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Judgment
Petitioner, while challenging the impugned order dated 16.12.2008 passed by CJM, Kota, has preferred the instant petition pleading that summoning
order passed by learned court below is not sustainable because petitioner is not a manufacturer of the product nor sample of the said salt was found to
be misbranded and adulterated, the laboratory, which allegedly tested the commodity, was not at all competent to conduct the analysis and case of the
petitioner is squarely covered by Supreme Court decision passed in Pepsico India Holdings Private Limited v. Food Inspector And Another (2011) 1
SCC 176, because the provisions of Section 23(1-A)(ee) of the Prevention of Food Adulteration Act, 1954 (hereinafter to be referred as ‘the
Act’), have not been complied and it is indisputable that the defined laboratory, as prescribed by the said provision, was not established till
repealing of the Act and said view of the apex court has further been followed by Division Bench of the High Court of Kerala at Ernakulam in the
case of N.K. Rasheed v. Food Inspector, 2016 (2) KHC 679, so the summoning order passed by learned trial court is not sustainable in the eye of law
and is liable to be quashed.
Reiterating pleading asserted in the petition, similar arguments have been raised, while relying the judgment passed by Supreme Court in Pepsico India
Holdings Private Limited v. Food Inspector (supra), the High Court of Kerala at Ernakulam in N.K. Rasheed v. Food Inspector (supra) and
judgment delivered by High Court of Patna in Md. Izhar v. State of Bihar [Criminal Misc. No.3890/2007, decided on 15.01.2009], it has been
contended that laboratory as prescribed under the provisions of Section 23(1-A)(ee) of the Act, indisputably did not come into existence because same
was not defined as per the law, it has further been contended that Logo of the product being vegetarian or non-vegetarian, has no relevance in respect
of the salt, although it was mentioned on the package of the commodity and the nature of the salt has got no relevance with alleged nonvegetarian
quality because it is inherently a vegetarian product and “common salt†is not manufactured by any process to render it a non-vegetarian product,
referring the description of the said analysis, it has further been argued that even peculiarity of ingredients of salt has not been tested as per the Rules
and the alleged contents have also not been tested as per the Schedule of analysis of iodized salt enumerated under the Prevention of Food
Adulteration Rules 1955, complaint has also been filed belatedly and valuable rights of the petitioner have been defeated since he has failed to get, said
sample re-examined through Central Food Laboratory because the shelf life of the product got expired, as such petition be allowed and order of
learned court below be quashed.
Learned Public Prosecutor has not disputed this aspect that as per the provisions of Section 23(1-A)(ee) enumerated under the Act, prescribed
laboratories have not been defined.
Heard rival submissions of both the sides and gave a thoughtful consideration to the material available on the record.
It is not in dispute that the mandate of statutory provision, as enumerated under Section 23(1-A)(ee) of the Act has not been complied with and the
laboratories, which ought to have been defined as per the mandate of Section 23(1-A)(ee) of the Act, has not been delineated. The Act of 1954 has
since repealed and till the provisions of Act 37 of 1954 got repealed, mandate of Section 23(1-A)(ee) of the Act was not adhered to and complied
with. Section 23 of the Act enumerates and is defined as under :-
Power of the Central Government to make rules.â€" (1) The Central Government may, after consultation with the Committee and after previous
publication by notification in the Official Gazette, make rules to carry out the provisions of this Act:
Provided that consultation with the Committee may be dispensed with if the Central Government is of the opinion that circumstances have arisen
which render it necessary to make rules without such consultation, but, in such a case, the Committee shall be consulted within six months of the
making of the rules and the Central Government shall take into consideration any suggestions which the Committee may make in relation to the
amendment of the said rules.
(1-A) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters,
namely:â€
(a)Â Â Â Â Â Â Â specifying the articles of food or classes of food for the import of which a licence is required and prescribing the form and
conditions of such licence, the authority empowered to issue the same, the fees payable therefor, the deposit of any sum as security for the
performance of the conditions of the licence and the circumstances under which such licence or security may be cancelled or forfeited;
(b)Â Â Â Â Â Â Â defining the standards of quality for, and fixing the limits of variability permissible in respect of, any article of food;
(c)Â Â Â Â Â Â Â Laying down special provisions for imposing rigorous controlover the production, distribution and sale of any article or class of
articles of food which the Central Government may, by notification in the Official Gazette, specify in this behalf including registration of the premises
where they are manufactured, maintenance of the premises in a sanitary condition and maintenance of the healthy state of human beings associated
with the production, distribution and sale of such article or class of articles;
(d)Â Â Â Â Â Â Â restricting the packing and labelling of any article of food and the design of any such package or label with a view to preventing
the public or the purchaser being deceived or misled as to the character, quality or quantity of the article or to preventing adulteration;
(e)Â Â Â Â Â Â Â defining the qualifications, powers and duties of food inspectors and public analysis;
(ee) defining the laboratories where samples of articles of food or adulterants may be analysed by public analysts under this Act;
(f) prohibiting the sale of defining the conditions of sale of any substance which may be injurious to health when used as food or restricting in any
manner its use as an ingredient in the manufacture of any article of food or regulating by the issue of licences the manufacture or sale of any article of
food;
Supreme Court in Pepsico India Holdings Private Limited v. Food Inspector (supra) has held that the provisions of Section 23(1-A)(ee) and (hh) are
mandatory and it is mandatory for Central Government to prescribe laboratories under Section 23(1-A)(ee) for testing of food samples/adulterants and
to prescribe method of analysis under Section 23(1-A)(hh) of the Act.
Division Bench of the High Court of Kerala at Ernakulam in N.K. Rasheed v. Food Inspector (supra), while following the decision of Supreme Court
as laid down in Pepsico India Holdings (supra), has held alike.
The High Court of Patna in Md. Izhar v. State of Bihar (supra), while deciding Criminal Misc. No.43890/2007, has observed as under :-
The allegations are of misbranding. The product did not display whether it was a vegetarian product or non-vegetarian product. That the
product met the requirements of salt and that it was not adulterated by any materials harmful for human consumption, is not alleged in the report of the
public analyst. Salt is manufactured by only one process. Unlike fat, which can be either vegetable fat or animal fat making necessary to qualify the
nature of the origin, cannot be applicable in the case of common salt. Common salt is not manufactured by any process to render it a non-vegetarian
product. The failure of the manufacturer to label vegetarian product, is hardly of significance and in any event cannot fasten liability upon the
petitioner in absence of the manufacturer. Section 2(ix) of the Food Adulteration Act, which describes misbranding, could be applicable only if the
complaint does make out any allegations to bring the absence of the logo within any of the clause of Section 2(ix)(a) to (j). In so far as Clause (k) is
concerned, it relates to the manufacturer of his statutory duties to affix the label and not on the petitioner, Â Â Â Â Â Â Â Â moreover, logo
indicating vegetarian quality of the product, has also got imbibed on the package of the product, despite common salt being inherently vegetarian in
nature.
The petitioners were served with the summon for appearance on 02.03.2017 and the prosecution was launched on 16.12.2008, after delay of around
nine years and for want of the Notification for the prescribed laboraties, valuable rights of the petitioner/s got frustrated as enshrined under Section 13
subclause (2) of the Act to get the sample re-examined from Central Food Laboratory.
In light of the discussions made hereinbefore, sanction order dated 16.10.2008 and criminal proceedings in respect of complaint no.570/2008
(1672/2008) State v. Arjun Kumar & Others pending before the Court of CJM, Kota, for the offence punishable under Section 7/16 of the Act, are set
aside and quashed. The appended Stay Application being S.B. Criminal Misc. Stay Application No.1129/2015 also stands disposed of in light of the
aforesaid.