Reckitt and Colman of India Ltd. vs The State of Assam and Others

B.L. Hansaria, J.—This is a quashing proceeding u/s 482 read with Section 401 of the Code of Criminal Procedure . The Petitioner is M/s Reokitt and Colman of India Ltd. which was arraigned under the provisions of the Prevention of Food Adulteration Act, 1954, hereinafter the Act, as accused No. 8 being the manufacturer of the article in question. The offence report is annexure-1 to the petition. The Area Food Inspector, Darring (sic) visited the premises of M/s. Gopal Store, Rangapara on 17.7.76 and expressed his intention to take samples of "Barley Powder (Purity Indian Barley)" for chemical analysis. On the intention of his visit being made known to the person present in the shop, intimation in Form-VI as required by law for taking samples was given and for this purpose the vendor sold the Food Inspector three barley powder tins (Purity Indian Barley)" each having identical labels, It appears from the affidavit filed by the Food Inspector that at that time the vendor had disclosed that he had purchased the food from accused No. 7 that is, M/s. RecKitt and Colman (India) Ltd. G.S. Road, Dispur, Gauhati" which has been described in the offence report as distributor. As enjoined by Section 11 of the Act, a notice in Form-VI was issued to this firm which was initially returned to the office of the Food Inspector on 28.8.76, On the notice being re-issued, it is the contention of the Food Inspector in his affidavit that the same was received by accused No. 7 on 4.9.76. A part of the sample collected was sent to the Public Analyst for chemical analysis who after noting down the results of his analysis opined that the sample of Purity Indian Barley did not conform to the standard. After obtaining sanction as required by law, a prosecution was launched, inter alia, against accused Nos. 7 and 8. A petition came to be filed on behalf of the Company and one Randhawa, who had appeared on its behalf being its nominee u/s 17 of the Act praying for discharge of accused Nos. 7 and 8 and also of Randhawa, the Manager and nominee of the Company. This petition was dismissed by an order passed on 18.9.78 and the Company as accused No. 8 has approached this Court for quashing the entire proceeding.

Before the legal submissions advanced by Shri Bhattacharjee are gone into, it would be useful to point cut that after the other accused persons had made their appearance, a prayer was made to send the sample for analysis by the Central Food Laboratory as permitted by Section 13(2) of the Act. The Director of the aforesaid Laboratory made the analysis, gave the results thereof and opined as below:

The sample of Purity Indian Barley is misbranded u/s 2(1X)(f) and (g) for not declaring the nature. It is adulterated as Barley powder but not as whole meal barley powder.

The first submission made by Shri Bhattacharjee is that in so far as misbranding is concerned, this Petitioner cannot at all be presented as there was no sanction for the offence," of misbranding. It is contended, and rightly, that when the sanctioning authority examined the matter, it had before it the report of the Public Analyst which has not stated anything about misbranding. The sanctioning order Which is on record starts by saying that the District Health Officer was "satisfied from the report of the Public Analyst" about the commission of offence under Sections 7 / 16 of the Act. Now a reference to the provisions of the Act would show that adulteration and misbranding are two distinct offences. This would be clear if a reference is made to Section 16 of the Act whose Sub-clause (i) of Clause (a) of Sub-section (1) speaks of the articles being "adulterated within he meaning of Sub-clause (m) and Clause (ia) of Section 2" or "misbranded" within the meaning of Clause (ix) of that section. Section 2 has also defined ''''adulterated" in its Clause (ia) differently and misbranded subsequently in Section 2(ix).

Shri Bhattacharjee submits by fevering to 1976 Assam Law Report 236 that when sanction is given it must be specific about the offence and the offender. Though the name of M/s. Reckitt and Colman (India) Ltd. finds place in the sanctioning order, a perusal of that order would show that misbranding was not in the mind of the sanctioning authority as it has arrived at its satisfaction from the report of the Public Analyst which has not stated anything about misbranding. Then, in Criminal Revision No. 17 of 1975 (Dilip Kumar Saha v. The State of Assam disposed of on 22.12.78) this Court has held that misbranding is different from adulteration. Reference is also made to some other decisions, to wit, State of Maharashtra v. Nizamuddin 1379 Cr. L.J. 274; State of U.P. v. Moolchand 1981 (1) FAC 132 and Municipal Board v. Roghunandan 1974 (1) FAC 246 which have held that if sanction is given for commission of one offence prosecution cannot continue for any other offence.

To be fair to the learned trial Court, it must be stated that this question was not raised before it in the aforesaid discharge petition which was filed before it on 26.4.78. But as the question of sanction goes to the root of the matter, in a prosecution of the present nature, the Petitioner was allowed to urge this point before this Court and as it has been found that no sanction was given to prosecute the Petitioner, or for that matter other accused persons, for the offence of misbranding, this cannot continue without a valid sanction in this regard having been obtained.

The second submission of Shri Bhattacharjee is that even on the allegation of adulteration, the proceeding cannot continue against the Petitioner as the report of the Director Central Food Laboratory is vague in this regard-it having stated that the sample of food sent to him was adulterated as barley powder, but not as whole-meal Barley powder. Whether-the food was ''''barely powder" or "whole meal barley powder" is a question to be decided on evidence and the learned Public; Prosecutor, therefore, rightly contends that on this ground at this stage, the proceeding cannot be quashed. This apart, as it has already been noted that in the offence report the article of food collected was described as barley powder in its para 1 as well as in para 3, though in some other documents namely. the notice in Form-VI it has only stated that the sample collected was of "Barley (Purity Indian Barley). Similar was the position in the receipt given to the vender in Form-VI. But then it is definitely a question of fact which has to be gone into during the course of trial as to whether the article collected was "Barely powder" or "whole-meal barley powder".

Another submission of Shri Bhattacharjee advanced in this regard is that it is not within the ken and jurisdiction of the Director to give any opinion at all; what he is required to do, according to the learned Counsel, is to give the result of his analysis or test. Reference is made in this connection to Sections 4(2)(b), 13(2), (3) and (5) of the Act and certain Rules framed under the Act and more particularly to Form II which has been prescribed by Rule 4(5) which has no place for mentioning the opinion, in contradiction to Form-III which is meant for the Public Analyst which requires his opinion to be incorporated. Now, even if the Director would have given no opinion and have merely rested to give the results of his analysis or test, it would have been an easy exercise to find out whether the articles was adulterated, if taken as Barley powder inasmuch as its alcoholic acidity was found to be 0.13% whereas in case of Barley powder it cannot be more than 0.10%, but in case of whole-meal barley powder the alcoholic acidity could go upto 0.17%. So, opinion or no opinion, from the result of the analysis it could have been ascertained without any difficulty by referring to the Appendix-B laying down the standard of articles of food as to whether article was adulterated if Barley powder, and not if whole-meal barley powder. So giving of opinion has in no way caused any gloom on the prosecution.

The last submission of Shri Bhattachajee is that there is no material to hold joint trial of the Petitioner who is the manufacturer, along with the vendor. Section 20A of the Act permits joint trial in certain cases. It is necessary to analyses the section on my own as both the learned Counsel have principally relied on a decision of the Supreme Court reported in AIR 1975 SC 1300 Bhagwan Das v. Delhi Administration in para 24 of which Beg J. (as he then was) held that a manufacturer could be tried together with the vendor or distributor provided the allegations made before the Court show that there are connecting links between their their activities so as to constitute the same transaction, It was stated that connecting links in a case of the present nature could be provided by: firstly, the fact that a sale at an anterior stag; could be viewed as the cure of the subsequent sale; secondly, the allegation that each of the accused parted with the article of food when it was in an adulterated state; and, thirdly, by the common object of the manufacturer, the distributor and the vendor that the article should reach the consumer to be used as food. The third and last mentioned link was stated to be decisive and to tilt the balance in favour of legality of a joint trial of the parties concerned, It was further observed that Courts cannot ignore broader requirements of justice. The decision was referred with approval in State of Punjab v. Devendra Kumar AIR 1983 SC 55 which held that there could be no logical reason as to why if a distributor or a manufacturer could be subsequently impleaded u/s 20A of the Act, he cannot be joined as co-accused initially in a joint trial if the allegation made justified such a course.

In the present case, as appears from the affidavit of the food Inspector, the vendor did disclose to him that he had purchased the sample from Reckitt and Colman (India) Limited which was arrayed as an accused. It is also on record that sealed tins of Purity Indian Bailey were purchased by the Food Inspector. One prototype empty tin had been produced before me which clearly mentions that the manufacturer of this barley is M/s Reckitt and Colman (India) Limited. As such it can be reasonably said that it was the common object of the manufacturer, the distributor and the vendor that the article, in the condition in which it was purchased by the Food Inspector, should reach the consumers to be used as food. There is nothing to doubt that the anterior sale (either by the manufacturer or distributor) was the cause of subsequent sale; and as they seem to have parted with the food in the state they had purchased, they had done so in an adulterated state, if the positive finding of the Director is to prevail ultimately.

Before closing, it may be stated that the fact that the Petitioner has approached this Court against the order refuses discharge could not have stood in its way of invoking inherent power of this Court u/s 482, but that power as is known, has to be exercise sparingly more so, when confronted with offences involving social evils add affecting larger public interest. It may not, however be understood. that this Court would never quash a case under the Food Adulteration Act. but, then it Would be more cautions in this regard.

As none of the, submissions advanced charge has appealed to me to quash the entire proceeding the petition is rejected, but in the trial as initiated the allegation of misbranding would not be gone into.

After the judgment is pronounced, Shri Guha for the Petitioner prays for stay of the operation of the order. As the trial had commenced in 1976 and eight years have already elapsed, I have not thought it fit to stay further proceeding as it would only be better if the Petitioner gets a judicial verdict in its favour as early possible, if it product is not adulterated and if it is otherwise, the consumers must know it at the earliest. It is, however, made clear that despite the Petitioner''s appearance and cooperation with the Court in tie proceeding of the care, the same would be without prejudice and not stand in its way of approaching the Hon''ble Supreme Court against this Court''s order.