D.K. Sinha, J.@mdashThe instant petition has been filed on behalf of the Petitioners invoking the inherent jurisdiction of this Court u/s 482 of the
Code of Criminal Procedure for quashing of the entire criminal prosecution of the Petitioners arising out of C-IV Case No. 22 of 2008 in which
cognizance of the offence has been taken u/s 16(i)(a) of the Prevention of Food Adulteration Act. 1954 by the C.J.M., Ranchi on 5.1.2008 now
pending before the Sub-Divisional Judicial Magistrate, Ranchi.
2. The prosecution story in short was that the O.P. No. 2 Mahesh Pandey, Food Inspector, Ranchi visited the business premises of M/s. Gujarat
Co-operative Milk Marketing Federation Limited at Shop No. 5 Agriculture Marketing Yard, Pandra, Ranchi on 4.10.2007 and collected the
samples of:
(i) Amul Masti Spiced Butter Milk.
(ii) ''Stamina'', Batch No L-1 and
(iii) ''Amul Cool'' bearing paper slips Nos. 687, 688 and 689 respectively on payment against the receipt and sent all these items to the public
analyst, Mineral Area Development Authority, Dhanbad, Jharkhand for test and report.
3. The public analyst Jharkhand by its report No. 524PFF/2007 dated 16th December, 2007 opined that manufacturing date of the sample
Stamina Sports Drink was 11.5.2007 best before 120 days from manufacturing and that the end of the period was lapsed so it was not suitable for
marketability. On the basis of the report of the public analyst the Food Inspector O.P. No. 2 instituted prosecution in the Court of the C.J.M.,
Ranchi against the Petitioners herein for the alleged offence u/s 16(i)(a) of the Prevention of Food Adulteration Act, 1954 after obtaining written
consent from the Civil Surgeon-cum-Chief Medical Officer, Ranchi on 3.1.2008. The official complaint was filed in the Court on 5.1.2008 having
got bearing of the signature of the C.J.M. Ranchi with the endorsement of the date thereon.
4. Mr. Jai Prakash, the learned senior counsel at the outset submitted on behalf of the Petitioners that the sample collected by the Food Inspector
was ""Stamina"" bearing batch No. L-1 whereas the report of the Public Analyst MADA relates to ''Stamina Sports Drinks'' batch No. 32, as such,
the prosecution was launched on the basis of the report of the Public Analyst on examination of such sample which was not collected from the
shop of the Petitioners. Learned senior counsel explained, that the batch numbers are allotted to the products in one lot, accordingly, different
batch numbers used to be allotted for the different lots of manufacturing of the products and on this ground alone that the batch number of the
sample tested did not match, with the batch number of sample collected, the criminal prosecution of the Petitioners was liable to be set aside.
5. Advancing his argument Mr. Jai Prakash submitted that there was no penal provision in the Prevention of Food Adulteration Act, 1954 for the
non-marketability of the given product ''Stamina'' Sports drink, yet, cognizance of the offence has been taken u/s 16(i)(a) of the Act which speaks:
Subject to the provisions of Sub-section (1-A), 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 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.
6. Learned senior counsel explained that the penal provision of the Act did not speak that, ""not suitable for marketability was an offence under the
Act"". The report of the public analyst was silent about other two items as to whether it was adultered or otherwise. The word adulterated has been
defined and explained in various manner in Section 2 of the Act including under (m) which speaks if the quality or purity of the article falls below
the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it
injurious to health with the proviso. The opinion of the Public Analyst as mentioned and referred to hereinbefore even did not come within the
purview of the proviso of Section 2(m) of the Act and even if it could be admitted that the test report was of the sample which was collected it was
never held as misbranded so as to call for penal consequence.
7. Raising the technical point, learned senior counsel Mr. Jai Prakash attracted the attention that the complainant O.P. No. 2 (Food Inspector)
while collecting the samples did not follow the statutory provision u/s 10(iii) of the Prevention Food Adulteration Act, 1954 which speaks,--
A food Inspector shall have power-
(a) to take samples of any article of food from--
(i) any person selling such article
(ii) any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee
(iii) a consignee after delivery of any such article to him and to send such samples for analyst to the public analyst for the local area within which
sample has been taken.
(3) Where any sample is taken under Clause (a) of Sub-section (1), or Sub-section (2), its cost calculated and the rate at which the article is
usually sold to the public shall be paid to the person from whom it is taken.
8. In the instant case though prosecution report presented before the C.J.M. having got bearing at the foot that a purchase voucher was annexed
but it was nowhere found on the record and in the counter-affidavit filed on behalf of the O.P.-State the copy of the alleged purchase voucher was
not annexed to controvert contention that has been specifically pleaded.
9. Raising the next point, the learned senior counsel submitted that the prosecution, failed to comply with the provision of Section 13(2) of the Act.
10. On the other hand, a composite counter-affidavit has been filed on behalf of the members of the Opposite Party. Learned APP submitted that
the samples of three products being ''Amul Masti Spiced Butter Milk'', ''Stamina'' and Amul Cool'' bearing Code No. /SL. Nos. 687, 688, 689
were collected respectively from M/s. Gujarat Co-operative Milk Marketing Federation, Shop No. 5, Pandra, Ranchi on payment and as against
purchase vouchers and the same were sent to the public analysis MADA, Dhanbad for analyst and report. The public analyst vide his report No.
524 opined that ""manufacturing date of sample Stamina Sports Drink is 11.5.2007 best before 120 days from manufacturing the end of period has
been lapsed, so it is not suitable for marketability"". It is further stated that when Food Inspector visited the business premises of the Petitioners,
samples of three products were taken and were codified being Sl. Nos. 687, 688 and 689 which were countersigned by the Petitioners to which
three sets of each sample were prepared, one set was sent to the public analyst and two sets of each sample were taken in the custody of Local
Health Authority and that sample bearing Code No. /Sl. No. 688 was the product in respect of which the public analyst communicated his report
vide No. 524 dated 16.10.2007 and that the pubic analyst was silent about the other two products which were also collected with Serial Code
Nos. 687 and 689. Admittedly, the analyst report did not opine that the sample with Sl. No. 688 was adultered rather it was stated being not
suitable in marketability. Learned APP submitted that though the product was not adultered but it was sold beyond the ""best before use"" period in
contravention of Rule 32 of the Prevention of Food Adulteration Rules, 1955. However, Explanation VIII of Rule 32 of the Prevention of Food
Adulteration Rules, 1955 explains:
Best Before"" means the date which signifies the end of the period under any stated storage conditions during which the product will remain fully
marketable and will retain any specific qualities for which tacit or express claims have been made. However, provided that beyond the date the
food may still be perfectly satisfactory.
11. Upon careful perusal of the pleadings and argument advanced on behalf of the parties, I find that the sample vide Sl. No. 688 collected from
the business premises of the Petitioners has neither been found adultered nor misbranded under the definition of Section 2 of the Act. The public
analyst of Mineral Area Development Authority, Dhanbad, Jharkhand has simply opined about the sample, ""not suitable for marketability"". It is
nowhere stated that the sample in question had lost its specific qualities on account of the fact that it was collected from the shops of the Petitioners
and it could be gathered from its lable that storage condition was limited only for 120 days and for want of otherwise comment that the
product/sample was now no longer fit for human consumption beyond the period of 120 days from the date of manufacturing, it would not be
appropriate to continue the criminal prosecution of the Petitioners for the alleged offence u/s 16(i)(a) of the Prevention of Food Adulteration Act
on the ground that the sample ''Stamina'' was neither found adultered nor misbranded.
12. In view of the above discussions, I find that the prosecution of the Petitioners cannot be sustained under law and their entire prosecution arising
out of C-IV-22 of 2008 pending before the S.D.J.M., Ranchi is set aside.
Accordingly, this petition is allowed.