The court interpreted Rule 39 of the Prevention of Food Adulteration Rules, 1954, and Section 17 of the Prevention of Food Adulteration Act, 1954, and held that the label on the Horlicks bottles did not violate Rule 39 and that the Magistrate erred in issuing process against the directors without determining whether they were in charge of or responsible for the company's business.

P. C. Borooah, J. :- The second petitioner is the Chairman of M/s, G. Atherton and Co. Private Ltd. (the petitioner No. 1) and petitioners Nos. 3, 4, 5 and 6 are the Directors and petitioner No. 7 is the Godown Keeper of the said company at 21, R. N, Mukherjee Road, Calcutta.

2. On Dec. 23, 1975 one Food Inspector of the Corporation of Calcutta by the name of Dr. B. Rat Chowdhuri inspected the godown of the company at the aforesaid premises and seized from the petitioner No. 7 thirty cases of Horlicks, each containing 24 bottles with the exception of one case which contained 21 bottles.

3. One bottle was sent to the Public Analyst for examination and the Public Analyst gave a report to the effect that the sample of Horlicks which he examined was packed in a glass bottle on which there was a printed paper label bearing a statement "Throughout the world Horlicks enjoys the confidence of the medical profession" and as such R, 39 of the Prevention of Food Adulteration Rules had been infringed and hence it was misbranded.

4. On the aforesaid allegation a petition of complaint was filed on Feb. 2, 1976 against the petitioners on behalf of the opposite party in the court of the Metropolitan Magistrate and Magistrate First Class, Calcutta. The learned Magistrate by an order dated Feb. 2, 1976 took cognizance on the basis of the said complaint and ordered the issue of summons against the petitioners, This order has been challenged in this Rule.

5. Mr. D.K. Dutta, learned Advocate appearing on behalf of the petitioners, has submitted before us that the petition of complaint on the face of it, does not disclose any offence under the Prevention of Food Adulteration Act, 1954 or the Rules framed thereunder (hereinafter the Act and the Rules) and as such, the cognizance token by the learned Magistrate is bad in law. Mr. Dutta further submitted that under S.17 of the Act when an offence has been committed by a company only the persons, who at the time of commission of the offence, were in charge of or were responsible to the company for the conduct of the company's business, as well as the company, are liable to be proceeded with for an offence committed under the Act or the Rules. In the instant case, according to Mr. Dutta, in the petition of complaint on the basis of which the learned Magistrate took cognizance, there is no averment to the effect that the petitioners Nos. 2 to 7 were in any way in charge of or were responsible to the first petitioner for the conduct of its business, That being so the cognizance taken against the petitioners Nos. 2 to 7 was in any event bad in law.

6. The submissions made by Mr. Dutta have not been controverted by Mr. Siren Mitra, learned Public Prosecutor appearing on behalf of the State, According to Mr. Mitra also the cognizance token is not in accordance with law.

7. The report of the Public Analyst was to the effect that R. 39 of the Rules had been contravened as the label bore a statement, namely, "Throughout the world Horlicks enjoys the confidence of the medical profession", arid it was misbranded.

8. R. 39 of the Rules is in the following terms :

"There shall not appear in the label of any package containing food for sale the words "recommended by the medical profession" or any words which imply or suggest that the food is recommended, prescribed, or approved by medical practitioners".

9. What R. 39 lays down is that on any label of any food articles the words "recommended by the medical profession" or words which imply or go to suggest that the article of food has been recommended, prescribed or approved by medical practitioners must not appear."

10. In the instant case, the label on the Horlicks bottle contained the words "it enjoys the confidence of the medical profession". The question is whether these words are hit by R. 39 of the Rules ? Enjoying the confidence of the medical profession does not mean that it has been recommended by the medical profession nor does it imply that it has been pre