JUDGMENT

L. MOHAPATRA, J. — The petitioner in this revision challenges the order dated 10.12.1999 passed by the learned S.D.J.M., Bolan¬gir, framing charge against him under Sec. 16(1)(a)(i) of the Prevention of Food Adulteration Act.

2. On 26. 11 1993 the Food Inspector, Bolangir District Inspected, the shop of M/s. Amarchand Lakhiram. During inspec¬tion, the said Food Inspector suspected some food items, such as Farex Veg., Dalda (Vanaspati) and Britannia Good-Day Biscuits stored for sale, to be adulterated. He served a notice in Form VI, disclosing his intention to analyse the articles by the Public Analyst and purchased 3 packets of Farex Veg of 400 grams each manufactured by Glaxo India Ltd., 3 packets of Dalda and 15 packets of Good-Day biscuits in presence of witnesses. All the aforesaid materials were sealed and sent to Public Analyst. On 15.1.1994 the said Food Inspector received the analysis report No.7/94 from the Local Health Authority and Chief District Medi¬cal Officer, Bolangir in respect of Farex Veg and ascertained that sample is misbranded. On the basis of such report, the Food Inspector was satisfied that the petitioner has committed the offence by storing and selling misbranded Farex Veg for human consumption and prosecution report was submitted on the basis of which the impugned order framing charge was passed.

3. The learned counsel appearing for the petitioner submits that Farex Veg is a milk cereal-based weaning food which can be given to babies after four months of age. This cereal is suitable to meet the nutritional needs of the infant and it is not marketed as a substitute of breast milk. Rather it comes within the category of ‘Complementary Food’ or 'Breast Milk Supplement' or ‘Weaning Food’. Learned counsel further submits that a clear notice is printed on the packet of Farex Veg, “Wheat Cereal with Milk” and is not a breast milk substitute, as provided under Rule 37-B of the Prevention of Food Adulteration Rules, 1955 (for short, ‘the Rules’). The said rule is applicable only to infant food marketed as breast milk substitute. Reliance is placed on a decision reported in 1995 Cri.L.J. 3053 : Nestle India Ltd. v. A.K.Chand and another. It is submitted that Farex Veg being a cereal-based weaning food, is not included in the category of infant food, infant milk food or special infant food, and is not marketed as breast milk substitute and therefore, does not contra¬vene Rule 37-B of the Rules.

4. Learned counsel appearing for the State submits that Farex Veg is marketed as a substitute of breast milk and therefore, there is clear contravention of Rule 37-B of the Rules and as such, there is no illegality in framing the charge.

5. In the aforesaid reported decision the Food Inspector had taken samples of 30 packets of Lactogen, 43 packets of Cerelac Wheat Apple and 36 packets of Farex Veg which were stored for sale. The samples were sent to the Public Analyst and the Public Analyst reported that the Cerelac Wheat Apple was misbranded, inasmuch as the picture of an infant was appearing on the label. This Court in the said judgment held that weaning food is not covered by infant milk food or special infant food marketed as breast milk substitute and accordingly there was no contravention of Rule 37-B of the Rules. The finding of the Court in the said decision is quoted below :

“11. Rules 37-A and 37-B deal with Weaning Food differently. In case f the former Rule, as provided for in the Explanation, the expression ‘infant food’ inter alia means any food which may be used for partial or total replacement of breast milk, commonly called breast milk substitute and includes any food as a comple¬ment to breast milk, to most nutritutional needs of the infant after 4 months of age, commonly called ‘complementary food’, ‘breast milk supplement’, or ‘weaning food’. Rule 37-B relates to prohibitions in respect of infant milk food, infant formula and any other special infant food marketed as breast milk substi