Rama Pawani and Hindustan Lever Limited v. Food Inspector, Thiruvananthapuram Corporation and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **MONDAY, THE 3RD DAY OF SEPTEMBER 2012/12TH BHADRA 1934** ## **Crl.MC.No. 758 of 2006 ( )** **-------------------------CC.1070/2004 of ADDL.C.J.M.,TRIVANDRUM** **----------------** ## **PETITIONER(S)/ACCUSED NO. 5 AND 6 :-** **--------------------------------------** **1. RAMA PAWANI, HINDUSTAN LEVER LIMITED,** - **101 SANTHOME HIGH ROAD, CHENNAI - 600 028.** **2. HINDUSTAN LEVER LIMITED,** - **101 SANTHOME HIGH ROAD, CHENNAI - 600 028.** **BY ADVS.SRI.N.A.MURALEEDHARAN SRI.M.KRISHNAN** ## **RESPONDENTS/COMPLAINANT AND STATE :-** **--------------------------------------** **1. THE FOOD INSPECTOR,** **THIRUVANANTHAPURAM CORPORATION.** **2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.ROY THOMAS BY ADV.SRI.P.VIJAYA BHANU FOR R1.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **jvt** ## **Crl.MC.No. 758 of 2006** ## **O R D E R** Petitioners' counsel absent. No representation. When taken up in the afternoon also, there is no representation. Hence, this Crl.M.C. is dismissed for nonprosecution. ## **ORDER IN CRL.M.A.No.1199/2006 IN CRL.M.C.No.758/2006** Dismissed. **SD/- N.K.BALAKRISHNAN, JUDGE.** 3.9.2012. //True Copy// P.A. to Judge ## **Crl.MC.No. 758 of 2006** ## **APPENDIX** Petitioner's Exhibits :- - Annexure I :- Certified copy of the complaint C.C.No. 1070/2004 dated 30.9.2004. - Annexure II :- Certified copy of the Mahazar prepared by the Food Inspector dated 17.2.2004. - Annexure III :- Certified copy of the Form No.IV notice dated 17.2.2004 issued to the Hindustan Lever Ltd. Respondent's Exhibits :- NIL. //True Copy// P.A. to Judge ## N.K. Balakrishnan, J. ................................................. **Crl.M.C. No. 758 of 2006** .................................................. ## Dated: 16-10-2012 ## ORDER Petitioners are the 5th and 6th accused in C.C. No. 1070/04 of Addl. Chief Judicial Magistrate's Court, Thiruvananthapuram. That was a complaint filed by the Food Inspector alleging offences under the Prevention of Food Adulteration Act, 1954 ("the P.F.A. Act" for short) and P.F.A. Rules 1955. After serving Form VI notice, 1 litre of Kwality Wall's Strawberry Ice Cream was purchased by the Food Inspector from the first accused for analysis on 17-2-2004. Sampling, packing and labelling were done as required under the Provisions of the P.F.A. Act and Rules. When the sample was sent to the Public Analyst, it was certified that the ice cream does not conform to the standard prescribed and Crl.M.C. No. 758 of 2006 -:2:- is adulterated. It is alleged that the food product mentioned above was marketed by the 6th accused of which the 5th accused is the nominee. 2. This petition is filed by the aforesaid petitioners to quash the proceedings invoking the power under Sec. 482 Cr.P.C. The 2nd accused is the person from whom the first accused purchased the food article in question as per a bill. The petitioners were arrayed as accused on the basis of the description found on the label seen on the packet which is to the effect that it was marketed by Hindustan Lever Ltd., the 6th accused herein. 3. The learned counsel for the petitioners submits that simply for the reason that the sample contained the description that the food article was marketed by Hindustan Lever Limited, the petitioners cannot be arrayed as accused since no bill, invoice or voucher was produced by the 2nd accused to show that the said food product was actually purchased from the distributor of the 6th accused Company. Since that connecting link is missing, the Crl.M.C. No. 758 of 2006 -:3:- petitioners cannot be prosecuted, is the submission made by the learned counsel. In this connection, the petitioners' counsel referred to three other cases wherein also the petitioners were arrayed as accused based on the address and other descriptions found on the labels seen on the food products purchased by the Food Inspector. In those cases the prosecution against the petitioners was quashed. 4. Sri.N.A. Muraleedharan, the learned counsel has relied upon the decision of the Supreme Court in **Muralidhar Shyamlal and Another v. State of Assam 1996 SCC (Crl.) 485** where it was held: _"In view of the above warranty as envisaged under Form VI-A, there must be specific mention therein by the dealer or distributor or manufacturer, that the article of food sold was in the same nature and quality of the article of food, as the case may be. Then only he would get acquitted, though the article of food was found adulterated. It would be then to the to the open prosecution proceed against manufacturer, dealer or distributor"._ In that case it was not clear that the cash memo contained a warranty as prescribed in Form VI-A. There it was held : Crl.M.C. No. 758 of 2006 -:4:- _"In this case, we cannot make any guess as to what would be the nature of the language used in the cash memo which was not filed in the absence of any specific recital therein. As seen in the recital of the Panchnama, there is no mention thereof as envisaged in form VI-A. Under these circumstances, we are constrained to confirm the conviction and sentence of minimum period of six months; it being mandatory after the Amendment Act, 1976, we cannot interfere with the sentence"._ 5. Rules 12 -A of the Rules reads thus: "Warranty - Every manufacturer, distributor or dealer selling an article of food to a vendor shall give either separately or in the bill, cash memo or a label a warranty in Form VIA". 6. There should be a certificate forming part of Form VI A which reads to the effect that the manufacturer, distributor or dealer should certify that food/foods mentioned in the invoice is/are warranted to be of the nature and quality which it purports to be. The learned counsel for the petitioners submits that as held by the Apex Court in **Muralidhar Shamlal (supra),** the Court cannot guess as to what was the nature of the language used in the cash memo since that cash memo/invoice has not been produced by the accused or by the complainant. According to the learned Crl.M.C. No. 758 of 2006 -:5:- counsel, there is absolutely nothing on record to show that the petitioners are in any way responsible for the food product which was purchased by the complainant from A1. 7. The learned Public Prosecutor Smt. Jasmine opposes the said plea and submits that it is a case where the label itself disclosed or described as to who was the manufacturer of the said product and who marketed the said product. In the complaint itself the description of that portion of the label, which shows the description of the marketer, is noted. It is also pointed out that a letter was sent to the Hindustan Lever Limited by the Corporation of Thiruvananthapuram informing that the food article; namely, ice cream was marketed by Hindustan Lever Limited and that sample was taken from the said product from the shop of A1. 8. It is important to note that along with the complaint altogether 25 documents were produced out of which only item No. 5 mahazar prepared by the Food Inspector and the letter dated 17-2-1994 sent by the Corporation to Hindustan Lever Limited Crl.M.C. No. 758 of 2006 -:6:- have been produced. It is also important to note that A1 and A2 who would be affected by the order that may be passed in this case have not been impleaded as respondents. Of Course, those accused persons can be impleaded later also . But it is a case which was filed in the year 2006. Petitioners have not chosen to implead the other accused persons who may have a say in the matter. It is true that the argument advanced by the learned counsel for the petitioners that in order to show the complicity of the petitioners as the persons who marketed the food product, there should be invoice, bill or anything of that sort. But that alone is not a reason to say that this Court should invoke the extra ordinary jurisdiction under Sec. 482 Cr.P.C. to quash the proceedings. The submission made by the learned counsel is that in the course of trial, if evidence comes on record to show that the food article in question was actually marketed by or distributed by Hindustan Lever then certainly, the prosecution can be initiated for which the petitioners can be impleaded at that stage. Crl.M.C. No. 758 of 2006 -:7:- Such a circuitous procedure is not required to be followed, the learned Public Prosecutor submits. 9. Relying on the decision of the Supreme Court in **Jagadeesh Chandar v. Delhi Administration - AIR 1975 SC 1309,** it is argued by the learned Public Prosecutor that there is no sound reason why, if a distributor or manufacturer can be subsequently impleaded, under Section **20(A)** of the Act, he cannot joined as a co-accused initially in a joint trial if the allegations made justify such a course. The learned counsel for the petitioner also does not dispute the fact that the manufacturer/distributor or dealer can also be joined as a coaccused at the initial stage itself. But the gravamen of the contention raised by the petitioners is that in order to proceed against the petitioners, there should be prima facie material to show that the food article was sold by the petitioners. There is no document to show that the food article was sold or marketed by the petitioners, the learned counsel submits. In this connection, the Crl.M.C. No. 758 of 2006 -:8:- learned Public Prosecutor submits that no complaint whatsoever was ever filed by the petitioners against the other accused persons contending that their name was falsely used by the manufactuers or by the other vendors by affixing a false label on the food product indicating that it was marketed by the petitioners herein. Simply because the vendor could not produce or show to the Food Inspector at the time of detection the invoice or bill to show that it was actually marketed by the officer of the 6th accused Company, it cannot be said that the product was not marketed by the 6th accused. There cannot be a microscopic or meticulous examination of the documents and the facts involved in this case for invocation of the power under Section 482 Cr.P.C. The label contains the particulars regarding the Company which marketed the food product mentioned above. Whether the vendor has got invoice or voucher evidencing the purchase from the purchasers is a matter for evidence. 10. The learned Public Prosecutor has also relied upon the Crl.M.C. No. 758 of 2006 -:9:- decision in **Ibrahim v. Food Inspector 1991 (2) KLT 375** wherein it was held by this Court that Form 6 A is the Form of warranty and that the warranty in Rule 12 A shall be in that form. It was held : _"Form VI-A is the form of warranty. The warranty under rule 12-A shall be in that form. But, it is not necessary that a label should be in that form. A label could not be in form VI-A in all respects. If it is label coming under Rule 32 and contained the certificate as in form VI-A, it would operate as a warranty under Rule 12-A"._ 11. The contention that the petitioner can be subsequently impleaded at a later stage, if any record or document is produced by the complainant or the Ist accused to connect the food article with the other accused cannot be accepted since by adopting such a procedure the case would be further delayed for years together since after the impleadment of the persons responsible for distribution (petitioners herein) again evidence may have to be started afresh as otherwise it would be contended that prejudice was caused to them; at any rate, they may have to be given opportunity to cross-examine other witnesses. The object of Act Crl.M.C. No. 758 of 2006 -:10:- is to have a speedy disposal of the case and for that purpose all the persons involved in the commission of offence, namely; the persons concerned in the sale, distribution, manufacture, etc. of the food article, should be tried and disposed of in the same case at the same time so that there would be no failure of justice. 12. It is argued by the learned counsel for the petitioners that if the connecting link; namely, the document evidencing the purchase of the food article by the first accused from the 6th accused is not proved, ultimately they may have to be acquitted and so it would be a futile exercise on the part of the prosecution to put the accused to face the unnecessary ordeal of trial. It is also argued that it would be creating unnecessary difficulty for the petitioners. But at the same time, for a proper and effective disposal of the case, after a full-fledged trial, the petitioners who according to the first accused are the persons who marketed the food product should be on the party array. For an effective adjudication of the whole issue involved in it all the accused are Crl.M.C. No. 758 of 2006 -:11:- required to be prosecuted in the same trial. A1, the ultimate vendor who would otherwise be responsible for sale of adulterated food article, may be able to produce at the trial, the documents to prove the purchase from the marketer (A5 and A6 - the petitioners herein). A1 is not made a party to this petition. It has been held by the Hon'ble Supreme Court in **Amt Kapoor v. Ramesh Chander** ## **& Anr. - JT 2012 (9) SC 312** thus: "Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie". 13. It is submitted by the learned counsel that the petitioners are to come from Chennai and it would cause hardship to them to appear before the Court at Trivandrum. The petitioners can approach the learned Magistrate to get exemption from personal attendance in Court. After considering all the aspects, I find no justification for invocation of the power under Sec. 482 Crl.M.C. No. 758 of 2006 -:12:- Cr.P.C. The petition is only to be dismissed. In the result, this petition is dismissed. Petitioners are at liberty to raise all their contentions before the trial court. Dated this the 16th day of October, 2012. ## N.K. Balakrishnan, Judge. ani. /true copy/ P.S. to Judge