At, High Court of Karnataka
By, THE HONOURABLE MRS. JUSTICE RATHNAKALA
For the Petitioner: Rajesh S. for Harikrishna S. Holla, Advocate. For the Respondents: Chetan Desai, High Court Government Pleader.
1. The petitioner is arrayed as accused in a private complaint lodged by the respondent 2 in respect of the offence under Sections 2(i-a) and 7(ii) read with Rule 32(e) punishable under Section 16(1) of the Prevention of Food Adulteration Act 1954 (‘the Act’ for brevity).
2. The gist of the allegation is, the sample was misbranded vide label 3(c) and batch/lot number not printed on the label.
3. Sri S. Rajesh appearing on behalf of Sri Harikrishna S. Holla, learned Counsel for the petitioner submits that, in view of the judgment of the Apex Court in Dwarka Nath and Another v Municipal Corporation of Delhi (AIR 1971 SC 1844 : (1971) 2 SCC 314 : 1971 SCC (Cri.) 514 : 1971 Cri.L.J.1290 (SC)), the petitioner cannot be prosecuted for misbranding of the sample and it is not an offence attracting punishment under Section 16(1) of the Act.
4. Sri Chetan Desai, learned High Court Government Pleader for the respondent submits that, 'misbranded' is defined under Section 2(i-x) and 2(k) of the Act and said offence is made punishable under Section 16(1)(a)(i) of the Act. Rule 32 of the Prevention of Food Adulteration Rules, 1955 (‘the Rules’ for short). Part VII of the Rules pertains to ‘Packing and Labelling of foods’. Rule 32 elaborates the obligation of the manufacturer to label every prepackaged foods. The judgment of the Apex Court stated supra was in respect of merits of entire case of the prosecution. After a full-fledged trial, the accused was convicted by the Trial Court in respect of the offence under Rule 32(b) and 32(e) of the Rules. For the lapse on the part of the prosecution in not bringing on record how the public was deceived for misbranding, the accused came to be acquitted by the Apex Court. But the present case is still on the threshold and the prosecution shall be allowed to adduce their evidence and the proceedings cannot be quashed at this initial stage.
5. As such, the sample is found to be fit, but the only allegation is misbranding of the sample. 'Misbranded' as at Section 2(i-x) and 2(k) of the Act, which reads thus:
'2. (i-x) 'Misbranded' an article of food shall be deemed to be misbranded.-
(k) if it is not labelled in accordance with the requirements of this Act or rules made thereunder.'
Is the relevant provision for the present purpose. Rule 32(e) of the Rules is relevant for our purpose, which reads thus:
'32. Every prepackaged food to carry a label. - …
(a) to (d) ……
(e) Lot/Code/Batch identification.-A batch number or code number or lot number which is a mark of identification by which the food can be traced in the manufacture and identified in the distribution, shall be given on the label:
Provided that in case of packages containing bread and milk including sterilised milk, particulars under this clause shall not be required to be given on the label.'
6. The Apex Court in the judgment cited supra, on an elaborate discussion of clause (e) of Rule 32 observed thus:
1/21. There is no definition of the expression 'batch number' or 'Code number' either in the Act or the Rules. It is also admitted that even assuming that the batch or code number has to be given, there is no further obligation to specify in the label the date of packing and manufacture of the article of food or the period within which the article of food has to be utilised, used or consumed. In the absence of any obligation to give the particulars mentioned by us above, the public or the purchaser will not be able to find out even the freshness of the contents of a container. Therefore, it follows that merely giving an artificial batch number or code number will not be of any use to the public or to the purchaser. In view of all these circumstances we are of the opinion that Rule 32(e) is beyond the rule making power even under Section 23(1-A)(d) of the Act. The appellants could not be convicted for any violation of clause (e) of Rule 32 as the said provision, as pointed out above, is
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invalid.' 7. Though the above judgment was passed both on appreciation of facts and also the question of law raised, since Rule 32(e) of the Rules is held invalid, there cannot be any more prosecution under Rule 32(e) of the Rules. Hence, the petition is allowed. The proceedings in c.c. No. 218 of 2008 on the file of Principal Civil Judge (Junior Division) and Judicial Magistrate First Class, Maddur (District Mandya), is quashed.