First-time technical misbranding under Rule 32 requires prior written warning before prosecution.

On 31 October 1995, a Food Inspector collected a sample of “Hot and Spicy Marinade” from a restaurant operated by M/s Pepsico Restaurant International (India) Pvt. Ltd. The sealed packets did not bear a batch number, lot number or code number, allegedly violating Rule 32(e) of the Prevention of Food Adulteration Rules, 1955 (“PFA Rules”).

The Public Analyst reported the sample as misbranded for violation of Rules 32(e) and (f), but did not find the contents adulterated or sub-standard.

A complaint was filed against eleven accused, including the petitioners—Kancor Ingredients Ltd./Kancor Flavours and Extracts Ltd., its directors and general manager—for alleged violations of Section 2(ix)(k) and Section 5 of the Prevention of Food Adulteration Act, 1954 (“PFA Act”) and Rule 32(e) of the PFA Rules.

The petitioners’ earlier petition under Section 482 Cr.P.C. was withdrawn with liberty to raise their objections before the Trial Court at the stage of framing notice. Their subsequent applications for discharge or dropping of proceedings were dismissed on 25 May 2012, leading to the present petition under Section 482 Cr.P.C.

1. Whether prosecution for the alleged first-time violation of Rule 32(e) of the PFA Rules, involving only a labelling deficiency and no adulteration, could be initiated without first issuing a written warning under the Government of Delhi Notification dated 20 September 1985?

2. Whether the invocation of Section 5 of the PFA Act, concerning the import of misbranded food, constituted an independent violation taking the case outside the scope of the warning policy?

3. Whether the allegation under Rule 50(7) of the PFA Rules affected the petitioners’ liability?

Section 2(ix)(k) of the PFA Act treats an article of food as “misbranded” where it is not labelled in accordance with the PFA Act or the Rules. Rule 32(e) of the PFA Rules requires every food package to bear a distinctive batch number, lot number or code number.

Section 5 of the PFA Act prohibits the import of, inter alia, misbranded food.

The Notification dated 20 September 1985 prescribed that where the contents of a sealed food package conform to prescribed standards and the violation is confined to a technical deficiency in labelling under Rule 32, a written warning should precede prosecution; prosecution could follow only upon repetition after warning, whereas the policy did not apply to adulterated food.

The Court relied on M/s Hindustan Unilever Ltd. v. State, 2011 [1] JCC 689, which held that prosecution for a first-time Rule 32 misbranding violation, without prior warning, was contrary to the notified policy.

The Court also considered the principle under Section 251 Cr.P.C. that, at the stage of framing notice, the court must examine whether the allegations disclose an offence.

The Court found that the alleged defect concerned only the absence of a batch, lot or code number on the label, and that there was no allegation that the contents were adulterated, unsafe, sub-standard or otherwise defective.

Since the alleged Rule 32(e) violation was a first-time violation and no prior written warning had been issued, the prosecution was inconsistent with the procedure mandated by the Notification dated 20 September 1985.

The Court rejected the State’s argument that Section 5 created an independent offence outside the notification. It held that Section 5 was invoked only because the imported product was allegedly misbranded under Section 2(ix)(k), and the underlying misbranding arose solely from the Rule 32(e) labelling defect. Importation by itself did not remove the matter from the warning policy.

The Court further held that Rule 50(7) concerned the restaurant’s obligation to display a notice regarding the use of ghee, edible oil, vanaspati and other fats, and that this provision had not been invoked against the petitioners.

The complaint and consequential proceedings were therefore quashed insofar as they related to the petitioners and the alleged violations of Rule 32(e) and Section 5 of the PFA Act.

Proceedings concerning the alleged violation of Rule 50(7) by accused nos. 1 and 2 were directed to continue in accordance with law.

The petition was accordingly allowed to that extent.