M/s Pepsico India Holdings Private Ltd & Anr @APPELLANT@Hash Additional Chief Judicial Magistrate, Kashipur & Anr

Lok Pal Singh, J

By means of present application u/s 482 Cr.P.C., applicants have sought quashing of order dated 21.06.2008 (Annexure no.3) passed by Additional

Chief Judicial Magistrate, Kashipur, Udham Singh Nagar in criminal case no.1000 of 2008 Vedvrat vs. Pepsico India Holdings and others as well as

quashing of proceedings arising from there.

Brief facts of the case are that respondent no.2 filed a complaint case before the court of learned ACJM, Kashipur, District Udham Singh Nagar

bearing criminal case no.1000 of 2008 alleging that on 6.5.2008 he bought a carat of cold drink Mirinda from U-Like Book and Stationery & General

Store, College Road, Kundeshwari. All the bottles in the carat were closed and sealed. When he opened one bottle, he found that it was containing a

dead insect; on the cap of the bottle CDV 5306 FP09886/1 was printed and was alleged to have manufactured on 16.4.2008. The complaint alleged

that he had bought the carat of cold drink in the presence of one Shri Pawan Kumar and some other persons and therefore he had showed the insect

in the bottle to those people. The complainant alleged that the retailer told him that he purchases these cold drinks from Shri Nizam, Proprietor dealer

of Uttaranchal Drinks, Siddiqui Market, Jaspur Road, Kashipur, whose transport brings it to the retailer and the same is sold as such; the shopkeeper

further told him that he is a small shopkeeper and this is a fault of applicant no.2 and the dealer of Uttaranchal Drinks. The complainant alleged that

the applicants have conspired to sell the spurious box of Mirinda which is a grave offence. The complainant has further alleged that the complainant

made complaint to the Chowki Kundeshwari but the same was not registered and thus he sent his complaint to the S.S.P. Udham Singh Nagar vide

registered post dated 14.5.2008 but to no avail, as such he constraint to file complaint in the court of ACJM. The complainant got his statement

recorded under Section 200 of Cr.P.C. On behalf of the complainant, statement of Devendra Kumar was recorded as CW1. After perusal of the

complaint and the statements of the complainant and that of witness, Additional Chief Judicial Magistrate, Kashipur, vide order dated 21.06.2008, took

the cognizance on the complaint filed by the complainant and summoned the applicants under Sections 272 of 273 of The Indian Penal Code, 1860 (for

short, IPC).

Learned counsel for the applicants would question the correctness of the summoning order on the ground that in view of Prevention of Food

Adulteration Act, 1954, no proceedings can be initiated against the applicants under Sections 272 and 273 of IPC. He would further contend when

there is a special Act viz. the Prevention of Food Adulteration Act, 1954 dealing with an act of adulteration, it is the provisions of that Act under which

the applicants could have been prosecuted, if there was at all any case against them. To buttress his arguments, learned counsel for the applicants has

placed reliance upon the following judgments:

i) M/s Pepsico India Holdings (Pvt) Limited and another vs. State of U.P. and others, and analogous matters, reported in (2010) 6 ALL LJ 30

ii) Jatinder Kumar Jain vs. State of Punjab, 2008 (2) FAC 437

I have heard learned counsel for the parties and have gone through the entire material available on record as well as perused the judgments cited by

the counsel for the applicants.

Before any discussion, it would be apt to extract here Sections 272 and 273 of IPC, which are as follows:

“272. Adulteration of food or drink intended for sale.â€"Whoever adulterates any article of food or drink, so as to make such article noxious as

food or drink, intending to sell such article as food or drink, or knowing it to be likely that the same will be sold as food or drink, shall be punished with

imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

Sale of noxious food or drink.â€"Whoever sells, or offers or exposes for sale, as food or drink, any article which has been rendered or has

become noxious, or is in a state unfit for food or drink, knowing or having reason to believe that the same is noxious as food or drink, shall be punished

with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with

both.â€​

Though Sections 272 and 273 of IPC deal with public health by making penal offences pertaining to adulteration of food etc. and sale of noxious

food or drink but the Parliament in the year 1954 enacted The Prevention of Food Adulteration Act, 1954 (for short, the Act) which was a complete

code in itself providing for various penalties for adulteration of food stuff and other related subjects. It also provided an exhaustive procedure for the

inquiry and trial of such offences, regulating the manufacture, sale and distribution etc of Food. For ready reference, Section 16 of the Act is

reproduced hereunder:

Penalties.- [(1) Subject to the provisions of sub-section (1A) if any person-

(a) whether by himself or by any other person on his behalf, imports into India or manufactures for sales or stores, sells or distributes any article of

food-

(i) which is adulterated within the meaning of sub-clause (m) of clause (ia) of section 2 or misbranded within the meaning of clause (ix) of that section

or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority;

(ii) other than an article of food referred to in sub-clause (i), it contravention of any of the provisions of this Act or of any rule made thereunder; or

(b) whether by himself or by any other person on his behalf, imports into India or manufactures for sales or stores, sells or distributes any adulterated

which is not injurious to health; or

(c) prevents a food inspector from taking a sample as authorized by this Act; or

(d) prevents a food inspector from exercising any other power conferred on him by or under this Act; or

(e) being a manufacturer of an article of food, has in his possession, or in any of the premises occupied by him, any adulterant which is not injurious to

health; or

(f) uses any report or certificate of a test or analysis made by the Director of the Central Food Laboratory or by a public analyst or any extract

thereof for the purpose of advertising any article of food; or

(g) whether by himself or by any other person on his behalf, gives to the vendor a false warranty in writing in respect of any article of food sold by

him, he shall, in addition to the penalty to which he may be liable under the provisions of section 6, be punishable with imprisonment for a term which

shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees:

Provided that-

(i) if the offence is under sub-clause (i) of clause (a) and is with respect to an article of food, being primary food, which is adulterated due to human

agency or is with respect to an article of food which is misbranded within the meaning of sub-clause (k) of clause (ix) of section 2; or

(ii) if the offence is under sub-clause (ii) of clause (a), but not being an offence with respect to the contravention of any rule made under clause (a) or

clause (g) of sub-section (1A) of section 23 or under clause (b) of sub-section (2) of section 24, the court may, for any adequate and special reasons

to be mentioned in the judgment, impose a sentence of imprisonment for a term which shall not be less than three months but which may extend to two

years, and with fine which shall not be less than five hundred rupees:

Provided further that if the offence is under sub-clause (ii) of clause (a) and is with respect to the contravention of any rule made under clause (a) or

clause (g) of sub-section (1A) of section 23 or under clause (b) of sub-section (2) of section 24, the court may, for any adequate and special reasons

to be mentioned in the judgment, impose a sentence of imprisonment for a term which may extend to three months and with fine which may extend to

five hundred rupees.]

[(1A) If any person whether by himself or by any other person on his behalf, imports into India or manufacturers for sale, or stores, sells or

distributes,-

(i) any article of food which is adulterated within the meaning of any of the sub-clauses (e) o (I) (both inclusive) of clause (ia) of section 2; or

(ii) any adulteration which is injurious to health, he shall, in addition to the penalty to which he may be liable under the provisions of section 6, be

punishable with imprisonment for a term which shall not be less than one year but which may extend to six years and with fine which shall not be less

than two thousand rupees:

Provided that if such article of food or adulterant when consumed by any person is likely to cause his death or is likely to cause such harm on his body

as would amount to grievous hurt within the meaning of section 320 of the Indian Penal Code (45 of 1860), he shall be punishable with imprisonment

for a term which shall not be less than three years but which may extend to term of life with fine which shall not be less than five thousand rupees.]

[(1AA)] If any person in whose safe custody any article of food has been kept under sub-section (4) of section 10, tampers or in any other manner

interferes with such article, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two

years and with fine which shall not be less than one thousand rupees.

[(1B) If any person in whose safe custody any article of food has been kept under sub-section (4) of section 10, sells or distributes such article which

is found by the magistrate before whom it is produced to be adulterated within the meaning of sub-clause (h) of clause (ia) of section 2 and which,

when consumed by any person, is likely to cause his death or is likely to cause such harm on his body as would amount to grievous hurt within the

meaning of section 320 of the Indian Penal Code (45 of 1860), then, notwithstanding anything contained in sub-secton (1AA), he shall be punishable

with imprisonment for a term which shall not be less than three years but which may extend to term of life and with fine which shall not be less than

five thousand rupees.]

(1C) If any person contravenes the provisions of section 14 or section 14A, he shall be punishable with imprisonment for a term which may extend to

six months and with fine which shall not be less than five hundred rupees.

(1D) If any person convicted of an offence under this Act commits a like offence afterwards, then, without prejudice to the provisions of sub-seciotn

(2), the court, before which the second or subsequent conviction takes place, may order the cancellation of the license, if any, granted to him under

this Act and thereupon such licence shall, notwithstanding anything contained in this Act, or in the rules made thereunder, stand cancelled.]

(2) If any person convicted of an offence under this Act commits a like offence afterwards it shall be lawful for the court before which the second or

subsequent conviction takes place to cause the offender’s name and place of residence, the offence and the penalty imposed to be published at

the offender’s expense in such newspapers or in such other manner as the court may direct. The expenses of such publication shall be deemed to

be part of the cost attending the conviction and shall be recoverable in the same manner as a fine.â€​

The Division Bench of Hon’ble Allahabad in M/s Pepscio India Holdings (Pvt) Limited and another vs. State of U.P., has held as under:

“In view of the aforesaid crystal clear legal proposition and particular provisions under the FSSA we are in agreement with the arguments

advanced by the petitioner’s counsel that for adulteration of food or misbranding, after coming into force of the provisions of FSSA vide

notification dated 29th July, 2010, the authorities can take action only under the FSSA as it postulates an over riding effects over all other foods related

laws including the PFA Act. In view of the specific provisions under the FSSA, the offences relating to adulteration of food that are governed under

the FSSA after July 29, 2010 are to be treated as per the procedures to be followed for drawing and analysis of samples as have bee provided for.

The provisions of penalties and prosecution have also been provided therein. Therefore, before launching any prosecution against an alleged offence

of food adulteration, it is necessary for the concerned authorities to follow the mandatory requirements as provided under Sections 41 and 42 of the

FSSA and, therefore, the police have no authority for jurisdiction to investigate the matter under FSSA. Section 42 empowers the Food Safety Officer

for inspection of food business, drawing samples and sending them to Food Analyst for analysis. The Designated Officer, after scrutiny of the report

of Food Analyst shall decide as to whether the contravention is punishable with imprisonment, he shall send his recommendations to the Commissioner

of Food Safety for sanctioning prosecution. Therefore, invoking Sections 272 and 273 of the Indian Penal Code in the matter relating to adulteration of

food pursuant to the impugned government order is wholly unjustified and non est. Furthermore, it appears that the impugned Government Order has

been issued without application of proper mind and examining the matter minutely and thus the State Government travelled beyond the jurisdiction.â€​

In Jatinder Kumar Jain vs. State of Punjab, it has been held by Punjab and Haryana High Court as under:

“3. Ground for quashing, put-forward on behalf of the petitioner, is that for the offence of food adulteration, procedure is prescribed under sections

10 and 11 of the PFA Act, for taking a sample and for getting the same tested. Separate procedure for trial has also been prescribed. In these

circumstances, registering of FIR without following the procedure laid down in the special statute is not permissible in law.

Learned counsel for the State has not been able to show that the procedure prescribed under the provisions of the PFA Act has been adopted and

as to how proceedings can be sustained in absence of prescribed procedure being followed.

In view of above, proceedings in FIR No.135 dated 28.4.2005 under sections 420/272/273 IPC read with Section 7 of the Essential Commodities

Act, 1955 and the provisions of the Prevention of Food Adulteration Act, 1954, Police Station Kotwali, Patiala, are quashed. It is made clear that this

order will not stand in the way of any proceedings being taken after following due process of law.â€​

Facts of the instant case are similar to the cases cited by learned counsel for the applicants and the ratio laid down in the judgments (supra) is

applicable to the present case.

A perusal of the complaint and the statement of the complainant recorded u/s 200 Cr.P.C. as well as that of witness recorded u/s 202 of Cr.P.C.

would reveal that the complaint filed by respondent no.2 is barred by the provisions of Section 41 and 42 of Food Safety and Standards Act, 2006 and

the notification issued by the Central Government in that regard. In such view of the matter, impugned summoning order is liable to be quashed.

In the light of aforesaid, present C482 application is allowed. Impugned order dated 21.06.2008 (Annexure no.3) passed by Additional Chief

Judicial Magistrate, Kashipur, Udham Singh Nagar in criminal case no.1000 of 2008 Vedvrat vs. Pepsico India Holdings and others, and the

proceedings emanating therefrom, are hereby quashed.