Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2019
(arising out of S.L.P. (Criminal) No. 3995 of 2018)
M/s Alkem Laboratories Ltd. ...Appellant
Versus
State of Madhya Pradesh and Anr. …Respondents
J U D G M E N T
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
Signature Not Verified
Digitally signed by
ASHWANI KUMAR
Date: 2019.11.30
10:22:42 IST
Reason:
Criminal Procedure Code (‘CrPC’) for quashing of order dated
01.09.2015 of the Special Magistrate (Prevention of Food Adulteration
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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
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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
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order.
The High Court in the impugned judgment held that firstly, mens
was not an ingredient of the offence under Section 7 of the 1954
rea
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 co
accused 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, that the application under Section 20A was maintainable as
the Court may be satisfied on the basis of evidence adduced by either
of the parties, including the prosecution, that the distributor/dealer of
a food article is also concerned with the offence and such evidence
need not be adduced by the applicant only. In any case the
applicant/Retailer had given his evidence prior to impleadment. Hence
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the High Court declined to exercise its inherent powers under Section
482 of CrPC and quash the impleadment order dated 01.09.2015.
However, this Court has directed stay of proceedings before the trial
court against the Appellant during pendency of this appeal.
4.
Learned senior counsel for the Appellant, Mr. C.U. Singh argued
that the application for impleadment under Section 20A was not
maintainable at the outset as such an application can only be made
by a person who is not the ‘manufacturer, distributor or dealer’ of the
food article, and the Retailer would be included in the phrase
‘manufacturer, distributor or dealer’. That in any case, as a catena of
decisions dealing with the 1954 Act as well as similar legislations such
as the Seeds Act, 1966 and the Insecticides Act, 1968 have held,
where an accused is denied their statutory right to get a sample re
tested by a Central testing laboratory on account of delay, such denial
will render prosecution of the offence futile. He argued that the right
under Section 13(2) of the 1954 Act is not restricted to cases of
‘adulterated’ food articles but applies to testing of samples for other
offences under the 1954 Act as well; hence the order impleading the
Appellant is liable to be quashed.
Further, that the delay in impleading the Appellant was
attributable to the Respondents’ negligence as the label on the
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packaging of the Jelly clearly stated that their registered office was in
Mumbai whereas the Respondents’ communications were addressed to
their Indore branch which is an old address.
Per contra , learned counsel for the Respondents stressed that a
plain reading of Section 13(2) shows that the right available
thereunder is only in respect of ‘adulterated’ food samples. Whereas in
other provisions of the 1954 Act, where a provision is meant to be
additionally applicable to misbranded food articles, the word
‘misbranded’ has been separately mentioned after ‘adulterated’. Hence,
the legislative intent to exclude misbranding from the purview of re
testing by the Central Laboratory is clear. Further that though the
packaging on the Jelly stated that the Appellant had their office in
Mumbai, the food license produced by the Retailer before Respondent
No.2/Food Inspector showed that their address was in Indore and the
cause title of the Appellant’s application under Section 482, CrPC
states that their branch office/manufacturing unit is located at Indore;
hence they cannot be blamed for the delay in impleading the
Appellant. In any case, the High Court’s powers under Section 482
against an interlocutory order are to be exercised sparingly, and it was
open to the Appellant to prove their innocence at the stage of trial.
5.
At the outset, it must be noted that the Appellant’s contention
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that an application under Section 20A could not have been made by a
retailer is misguided. The provisions of the 1954 Act clearly
distinguish between a ‘vendor’ and ‘manufacturer’ of a food article.
The very purpose of Section 20A is to enable the Court to implead the
manufacturer or distributor during the trial of the vendor of the food
article, so as to detect and punish adulteration at all stages of the
supply chain. Admittedly, the prosecution may have to prove, for the
purpose of trying the Retailer and the Appellant in a joint trial, that
they shared a common object that the misbranded Jelly should reach
consumers as food, as per this Court’s decision in Bhagwan Das
Jagdish Chander v. Delhi Administration , (1975) 1 SCC 866.
However, we find that this question need not be looked into at the
stage of mere impleadment of the Appellant for the offence of
misbranding.
It is pertinent to note that in Bhagwan Das Jagdish Chander ,
M.H. Beg J. in his majority opinion directed quashing of charge
against the Appellant distributor on the ground that on account of
long passage of time since the initiation of prosecution, it would be
difficult for the Appellant to challenge the correctness of the Public
Analyst’s Report. Hence the primary issue which arises for our
consideration is whether the denial of the right to get the Jelly sample
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tested by the Central Laboratory, under Section 13(2) of the 1954 Act,
would entitle quashing of proceedings against the Appellant for the
offence of ‘misbranding’?
6.
Before we turn to the substantial question of law involved in the
appeal, it may be useful to refer to the relevant provisions of the 1954
Act. It is explained in the Statement of Objects and Reasons of the
1954 Act that prior to its enactment, there were numerous State
legislations on the subject of prevention of adulteration of foodstuffs
but these lacked uniformity. Hence the need for a Central legislation
was felt which could inter alia , provide for a uniform procedure and
the constitution of ‘a Central Food Laboratory to which food samples
can be referred to for final opinion in disputed cases .’
Section 8 of the 1954 Act provides for the appointment of Public
Analysts by the Central or the State Government as the case may be,
for the purpose of carrying out analysis and testing of food samples in
a given local area. Section 9 provides for the appointment of Food
Inspectors for the purpose of inter alia , carrying out inspection of
establishments where food articles are manufactured or sold, and
seizing food articles which require analysis. Section 14A mandates
vendors of food articles to disclose the name and other particulars of
the person from whom the food article was purchased, if the Food
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Inspector so requires.
Section 11 stipulates the procedure to be followed by Food
Inspectors while taking food samples for analysis. It is important to
note that the first step of the procedure is to immediately notify on the
spot, not only the vendor but also the person whose particulars are
disclosed under Section 14A (which would include a
distributor/marketer such as the Appellant), that a sample is being
sent for analysis. The sample is then divided into three partswhile the
first part is sent to the Public Analyst, the other two are deposited with
the Local Health Authority as a contingency in case the first part is
lost or damaged.
It is this backdrop that Section 13 of the 1954 Act prescribes the
subsequent procedure to be followed after the Public Analyst prepares
their report:
“(1) The public analyst shall deliver, in such form as may be
prescribed, a report to the Local (Health) Authority of the
result of the analysis of any article of food submitted to him
for analysis.
(2) On receipt of the report of the result of the analysis
under subsection (1) to the effect that the article of food is
adulterated, the Local (Health) Authority shall, after the
institution of prosecution against the persons from whom
the sample of the article of food was taken and the person,
if any, whose name, address and other particulars have
been disclosed under section 14A, forward, in such manner
as may be prescribed, a copy of the report of the result of
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the analysis to such person or persons, as the case may be,
informing such person or persons that if it is so desired,
either or both of them may make an application to the court
within a period of ten days from the date of receipt of the
copy of the report to get the sample of the article of food
kept by the Local (Health) Authority analysed by the Central
Food Laboratory.
(2B) On receipt of the part or parts of the sample from the
Local (Health) Authority under subsection (2A), the court
shall first ascertain that the mark and seal or fastening as
provided in clause (b) of subsection (1) of section 11 are
intact and the signature or thumb impression, as the case
may be, is not tampered with, and despatch the part or, as
the case may be, one of the parts of the sample under its
own seal to the Director of the Central Food Laboratory who
shall thereupon send a certificate to the court in the
prescribed form within one month from the date of receipt
of the part of the sample specifying the result of the
analysis.
…
(3) The certificate issued by the Director of the Central Food
Laboratory under subsection (2B) shall supersede the
report given by the public analyst under subsection (1).”
Therefore the purpose of Section 13 is to give a second
opportunity to accused persons, against whom prosecution is initiated
under the 1954 Act based on the Public Analyst’s report, to get the
relevant food sample tested again by the Central Laboratory. Since the
Central Laboratory’s report will have precedence over that of the
Public Analyst, this is a valuable opportunity for accused persons to
claim exoneration from criminal proceedings.
7.
It can be seen from the abovementioned provisions that under
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the scheme of the 1954 Act, the accused has to be given prior notice,
as provided under Section 11, that samples of a food article
manufactured and/or sold by them have been sent for analysis, before
the Public Analyst prepares their report. The 1954 Act does not
envisage a situation such as the present case where the sample is sent
for analysis, and the Public Analyst’s report is also prepared, but the
marketer is informed several years later that prosecution is sought to
be instituted against them. During such period, the food article being
perishable in nature would most probably be incapable of being sent
for retesting to the Central Laboratory.
Thus, it has been settled by this Court in
Municipal
v. , AIR 1967 SC 970, that where
Corporation of Delhi Ghisa Ram
inordinate delay in instituting prosecution has resulted in denial of the
right under Section 13(2), it is deemed to have caused serious
prejudice to the accused such that their conviction on the basis of the
Public Analyst’s report cannot be upheld. In
Girishbhai Dahyabhai
Shah v. C.C. Jani , (2009) 15 SCC 64, this Court affirmed that a delay
in sending a report of the Public Analyst to the accused, such that he
is no longer in a position to apply for retesting under Section 13(2) of
the 1954 Act, would entitle quashing of criminal proceedings under
Section 482 of the CrPC. However the abovementioned decisions dealt
with the offence of adulteration simplicitor and did not touch upon the
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question of the consequence of noncompliance with Section 13(2) in
cases involving other offences.
However, upon a comparison of Section 2(ia) of the 1954 Act
which defines ‘adulterated’ and Section 2(ix) which defines
‘misbranded’, we find that there is an overlap between the two
provisions. Section 2(ia)(a) includes within the definition of
‘adulterated’ a case where a food article is ‘not of the nature,
substance, or quality which it purports or is represented to be.’
Whereas Section 2(i)(ix)(g) includes within the definition of
‘misbranded’ the following:
“if the package containing it, or the label on the package
bears any statement, design or device regarding the
ingredients or the substances contained therein, which is
false or misleading in any material particular; or if the
package is otherwise deceptive with respect to its contents.”
Therefore for example, in cases where it is found that a food
article contains an additional ingredient which is not advertised on its
packaging, or vice versa , where a food article is found to be missing an
ingredient which is purported to be included in the contents thereof in
the labelling/packaging of the article; or where the food article has
used an inferior quality substitute but the labelling purports to use
the superior quality original ingredient, it would be a case of both
adulteration and misbranding.
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This is not an exhaustive list of examples, but it suffices to say
that in certain situations, even for the purpose of proving the offence
of ‘misbranding’, samples of the article would have to be taken
according to the procedure prescribed under Sections 1113 of the
1954 Act. This is because in such cases it would not be possible to
conclude whether or not the manufacturer, marketer or vendor has
put a deceptive label/package on the food article, without making a
finding as to whether there has been any adulteration in the contents
thereof.
8.
The question which arises then is, what is the procedure to be
followed in cases where proving ‘misbranding’ requires testing of the
relevant food samples, but the corresponding charge of ‘adulteration’
has not been made? Section 13(2) is unfortunately silent in this
regard. It is a settled principle of statutory interpretation that any
ambiguity in a penal statute has to be interpreted in favour of the
accused. It would be absurd and discriminatory for the prosecution to,
on one hand, rely on the report of the Public Analyst under Section
13(1) for proving the offence of ‘misbranding’, and on the other hand,
claim that the accused cannot avail of their right to challenge the said
report as per Sections 13(2) and 13(3) because it is not a case of
‘adulteration’. In such a scenario, the word ‘adulterated’ in Section
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13(2) would have to be read as including ‘misbranded’ in so far as it
relates to the ingredients of the concerned food article, and the
relevant clauses of Section 13 have to be complied with in their
entirety.
Hence we are of the considered opinion that where examination
of the contents/ingredients of the food article is integral to proving the
offence ‘misbranding’, the procedure prescribed under Sections 1113
of the 1954 Act has to be complied with, regardless of whether
‘adulteration’ is alleged or not. This includes the 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.
It is needless to say that this rule would not apply if proving the
offence does not necessarily require sampling of the food article. For
example, if the offence is one of ‘bearing the name of a fictitious
individual or company as the manufacturer or producer of the article’
under Section 2(ix)(h) it may not be necessary to analyse the contents
of the food article to prove the offence so long as the prosecution is
able to establish that the real manufacturer has deceptively concealed
their identity.
9.
Applying the abovementioned test to the present case, it has to
be seen whether first , the Appellant was entitled to apply for testing of
the Jelly by the Central Laboratory under Section 13(2); ,
second
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whether the denial of the right was the Respondents’ fault and third ,
whether such denial is prejudicial to the Appellant’s case. With respect
to the first point, the Respondents have relied upon the Public
Analyst’s Report which states that the Jelly contains ‘sugar/sucrose’,
so as to institute a complaint for misbranding under Section 2(ix)(g) of
the 1954 Act. This is because the label on the packaging claims that
the Jelly is ‘sugarless’. Hence, the Public Analyst’s finding on whether
‘sugar’ as an ingredient is present in the Jelly sample is crucial to
proving the offence of ‘misbranding’ against the Appellant. Thus, the
Appellant ought to have had the opportunity to make an application
under Section 13(2) for a second opinion from the Central Laboratory
on the contents of the Jelly sample.
With respect to the second point, we are of the view that
Respondent No. 2 erred in not making query to the Retailer, at the
first instance, about the marketer of the Jelly, as she was empowered
to do under Section 14A of the 1954 Act. If she had done so, the
Appellant could have been notified in 2008 itself that the Jelly is being
taken for analysis. Even if this lapse is condoned, once the Retailer
had intimated the Respondents that the Appellant was the marketer of
the Jelly, they ought to have made more efforts in notifying the
Appellant of the alleged irregularity found in the Jelly sample, as per
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Section 13(2). We do not find merit in the Respondents’ submission
that the delay in informing the Appellant was because the Appellant
was deliberately avoiding service of notice. Even if the address
produced by the Retailer was of the Appellant’s Indore Branch, the
label on the packaging of the Jelly clearly indicated that the official
address for communication would be “Alkem House, Senapati Bapat
Marg, Lower Parel, Mumbai400013”. Hence even if no response was
being received from the Indore branch, the Respondents could have
attempted to send the details of the Public Analyst’s Report to the
Appellant’s Mumbai address. Thus it is clear that the Appellant lost
their chance to get the Jelly sample retested under Section 13(2) on
account of the Respondents’ negligence.
Finally, with regard to the third point, it is true that non
compliance with Section 13(2) would not be fatal in every case, if it is
found that the sample is still fit for analysis ( v.
T. V. Usman Food
Inspector , Tellicherry Municipality, Tellicherry , (1994) 1 SCC
754). However the Respondents have not disputed that the shelf life of
the Jelly sample would have, in all probability, expired at this stage.
Hence we find that this is a fit case for quashing of proceedings
against the Appellant on account of denial of their valuable right
under Section 13(2).
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10. The appeal is allowed, and the impugned judgment dated
11.04.2018 and the impleadment order dated 01.09.2015 are set
aside, in the above terms.
…..…………................................J.
(MOHAN M. SHANTANAGOUDAR)
….…………………………...............J.
)
(KRISHNA MURARI
New Delhi;
November 29, 2019