M/S ALKEM LABORATORIES LTD. versus STATE OF MADHYA PRADESH AND ANR. on 29 November 2019

M/S ALKEM LABORATORIES LTD.

v.

STATE OF MADHYA PRADESH AND ANR.

(Criminal Appeal No.1798 of 2019)

NOVEMBER 29, 2019

[MOHAN M. SHANTANAGOUDAR ANDKRISHNA MURARI, JJ.]

Prevention of Food Adulteration Act, 1954: s.20A –Impleadment of appellant who was marketer of packed food articles‘sugarless Jelly’ – The said food article was manufactured by aseparate entity – Prosecution case was that Food Inspector-Respondent no.2 purchased packed jars of Jelly from the retailerfor testing – As per report of Public Analyst, the Jelly samplecontained sugar and therefore was misbranded – Retailer produceda receipt showing that the jelly was purchased from appellant –Complaint filed by respondent no.2 for offence of sale of misbrandedfood article under s.16(1)(a)(ii) r/w s.2(ix)(g) and 7(ii) – Duringthe course of trial, after closing of prosecution witness, the Retailerexamined himself as a witness for the defence under s.315 Cr.P.C. –Subsequently, the Retailer moved an application under s.20A forimpleading the appellant as an accused, which was allowed by theSpecial Magistrate – In the instant appeal, the plea of the appellantwas that the application for impleadment under s.20A could nothave been made by the Retailer – Held: Plea is not tenable – Theprovisions of the 1954 Act clearly distinguish between a ‘vendor’and ‘manufacturer’ of a food article – The very purpose of s.20A isto enable the Court to implead the manufacturer or distributorduring the trial of the vendor of the food article, so as to detect andpunish adulteration at all stages of the supply chain.

Prevention of Food Adulteration Act, 1954: s.2(ia) and s.2(ix)– Adulterated and misbranded – A comparison of s.2(ia) of the1954 Act which defines ‘adulterated’ and s.2(ix) which defines‘misbranded’, shows that there is an overlap between the twoprovisions – s.2(ia)(a) includes within the definition of ‘adulterated’a case where a food article is ‘not of the nature, substance, orquality which it purports or is represented to be’ – Whereas

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As.2(i)(ix)(g) includes within the definition of ‘misbranded’ the labelon the package bearing any statement, design or device regardingthe ingredients or the substances contained therein, which is falseor misleading in any material particular; or if the package isotherwise deceptive with respect to its contents.BPrevention of Food Adulteration Act, 1954: s.11 – Prior notice Prevention of Food Adulteration Act, 1954: s.11 – Prior noticeto the accused – Held: Under the scheme of the 1954 Act, theaccused has to be given prior notice, as provided under s.11, thatsamples of a food article manufactured and/or sold by them havebeen sent for analysis, before the Public Analyst prepares report –The 1954 Act does not envisage a situation such as the present casewhere the sample is sent for analysis, and the Public Analyst’s reportis also prepared, but the marketer is informed several years laterthat prosecution is sought to be instituted against them – Duringsuch period, the food article being perishable in nature would mostprobably be incapable of being sent for re-testing to the Central C

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Prevention of Food Adulteration Act, 1954: s.13(1) to (3) –Whether denial of right to get Jelly sample tested by the CentralLaboratory under s.13(2) of the 1954 Act would entitled quashingof proceedings against the appellant for the offence of misbrandingE– What is the procedure to be followed in cases where provingmisbranding requires testing of the relevant food samples but thecorresponding charge of adulteration has not been made – Held:It is absurd and discriminatory for the prosecution to, on one hand,rely on the report of the Public Analyst under s.13(1) for provingthe offence of ‘misbranding’, and on the other hand, claim that theFaccused cannot avail of their right to challenge the said report asper ss.13(2) and 13(3) because it is not a case of ‘adulteration’ – Insuch a scenario, the word ‘adulterated’ in s.13(2) would have to beread as including ‘misbranded’ in so far as it relates to the ingredientsof the concerned food article, and the relevant clauses of s.13 haveGto be complied with in their entirety – Therefore, where examinationof the contents/ingredients of the food article is integral to provingthe offence ‘misbranding’, the procedure prescribed under ss.11 to13 of the 1954 Act has to be complied with, regardless of whether‘adulteration’ is alleged or not – This includes the right to obtain asecond opinion from the Central Laboratory under s.13(2) – The H

same test would apply in respect of any other offence for whichpenalty is prescribed under the 1954 Act – Interpretation of Statutes.

Prevention of Food Adulteration Act, 1954: s.2(ix)(g) –Misbranding – Label on the packaging that the Jelly is ‘sugarless’– Case of Respondents based on Public Analyst’s Report that theJelly contained ‘sugar/sucrose’ – Whether appellant was entitled toget Jelly sample tested by the Central Laboratory under s.13(2) ofthe 1954 Act – Held: Public Analyst’s finding on whether ‘sugar’ asan ingredient is present in the Jelly sample is crucial to proving theoffence of ‘misbranding’ against the Appellant – Thus, the Appellantought to have been given opportunity to make an application unders.13(2) for a second opinion from the Central Laboratory on thecontents of the Jelly sample.

Interpretation of Statutes: Ambiguity in a penal statute – It issettled principle of statutory interpretation that any ambiguity in apenal statute has to be interpreted in favour of the accused.

Allowing the appeal, the Court

HELD: 1. The Appellant’s contention that an applicationunder Section 20A could not have been made by a retailer ismisguided. The provisions of the 1954 Act clearly distinguishbetween a ‘vendor’ and ‘manufacturer’ of a food article. The verypurpose of Section 20A is to enable the Court to implead themanufacturer or distributor during the trial of the vendor of thefood article, so as to detect and punish adulteration at all stagesof the supply chain. Admittedly, the prosecution may have toprove, for the purpose of trying the Retailer and the Appellant ina joint trial, that they shared a common object that the misbrandedJelly should reach consumers as food. However, this questionneed not be looked into at the stage of mere impleadment of theAppellant for the offence of misbranding. [Para 5] [1090-D-F]

Bhagwan Das Jagdish Chander v. Delhi Administration(1975) 1 SCC 866 : [1975] Suppl. SCR 30 –relied on.

2. It is explained in the Statement of Objects and Reasonsof the 1954 Act that prior to its enactment, there were numerousState legislations on the subject of prevention of adulteration of A

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Afood-stuffs but these lacked uniformity. Hence the need for aCentral legislation was felt which could inter alia, provide for auniform procedure and the constitution of ‘a Central FoodLaboratory to which food samples can be referred to for finalopinion in disputed cases.’ [Para 6] [1091-B]

B3. Section 11 stipulates the procedure to be followed byFood Inspectors while taking food samples for analysis. The firststep of the procedure is to immediately notify on the spot, notonly the vendor but also the person whose particulars aredisclosed under Section 14A (which would include a distributor/marketer such as the Appellant), that a sample is being sent forCanalysis. The sample is then divided into three parts-while thefirst part is sent to the Public Analyst, the other two are depositedwith the Local Health Authority as a contingency in case the firstpart is lost or damaged. Section 13 of the 1954 Act prescribesthe subsequent procedure to be followed after the Public Analyst Dprepares their report. Therefore, the purpose of Section 13 is togive a second opportunity to accused persons, against whomprosecution is initiated under the 1954 Act based on the PublicAnalyst’s report, to get the relevant food sample tested again bythe Central Laboratory. Since the Central Laboratory’s reportwill have precedence over that of the Public Analyst, this is aEvaluable opportunity for accused persons to claim exonerationfrom criminal proceedings. Under the scheme of the 1954 Act,the accused has to be given prior notice, as provided under Section11, that samples of a food article manufactured and/or sold bythem have been sent for analysis, before the Public AnalystFprepares their report. The 1954 Act does not envisage a situationsuch as the instant case where the sample is sent for analysis,and the Public Analyst’s report is also prepared, but the marketeris informed several years later that prosecution is sought to beinstituted against them. During such period, the food article beingperishable in nature would most probably be incapable of beingGsent for re-testing to the Central Laboratory. [Paras 6, 7][1091-E-G; 1092-F-H; 1093-A-B]

Municipal Corporation of Delhi v. Ghisa Ram, AIR 1967SC 970;Girishbhai Dahyabhai Shah v.C.C. Jani (2009)15 SCC 64 : [2009] 12 SCR 229 – relied on.

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4. Upon a comparison of Section 2(ia) of the 1954 Act whichdefines ‘adulterated’ and Section 2(ix) which defines ‘misbranded’,there is an overlap between the two provisions. [Para 7][1093-E]

5. The question which arises then is, what is the procedureto be followed in cases where proving ‘misbranding’ requirestesting of the relevant food samples, but the corresponding chargeof ‘adulteration’ has not been made? Section 13(2) is unfortunatelysilent in this regard. It is a settled principle of statutoryinterpretation that any ambiguity in a penal statute has to beinterpreted in favour of the accused. It is absurd anddiscriminatory for the prosecution to, on one hand, rely on thereport of the Public Analyst under Section 13(1) for proving theoffence of ‘misbranding’, and on the other hand, claim that theaccused cannot avail of their right to challenge the said report asper Sections 13(2) and 13(3) because it is not a case of‘adulteration’. In such a scenario, the word ‘adulterated’ in Section13(2) would have to be read as including ‘misbranded’ in so faras it relates to the ingredients of the concerned food article, andthe relevant clauses of Section 13 have to be complied with intheir entirety. Hence where examination of the contents/ingredients of the food article is integral to proving the offence‘misbranding’, the procedure prescribed under Sections 11-13of the 1954 Act has to be complied with, regardless of whether‘adulteration’ is alleged or not. This includes the right to obtain asecond opinion from the Central Laboratory under Section 13(2).This rule would not apply if proving the offence does notnecessarily require sampling of the food article. [Para 8] [1094-C-H]

6.1 Applying the above-mentioned test to the instant case,it has to be seen whether first, the Appellant was entitled to applyfor testing of the Jelly by the Central Laboratory under Section13(2); second, whether the denial of the right was theRespondents’ fault and third, whether such denial is prejudicialto the Appellant’s case. With respect to the first point, theRespondents have relied upon the Public Analyst’s Report whichstates that the Jelly contains ‘sugar/sucrose’, so as to institute acomplaint for misbranding under Section 2(ix)(g) of the 1954 Act.

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AThis is because the label on the packaging claims that the Jellyis ‘sugarless’. Hence, the Public Analyst’s finding on whether‘sugar’ as an ingredient is present in the Jelly sample is crucialto proving the offence of ‘misbranding’ against the Appellant.Thus, the Appellant ought to have had the opportunity to makean application under Section 13(2) for a second opinion from theBCentral Laboratory on the contents of the Jelly sample.[Para 9] [1095-B-D]

6.2 With respect to the second point, Respondent No. 2erred in not making query to the Retailer, at the first instance,about the marketer of the Jelly, as she was empowered to doCunder Section 14A of the 1954 Act. If she had done so, theAppellant could have been notified in 2008 itself that the Jelly isbeing taken for analysis. Even if this lapse is condoned, once theRetailer had intimated the Respondents that the Appellant wasthe marketer of the Jelly, they ought to have made more efforts Din notifying the Appellant of the alleged irregularity found in theJelly sample, as per Section 13(2). There is no merit in theRespondents’ submission that the delay in informing the Appellantwas because the Appellant was deliberately avoiding service ofnotice. Even if the address produced by the Retailer was of the Appellant’s Indore Branch, the label on the packaging of the JellyEclearly indicated that the official address for communication wouldbe “Alkem House, … Mumbai..”. Hence even if no responsewas being received from the Indore branch, the Respondentscould have attempted to send the details of the Public Analyst’s

Report to the Appellant’s Mumbai address. Thus, it is clear thatFthe Appellant lost their chance to get the Jelly sample re-testedunder Section 13(2) on account of the Respondents’ negligence.Finally, with regard to the third point, it is true that non-compliancewith Section 13(2) would not be fatal in every case, if it is foundthat the sample is still fit for analysis. However the Respondentshave not disputed that the shelf life of the Jelly sample wouldGhave, in all probability, expired at this stage. Hence that this is afit case for quashing of proceedings against the Appellant onaccount of denial of their valuable right under Section 13(2). Theimpugned judgment and the impleadment order are set aside.[Paras 9 and 10] [1095-E-H; 1096-A-C]H

T. V. Usman v. Food Inspector, Tellicherry Municipality,Tellicherry(1994) 1 SCC 754 – relied on.

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Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo.1798 of 2019

From the Judgment and Order dated 11.04.2018 of the High Courtof Madhya Pradesh, Principal Seat at Jabalpur in Criminal MiscellaneousCase No.1003 of 2018.

C.U. Singh, Anupam Lal Das, Sr. Advs., Arun Siwach, KunalCheema, Anirudh Singh, Krishanu Barua, Ms. Ila Sheel, Amjid Maqbool,Ms. Vidushi, Advs. for the Appellant.

Parthiv K. Goswami Rahul Kaushik, Advs. for the Respondents.

The Judgment of the Court was delivered by MOHAN M. SHANTANAGOUDAR, J.

1. Leave granted.

2. This appeal by special leave arises out of judgment dated11.04.2018 of the High Court of Madhya Pradesh at Jabalpur, dismissingthe Appellant’s application under Section 482 of the Criminal ProcedureCode (‘CrPC’) for quashing of order dated 01.09.2015 of the SpecialMagistrate (Prevention of Food Adulteration Act), Bhopal.

3. The facts giving rise to this appeal are as follows: The Appellantwas the marketer of packed food article ‘Orange Tammy SugarlessJelly’ (‘Jelly’). The Jelly was manufactured separately by one CachetPharmaceuticals Private Limited (‘Manufacturer’), which is notconnected to the Appellant entity. On 3.10.2008, Respondent No. 2 FoodInspector, (from the Food and Drugs Administration, Bhopal District),conducted inspection in Valecha Enterprises in Bhopal, the proprietor of C

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Awhich is one Mr. Dinesh Valecha (‘Retailer’). Respondent No. 2purchased three company packed jars of the Jelly, weighing 350 gramseach, from the Retailer and the said samples were deposited with theState Food Testing Laboratory (‘State Laboratory’) and the Local HealthAuthority, Bhopal for the purpose of testing. At this stage, the Retailerdid not have receipt of purchase from the Appellant/marketer and statedBthat they would produce it before Respondent No. 2 at a later stage.

The Local Health Authority by letter dated 26.11.2008 informedRespondent No. 2 that the Report of the Public Analyst, State Laboratoryhad found ‘sugar’ in the Jelly sample, hence the Jelly was misbranded.Notably, it was pursuant to this letter that, Respondent No. 2 madeCfurther query and the Retailer produced a receipt showing that the Jellywas purchased from the Appellant. Respondent No. 2 sent a letter tothe Local Health Authority and to the Indore branch of the Appellantcompany, for information as regards the Manager/Director/Partner ornominee of the Appellant. However, as the Respondents claim, theDAppellant did not respond to this query and the letter was received back.The attempts of Respondent No. 2 to obtain information about theAppellant from the Office of the Deputy Director, Food and DrugsAdministration and the Commissioner, Nagar Nigam, Indore also failed.

Consequently, Respondent No. 2 filed a complaint in the Court ofEthe Judicial Magistrate, First Class, Bhopal for the offence of selling amisbranded food article under Section 16(1)(a)(ii) read with Sections2(ix)(g) and 7(ii) of the Prevention of Food Adulteration Act, 1954 (‘1954Act’). During the course of the trial, after the closing of the prosecutionevidence, the Retailer examined himself as a witness for the defenceunder Section 315 of the CrPC. Subsequently on 26.8.2014, the RetailerFmoved an application under Section 20A of the 1954 Act for impleadingthe 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 ofthe CrPC for quashing the said order.Gmens The High Court in the impugned judgment held that firstly, mensrea was not an ingredient of the offence under Section 7 of the 1954Act. Therefore the Appellant could not avail of the defense that sincethey were only the marketer of the Jelly, they were not privy to theingredients thereof. Secondly, that the Appellant could not have availedHof the right to get the sample re-tested by the Central Food Laboratory (‘Central Laboratory’) under Section 13(2) of the 1954 Act as the samewas only available to the vendor of an ‘adulterated’ food article and nota ‘misbranded’ one. Hence the denial of the said right would not prejudicethe 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 hadmade best attempts to contact the Appellant, and the Appellant’s namewas probably omitted to avoid delay in filing the complaint. Lastly, thatthe application under Section 20A was maintainable as the Court maybe satisfied on the basis of evidence adduced by either of the parties,including the prosecution, that the distributor/dealer of a food article isalso concerned with the offence and such evidence need not be adducedby the applicant only. In any case the applicant/Retailer had given hisevidence prior to impleadment. Hence the High Court declined to exerciseits inherent powers under Section 482 of CrPC and quash the impleadmentorder dated 01.09.2015. However, this Court has directed stay ofproceedings before the trial court against the Appellant during pendencyof this appeal.

4. Learned senior counsel for the Appellant, Mr. C.U. Singh arguedthat the application for impleadment under Section 20A was notmaintainable at the outset as such an application can only be made by aperson who is not the ‘manufacturer, distributor or dealer’ of the foodarticle, and the Retailer would be included in the phrase ‘manufacturer,distributor or dealer’. That in any case, as a catena of decisions dealingwith the 1954 Act as well as similar legislations such as the Seeds Act,1966 and the Insecticides Act, 1968 have held, where an accused isdenied their statutory right to get a sample re-tested by a Central testinglaboratory on account of delay, such denial will render prosecution ofthe offence futile. He argued that the right under Section 13(2) of the1954 Act is not restricted to cases of ‘adulterated’ food articles butapplies to testing of samples for other offences under the 1954 Act aswell; hence the order impleading the Appellant is liable to be quashed.

Further, that the delay in impleading the Appellant was attributableto the Respondents’ negligence as the label on the packaging of the Jellyclearly stated that their registered office was in Mumbai whereas theRespondents’ communications were addressed to their Indore branchwhich is an old address.

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APer contra, learned counsel for the Respondents stressed that aplain reading of Section 13(2) shows that the right available thereunderis only in respect of ‘adulterated’ food samples. Whereas in otherprovisions of the 1954 Act, where a provision is meant to be additionallyapplicable to misbranded food articles, the word ‘misbranded’ has beenseparately mentioned after ‘adulterated’. Hence, the legislative intent toBexclude misbranding from the purview of re-testing by the CentralLaboratory is clear. Further that though the packaging on the Jelly statedthat the Appellant had their office in Mumbai, the food license producedby the Retailer before Respondent No.2/Food Inspector showed thattheir address was in Indore and the cause title of the Appellant’sCapplication under Section 482, CrPC states that their branch office/manufacturing unit is located at Indore; hence they cannot be blamedfor the delay in impleading the Appellant. In any case, the High Court’spowers under Section 482 against an interlocutory order are to beexercised sparingly, and it was open to the Appellant to prove theirinnocence at the stage of trial.D

5. At the outset, it must be noted that the Appellant’s contentionthat an application under Section 20A could not have been made by aretailer is misguided. The provisions of the 1954 Act clearly distinguishbetween a ‘vendor’ and ‘manufacturer’ of a food article. The verypurpose of Section 20A is to enable the Court to implead the manufacturerEor distributor during the trial of the vendor of the food article, so as todetect and punish adulteration at all stages of the supply chain. Admittedly,the prosecution may have to prove, for the purpose of trying the Retailerand the Appellant in a joint trial, that they shared a common object thatthe misbranded Jelly should reach consumers as food, as per this Court’sFdecision in Bhagwan Das Jagdish Chander v. Delhi Administration,(1975) 1 SCC 866. However, we find that this question need not belooked into at the stage of mere impleadment of the Appellant for theoffence of misbranding.

It is pertinent to note that in Bhagwan Das Jagdish Chander,GM.H. Beg J. in his majority opinion directed quashing of charge againstthe Appellant distributor on the ground that on account of long passageof time since the initiation of prosecution, it would be difficult for theAppellant to challenge the correctness of the Public Analyst’s Report.Hence the primary issue which arises for our consideration is whetherthe denial of the right to get the Jelly sample tested by the CentralH

Laboratory, under Section 13(2) of the 1954 Act, would entitle quashingof proceedings against the Appellant for the offence of ‘misbranding’?

6. Before we turn to the substantial question of law involved inthe appeal, it may be useful to refer to the relevant provisions of the1954 Act. It is explained in the Statement of Objects and Reasons of the1954 Act that prior to its enactment, there were numerous State legislationson the subject of prevention of adulteration of food-stuffs but these lackeduniformity. Hence the need for a Central legislation was felt which couldinter alia, provide for a uniform procedure and the constitution of ‘aCentral Food Laboratory to which food samples can be referred to forfinal opinion in disputed cases.’

Section 8 of the 1954 Act provides for the appointment of PublicAnalysts 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 agiven local area. Section 9 provides for the appointment of FoodInspectors for the purpose of inter alia, carrying out inspection ofestablishments where food articles are manufactured or sold, and seizingfood articles which require analysis. Section 14A mandates vendors offood articles to disclose the name and other particulars of the personfrom whom the food article was purchased, if the Food Inspector sorequires.

Section 11 stipulates the procedure to be followed by FoodInspectors while taking food samples for analysis. It is important to notethat the first step of the procedure is to immediately notify on the spot,not only the vendor but also the person whose particulars are disclosedunder Section 14A (which would include a distributor/marketer such asthe Appellant), that a sample is being sent for analysis. The sample isthen divided into three parts-while the first part is sent to the PublicAnalyst, the other two are deposited with the Local Health Authority asa contingency in case the first part is lost or damaged.

It is this backdrop that Section 13 of the 1954 Act prescribes thesubsequent procedure to be followed after the Public Analyst preparestheir report:

“(1) The public analyst shall deliver, in such form as may beprescribed, a report to the Local (Health) Authority of the resultof the analysis of any article of food submitted to him for analysis.

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(2) On receipt of the report of the result of the analysis undersub-section (1) to the effect that the article of food is adulterated,the Local (Health) Authority shall, after the institution of prosecutionagainst the persons from whom the sample of the article of foodwas taken and the person, if any, whose name, address and otherparticulars have been disclosed under section 14A, forward, insuch manner as may be prescribed, a copy of the report of theresult of the analysis to such person or persons, as the case maybe, informing such person or persons that if it is so desired, eitheror both of them may make an application to the court within aperiod of ten days from the date of receipt of the copy of thereport to get the sample of the article of food kept by the Local(Health) Authority analysed by the Central Food Laboratory.

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(2B) On receipt of the part or parts of the sample from the Local(Health) Authority under sub-section (2A), the court shall firstascertain that the mark and seal or fastening as provided in clauseD(b) of sub-section (1) of section 11 are intact and the signature orthumb impression, as the case may be, is not tampered with, anddespatch the part or, as the case may be, one of the parts of thesample under its own seal to the Director of the Central FoodLaboratory who shall thereupon send a certificate to the court inthe prescribed form within one month from the date of receipt ofEthe part of the sample specifying the result of the analysis.

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(3) The certificate issued by the Director of the Central FoodLaboratory under sub-section (2B) shall supersede the report givenby the public analyst under sub-section (1).”

FTherefore the purpose of Section 13 is to give a second opportunityto accused persons, against whom prosecution is initiated under the 1954Act based on the Public Analyst’s report, to get the relevant food sampletested again by the Central Laboratory. Since the Central Laboratory’sreport will have precedence over that of the Public Analyst, this is avaluable opportunity for accused persons to claim exoneration fromGcriminal proceedings.

7. It can be seen from the above-mentioned provisions that underthe scheme of the 1954 Act, the accused has to be given prior notice, asprovided under Section 11, that samples of a food article manufacturedand/or sold by them have been sent for analysis, before the Public Analyst H

prepares their report. The 1954 Act does not envisage a situation suchas the present case where the sample is sent for analysis, and the PublicAnalyst’s report is also prepared, but the marketer is informed severalyears later that prosecution is sought to be instituted against them. Duringsuch period, the food article being perishable in nature would mostprobably be incapable of being sent for re-testing to the CentralLaboratory.

Thus, it has been settled by this Court in Municipal Corporationof Delhi v. Ghisa Ram, AIR 1967 SC 970, that where inordinate delayin instituting prosecution has resulted in denial of the right under Section13(2), it is deemed to have caused serious prejudice to the accused suchthat their conviction on the basis of the Public Analyst’s report cannot beupheld. In Girishbhai Dahyabhai Shah v. C.C. Jani, (2009) 15 SCC64, this Court affirmed that a delay in sending a report of the PublicAnalyst to the accused, such that he is no longer in a position to apply forre-testing under Section 13(2) of the 1954 Act, would entitle quashing ofcriminal proceedings under Section 482 of the CrPC. However the above-mentioned decisions dealt with the offence of adulteration simplicitorand did not touch upon the question of the consequence of non-compliance with Section 13(2) in cases involving other offences.

However, upon a comparison of Section 2(ia) of the 1954 Actwhich defines ‘adulterated’ and Section 2(ix) which defines ‘misbranded’,we find that there is an overlap between the two provisions. Section2(ia)(a) includes within the definition of ‘adulterated’ a case where afood article is ‘not of the nature, substance, or quality which it purportsor is represented to be.’ Whereas Section 2(i)(ix)(g) includes within thedefinition of ‘misbranded’ the following:

“if the package containing it, or the label on the package bearsany statement, design or device regarding the ingredients or thesubstances contained therein, which is false or misleading in anymaterial particular; or if the package is otherwise deceptive withrespect to its contents.”

Therefore for example, in cases where it is found that a foodarticle contains an additional ingredient which is not advertised on itspackaging, or vice versa, where a food article is found to be missing aningredient which is purported to be included in the contents thereof inthe labelling/packaging of the article; or where the food article has used A

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Aan inferior quality substitute but the labelling purports to use the superiorquality original ingredient, it would be a case of both adulteration andmisbranding.

This is not an exhaustive list of examples, but it suffices to saythat in certain situations, even for the purpose of proving the offence ofB‘misbranding’, samples of the article would have to be taken accordingto the procedure prescribed under Sections 11-13 of the 1954 Act. Thisis because in such cases it would not be possible to conclude whether ornot the manufacturer, marketer or vendor has put a deceptive label/package on the food article, without making a finding as to whetherthere has been any adulteration in the contents thereof.C

8. The question which arises then is, what is the procedure to befollowed in cases where proving ‘misbranding’ requires testing of therelevant food samples, but the corresponding charge of ‘adulteration’has not been made? Section 13(2) is unfortunately silent in this regard. Itis a settled principle of statutory interpretation that any ambiguity in aDpenal statute has to be interpreted in favour of the accused. It would beabsurd and discriminatory for the prosecution to, on one hand, rely onthe report of the Public Analyst under Section 13(1) for proving theoffence of ‘misbranding’, and on the other hand, claim that the accusedcannot avail of their right to challenge the said report as per SectionsE13(2) and 13(3) because it is not a case of ‘adulteration’. In such ascenario, the word ‘adulterated’ in Section 13(2) would have to be readas including ‘misbranded’ in so far as it relates to the ingredients of theconcerned food article, and the relevant clauses of Section 13 have tobe complied with in their entirety.

FHence we are of the considered opinion that where examinationof the contents/ingredients of the food article is integral to proving theoffence ‘misbranding’, the procedure prescribed under Sections 11-13of the 1954 Act has to be complied with, regardless of whether‘adulteration’ is alleged or not. This includes the right to obtain a secondopinion from the Central Laboratory under Section 13(2). The same testGwould apply in respect of any other offence for which penalty is prescribedunder the 1954 Act.

It is needless to say that this rule would not apply if proving theoffence does not necessarily require sampling of the food article. For H

example, if the offence is one of ‘bearing the name of a fictitious individualor company as the manufacturer or producer of the article’ under Section2(ix)(h) it may not be necessary to analyse the contents of the foodarticle to prove the offence so long as the prosecution is able to establishthat the real manufacturer has deceptively concealed their identity.

9. Applying the above-mentioned test to the present case, it has tobe seen whether first, the Appellant was entitled to apply for testing ofthe Jelly by the Central Laboratory under Section 13(2); second, whetherthe denial of the right was the Respondents’ fault and third, whethersuch denial is prejudicial to the Appellant’s case. With respect to the firstpoint, the Respondents have relied upon the Public Analyst’s Reportwhich states that the Jelly contains ‘sugar/sucrose’, so as to institute acomplaint for misbranding under Section 2(ix)(g) of the 1954 Act. Thisis because the label on the packaging claims that the Jelly is ‘sugarless’.Hence, the Public Analyst’s finding on whether ‘sugar’ as an ingredientis present in the Jelly sample is crucial to proving the offence of‘misbranding’ against the Appellant. Thus, the Appellant ought to havehad the opportunity to make an application under Section 13(2) for asecond opinion from the Central Laboratory on the contents of the Jellysample.

With respect to the second point, we are of the view thatRespondent No. 2 erred in not making query to the Retailer, at the firstinstance, about the marketer of the Jelly, as she was empowered to dounder Section 14A of the 1954 Act. If she had done so, the Appellantcould have been notified in 2008 itself that the Jelly is being taken foranalysis. Even if this lapse is condoned, once the Retailer had intimatedthe Respondents that the Appellant was the marketer of the Jelly, theyought to have made more efforts in notifying the Appellant of the allegedirregularity found in the Jelly sample, as per Section 13(2). We do notfind merit in the Respondents’ submission that the delay in informing theAppellant was because the Appellant was deliberately avoiding serviceof notice. Even if the address produced by the Retailer was of theAppellant’s Indore Branch, the label on the packaging of the Jelly clearlyindicated that the official address for communication would be “AlkemHouse, Senapati Bapat Marg, Lower Parel, Mumbai-400013”. Henceeven if no response was being received from the Indore branch, theRespondents could have attempted to send the details of the Public A

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AAnalyst’s Report to the Appellant’s Mumbai address. Thus it is clearthat the Appellant lost their chance to get the Jelly sample re-testedunder Section 13(2) on account of the Respondents’ negligence.

Finally, with regard to the third point, it is true that non-compliancewith Section 13(2) would not be fatal in every case, if it is found that theBsample is still fit for analysis (T. V. Usman v. Food Inspector,Tellicherry Municipality, Tellicherry, (1994) 1 SCC 754). Howeverthe Respondents have not disputed that the shelf life of the Jelly samplewould have, in all probability, expired at this stage. Hence we find thatthis is a fit case for quashing of proceedings against the Appellant onaccount of denial of their valuable right under Section 13(2).C

10. The appeal is allowed, and the impugned judgment dated11.04.2018 and the impleadment order dated 01.09.2015 are set aside, inthe above terms.

DDevika Gujral

Appeal allowed.

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