Shri Prakash Desai vs State of M.P.

R.C. Mishra, J.—This is a petition, u/s 482 of the Code of Criminal Procedure (for brevity ''the Code''), for quashing of the criminal proceedings pending as Complaint Case No. 4837/2006, before Shri B.R. Yadav, JMFC, Sagar. The petitioner stands prosecuted as the person nominated by the manufacturing company u/s 17(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as ''the Act'') for the offence punishable u/s 7(ii) read with Section 16(1)(a)(i) of the Act. Cognizance of the offence has been taken upon complaint made by Shivraj Pawak, Food Inspector, Food and Durg Administration, Distt. Sagar against the petitioner, Vinod Kumar and Prafulla Patel (arraigned as accused No. 2, 1 and 3 respectively).

Relevant contents of the complaint, filed on 25-9-2006, may be summarised as under:-

(i) On 8-6-2001 at about 2.30 p.m., R.K. Jain, the Food Inspector, inspected the shop run by Vinod Kumar under the name and style of ''Natraj Sweets'' situated in Civil Line at Sagar. By paying an amount of Rs. 30/-, the Inspector purchased 3 bottles containing water, each carrying label specifying these particulars:-

Kinley Pure Drinking Water, packaged drinking water bottled by Hindustan Coca-cola Beverages Pvt. Ltd., Regd. Office at Enkay Towers, Udyog Vihar, Phase 5, Gurgaon, Haryana under the authority of Coca-cola Company Net quantity 1 litre, Batch No. 012, Mfd. date 18-4-2011 MRP Rs. 10.34 best before 6 months from Packing Unit at Nadiad, Gujarat.

(ii) One of the bottles, thus purchased, was forwarded for analysis to the Public Analyst, State Food Laboratory, Bhopal. The corresponding report dated 10-7-2001 indicated that the product was misbranded in view of contravention of Rule 49 (29) of the Prevention of Food Adulteration Rules, 1955 (for short ''the Rules'').

(iii) The follow up action, for ascertaining the names of the persons liable for the offence and for obtaining consent of Local Health Authority for their prosecution, took a considerable period of more than 5 years.

Before proceeding further, it would be necessary to advert to Rule 49 (2) (above), which reads thus:-

No person shall manufacture, sell or exhibit for sale mineral water except under the Bureau of Indian Standards Certification Mark.

As rightly contended by learned Senior Counsel, even initiation of the proceedings was clearly an abuse of process of the Court in view of the following facts:-

(i) Report of Public Analyst could not have formed basis of the prosecution as sub-rule (29) of Rule 49 of the Rules is applicable to Mineral Water, for which standards are prescribed under Item A.32 and not to Packaged Drinking Water, for which standards are laid down under Item A.33 of Appendix B to the Rules.

(ii) Even if it is assumed, for the sake of arguments, that the bottle sent to the Public Analyst contained mineral water, no case for violation of Rule 49 (29) of the Rules would be made out simply because the Rule, though inserted by way of Notification No. GSR-759 (E) with effect from 29-3-2001, remained inoperative till 30-6-2001 by virtue of order dated 3-4-2001 issued by Joint Secretary and CVO, Government of India, Ministry of Health and Family Welfare, whereunder the products of the Companies listed in the annexure were permitted to be in the market without the requisite certificate from the BIS and name of the manufacturing unit, viz., M/s. Kothari Beverages Pvt. Ltd., Nadiad (Gujarat), nominee of which has been prosecuted as accused No. 3, figured in the list. In other words, even the products containing mineral water and exhibited for sale during the period from 29-3-2001 to 30-6-2001, stood wholly exempted from operation of the rule by reason of the order dated 3-4-2011 (supra), whereas, as pointed out already, the sample in question was sold on 8-6-2001.

(iii) Use of words such as ''pure'', ''crisp'', ''refreshing'', ''purified'' and ''purity guaranteed'', on labels does not offend any provision of law [ Pepsico India Holdings Pvt. Ltd. Vs. The Bureau of Indian Standards and Others,

(iv) Since the offence of misbranding is punishable for a term which may extend to three years, the complaint ought to have been filed within a period of 3 years, commencing from the date of the offence, i.e., 8-6-2001 [See: Clause (c) of Section 468 of the Code]. The complaint presented on 25-9-06, therefore, was apparently time-barred in absence of a proper explanation for delay or the order of the Magistrate, extending the period of limitation on the facts and in the circumstances of the case, as contemplated u/s 473 of the Code.

Even though, the report of the Public Analyst, including his opinion on this point, is per se evidence by virtue of Section 13 of the Act yet, this does not mean that his ipse dixit would be conclusive and binding on the Court. To treat it so, would be to leave the determination of the guilt of the accused to the whims and fancies of the Public Analyst ( Municipal Corporation of Delhi Vs. Kacheroo Mal, Accordingly, it is for the Court to weigh his opinion and reach its own finding.

To sum up, even if the allegations made against the petitioner in the complaint, are taken at their face value and accepted in their entirety, no offence under the Act would be made out. As such, the case against the petitioner falls under categories (1) and (3) of the cases, as enumerated in State of Haryana and others Vs. Ch. Bhajan Lal and others, attracting interference under the inherent powers. For these reasons, the petition stands allowed and the proceedings in Complaint Case No. 4837/2006 (ibid) arc hereby quashed.