Supreme Polymers Private Ltd. and Another vs State of Orissa and Others

R.N. Biswal, J.—This Crl. M.C. arises out of a petition u/s 482 Code of Criminal Procedure challenging the order dated 2, 6. 2003 passed by the learned J.M.F.C., Barbil in 2 (c) C.C. No. 80 of 2003 taking cognizance of the offence u/s 16(1) (a) (i) in contravention of Section 7 (i) (ii), with reference to Section 2 (ia) (a), (ia) (m) and 2 (ix) (c) of Prevention of food Adulteration Act, 1954 (in short ''The P.F.A. Act'').

The facts giving rise to the present CrLMC is that Petitioner No. 2 is a company registered under the Companies Act,1956 having its registered office at Chandaka Industrial Complex, Bhubaneswar, which manufactures Packaged Drinking Water under the brand name of Dazzle, with due authority. On 5.2.2002 at about 10.00 A.M., the Food Inspector, Keonjhar inspected Sonu Drinks situated near Hospital Road, Barbil. He disclosed his identity to the proprietor of the said firm, Dilip Kumar Choudhury Proforma opp. party No. 3. The Food Inspector found the said opp. party No. 3, had stored Natural Mineral Water Dazzle, Lehar Pepsi, Lehar Evemess Club Soda etc. for sale for human consumption. He suspected Natural Mineral Water Dazzle and Lehar Slice, Lehar Evemess Club Soda to have been adulterated. On enquiry, Proforma opp. party No. 3 disclosed that he purchased the above mineral water from Supreme Polymers Private Ltd. (Petitioner No. 2) Vide Bill No. Sppl/ 464 dated 11.11.2001. It is alleged that the food Inspector called two customers to be witnesses to the seizure, but they refused. At last Asit Charan Manna, proprietor of Manna Agency agreed to be a witness. In his presence and in presence of the food peon, the Food Inspector purchased nine bottles of Natural Mineral Water, Dazzle, each containing one liter. Every bottle of mineral water was found labelled with "Dazzle Natural Mineral Water, Citra Violet, Sterilised, processed and manufactured by Supreme Polymers Private Ltd., Bhubaneswar-31, IS 14543 ISI, CMLS-149 261, Net content-1 liter, Batch No. 101107, Mfd. Date-November, 2001". The Food Inspector collected samples of Natural Mineral Water, Dazzle in three different dry and clean containers and packed and sealed the same as per rule. He sent one part of samples with a memorandum in Form VII to the Public Analyst, State Public Health Laboratory, Orissa, Bhubaneswar on 6.2.2002 and deposited the rest two samples with the Local Health Authority (CDMO), Keonjhar. In his report, the Public Analyst opined that the sample of Natural Mineral Water, Dazzle, was adulterated and misbranded. The Food Inspector wrote to the Petitioner No. 1 to disclose, whether the Natural Mineral Water of one litre bottle, Dazzle bearing batch No. 101107, Mfd-November, 2001 was sold to Manna Agency, but there was no response. On 2.5.2003, proforma opp. party No. 3 furnished Bill No. 100 dated 5.2.2002 standing in the name of Asit Charan Manna, proprietor of Manna Agency C/O: Sonu Drinks, through which he had purchased the Natural Mineral Water, Dazzle of one litre bottle from Asit Charan manna. Since the Petitioners having authorized to manufacture Natural Water, manufactured Natural Mineral Water for sale for human consumption, according to the Food Inspector, they contravened Section 7 (i) (ii) punishable u/s 16 (1) (a) (i) of the P.F.A. Act and Rules framed thereunder. Accordingly, the Food Inspector obtained due sanction from CDMO, Keonjhar and filed a complain before J.M.F.C. Barbil to take appropriate action against the accused persons including the Petitioners.

On going through the material available record, the learned Magistrate took cognizance of the offence u/s 16 (1) (a) (i) in contravention of Section 7 (i) (ii) with reference to Section 2 (ia) (a), (ia) (m), and 2 (ix) (c) of the P.F.A. Act and issued summons to the Petitioners. Being aggrieved with the said order, the Petitioners preferred this Criminal Misc. Case, as stated earlier.

Learned Counsel for the Petitioners submitted that Petitioner No. 2 company was an authorized manufacturer of Packaged Drinking Water under the brand name of Dazzle. Annexure-2 to this petition shows that the Petitioners company was authorized to manufacture packaged Drinking Water. As per the prosecution case, on 5.2.2002, the Food Inspector purchased Natural Mineral Water, Dazzle and took sample thereof in three different containers. Petitioner No. 2 company sold to proforma opp. party No. 3 Packaged Drinking Water, Dazzle vide Bill No. SPPL/464 dated 11.10.2001 through Manna Agency and not Natural Mineral Water, Dazzle as alleged by the prosecution. So, the aforesaid offences cannot be attracted against the Petitioners, even though the prosecution case is believed to be true in its entirety. The cash Bill shows that Petitioner No. 2 company sold Packaged Drinking Water "Dazzle" to pro-forma opp. party No. 2 C/o. opp. party No. 3. So, prima facie it appears that opp. party No. 3 directly purchased the said water from Petitioner No. 2 company. Even if it is held that the relevant bill showed that Packaged Drinking Water was sold to pro-forma opp. party Nos. 2 and 3, it cannot be said at this stage that in fact adulterated Natural Mineral Water Dazzle was not sold against the said bill.

As per Section 2(ia) (a) of the P.F.A. Act an article of food shall be deemed to be adulterated if the article sold by vendor is not of the nature, substance or quality demanded by the purchaser and is to his prejudice, or is not of the nature substance or quality which it, purports or is represented to be. In the present case as stated above, the Petitioner No. 2, company was authorized to manufacture Packaged Natural Water. It prima facie appears that it labelled the bottles with Natural Mineral Water, Citra-violate sterilized process though in fact the same contained only Natural Water. Admittedly, the water seized by Food Inspector was not Mineral Water. So the water sold by opp. party No. 2, company is not of the nature substance or quality which it represented to be. The term ''prejudice'' connotes both the pecuniary prejudice as well as from the point of view of health. The water in question sold increases the money value of it. So the purchasers are naturally prejudiced. Moreover, when a purchaser requires mineral water and only plain water is given to him he is also prejudiced. As per Sub-Section 2 (ix) (c) of Section 2 of the P.F.A. Act, an article of food is deemed to be misbranded if it is sold by name which belongs to Anr. article of food. Prima facie, it appears that Packaged Drinking Water under the brand name of Dazzle was being sold as Natural Mineral Water as such the water sold is misbranded. So prima facie Petitioners violated Section 7 of the P.F.A. Act and as such if the allegation is proved, they would be liable for the offence u/s 16(1) (a)(1) of the said Act.

At the stage of taking cognizance of roving enquiry is not required to find out whether conviction can be based or not, which is required at the stage of trial only. If the court is satisfied that there are prima facie materials to take cognizance of any offence and proceed against the accused, it can take cognizance of the offence and issued summons against him. In the present case it cannot be said that there is no material whatsoever to take cognizance and issue processes against the Petitioners, as mentioned above.

So. under such facts and circumstances, the CRLMC stands dismissed.

Return back the L.C.R. forthwith.