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SUPREME COURT OF INDIA
MOHAN M. SHANTANAGOUDAR, KRISHNA MURARI, JJ.
M/s Alkem Laboratories Ltd. – Appellant
Versus
State of Madhya Pradesh and Anr – Respondents
Criminal Appeal No. 1798 of 2019 (arising out of S.L.P. (Criminal) No. 3995 of 2018)
Decided On : 29-11-2019
(A) Prevention of Food Adulteration Act, 1954 – Section 20A – Marketing of misbranded food article – Provisions of 1954 Act clearly distinguish between a ‘vendor’ and ‘manufacturer’ of a food article – Very purpose of Section 20A is to enable Court to implead manufacturer or distributor during trial of vendor of food article so as to detect and punish adulteration at all stages of supply chain – Prosecution may have to prove, for the purpose of trying Retailer and Appellant in a joint trial, that they shared a common object that misbranded Jelly should reach consumers as food. (Para 5)
(B) Prevention of Food Adulteration Act, 1954 – Sections 7 and 13(2) read with Section 20A – Criminal Procedure Code, 1973 – Section 482 – Marketing of misbranded food article – Dismissal of quashing application by High Court – Purpose of Section 13 is to give a second opportunity to accused persons against whom prosecution is initiated under 1954 Act based on Public Analyst’s report, to get relevant food sample tested again by Central Laboratory – Since Central Laboratory’s report will have precedence over that of Public Analyst, this is a valuable opportunity for accused persons to claim exoneration from criminal proceedings – 1954 Act does not envisage a situation such as present case where sample is sent for analysis, and Public Analyst’s report is also prepared, but marketer is informed several years later that prosecution is sought to be instituted against them – During such period, food article being perishable in nature would most probably be incapable of being sent for retesting to Central Laboratory – Any ambiguity in a penal statute has to be interpreted in favour of accused – It would be absurd and discriminatory for prosecution to, on one hand, rely on report of Public Analyst under Section 13(1) for proving offence of ‘misbranding’, and on other hand, claim that accused cannot avail of their right to challenge said report as per Sections 13(2) and 13(3) because it is not a case of ‘adulteration’ – Where examination of contents/ingredients of food article is integral to proving offence ‘misbranding’, procedure prescribed under Sections 13 of 1954 Act has to be complied with, regardless of whether ‘adulteration’ is alleged or not – This includes right to obtain a second opinion from Central Laboratory under Section 13(2) – Same test would apply in respect of any other offence for which penalty is prescribed under 1954 Act – Appellant lost their chance to get Jelly sample retested under Section 13(2) on account of Respondents’ negligence – Impugned judgment and impleadment order set aside. (Paras 6, 7, 8, 9 and 10)
Facts of the case:
Present appeal by special leave arises out of judgment dated 11.04.2018 of High Court of Madhya Pradesh at Jabalpur, dismissing Appellant’s application under Section 482 of Criminal Procedure Code for quashing of order dated 01.09.2015 of Special Magistrate (Prevention of Food Adulteration Act), Bhopal.
Findings of Court:
Where examination of the contents/ingredients of the food article is integral to proving offence ‘misbranding’, procedure prescribed under Sections 13 of the 1954 Act has to be complied with, regardless of whether adulteration is alleged or not. This includes right to obtain a second opinion from the Central Laboratory under Section 13(2). The same test would apply in respect of any other offence for which penalty is prescribed under the 1954 Act.
Result : Appeal allowed.
JUDGMENT :
MOHAN M. SHANTANAGOUDAR, J.
1. Leave granted.
2. This appeal by special leave arises out of judgment dated 11.04.2018 of the High Court of Madhya Pradesh at Jabalpur, dismissing the Appellant’s application under Section 482 of the Criminal Procedure Code (‘CrPC’) for quashing of order dated 01.09.2015 of the Special Magistrate (Prevention of Food Adulteration Act), Bhopal.
3. The facts giving rise to this appeal are as follows: The Appellant was the marketer of packed food article ‘Orange Tammy Sugarless Jelly’ (‘Jelly’). The Jelly was manufactured separately by one Cachet Pharmaceuticals Private Limited (‘Manufacturer’), which is not connected to the Appellant entity. On 3.10.2008, Respondent No. 2 Food Inspector, (from the Food and Drugs Administration, Bhopal District), conducted inspection in Valecha Enterprises in Bhopal, the proprietor of which is one Mr. Dinesh Valecha (‘Retailer’). Respondent No. 2 purchased three company packed jars of the Jelly, weighing 350 grams each, from the Retailer and the said samples were deposited with the State Food Testing Laboratory (‘State Laboratory’) and the Local Health Authority, Bhopal for the purpose of testing. At this stage, the Retailer did not have receipt of purchase from the Appellant/marketer and stated that they would produce it before Respondent No. 2 at a later stage.
The Local Health Authority by letter dated 26.11.2008 informed Respondent No. 2 that the Report of the Public Analyst, State Laboratory had found ‘sugar’ in the Jelly sample, hence the Jelly was misbranded. Notably, it was pursuant to this letter that, Respondent No. 2 made further query and the Retailer produced a receipt showing that the Jelly was purchased from the Appellant. Respondent No. 2 sent a letter to the Local Health Authority and to the Indore branch of the Appellant company, for information as regards the Manager/Director/Partner or nominee of the Appellant. However, as the Respondents claim, the Appellant did not respond to this query and the letter was received back. The attempts of Respondent No. 2 to obtain information about the Appellant from the Office of the Deputy Director, Food and Drugs Administration and the Commissioner, Nagar Nigam, Indore also failed.
Consequently, Respondent No. 2 filed a complaint in the Court of the Judicial Magistrate, First Class, Bhopal for the offence of selling a misbranded food article under Section 16(1)(a)(ii) read with Sections 2(ix)(g) and 7(ii) of the Prevention of Food Adulteration Act, 1954 (‘1954 Act’). During the course of the trial, after the closing of the prosecution evidence, the Retailer examined himself as a witness for the defence under Section 315 of the CrPC. Subsequently on 26.8.2014, the Retailer moved an application under Section 20A of the 1954 Act for impleading the Appellant as an accused, which was allowed by the Special Magistrate (Prevention of Food Adulteration Act), Bhopal by order dated 1.9.2015. Hence the Appellant approached the High Court under Section 482 of the CrPC for quashing the said order.
The High Court in the impugned judgment held that firstly, mens rea was not an ingredient of the offence under Section 7 of the 1954 Act. Therefore the Appellant could not avail of the defense that since they were only the marketer of the Jelly, they were not privy to the ingredients thereof. Secondly, that the Appellant could not have availed of the right to get the sample retested by the Central Food Laboratory (‘Central Laboratory’) under Section 13(2) of the 1954 Act as the same was only available to the vendor of an ‘adulterated’ food article and not a ‘misbranded’ one. Hence the denial of the said right would not prejudice the case against the Appellant.
Thirdly, that the delay of 5 years in arraying the Appellant as coaccused would also not be fatal inasmuch as Respondent No. 2 had made best attempts to contact the Appellant, and the Appellant’s name was probably omitted to avoid delay in filing the complaint. Lastly, th
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