Prevention of Food Adulteration Act, 1954: s.20A – Impleadment of appellant who was marketer of packed food articles ‘sugarless Jelly’ – The said food article was manufactured by a separate entity – Prosecution case was that Food InspectorRespondent no.2 purchased packed jars of Jelly from the retailer for testing – As per report of Public Analyst, the Jelly sample contained sugar and therefore was misbranded – Retailer produced a receipt showing that the jelly was purchased from appellant – Complaint filed by respondent no.2 for offence of sale of misbranded food article under s.16(1)(a)(ii) r/w s.2(ix)(g) and 7(ii) – During the course of trial, after closing of prosecution witness, the Retailer examined himself as a witness for the defence under s.315 Cr.P.C. – Subsequently, the Retailer moved an application under s.20A for impleading the appellant as an accused, which was allowed by the Special Magistrate – In the instant appeal, the plea of the appellant was that the application for impleadment under s.20A could not have been made by the Retailer – Held: Plea is not tenable – The provisions of the 1954 Act clearly distinguish between a ‘vendor’ and ‘manufacturer’ of a food article – The very purpose of s.20A is to enable the Court to implead the manufacturer or distributor during the trial of the vendor of the food article, so as to detect and punish adulteration at all stages of the supply chain. Prevention of Food Adulteration Act, 1954: s.2(ia) and s.2(ix) – Adulterated and misbranded – A comparison of s.2(ia) of the 1954 Act which defines ‘adulterated’ and s.2(ix) which defines ‘misbranded’, shows that there is an overlap between the two provisions – s.2(ia)(a) includes within the definition of ‘adulterated’ a case where a food article is ‘not of the nature, substance, or quality which it purports or is represented to be’ – Whereas s.2(i)(ix)(g) includes within the definition of ‘misbranded’ the label on the package bearing any statement, design or device regarding the ingredients or the substances contained therein, which is false or misleading in any material particular; or if the package is otherwise deceptive with respect to its contents.
Prevention of Food Adulteration Act, 1954: s.11 – Prior notice to the accused – Held: Under the scheme of the 1954 Act, the accused has to be given prior notice, as provided under s.11, that samples of a food article manufactured and/or sold by them have been sent for analysis, before the Public Analyst prepares report – The 1954 Act does not envisage a situation such as the present case where the sample is sent for analysis, and the Public Analyst’s report is also prepared, but the marketer is informed several years later that prosecution is sought to be instituted against them – During such period, the food article being perishable in nature would most probably be incapable of being sent for re-testing to the Central Laboratory.
Prevention of Food Adulteration Act, 1954: s.13(1) to (3) – Whether denial of right to get Jelly sample tested by the Central Laboratory under s.13(2) of the 1954 Act would entitled quashing of proceedings against the appellant for the offence of misbranding – What is the procedure to be followed in cases where proving misbranding requires testing of the relevant food samples but the corresponding charge of adulteration has not been made – Held: It is absurd and discriminatory for the prosecution to, on one hand, rely on the report of the Public Analyst under s.13(1) for proving the offence of ‘misbranding’, and on the other hand, claim that the accused cannot avail of their right to challenge the said report as per ss.13(2) and 13(3) because it is not a case of ‘adulteration’ – In such a scenario, the word ‘adulterated’ in s.13(2) would have to be read as including ‘misbranded’ in so far as it relates to the ingredients of the concerned food article, and the relevant clauses of s.13 have to be complied with in their entirety – Therefore, where examination of the contents/ingredients of the food article is integral to proving the offence ‘misbranding’, the procedure prescribed under ss.11 to
13 of the 1954 Act has to be complied with, regardless of whether ‘adulteration’ is alleged or not – This includes the right to obtain a second opinion from the Central Laboratory under s.13(2) – The same test would apply in respect of any other offence for which penalty is prescribed under the 1954 Act – Interpretation of Statutes.
Prevention of Food Adulteration Act, 1954: s.2(ix)(g) – Misbranding – Label on the packaging that the Jelly is ‘sugarless’ – Case of Respondents based on Public Analyst’s Report that the Jelly contained ‘sugar/sucrose’ – Whether appellant was entitled to get Jelly sample tested by the Central Laboratory under s.13(2) of the 1954 Act – Held: Public Analyst’s finding on whether ‘sugar’ as an ingredient is present in the Jelly sample is crucial to proving the offence of ‘misbranding’ against the Appellant – Thus, the Appellant ought to have been given opportunity to make an application under s.13(2) for a second opinion from the Central Laboratory on the contents of the Jelly sample.
Interpretation of Statutes: Ambiguity in a penal statute – It is settled principle of statutory interpretation that any ambiguity in a penal statute has to be interpreted in favour of the accused.
Allowing the appeal, the Court
HELD: 1. The Appellant’s contention that an application under Section 20A could not have been made by a retailer is misguided. The provisions of the 1954 Act clearly distinguish between a ‘vendor’ and ‘manufacturer’ of a food article. The very purpose of Section 20A is to enable the Court to implead the manufacturer or distributor during the trial of the vendor of the food article, so as to detect and punish adulteration at all stages of the supply chain. Admittedly, the prosecution may have to prove, for the purpose of trying the Retailer and the Appellant in a joint trial, that they shared a common object that the misbranded Jelly should reach consumers as food. However, this question need not be looked into at the stage of mere impleadment of the Appellant for the offence of misbranding. [Para 5] [1090-D-F] Bhagwan Das Jagdish Chander v. Delhi Administration (1975) 1 SCC 866 : [1975] Suppl. SCR 30 –
relied on.
2. It is explained in the Statement of Objects and Reasons of the 1954 Act that prior to its enactment, there were numerous State legislations on the subject of prevention of adulteration of food-stuffs but these lacked uniformity. Hence the need for a Central legislation was felt which could inter alia, provide for a uniform procedure and the constitution of ‘a Central Food Laboratory to which food samples can be referred to for final opinion in disputed cases.’ [Para 6] [1091-B]
3. Section 11 stipulates the procedure to be followed by Food Inspectors while taking food samples for analysis. The first step of the procedure is to immediately notify on the spot, not only the vendor but also the person whose particulars are disclosed under Section 14A (which would include a distributor/marketer such as the Appellant), that a sample is being sent for analysis. The sample is then divided into three parts-while the first part is sent to the Public Analyst, the other two are deposited with the Local Health Authority as a contingency in case the first part is lost or damaged. Section 13 of the 1954 Act prescribes the subsequent procedure to be followed after the Public Analyst prepares their report. Therefore, the purpose of Section 13 is to give a second opportunity to accused persons, against whom prosecution is initiated under the 1954 Act based on the Public Analyst’s report, to get the relevant food sample tested again by the Central Laboratory. Since the Central Laboratory’s report will have precedence over that of the Public Analyst, this is a valuable opportunity for accused persons to claim exoneration from criminal proceedings. Under the scheme of the 1954 Act, the accused has to be given prior notice, as provided under Section 11, that samples of a food article manufactured and/or sold by them have been sent for analysis, before the Public Analyst prepares their report. The 1954 Act does not envisage a situation such as the instant case where the sample is sent for analysis, and the Public Analyst’s report is also prepared, but the marketer is informed several years later that prosecution is sought to be instituted against them. During such period, the food article being perishable in nature would most probably be incapable of being sent for re-testing to the Central Laboratory. [Paras 6, 7] [1091-E-G; 1092-F-H; 1093-A-B]
Municipal Corporation of Delhi v. Ghisa Ram, AIR 1967 SC 970; Girishbhai Dahyabhai Shah v. C.C. Jani (2009)
15 SCC 64 : [2009] 12 SCR 229 – relied on.
4. Upon a comparison of Section 2(ia) of the 1954 Act which defines ‘adulterated’ and Section 2(ix) which defines ‘misbranded’, there is an overlap between the two provisions. [Para 7] [1093-E]
5. The question which arises then is, what is the procedure to be followed in cases where proving ‘misbranding’ requires testing of the relevant food samples, but the corresponding charge of ‘adulteration’ has not been made? Section 13(2) is unfortunately silent in this regard. It is a settled principle of statutory interpretation that any ambiguity in a penal statute has to be interpreted in favour of the accused. It is absurd and discriminatory for the prosecution to, on one hand, rely on the report of the Public Analyst under Section 13(1) for proving the offence of ‘misbranding’, and on the other hand, claim that the accused cannot avail of their right to challenge the said report as per Sections 13(2) and 13(3) because it is not a case of ‘adulteration’. In such a scenario, the word ‘adulterated’ in Section 13(2) would have to be read as including ‘misbranded’ in so far as it relates to the ingredients of the concerned food article, and the relevant clauses of Section 13 have to be complied with in their entirety. Hence where examination of the contents/ingredients of the food article is integral to proving the offence ‘misbranding’, the procedure prescribed under Sections 11-13 of the 1954 Act has to be complied with, regardless of whether ‘adulteration’ is alleged or not. This includes the right to obtain a second opinion from the Central Laboratory under Section 13(2). This rule would not apply if proving the offence does not necessarily require sampling of the food article. [Para 8] [1094C-H]
6.1 Applying the above-mentioned test to the instant case, it has to be seen whether first, the Appellant was entitled to apply for testing of the Jelly by the Central Laboratory under Section 13(2); second, whether the denial of the right was the Respondents’ fault and third, whether such denial is prejudicial to the Appellant’s case. With respect to the first point, the Respondents have relied upon the Public Analyst’s Report which states that the Jelly contains ‘sugar/sucrose’, so as to institute a complaint for misbranding under Section 2(ix)(g) of the 1954 Act. This is because the label on the packaging claims that the Jelly is ‘sugarless’. Hence, the Public Analyst’s finding on whether ‘sugar’ as an ingredient is present in the Jelly sample is crucial to proving the offence of ‘misbranding’ against the Appellant. Thus, the Appellant ought to have had the opportunity to make an application under Section 13(2) for a second opinion from the Central Laboratory on the contents of the Jelly sample. [Para 9] [1095-B-D]
6.2 With respect to the second point, Respondent No. 2 erred in not making query to the Retailer, at the first instance, about the marketer of the Jelly, as she was empowered to do under Section 14A of the 1954 Act. If she had done so, the Appellant could have been notified in 2008 itself that the Jelly is being taken for analysis. Even if this lapse is condoned, once the Retailer had intimated the Respondents that the Appellant was the marketer of the Jelly, they ought to have made more efforts in notifying the Appellant of the alleged irregularity found in the Jelly sample, as per Section 13(2). There is no merit in the Respondents’ submission that the delay in informing the Appellant was because the Appellant was deliberately avoiding service of notice. Even if the address produced by the Retailer was of the Appellant’s Indore Branch, the label on the packaging of the Jelly clearly indicated that the official address for communication would be “Alkem House, … Mumbai..”. Hence even if no response was being received from the Indore branch, the Respondents could have attempted to send the details of the Public Analyst’s Report to the Appellant’s Mumbai address. Thus, it is clear that the Appellant lost their chance to get the Jelly sample re-tested under Section 13(2) on account of the Respondents’ negligence. Finally, with regard to the third point, it is true that non-compliance with Section 13(2) would not be fatal in every case, if it is found that the sample is still fit for analysis. However the Respondents have not disputed that the shelf life of the Jelly sample would have, in all probability, expired at this stage. Hence that this is a fit case for quashing of proceedings against the Appellant on account of denial of their valuable right under Section 13(2). The impugned judgment and the impleadment order are set aside. [Paras 9 and 10] [1095-E-H; 1096-A-C]
T. V. Usman v. Food Inspector, Tellicherry Municipality, Tellicherry (1994) 1 SCC 754 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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