High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 23-11-2007CORAMTHE HONOURABLE MR.JUSTICE S.PALANIVELUCRIMINAL ORIGINAL PETITION No.16672 OF 20041.A.Rajasingh2.T.Densingh Lasarus3.A.Manoharan4.M/s.Naga Limited...Petitioners-vs-The Food Inspector,Lakkampatty Panchayat,Erode District....RespondentPetition filed under Section 482 of the Code of CriminalProcedure to quash the complaint in CC.No.246/2004 on the file ofthe Judicial Magistrate, I, Gobichettipalayam.For petitioners : Mr.S.R.RajagopalFor respondent : Mr.A.Saravanan, Govt.Advocate (Criminal Side).O R D E R This petition has been filed, praying to quash the complaintin C.C.No.246 of 2004 on the file of Judicial Magistrate No.I,Gobichettipalayam, Erode District. 2. Fourth petitioner is a manufacturer of wheat flour, underthe name and style “Naga Whole Wheat Atta”. It is stated in thepetition that the product is of high quality and has earned goodwillin the market, which is known for its huge demand. The respondentfiled a complaint in C.C.No.246 of 2004, alleging that he obtainedsamples of fourth petitioner's product, by name, Naga Whole WheatAtta, and despatched the same for examination to Food AnalysisLaboratory, King Institute Campus, Guindy, Chennai, on 10.12.2002 andthe result disclosed that there was no adulteration. However, thecomplaint goes to the effect that packet has been misbranded as “Bestwithin four months” in stead of “Best before ....... months frommanufacture or packaging”. https://hcservices.ecourts.gov.in/hcservices/

3. The gravamen of the complaint is that the above saidmisbranding is in violation of Rule 32 (i) of Prevention of FoodAdulteration Rules,1955, and the declaration would deceive theattention of the consumers and that only if the printing on the covercontains the brand as mentioned in the Rules, it would be inaccordance with law. Hence, it is stated that the manufacturer ofthe food product in question has committed an offence under Section 7(ii) read with Sec.16 (1) (a) (i) read with Section 2 (ix) (k) ofthe Prevention of Food Adulteration Act,1954, (in short, 'the Act')and Rule 32 (i) of the Prevention of Food Adulteration Rules,1955,(in short, 'the Rules').4. In the petition, the petitioners, namely, accused 1 to 4,have mentioned the other circumstances, which would vitiate theprocess adopted by the Food Inspector, to show that the complaintdoes not stand legally.5. The first ground adduced, assailing the process, is thatthe complainant has failed to give notice in writing, as adumbratedin Section 11 (1) (A) of the Act, which is mandatory; hence,initiation of prosecution against the petitioners does not conform tothe legal procedure, and, as such, it would fall to the ground. It isfurther stated that failure on the part of the complainant toexercise his rights to enquire whether the vendor purchased the saidpackage from an authorised dealer or received the same from themanufacturer has not been verified, before launching the prosecution. 6. Secondly, it is mentioned that under Section 11 (1), theprovision requires the samples to be divided into three parts andthereafter only, marking, sealing and fastening up each part are tobe done and that the statute requires obtaining signature of theperson from whom the sample is taken, but the complaint does notnarrate the particulars and, hence, it is a sheer violation of themandatory provision, as aforementioned.7. Lastly, it is contended that under Section 11 (c) (i),the sample must be despatched for analysis to the Public Analystunder intimation to the local (health) authority and, thereafter, theremaining two parts have to be sent to the local (health) authority,for the purposes of Section 11 (2) and Section 13 (2A) and (3E), but,in this case, all the samples were sent to the Public Analyst, KingInstitute Campus, Guindy.8. On the strength of above said factual backdrop ofcircumstances, the petitioners would attack the process, mentioned inthe complaint. 9. As far as the above said grounds are concerned, whetherthe settled and codified procedures have been violated or not, couldbe gone into only after appreciation of oral evidence in that regard https://hcservices.ecourts.gov.in/hcservices/ by the trial Court, after examination of the parties. The nicetiesof the matter could be legally discussed only on the factualbackground, which would be obtained at the time of examination ofwitnesses and that stage has not reached so far. The grievance of thepetitioners cannot be countenanced at this stage, since this Court isnot sitting on appraisal of oral testimonies, which are yet to berecorded by the trial Court.10. Under the circumstances, the observation of this Courtwould be that only after recording of oral evidence of the parties tothe case, the finding, as to whether the prescribed procedures in theAct and the Rules have been complied with, shall be rendered by thetrial Court.11. Adverting to the legal scenario, learned counsel for thepetitioners would very much stress his contention that the respondenthas interpreted the terms in Section 32 (i) of the Rules in a wrongmanner, which would not get any support from the well settled legalprinciples.12. In this context, it is beneficial to extract Rule 32 ofthe Rules, which goes thus :“Rule 32 : Package of food to carry alabel :- Every package of food shallcarry a label and unless otherwiseprovided in these rules, there shall bespecified on every label -(i) the month and year in capitalletters up to which the product is bestfor consumption in the following manner,namely --“BEST BEFORE ..... MONTHS AND YEAR”OR“BEST BEFORE ..... MONTHS FROMPACKING”OR“BEST BEFORE .....MONTHS FROMMANUFACTURE”OR “BEST BEFORE UP TO MONTH ANDYEAR ...”)(For the period up to)OR“BEST BEFORE WITHIN .... MONTHSAND) and inclusiveFROM THE DATE OF https://hcservices.ecourts.gov.in/hcservices/ PACKAGING/MANUFACTURE”) of 1st September(Note : Blank be filled up) 2001 :]”13. Learned counsel for the petitioners relied upon adecision of this Court in T.Prabhu & another v. The State, 2007-1-L.W.(Crl.)367, wherein, on the discussion taken up in Rule 32, it washeld that the language “best before .... months”, could in no way bemisled for the term “best before within twelve months”. Theoperative portion of the said decision is as follows :“Though it is specifically instructedin the Rules that “within” must be omittedafter 01.09.2001, merely by adding suchword, the customers are not misled ormisdirected. I do not find any differenceotherwise in the meaning conveyed. Thedate of packing has been specificallymentioned as 26.05.2004. By using thelanguage “best before ..... months”, themeaning to be conveyed is, the customersmust use it before twelve months” and suchmeaning has been conveyed by this language“best before within twelve months”. Priorto 1.9.2001, it was the approved languageby the Department. Under suchcircumstances, I do not find any merit inthe prosecution for misbranding. Hence,the proceedings pending against thepetitioners in S.T.C.No.1403 of 2005 on thefile of the learned Judicial MagistrateNo.VII, Coimbatore, are liable to bequashed and it is, accordingly,quashed....”14. In a recent unreported decision of the Madurai Bench ofthis Court in Criminal O.P.No.15161 of 2004, dated 09.06.2007, theabove decision has been referred to and a learned single Judge hasrefused to take a different view from the one taken in the above saidruling.15. Even though the terminology found in both the termsdiffer in appearance, actually, no consumer would definitely bemisguided, if he happens to see the term “best within four months”.Even if the words “best before four months from manufacture orpackaging” are not there, and, instead, the words “best within fourmonths” are there, it will not, in any way, mislead the consumer and,by no stretch of imagination, it could be termed that the producthas been misbranded. It is to be seen that the product is notadulterated and only an allegation of misbranding is there. https://hcservices.ecourts.gov.in/hcservices/

16. As stated supra, it is to be held that no question ofmisbranding has arisen in this case and the mere change of wordswould in no way mislead the usage of the product among the public.Hence, it is futile to contend that the product has been misbranded.As the subject in question has been repeatedly enlightened by thisCourt as to the employment of words on the packets, it must beconcluded that there is no misbranding in this case, in legalparlance.17. In the light of the observations made above, thecomplaint in C.C.No.246 of 2004 on the file of Judicial MagistrateNo.I, Gobichettipalayam, is liable to be quashed, which is,accordingly, quashed. As such, this petition is allowed.Consequently, the connected Criminal M.P.No.5965 of 2004 is closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.dixitTo1. The Judicial Magistrate I, Gobichettipalayam.2. -do- through the Chief Judicial Magistrate, Erode.3. The Public Prosecutor, High Court, Madras. + 1 CC To Mr. S.R.Rajagopal, Advocate SR NO.69899CRL.O.P.No.16672 OF 2004ts[co]gp/4.12.