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2011 Supreme(Bom) 1434
2012 (1) ALL MR 880
High Court of Judicature at Bombay
P.B. MAJMUDAR & MRIDULA BHATKAR
M/s. Vishnu Packaging & Others
Versus
Union of India & Others
WRIT PETITION NO. 1355 OF 2011 WITH WRIT PETITION NO. 1803 OF 2011 WITH WRIT PETITION NO. 1857 OF 2011
Decided on : 07-12-2011
For the Petitioners:A. Hidayatullah, Senior Advocate, with R.F. Totla, Ms. Shailaja Hidayatullah, Ricab Chand, Durgesh Khanapurkar, instructed by M/s. India Law Alliance, Mrs. Veena Thadani, Advocates.
For the Respondents:Ms. S.I. Shah, Rajiv Chavan with Ms. Rutuja Ambekar, Vinod Joshi, Rajiv Chavan with Ms. Hina Shah, Advocates, D.A. Nalawade, Government Pleader, with Ms. G.R. Shastri, Assistant Government Pleader.
Headnote:Prevention of Food Adulteration Act, 1954 - Sections 7(12), 23 and 37-A - P.F.A. Rules, Rules 1 and 62 - Sale of gutka.
It is for competent Court to adjudicate question whether prosecution is rightly launched or not and whether any particular standard for gutka is prescribed or not, taking criminal case.
It was next submitted by Mr. Hidayatullah that since no standard is prescribed under the said PFA Act regarding gutka, the intended action of the respondents in launching prosecution is not maintainable. So far as the aforesaid case is concerned, it arose from the criminal proceedings initiated by the State in connection with gutka. The Magistrate discharged the accused on the ground that no standard is prescribed for such gutka and, therefore, prosecution launched against the accused is required to be discharged. The State took the matter in revision before the single Judge and single Judge also took the same view. The view taken by the Gujarat High Court is not correct as, according to her, in a proprietary food there is a combination of various food articles and it is not necessary to prescribe separate standards for gutka. She has relied upon Rule 37-A of the said Rules, which has been quoted above. According to her, gutka is a proprietary food for which no separate standard is required to be provided and proprietary food product shall comply with all other regulatory provisions specified in the said Rules and in Appendices. It is submitted by her that carbonates of calcium and magnesium is an anticaking agent. She has relied upon Rule 62 of the said Rules. According to her, such anticaking is not permissible so far as preparation of gutka is concerned. There is no scientific basis for coming to the conclusion that use of carbonates of calcium and magnesium is injurious to health. That on the basis of scientific study it has been found that it is dangerous to human health. So far as this argument is concerned, the Court is not required to examine this point in its writ jurisdiction. Whether the prosecution is rightly launched or not and whether any particular standard is prescribed for gutka or not are questions which can be decided by competent Court taking criminal case, as and when any question arises before such Court. Suffice it to say that it is for the petitioners to take out appropriate criminal proceedings under Section 482 the Criminal Procedure Code or even before the concerned Magistrate in case proceedings have been launched or in itiated against the concerned persons. It is for the competent Court to adjudicate this aspect as and when this question arises for determination. It is, therefore, not necessary for Court to examine this aspect and the Court has only considered the powers of respondent Nos. 2 to 4 to initiate proceedings under the provisions of the said PFA Act and the said Rules in connection with the alleged food article which are found to be adulterated or misbranded under the provisions of the said PFA Act.
Prevention of Food Adulteration Act, 1954 - Sections 7(iv), 23 and 37-A - PFA Rules, Rules 12, 44-J and 62 - Tobacco Act, 2003 - Section 2 - Sale of adulterated Pan-masala/Gutka. Sale of adulterated pan-masala/gutka required to be dealt with under P.F.A. Act as Tobacco Act provides no provision for dealing with such adulteration.
Considering the issue involved in the matter, it has been held by the Supreme Court that Tobacco Act, 2003 being subsequently enacted special law, it will govern the field so far as manufacture and sale of tobacco products are concerned with certain restrictions provided under the Tobacco Act i.e. it should not be sold to minor persons below 18 years old. Considering the judgment of the Supreme Court, it is not possible for Court to accept the say of Mr. Hidayatullah that even in a given case if the article is misbranded or adulterated or even may contain dangerous substance, yet such manufacturer or producer may go scot-free, as there is no provision in the Tobacco Act, 2003 dealing with adulteration of an article. If the Tobacco Act, 2003 deals with such a situation by taking care of adulterated gutka/pan masala, naturally, in view of the subsequent special legislation, one can say that impliedly it will have no application dealing with adulteration of gutka/pan masala is concerned. But the factual aspect in this case is totally different as there is no provision in the Tobacco Act dealing with adulteration of gutka or pan masala. If that is so, Court fails to understand as to why adulterated gutka/pan masala cannot be dealt with under the said PFA Act and rules framed thereunder.
Even otherwise, as stated earlier, the Supreme Court itself has clearly mentioned in the concluding sub-para (5) of para 77 that such prohibition regarding manufacture or sale of such tobacco products can be imposed by exercising powers by the Central Government by framing appropriate Rules under Section 23 of the said PFA Act meaning thereby that the provisions of Section 23 of the said PFA Act are not given a go-bye in spite of the enactment of Tobacco Act, 2003.
Prevention of Insults to National Honour Act, 1971 - Section 2 - Flag Code of India, 2002, Code 2.2(xi) - Complaint under Section 2 of Act. Since ingredients of Section 2 of Act 171, totally missing in a complaint against petitioner, charged for not bringing down flag before sunset hence proceedings against petitioner quashed and set aside.
P.B. MAJMUDAR, J.
1. Since common point is involved in all these matters, for the sake of convenience, they are being disposed of by this common judgment. The point involved in Writ Petition No. 1355 of 2011 is taken as a basis for the purpose of deciding all these matters. Mr. Hidayatullah, learned Senior Counsel, has advanced arguments in Writ Petition No. 1355 of 2011. The learned counsel appearing for the petitioners in other matters has adopted the argument of Mr. Hidayatullah.
2. So faras Writ Petition No. 1355 of 2011 is concerned, the petitioners are manufacturers of pan masala, gutka and other allied items. The petitioners appointed dealers and vendors/pan shop owners who sell the products manufactured by the petitioners. The grievance of the petitioners is that the respondents have collected samples of the products in purported exercise of powers under Rule 12 of the Prevention of Food Adulteration Rules, 1955 (hereinafter “the Rules”). According to the petitioners, they have appointed consignment agents and have entered into consignment agreements with such consignment agents. As per the consignment agreement, the petitioners would send the products to the consignment agent for sale and the goods lying with the consignment agent in the consignment account would continue to vest in the manufacturer i.e. the petitioners till it was sold. It is the case of the petitioners that on the basis of the consignment agreement dated 1st April, 2010, the petitioners forwarded the products to one M/s. Shakir Forwarding Services, Bhivandi for onward carriage to the dealers in Mumbai. In the purported exercise of powers under the Prevention of Food Adulteration Act, 1954 (hereinafter “the PFA Act”) and the Rules framed thereunder, respondent No. 4 took samples for the purpose of finding out as to whether the article in question is adulterated or not. A notice was also issued under Section 14A of the said PFA Act to M/s. M. Shakir Forwarding Services. According to the petitioners, on 11th June, 2011, respondent No.3 purported to seize a consignment of goods belonging to the petitioners from one Shailesh Shivprasad Gupta, who is another consignment agent of the petitioners. Similar seizure also took place from another consignment agent of the petitioners viz. Milan Dhansukhlal Supariwala and the seizure was effected by respondent No.3. The initiation of launching prosecution is under challenge at the instance of the petitioners on the ground that prior to the year 2003, the manufacture of gutka and pan masala containing tobacco was governed by the provisions of the said PFA Act and the said Rules. However, in the year 2003, the Union of India came with a legislation viz. The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of trade and Commerce, Production, Supply and Distribution) Act, 2003 (hereinafter “the Tobacco Act, 2003). The Tobacco Act, 2003 deals with cigarette, cigar, cheroots, beedis, cigarette, tobacco, pipe tobacco, hookah tobacco, chewing gutka, snuff, pan masala or any other chewing material containing tobacco as one of its ingredients (by whatever name called) gutka and tooth powder containing tobacco. According to the petitioners, in view of the enactment of Tobacco Act, 2003, all the aforesaid products which contain tobacco are taken out from the purview of the said PFA Act and the said Rules and put under the purview and administration of the Tobacco Act, 2003.
3. The principal grievance on the part of the petitioners is that since special enactment has been enacted by the Parliament dealing with tobacco and tobacco products, the said PFA Act is not applicable. The action on the part of the respondents regarding seizing the material of the petitioners and launching prosecution on the ground that it violates the said PFA Act and the said Rules is without authority of law as, according to the petitioners, the said PFA Act has no application and, therefore, the said Rules
