The main legal point established is that the prosecution for a first-time labeling violation under Rule 32(e) should be withdrawn as per the prevalent government policy, and the continuance of the proceedings in such cases is not justified.

V.K. Shali, J.(Oral) ;—

1. These are two petitions bearing No.2675/04 and 2679/04 filed by Ms/Pepsi Food Pvt. Ltd. and M/s Pepsico India Holdings Ltd., respectively under Section 482 Cr.P.C. for quashing of a complaint under Section 16 of Prevention of Food Adulteration Act, 1954, respectively.

2. Both these cases are taken up together as the facts and the points of law raised in these two petitions for quashing of the complaints and the consequent proceedings are identical.

3. In Crl.M.C. 2679/04, a sample of `Lehar Pepsi Mango Fruit Drink’ was taken on 12.7.2002 from M/s Pearl Drinks Ltd., B-42, Lawrence Road, Industrial Area, Delhi-35. The said sample was analyzed by the Public Analyst and it was found to be not conforming to the standards because being fortified with Vitamin `C’ the quantity of Ascorbic Acid was less than the prescribed minimum limit of 40 mgm/100 gms and thus in violation of Rule 40(3) of the Prevention of Food Adulteration Rules, 1955. In addition to this, the sample was also misbranded for alleged violation of Rule 32(e) and 32A of the Rules.

4. The complaint against both the petitioners came to be filed after obtaining the requisite sanction from the Secretary Medical on 26.2.2004. The accused persons had put in their appearance in response to the summons having been issued to them and they exercised their right under Section 13(2) of the Prevention of Food Adulteration Act, 1954, accordingly, the second counter part of the respective sample was sent to the Central Food Laboratory (hereinafter referred to as `CFL’), Pune and a report was received. By virtue of Section 13(3) of PFA Act as prayed, the report of the CFL supersedes the report of the public analyst. According to the report of CFL, the said sample was found conforming to the standards, however, so far as the labeling of the sample was concerned, it opined that the sample contravenes Rule 32(e) of the PFA Rules inasmuch as, the batch number was not mentioned on the label.

5. The petitioners filed the present petitions before this Court for quashing of the complaint on number of grounds. Mr.Virmani, learned senior counsel has contended that the violation of Rule 32(e) of PFA Rules in the instant case, could not have lead to the prosecution of the petitioners on account of the fact that the Govt. of NCT of Delhi had formulated a policy bearing no.F-6(228)/85/ENF/PFA dated 29.9.1985 which was modified vide order No. 5/07 dated 14.9.2007. It has been contended that in the said policy it was envisaged that in violation of Rule 32(e) of the Rules with regard to the labeling on the container or a package, is only a technical offence and in such case, the party affected must be given, in the first instance a warning in writing drawing its attention to Rule 32 with regard to the mentioning of date, month and year of manufacturing on the label affixed and only in the event of the said offence being repeated after a written warning, the party should be prosecuted.

6. The learned senior counsel has contended that according to the report of the CFL, the Article of food in question was found to be conforming to the standard prescribed under the relevant Rules and the only violation which has been opined by the report is with regard to the non mentioning of the batch number on the label as required under Rule 32(e) of the Rules and, therefore, the respondents cannot continue with the prosecution of the petitioners as the omission on part of the petitioners tantamounts only to a technical offence. It is contended that admittedly being a first violation, a notice of warning was only required to be given. The learned senior counsel has also placed reliance on the judgments of the learned Single Judges of this Court where in similar circumstances of violation of Rule 32(e) of the PFA Rules for the first time, pertaining to the labeling, the prosecution against the said parties have been quashed. Reliance in this regard can be placed in case titled S.S.Gokul Krishnan

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