Hindustan Cocacola Beverages vs State Of Madhya Pradesh

This petition under section 482 of the Code of Criminal Procedure has been filed by the petitioner to invoke the extraordinary jurisdiction of this Court

and to quash the criminal proceeding of Criminal Case No.1907/2010, pending before the Judicial Magistrate First Class, Hoshangabad and to quash

order dated 10.12.2010, whereby cognizance under sections 7 & 16 of the Prevention of Food Adulteration Act has been taken against the petitioner.

The petitioner is a Company, namely, Hindustan Coca-Cola Beverages Pvt.Ltd. through its authorized person-Shri Ratnesh Pandey.

The prosecution case, in brief, is that the Food Inspector, Jagdish Prasad Lawanshi taken a sample on 10.9.2010 from Shiv General Stores after

introducing himself and observing the necessary formalities. The ""Thums Up"" cold drink of 1.25 Ltrs. was found with the label and the date of

manufacturing was not legible, therefore, it was mis-branded and the quality was suspicious. The Batch Number was also not clear and the packaging

date was not mentioned. He took 3 samples. One sample was sent to the Laboratory for analysis.

After having found that the sample is mis-branded and itwas sub-standard, the prosecution was launched. Letter was sent to the seller, distributor,

manufacturer seeking the details under section 14-A of the Prevention of Food Adulteration Act (hereinafter referred to the as ""PFA Act""). The

Thums-Up"" was being manufactured by Hindustan Coca-Cola Beverages Pvt. Ltd. situated at Industrial Area, Pillukhedi, Tahsil Narsinghgarh,

Rajgarh (MP). After following the procedure, complaint was filed for violation of sections 2(ix)(k) and 7(ii) of the PFA Act and Rule 32 of the

Prevention of Food Adulteration Rules (hereinafter referred to as the ""PFA Rules"").

On behalf of the petitioner the present petition has beenfiled on the ground that packaging was properly made. The date of packaging was not clear,

therefore, it is claimed to be mis-branded. But, it could be because of so many reasons viz. obliterate or become faint or not clear, which cannot be

termed as ""mis-branding"". It is also claimed that sample was taken on 10.9.2010. The life of the food article was three months. The complaint was

filed on 10.12.2010. Notice was received by the petitioner on 20.12.2010, therefore, the petitioner could not send the sample within time. The date of

packaging was not required to be engraved in the bottle. On the paper label, it was printed. However, after sometime the packaging date might have

been obliterated. It is further claimed that remedy under section 13(2) of the PFA Act was not available to the petitioner because of the delay in filing

the complaint and the fact that allegation was made with regard to mis-branding is not correct. It is claimed that complaint was filed after the self life

of the food article was over. Therefore, the petitioner could not avail the valuable right under section 13(2) of the PFA Act.

Learned counsel for the respondent submitted thatprinting was not clear and, therefore, the information/entry made in the label was the subject

matter of prosecution. As per requirement of the PFA Rules the date of packaging was necessary and important, for without the date of packaging it

is not possible to make out the expiry date of the product. Therefore, it is misbranding. So far as the right of the petitioner for sending second sample

for analysis to the Laboratory is concerned, that right is only available when adulteration is found. Section 13(2) of the PFA Act, if read in its proper

perspective, shows that second sample can be sent for analysis only when food article is adulterated or of sub-standard. Hence, it is not a case, in

which, the provision of section 13(2) of PFA Act is attracted and there is no violation of the rights of the accused.

Heard the parties and perused the record. Report of Public Analyst dated 04.11.2010 shows that ""Packed is not clear"", ""Batch No.408"", ""Best

before 3 months"". When there is no mention of date of packaging, therefore, sample is misbranded under section 2(ix)(k) of PFA Act read with Rule

32 of PFA Rules. Thus, this Analyst Report dated 04.11.2010 does not disclose that it is sub-standard or adulterated. The charge has not been

adulterated. Charge has not been framed for sub-standard or adulteration of food article. Secondly, the provision of section 13(2) of PFA Act for

sending the second sample for analysis is not required as it is not a case of adulteration.

In this regard, the case of Indrajeet Walia s/o S.Valia vs. Food Inspector Shri Subhash Khedkar [M.Cr.C. No.993/2012 decided on 18.12.2014 High

Court of Madhya Pradesh Bench at Indore] which was later on affirmed by the Supreme Court in Special Leave Petition No.802/2015 decided on

24.9.2015.

As regarding printing of package, there was no clarity. On behalf of the petitioner reliance has been placed in the case of Nestle India Limited vs.

State of Bihar and others, reported as 2015 Cr.L.J. 803, wherein the High Court of Patna has held that such printing was not clear. Clarity of such

information/entry being core of the subject matter of prosecution, the Court did not have any material whatsoever before it, except a bald prosecution

report to take cognizance of the case. It is also observed by the High Court of Patna that holistic consideration of the rival contentions and on going

through the record of the case, this Court finds that the learned Magistrate did not have sufficient information before him to take cognizance for the

offence under the Prevention of Food Adulteration Act, 1954. If the batch number and the manufacturing date were stated on the wrapper of the food

articles, it was sufficient compliance of the Rules framed under the Act.

In the present case, if the circumstances are appreciated in itscorrect perspective it would be clear that food article is best before 3 months, but this

can only be known from the date of packaging or manufacturing. When this date of packaging or manufacturing is not made clear, it would be very

difficult for the consumer to find out when the bottle was packed or manufactured. Hence, not disclosing the date of package, definitely falls in the

category of ""misbranding"". Misbranding has been defined under sub-section (m)(ix) of section 2 of the PFA Act, in which, if it is not labelled in

accordance with the Act or the Rules, it can be termed as ""misbranded"".

On the basis of above analysis, the points raised by learned counsel for the petitioner do not hold good, therefore, order taking cognizance and

subsequent criminal proceedings are not liable to be interference with.

Accordingly, the petition is dismissed.