Ravinder Garg vs State

Hon''ble Ms. Justice Mukta Gupta

In the present petition, the Petitioner seeks setting aside of the order dated 10th May, 2006 summoning the Petitioner and quashing of the consequential proceedings arising out of the Complaint Case No. 125/2006 titled as Food Inspector (Department of PFA) vs. Naveen Kumar & Ors. u/s 7 read with Section 16 of the Prevention of Food Adulteration Act, 1954 (in short (he PFA Act).

As per the complaint, it is alleged that on 27th July, 2005 at about 6:00 p.m. Food Inspector D.V. Singh purchased a sample of ''Ghee (Mohan Brand)'' a food article for analysis from Shri Naveen Kumar s/o Shri Harish Chauhan, proprietor of Apna Bazar, Gurgaon Road. Roshan Pura, Nazafgarh, Delhi where the said article was stored for sale and Sh. Naveen Kuinar was found conducting the business of the said food article at the time of sampling. The said sample was taken under the supervision of Sh. V.K. Malhotra, SDM/LHA. One counterpart of the said sample was sent to Public Analyst, Delhi and remaining two counterparts were deposited with the SDM/LHA. As per the report dated 18th August, 2005. the sample was found to be conforming to the standard laid down in the Prevention of Food Adulteration Rules. However as per the report of the Public Analyst the sample was misbranded because it gave misleading information regarding "Best Before" dated on the Label i.e. the label declared best before 15 months from manufacture but the date of manufacture was not mentioned on the label. Thus, a complaint was filed alleging that the aforesaid declaration on the label gave a misleading statement and therefore the sample was misbranded. Besides the Petitioner, nine others were arrayed as accused.

Learned counsel for the Petitioner urges that the order issuing summons to the Petitioner suffers from non-application of mind as according to the prosecution itself though it is alleged that the sample was misbranded however, the month of packaging has been mentioned as 19th May, 2005. Thus, there was no misbranding and the label clearly gives the date 67 manufacture and declared best before 15 months from date of manufacture. Moreover, as per the policy decision No.E6(28)/85/ENF/PFA taken by the Respondent as back as in 1985, it was provided that in case the conte its of sealed packet or container confirm to the standard laid down under the PFA Rules, deficiency with regard to Rule 32 which pertains to the particulars of the labelling on the container or packet was only a technical offence. Though, the same attracted the provision of Rule 32 of the PFA Rules, however, according to the policy decision in such cases it was decided that party concerned i.e. the party committing the breach of Rule 32 may be given a written warning drawing its attention to Rule 32, which provide for the labelling particulars to be exhibited on the sample tin or the packet and in case the breach is repeated after the warning, then the party committing the offence for the second time should be prosecuted. It is contended mat the policy was invoked when the offence is alleged to have been committed in August. 2005 and thus he Petitioner was entitled to the benefit of the said policy decision. It is, thus; prayed that the impugned order and the consequent proceedings against the Petitioner be quashed in terms of the policy decision.

Learned APP on the other hand contradicting the contentions states that though the offence may be a technical offence, however provision of PFA Rule 32 was attracted. It is further contended the Petitioners have not declared the date of manufacturing. The manufactured products are packed later on and the declaration contained is "Best Before 15 (sic) months from the date of manufacture" and the date of manufacture is not given. Therefore, it is a case of trial. The relevant part of the report dated 20th May, 2005 of the Public Analyst reads as follows--

Label:--Best before declared as 15 months from Manufacture but date of manufacture not mentioned on label. Opinion: The sample is misbranded because it gives misleading information regarding Best before date on the label. However. Ghee conforms to standard.

I have heard learned counsel for the parties .A perusal of Form VI shows that the date of packaging on the sample is mentioned as 19th May, 2005. It is further mentioned that "Best Before 15 months from manufacture when stored in cool and dry place". The food article confirmed the standard on analysis. This court in 5.5. Gokul Krishnan & Ors. vs. State through Food Imp. Govt. of NCT of Delhi, 2009 (1) JCC 675 in similar facts held that

Rule 32(f) of the PFA Rules framed under the PFA Act requires for a manufacturer to declare the date, month and year in which the commodity is manufactured, packed or prepacked on the packet. This declaration is required to be given if the best before date of the product is more than 3 months.

Rule 32(f) of the PFA Rules, demonstrates the manner in which the said information is required to be displayed on the packet.

In the instant case, declaration under rule 32(i) is "best before 9 months from packing. Since the month and year of manufacture of the food article i.e. processed cheese is clearly disclosed on the packet, it cannot be said that the consumer would be mislead from the terms "best before 9 months from packing. The consumer, under these circumstances, would be clear in his mind to consider the best before from the date of manufacturing. The processed cheese conformed the standard on analysis.

Prima facie, therefore, it cannot be said that the sample was misbranded because misleading statement was given on the label with respect to best before date. The consumer is provided with sufficient information as required under the Act and Rule 32 to know about the genuineness of the product and also to enable him to make a decision whether to purchase the said food article or not. Even if, the words "best before 9 months from manufacturing or packing" are not contained on the packet; instead the words best within 4 months are mentioned on the packet, it would not in any way mislead the consumer. Hence by no stretch of imagination the product could be termed as misbranded. There is no adulteration in the product. As per the information disclosed on the packet, it cannot be said that there is misbranding, only because the date of packaging has not been disclosed; specially when the month and year of manufacturing is specifically disclosed.

XXXX

The alleged offence of violation of Rule 32 (f) and (i) was found to have been committed in the year 2005. At the relevant time department policy No. F6(228)/85/RNF/P.F.A. was in force and the said policy was cancelled, modified or withdrawn vide order No. 5/07 dated 14.09.2007. As per the said policy, cases of breach of Rule 32, since pertained to the particulars of the labeling on the container or packet, were technical offences, the party affected was to be given a written warning drawing its attention to Rule 32, which required of date, month and year of manufacturing to be exhibited on the labels affixed on tin or the packet. It was only if the violation was repeated after a written warning, the party committing the offence second time had to be prosecuted. As per this policy, pending cases pertaining to breach of Rule 32 being of technical nature were decided to be disposed of accordingly.

It is not the case of the prosecution that petitioners were given warning by way of a notice drawing their attention to Rule 32 which provided for particulars to be exhibited on the sampled tin or the packet, and it was a case of second breach of Rule 32, i.e. in other words the offence was committed for the second time and therefore, the petitioners were liable to be prosecuted.

The policy being in force at the relevant time should have been adhered to by the department before it decided to file a complaint in the court for offences u/s 7/16 of the PFA Act. The petitioners are therefore within their rights to seek protection under the said policy which was in existence at the relevant lime.

It may be noted that the SLP filed by the Respondent State against the above-mentioned judgment has been dismissed by the Hon''ble Supreme Court vide order dated 24th August, 2009 in Crl.M.P. 13188/2009. This Court took a similar view in M/s. Runge India Pvt. Ltd &. Anr. vs. State and Anr. in Crl. M.C. 1050/2008 decided on 20th January, 2011. The facts of the present case are fully covered by the aforenoled two cases and find no reason to disagree with the same. The prosecution has nowhere staled that the policy decision has been followed. No warning has been given to the Petitioner.

In view of the aforesaid discussion, the order dated 10th May, 2006 summoning the Petitioner and the consequent proceedings arising out of the complaint ease No, 125/2006 against the Petitioner are hereby quashed. Petition is disposed of.