Allowed

Mr. Shashank Jain ( Nominee) v. The State of Telangana

Telangana HC11 Oct 2022CRLP/12351/2017

Case brief

AI extract

What is this about?

The High Court quashed criminal proceedings against a food manufacturer and its nominee. The court held that without an invoice or purchase bill linking the spurious sample to the petitioners, prosecution based solely on label declaration is illegal. Additionally, procedural violations regarding the legally mandated sample quantity were noted.

What did the court decide?

The criminal proceedings against petitioners-accused Nos. 2 and 3 in C.C. No. 280 of 2016 were quashed.

Mr. Shashank Jain ( Nominee) Vs The State of Telangana — Quashing and FIR | Telangana HC (2022)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY ,THE ELEVENTH DAY OF OCTOBER TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE DR. JUSTICE D.NAGARJUN

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CRIMINAL PETITION NO: 12351 OF 2017

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Between:

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Mr. Shashank Jain ( Nominee), M/s. Hindustan Unilever Limited (HUL), Unilever House, BD Sawant Marg, Chakala, Andheri (E), Mumbai - 400099, IVlaharashtra State.

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Mls. Hindustan Unilever Ltd.,, Plot No. A-8/9, MIDC lndustrial Estate, It/alegaon, Sinnar, Nasik - 422103. (Rep. by Nominee).

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...PETITIONERS/ACCUSEO Nos.2 & 3

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AND

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The State of Telangana, Rep. by the Food Safety Officer, Nalgonda District, Rep. by its Public Prosecutor, High Court at Hyderabad.

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...RESPONDENTiCOMPLAINANT

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Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to quash CC No. 280 of 2016 as against the PetitionerslA2 & A3 pending on the file of Judicial First Class Magistrate at Nalgonda, Nalgonda District.

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l.A. NO: I OF 2017(CRLPMP. NO: 13710 OF 2017)

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Petition under Section 482 of Cr.P .C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition,the High Court may be pleased to Stay all further proceedings, including the appearance of the Accused No's. 2 & 3, in CC No. 280 of 2016 on the file of Judicial First Class Magistrate at Nalgonda, Nalgonda District.

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l.A. NO: 1 OF 2018

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Petition under Section 482 of Cr.P .C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition,the High Court may be pleased to extend the interim order granted on 28.9.2018 and to pass

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l.A. NO: 1 OF 2022

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Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition,the High Court may be

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pleased to extend the interim order^{granted on 12-O3-2O2O in l.A.No.3of 2020and} to pass This Petition coming^{on for hearing,upon perusingthe Memorandumof} Grounds of criminal^{Petitionand upon hearingthe arguments of sri LEo RAJ} Advocate for the^{Petitioner and the PublicProsecutor on behalf of the} Respondent.

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The Court made^{the following: ORDER}

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THE HONOURABLE DR. JUSTICE D.NAGARJUN

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CRIMINAL PETITION No. 12351 of 2Ol7

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ORDER:

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This Criminal Petition is hled under Section 482 of^the Code of Criminal Procedure by the^{petitioners-accusedNos.2} and 3 to quash C.C.No.280 of^{2O 16} on the^{file of learned} Judicial First Class Magistrate at^{Nalgonda,the cognizance of} which was taken for the offences under Sections^{3(ll(zz)(xill, 26} (2)(i) of the Food Safety Standards Act, 2006^punishable under Section 59 (ii) of Food Safety and Standards Act,^2OO6 (hereinafter will be referred as "Act" in short).

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The facts in brief as per the complaint filed by^the respondent - Food Safety Officer, Nalgonda are as^under:

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a) On O3.O7.2015 at 1.00 PM the Respondent -^{Food Safety} Officer, Nalgonda visited M/s.Sai Cakes bnd^{Bakes, Hyderabad} Road, opposite L.V. Petrol Bunk, Nalgonda District^{along with} the office subordinate, mediator and found accused^No.1 operating the business and on enquiry accused No.1^reported that he is the Proprietor. The respondent - Food Safety^Oflicer has^purchased four bottles of Kissan Mixed Fruit Jam^20O grams containing label declaration as manufactured by

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Hindustan Unilever Limited by payrng Rs.2OO/- and obtained cash receipt. The respondent has served notice in Form VA to the accused No. 1 and informed that he will be sending the sample of said Kissan Mixed Fruit Jam to the foocl analysis. The respondent has packed fruit jam bottles as per the procedure and put the labels.

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b) A Panchanama rvas also drafted in the presence of the witness. On O4.07.2015 the sample bottles of jam were sent to the food analyst. The remaining two parts of sample bottles along with two copies of memorandum in Form VI were deposited with Food Safet5r Designated Officer on O4.O7.2O15 and fourth part of sample is deposited with FSDO on 04.O7.2015 as the accused did not avail the opportunity to get it ana)yzed in the accredited laboratory. Ot O4.O2.2015 a letter along with Form VA nolice was sent. to Marketer i.e., M/s. Hindusthan Unilever Limited, Unilever House, BD Swanth Marg, Chakala, Andheeri (E), Mumbai. The Food Analyst has opined that the sample does not conform to the standard of one of the class II preservatives i.e., Sulphur Dioxide, as such it is unsafe. After receipt of the food analyst report, the respondent sent a notice under Rule 2.4.6 of the Food Safet5r and Standards

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Act, 2OO6 along with food analyst report to the^FBO, Manufacturer, Marketer.

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c) On 07.08.2015 as per the material available, the Food Safety Designated Officer submitted recommendations to the Commissioner of Food Safety, Hyderabad along with detailed report. On 31.O8.2O15 a letter dated 21.O8.2O15 was received from the manufacturer that they requested to send the sample for re-analysis to NABL accredited laboratory. In reply, the respondent addressed letter to the manufacture stating that the sample Kissan mixed fruit^jam for analysis does not arise at that stage i.e., after receipt of food analyst report. The respondent sent a notice for nominee particulars of the firm to manufacturer and marketer by registered post. On that the marketer sent reply along with copy of Form IX nomination together with other relevant documents. Then the Food Safety Designated Officer has submitted the nominee particulars to the Commissioner of Food Safety. On 24.04.2016 the Food Safety Designated Of{icer has sent a letter to Hindusthan Unilever Limited, Sinnar, Nashik for clarification of the particulars on 18.05.2016.

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d) The Commissioncr of Food Safety, after being satisfied that there is a prima-facie case of sale of unsafe Kissan Mixed Fruit Jam against accused Nos. I to 3, has accorded sanction for prosecution of accused Nos.1 to 3 for the offence under Section 3(1)(zz)(xii) and 26 (2)(i) of the Food Safety Standards Act, 2O06 punishable under Section 59 (Ii) of Food Safety and Standards Act, 2O06. On 20.06.2016 the respondent has received prosecution order and based on the said order, a complaint was filed before the learned Judicial First Class^{Magistrate at} Nalgonda, cognizance of which was taken as C.C.No.28O^of 20t6.

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Aggrieved by the same, the petitioner Nos.2 and 3 have Iiled the predent criminal^petition to^quash C.C.No.280^{of 2016} against them under the following^grounds:

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i) The prosecution is iaunched against the^{pelitionerssolely} based on the label declaration,^{which is held to be impressible.} When admittedly, the vendor failed to^{produce the purchase bill} issued by accused No.3, that action^{was initiated against} accused No.3 solely based^{on the label declaration.}

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ii) The Petitioner Company^{never sold or sells the products} manufactured by it directly to the ...,^{vendors, who purchase} the

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products from the distributors and their agents. It is of common knowledge that the market is flooded with spurious foods with the labels of reputed companies like the petitioner. Hence, the Food Safety Officer ought not to have issued notice to the petitioner Company, when the vendor failed to produce the purchase bill.

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iii) Having received a letter dated 29.0T.2015 from the Food Safety Designated Officer enclosing the report, the petitioner No.2/accused No.3 has requested the Food Safety Oflicer to send remaining part of the sample for re-analysis to accredited laboratory but the respondent instead of send one part of the sample for re-analysis sent a reply that it is not the stage to send sample to accredited laboratory. The petitioners. have submitted various representations but there was no response. The petitioner No.2 hled W.p.No.2t442 of 2Ot6 on 3O.O6.2O16 challenging the action of the respondent, who has filed counter and the said writ petition is pending.

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iv) As per Section 47 (t)(a) of the Food Safety and Standard Act, 2OO6 read with Rule 2.4.5 (1) of the Food Safety and Standard Rules, 2O I 1 , the Food Safet5r Officer ought to have send fourth part of the sample for re-analysis to NABL

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accredited and recognizcd FSSAI notjfied laboratories on the request of the second petitioner. However, by rejecting to do the same, the valuable right conferred under Section 47 (1)(a) oi the Food Safety and Standards Act read with Rule 2.4.5 (1) of the Food Safety and Standards Regulations, 2Oll has been defeated.

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v) As per the label on the pack, the jam in question was manufactured on I 1 .O5.20 15 and it was best before 12 rnonths from packing and the said period of 12 months expired on 10.05.2016 and in the said circumstances, the complainant ought not to have declined to send remaining part of fourth of the sample to NABL accredited and recognDed by FSSAI notified laboratories.

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vi) The rejection of the petitioner's request vide letter dated 04.09.2015 is not justified. The petitioner No.2 is a food business operator, whose name, address and other particulars have been disclosed on the label afhxed to the Kissan Mixed Fruit Jam bottle, rvhich is evident from the analysis report. Hence, the respondent is duty bound to issue notice to the petitioner under Section a7 (l) and ought to have send

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remaining part of the sample to the^{NABL Accredited} [,aboratory.

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vii) Adopting the method of DGHSⁱⁿ analyzing^{the sampleis} contrary to the Rule 2.4.2^(7l.

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viii) Taking cognizance of the offence^{against the petitionerby} the iearned trial Court itself is^illegal.

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4 Now the point for determination is:

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"Whether the proceedings against the petitioners-accused Nos.2 and 3 in C.C.No.28O of 2016 on the file of learned Judicial First Class Magistrate at Nalgonda, can be^{quashed under} Seclion 482 of the Code of Criminal^Procedure?

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Heard Sri S.ko Raj, learned counsel for the^petitioner- accused and Sri S.Ganesh, Iearned^{Assistant Fublic Prosecutor.}

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There is no dispute from the petitioners-accused^Nos'2 and 3 that the respondent -^{Food Safety Offrcer has visited} M/s.Sai Cakes and Bakes, Hyderabad Road, opposite^L.V.Petrol Bunk, Nalgonda District on 03.07.2015 at 1.00 PM and purchased four bottles of Kissan Mixed Fruit Jam. On entertaining doubt that it does not contain the standards prescribed under the Food Safet5z and Standards Act, the

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respondent has sent one of the samples to the laboratory after following tire due procedure and the analysis report discloses that the sample oi Kissan Mixed Fruit Jam was not safe for consumption on account of not couforming to the standard of one of the class II preservatives i.e., Sulptrur Dioxide and rest of the samples were deposited by the Food Safety Designated Oflicer.

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The main contention of learned counsel for the petitioners is that pe titioner vide its letter 21 .Og.20 1 5 has requested the Food Safety Designated Officer, Nalgonda to send a sample for re-analysis to NABL Accredited laboratory / FSSAI notified laboratory and having received the said letter on 31.Og.2O15 the Food Safety Designated Officer has sent a reply stating that the sample of Kissan Mked Fruit Jam for analysis does not arise at this stage as desired. By rejecting to send the sample to accredited laboratory, the valuable right conferred under Section +7 (l)(al ofthe Food Safety and Standards Act read with Rule 2.4.5 (1) of the Food Safety and Standards Rules, 201 I has been defeated. As per Rule 2.4.5 the Food Safet5r Officer is under the obligation to sencl one part of the sample to NABL Laboratory for analysis, in case if the petitioners desires to get tl-re fourth sample anal5rzed. In the case on hand. the

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respondent has not issued^{any noticein writing his intentionto} have the food sample collected analyzed^{under Section47 (ll of} the Act. After receiving letter from^{the petitioners with a request} to send the fourth part of the^sample to^{the accredited} laboratory, the respondent refused^{for the said request,whichis} nothing but violation of the rights^{confessed on petitioners} under Section a7^(1)(a) of^{the Food Safety and StandardsAct} read with Ruie 2.4.5 (1) of the^{Food Safety and Standards Rules,} 2011. Even as on the date of^{makingrequestof the petitioners} to the respondent i.e., on 21.O8.2O^{15 still as per the label on the} pack, the food product in question was not expired.^{As per the} label on the pack, the^jam in^{questionwas manufactured on} 11.05.2015 and it was best before^{12 months from packing and} the said period of 12 months expired^{on 1O.05.2O16and in the} said circumstances, the complainant^{ought not to have declined} to send remaining part of fourth of^{the sample to NABL} accredited and recognized by FSSAI^{notifiedlaboratories.}

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The other contention raised by the learned^{counsel for the} petitioners is that when admittedly, the vendor failed to^produce the purchase bill, prosecution is launched against^the petitioners solely based on the label declaration, which is held to be impressible. In support of the said contention,^learned

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counsel for the petitioners has relied upon an authority in Mathew Xavier, Regional Sales Manager f.oods, Nominee of Hindustan Lever Limited, Mumbai and atrother v. Statc of Andhra Pradeshl, u,herein thc Hon,t.rlc Apex Court helcl as follows:

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"While a joittt tiat of the manufacturer, distributor, dealer and uendor is permissible, but nonetheless if tlrc link is ml.ssing amongst each of them the only recourse that is auailable is to examine the eutd.ence that has come on recorcl duin.tl the tiat, uthich is pennits tlte manufacturer, clistributor and. dealer al-so to be proseanted., tlen the pouer under Section 20A has got to be exercised. It has therefore to be understood that at the first instance, unless tlte Food. lnspector has picked up tle sample for analysis, ight from the place, uthere it is manufactured itself, he hns to necessailg prosecute the manufacturer or d_ealer or distributor or agent onlg upon pima facie establishing their link to the alleged adulterated food article which has been sold or offered for sole. Therefore, at the initial stage itsetf tLrc manufacturer or distibutor or dealer cannot be straight awag proseatted on the strength and basi^s of the tnformation gatlered in terms of Section 14A of the Act. We therefore, answer the reference holding that the leamed Single Judge uha decided. Crl.petition No.269 of 2OO3 on 2003 has taken a correct uieu.t of the matter.,'

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'^{2o0e(2)ALD(crt.)} 68s^(Ap)

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The above said view taken by the High Court was also confirmed by Full Bench of the High Court in M.T.R. Foods Limited Bangalore v. State of Andhra Pradesh2. As seen lrom Annexure submitted by the respondent along with the complaint, at serial No.5, it was mentioned that purchase bill not submitted. At serial No.7, it was mentioned that Form VA notice sent as per the label declaration to the manufacturer i.e., the Petitioner herein. As seen from the notice dated 03.11.2015 sent to the petitioners by the respondent, the invoice number is mentioned as "NIL'. Therefore, it is clear that the notice sent to the petitioners for implicating the petitioners is based on the label declaration available on the food sample and there is no invoice collected from the food business operator i.e., accused No. 1. It is settled legal preposition that launching of prosecution against the manufacturer without any evidence connecting spurious food items to that of the petitionersaccused cannot be permitted.

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In the case on hand, the question to be considered is whether there is any record before the Court to show that Kissan Mixed Fruit Jam was manufactured or produced by the Petitioners' Company. It is submitted learned counsel for the

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, 2014 (l) ALD (Crl.) 32a (AP(FB)

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petitioners that market is flooded with spurious foods with the labels of reputed companies like tbe petitioner by connecting the names of the petitioners company and unless the vendor prodlrces a receipt or invoice to show that foocl product sample by of which was sent to laboratory was produced from the petitioners company. The petitioners, Company adminedly never sells the food products manufactured by it directly to the consulners. The food products manufacture<I by the petitioners, company would be sold initially to the dist.ributors, who in turn sell them to the agents, who in turn will sell the food products through various outlets so that the consurners can purchase them from their respective outlets. Unless invoice is produced by the vendor that it was purchased from a particular agent or distributor, it cannot be said that the food product, the sample of which rvas analyzed by the respondent lvas manufactured by the petitioners' Company.

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In the case on hand, admittedly the vendor of the sample has failed to produce any invoice to show that it was purchased from agent/distributor to whom tl-re petitioners, Company sold the food product. It is in knowledge of everybody that number of food products are being sold with the same label and the name and also packing in order to show that particular food

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item has been manufactured by the reputed company. According to the petitioners, in the name of Kissan Mixed Fruit Jam, number of spurious food products are being sold with inferior quality and in case if such inferior quality food product was taken as a sample by the Food Safet5r Oflicer and if such food product analyzred found to be inferior, the petitioners' company cannot be held liable. Even after filing of this complaint also, no effort was made by the respondent to file any document that the outlet where the respondent has purchased the sample was manufacturer by the petitioners.

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In view of the above discussion, since there is no invoice to show that the sample anaJyzed was manufactured by the petitioners' company, liability under Sections 3(11(zzl(xiil, 26 (2)(i) of the Food Safety Standards Act punishable under Section 59 (ii) of Food Safety and Standards Act, 2OO6 cannot e fastened on the petitioners. On this ground, it is a fit case to quash the proceedings against the petitioners in C.C.No.280 of 2016 on the file of learned Judicial First Class Magistrate at Nalgonda.

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The other contention raised by the iearned counsel for the petitioners is that adopting the method of DGHS in analyzing the sample by the respondent is contrary to Rule 2.4.2 (Zl of the t'

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Food Salety ancl standards Rules, 2o 1 1 ancr to that extent the learrred counsel for the petitioner has relied upon an authority in Pepsico India Holdings private Limited v. Food Inspector and another3 wherein the Hon,ble Supreme Court held as follows:

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"As far as Grounds 1 and. 2 are concented, tl{e High Court t as not conuinced with the submissions made on belulf of tlte appellants tttat h the absence of ang prescribed and ualidaterl metlnd of analysis und_er Secfions 23 (l-A)(ee) and. (hh) of the 1954 Act, the report of the public analyst, who had used the DGHS method, could not be relied upon, especiallg tthen euen the Iaboratories, where the test for detection of insecticides and pesticides in ant article of Jbod could- be undertaken, had. not been specified.."

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Rule 2.4.2 (7) of the Foocl Safety and Standards Rules, 20 11 is as under:

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"Th.e manuals of the metlud of analgsis, as amended/ adopted bg the Ardtnritg from time to time including AOAC/ISO/ pearson,s/ Jacob/ NpAC/ Food CLemicals CODEX/ BIS/ Woodmen / Winton Winton/ JoslAn, shalt be used. for analyzing the samples of food anticles. Hotueuer, in case the metlnd for analgzing anA param.eter is not auailable in these manualq a ualidated method of analgsis prescribed. bg

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3 (2011) I Supreme Court Cases lz6

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internationallg recognized analytical/ regulatory agencies, stnll be adopted."

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In the case on hand, as seen from the analysis report, the method used for analyzing the sample is DGHS method but not any of the methods mentioned in Rule 2.4.2 (7) of the Food Safety and Standards Rules, 2011.

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The other contention of the learned counsel for the petitioners is that the respondent has violated Rule 2.3.1 of the Food Safety and Standards (Laboratory and Sample Analysis) Regulations, 201 1 as the sample coilected and supplied to the food analyst is less than the required quantity and to that extent the learned counsel for the petitioner has relied upon an authority in Vasamsetty Satyanarayana v. State of A.P. rep. by Public Prosecutora, wherein the Hon'ble Supreme Court held as follows:

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"Tle nert point urged bg th.e learned counsel i-s that Rule 22 of tle Preuention of Food Adulteration rules says that the qtantity of milk to be sent i"s 250 ml. In this case, tLte sample of 220 ml. of milk uas only sent. Hene, Rule 22 is uiolated. T?e benefit of uiolation of this ntle should go to the acansed. In support of his contention he relied upon on the judgment of tLe Supreme Court in R.G.Pammani u.

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a 1998 (2) AID (Crl.)89s

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State of Maharashtra, MANU/ SC/ 0j8B/ 1974: 19ZS CriLl2 54. In this case their Lord.ships held_ that if the statutorilA required quantitg is not sent, the analgst rep o rt re nde r s d oub tful.

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The leamed htblic^prosecutor on tLe other hand. antended that the preuious rule uas enhanced. to 2SO mL furth-er, the Public Analyst d_id. not raise ang objection and also did. not opine that tle quantitg sent is not sufficient for tle purpose of analysi,s. Tle fact that lesser EnntitA is sent ruas not an imped.iment for making proper analgsis. Tlrcrefore, this objection is untenable.

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'I do not agree u,tith the learned. public proseantor. When the statute required tld tfle minimum quantitg of 25O ml. should be sent, it should_ be stictly complied, with. No excuse or conuenbnce can be tooked. into by explanation.

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As per the table available in Rule 2.3.1 of the Food Safety and Standards (t aboratory and Sample Analysis) Regulations, 2Oll at serial no. 28 the approximate quantity to be supplied for analyzing the sample is 30O grams. But in the case on hand, the quantity of sample sent for analysis was 20O grams, which is not the required quantity to be supplied for analysis. Therefore, sending 2OO grams of food sample i.e., jam against the required quantity to be supplied to the food analysis is clear violation of Rule 2.3.L of the Food Safety and Standards

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(Laboratory and Sample Analysis) Regulations, 2O1 1. On this ground also, the proceedings againt the petitioner in C.C.No.280 of 2016 on the file of learned Judicial First Class Magistrate at Nalgonda can be quashed.

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Accordingly the criminal petition is allowed and -the proceedings in C.C.No.28O of 2016 on the file of learned Judicial First Class Magistrate at Nalgonda against the petitionersaccused Nos.2 and 3 are hereby quashed_ The trial Court shall proceed with the case against accused No. 1 in C.C.No.2gO of 20 16 on the file of learned Judicial First Class Magistrate at Nalgonda on merits of the case, uninfluenced by the observations and comments made by this Court in this order.

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As a sequel, the miscellaneous petitions, pending if any, shall stand closed.

SDI V. KAVITHA

ASSISTANT REGISTRAR

//TRUE COPY// u

SECTION OFFICER

To,