose-V Biscuits of 250
grams each against the payment of Rs. 48/- as a sample for
analysis. At the time of taking sample, accused No. 1 disclosed
to the Food Inspector that he has purchased the said biscuits
from M/s Shashank Enterprises, The Mall, Solan vide Bill No.
3521, dated 25.11.2000 under Section 14-A. So, a subsequent
notice under Section 14-A was sent to accused No. 2 under the
registered cover. After completing all codal formalities and on
conclusion of the investigation into the offence, allegedly
committed by the accused challan was prepared and filed in the
Court.
3. Notice of accusation stood put to the accused by the
learned trial Court for theirs committing offences punishable
under Sections 16(1)(a)(i) read with Section 7(ii) of the
Prevention of Food Adulteration Act, 1954 (hereinafter referred to
as the Act) to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined 3
witnesses. On closure of prosecution evidence, the statements of
the accused under Section 313 of the Code of Criminal
Procedure, were recorded in which they pleaded innocence and
claimed false implication. They did not choose to lead any
evidence in defence.
5. On an appraisal of evidence on record, the learned trial
Court returned findings of acquittal in favour of the accused.
6. The learned Additional Advocate General has concertedly
and vigorously contended qua the findings of acquittal recorded
by the learned trial Court standing not based on a proper
appreciation of evidence on record, rather, theirs standing
sequelled by gross mis-appreciation by it of the relevant material
on record. Hence, he contends qua the findings of acquittal
being reversed by this Court in the exercise of its appellate
jurisdiction and theirs being replaced by findings of conviction.
7. The learned counsel appearing for the respondents has
with considerable force and vigour contended qua the findings of
acquittal recorded by the Court below standing based on a
mature and balanced appreciation of evidence on record by the
learned trial Court and theirs not necessitating interference,
rather theirs meriting vindication.
8. This Court with the able assistance of the learned
counsel on either side has with studied care and incision,
evaluated the entire evidence on record.
9. The accused respondent No.3 Purshotam Julka died
during the pendency of the appeal before this Court. Hence, the
prosecution case against him stands abated.
10. The Food Inspector concerned during the course of his
inspecting the commercial premises of accused/respondent No.1
purchased from him six packets of biscuits weighing 250 grams
each, purchase whereof stands displayed in Ext.P-2. The
aforesaid food item was dispatched to the public analyst
concerned whereupon he recorded an opinion of the batch
number borne thereon being illegible besides the month and year
of the manufacture or its packing remaining un-recited therein.
Consequently, under the apposite report prepared by the public
analyst concerned recorded in sequel to his subjecting the
aforesaid food item to examination, he concluded qua it being
misbranded, in sequel thereto the accused respondent No.1
besides respondents No.2 and 3 respectively the retailer besides
forwarding agent and the manufacturer of the relevant food item
stood arrayed as accused. A notice of accusation stood put to
them qua theirs infringing the provisions of Section 16(1)(a)(i)
read with Section 7(ii) of the Act. A thorough examination of the
entire cross-examination to which the prosecution witnesses
stood subjected to by the learned defence counsel unveils of
theirs not standing put any apposite suggestion nor obviously any
response upsurging in personification of the Food Inspector
concerned on inspecting the commercial premises of respondent
No.1 his not under Ext.P-2 purchasing from respondent No.1 the
relevant food product/food item in sequel whereto it is inevitable
to conclude qua the defence neither concerting to repudiate nor
it concerting to controvert the trite factum of the Food Inspector
visiting the relevant commercial premises nor also it concerting to
belie the factum of purchase of the relevant food item by the
Food Inspector concerned from accused/respondent No.1. Also
the evidentiary material as exists herebefore makes a loud
pronouncement qua accused No. 2 and 3 respectively the
forwarding agent and manufacturer of the misbranded food item
not concerting to repudiate the factum of theirs being
respectively the manufacturer or the forwarding agent qua the
relevant food item vis.a.vis. accused respondent No.1.
Consequently, the derivative therefrom is of theirs acquiescing to
the factum of theirs respectively manufacturing besides being the
forwarding agent qua the relevant food item vis.a.vis. respondent
No.1. The learned trial Court on visiting the entire record had
concluded qua with availability of independent witnesses in
proximity to the relevant commercial establishment of accused
respondent No.1 yet their association in the relevant proceedings
remaining unsolicited by the Food Inspector concerned staining
the purchase by the Food Inspector concerned of the relevant
food item from accused/respondent No.1. In sequel, thereto he
concluded of the prosecution not succeeding in proving the
charge against the accused. However, the aforesaid reason as
purveyed by the learned trial Magistrate in his impugned order is
ridden with gross perversity arising from his mis-appreciating the
impact of purchase of the relevant food item by the Food
Inspector concerned from the relevant Commercial premises
occurring under Ext.P-2 also its overlooking the trite factum of
the defence not adducing any evidence in denial of the aforesaid
purchase standing ridden with a vice of compulsion or duress
standing exercised upon accused No.1 by the Food Inspector
concerned. For unavailability of the aforesaid evidence on record
it was wholly inapt for the learned trial Magistrate to conclude
qua with evident availability of independent witnesses in
proximity of the relevant site of occurrence whereas theirs
remaining unjoined at the time contemporaneous to his
purchasing the relevant food item from accused respondent No.1,
ingraining the entire prosecution version with a blemish of
untruthfulness qua the relevant facet predominantly when the
probative sinew for reasons aforestated of Ext.P-2 remained
unshattered. In sequel, thereof, the aforesaid reason as
assigned by the learned trial Magistrate for recording an order of
acquittal vis.a.vis the accused warrants interference.
11. Be that as it may, the learned trial Magistrate had
while recording an order of acquittal vis.a.vis. the accused had
postulated a reason qua the prosecution standing enjoined by the
mandate of Section 17(1)(a)(i) and Section 17(1-a)(ii) to display
with specificity in the apposite complaint the factum of
commission of offences by the Company itself and/or any
nominated person or any other person who was incharge and
was responsible to the Company for conducting its business
wherefrom it concluded of with accused respondent No.1
standing neither averred in the apposite complaint nor evidence
standing adduced qua his at the relevant time holding any
authorization as a nominee of the manufacturer of the relevant
food item who stood arrayed as accused No.3 or his being
incharge of its business besides responsible to the Company for
conducting its business, recorded a conclusion of thereupon the
charge against the accused respondent warranting its being
construable to stand jettisoned. However, the aforesaid reason
as stands assigned by the learned trial Magistrate is also
extremely legally frail as it emanates on a gross mis appreciation
by him of the relevant provisions engrafted in Section 17 of the
Act, provisions whereof are applicable where the relevant
purported misbranded or adulterated food item stands purchased
or stands seized from the premises of Company (M/s Surya Food
and Agro Limited, Sector-2, Noida ) besides only in the event of
the aforesaid display there would be an onerous obligation cast
upon the Food Inspector concerned to while concerting to prove
charges framed vis.a.vis. the accused under Section 17 of the
Act, to aver in the apposite complaint the relevant ingredients
encapsulated in Section 17 of the Act whereas with contra
distinctivity herebefore qua the relevant purchase/seizure of the
mis branded food product or food item occurring on the Food
Inspector concerned visiting/inspecting the retail commercial
outlet of accused respondent No.1 who uncontrovertedly made
its purchase/received it from accused No.2 latter whereof had
received it from its manufacturer arrayed as respondent No.3,
concomitantly did not entail upon the Food Inspector concerned
to mete compliance to the provisions of Section 17 of the Act nor
obviously he was enjoined to embody therein the ingredients
thereof nor obviously any evidence in display of satiation thereof
standing begotten was enjoined to be adduced by the
prosecution. In sequel thereto the aforesaid reason as stands
assigned by the learned trial Court to record an order of acquittal
vis.a.vis. the accused suffers from a vice of infirmity arising from
its misappraising the provisions of Section 17 of the Act.
12. The learned trial Magistrate on the anvil of a
verdict of the Hon’ble Apex Court reported in Dwarka Nath and
another vs. Municipal Corporation of Delhi, 1971 AIR 1844
wherein the Hon’ble Apex Court had declared ultra vires Rule
32(b) of the Prevention of Food Adulteration Rules, relevant
portion whereof stands extracted hereinafter,
“23. We are not inclined to accept the
contention of Mr. Manchanda that Clause (b)
of Rule 32 is beyond the rule making power of
the Central Government under Section
23(1)(d) of the Act. It is well known that in
many cases in business the name and address
of a manufacturer or importer or vendor or
packer has become associated with the
character, quality or quantity of the article
and as such we are of the opinion that Clause
(b) of Rule 32 is a valid rule.”
On anvil of its enactment being beyond the ambit of the rule
making power of the relevant authority vice whereof ingraining it
emanating on emergence of transgression of the mandate of
Section 23 of the Act whereupon the trial Magistrate recorded a
conclusion of the report of the public analyst concerned holding
therewithin portrayals of the relevant food item/food product
holding a vice of misbranding, not warranting acceptance,
wherefrom it concluded of the accused standing entitled to an
order of acquittal. The reliance as placed by the learned
Magistrate upon the aforesaid verdict of the Hon’ble Apex Court
emanates on his grossly misappreciating its subtle nuance tritely
the one qua the relevant Rule 32(b) (e) of the ‘Rules’ enjoining
upon the relevant manufacturer to on the label of the relevant
food product item disclose therein the name and business
address of the importer or packer also enunciate therein the
batch number either in English or in Hindi or in combination, not
carrying forward the salutary spirit of the Act qua its informing
the consumer qua the purity or the freshness of the product, qua
factum whereof the relevant customer would become enlightened
only when the label of the relevant food product holds portrayals
qua the date and year of its manufacture besides holds
reflections therein qua the date of expiry of the food product
wherefrom reiteratedly the relevant consumer would stand
apprised qua the freshness of the product besides would be
baulked to purchase it for precluding injury to his health.
Consequently, with contra distintivity occurring in the relevant
Food Adulteration Rules vis. a vis. the nature of misbranding
indulged by accused respondent No.3 wherefrom respondent
No.1 purchased the misbranded food item/food product without
his concerting to discover the factum of misbranding renders, all
the accused from whom the relevant food item stood transmitted
in an unbroken chain upto accused respondent No.1 wherefrom
the Food Inspector purchased the relevant food product, to be
vicariously liable for infringement of the relevant penal provisions.
13. For the reasons which have been recorded hereinabove,
this Court holds that the learned trial Magistrate has not
appraised the entire evidence on record in a wholesome and
harmonious manner apart therefrom the analysis of the material
on record by the learned Magistrate suffers from perversity or
absurdity of mis-appreciation and non appreciation of evidence
on record. In sequel thereto, I find merit in this appeal, which is
accordingly allowed and the judgement of acquittal rendered by
the learned trial Magistrate is quashed and set-aside. Accordingly,
the accused No. 1 and 2 are held guilty for theirs committing
offences punishable under Sections 16(1)(a)(i) read with Section
7(ii) of the Prevention of Food Adulteration Act, 1954.
14. Let the accused/respondents No. 1 and 2 be
produced before this Court on 16/11/2016 for theirs being heard
on the quantum of sentence.
26th October, 2016. ( Sureshwar Thakur )
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