STATE OF GUJARAT Vs. SAILENDRABHAI DAMODARBHAI

JUDGEMENT

(1.) THIS appeal by the State is preferred from the judgment dated 20.10.2007 of Metropolitan Magistrate, Court No.6, Ahmedabad in Criminal Case No.25 of 2005, whereby the accused persons, respondents herein, are acquitted of the charge of offences punishable under section 7 read with section 16 of the Prevention of Food Adulteration Act, 1954 (for short, "the Act"). Respondent No.1 is Vendor/Manager, Technical Liaison of respondent No.3 Company and respondent No.2 is the Nominee and Associate Vice President of respondent No.3 Company, all of whom were charged with violation of Rule 42 (ZZZ) (12) and Rule 47 of the Rules made under the Act and committing offences punishable under section 7 read with section 16 of the Act. In substance, the charge consisted of manufacturing for sale misbranded food article in contravention of the rules by producing and marketing artificial sweetener containing sucralose in excess of permissible limits and not labeling it in the required manner. The prosecution and the charge were admittedly based upon opinion in the report of public analyst dated 16.6.2005 (Ex. 62) and certificate of analysis dated 18.10.2005 of Central Food Laboratory, Mysore (Ex.14) wherein it was opined respectively as under:

(2.) DURING the course of trial the complainant, notified Food Inspector for the State of Gujarat, examined himself at Ex.30 to, inter alia, state that on 29.4.2005 he approached respondent No.1 where manufacturing and storing of Zero Calorie Sweetener was carried on. Respondent No.1 admitted before him that he was in charge of manufacturing, packing and despatch of food article which was being sent for sale to the godown of the company. That he bought by paying cash the samples of Zero Calorie Sweetener and found in the packing placards with the containers on which the ingredients were shown and it was stated that "Sucralose is Safe for Children". He also seized the remaining stock of the food articles in presence of the witness and the vendor under section 10 (4) of the Act. He sent one of the samples for analysis to the public analyst and the report as aforesaid was produced along with other papers at Ex.63. In his cross -examination, he, inter alia, stated that no standard of quality for Zero Calorie Sweetener was specified in Appendix -B; that the sample was tested by public analyst as "artificial sweetener"; that it was true that the sample was of proprietary food; that according to nomination (Ex.67), accused No.2 was the nominee of the company and he was not the nominee when the sampled food article was produced; that neither on the label nor on any other papers produced by him was "Table Top Sweetener" mentioned and he could not say whether the sample taken was of "Table Top Sweetener". He further stated that his complaint was about misbranding and adulteration and it was true that it was not his case that the sample of Table Top Sweetener was taken by him. Thus, in short, Food Inspector, the complainant himself, did not fully and properly support the case of prosecution even as a copy of the placard of the product (Ex.39) was produced on record for the Court to arrive at its own conclusion about compliance with the provisions of the Act and the Rules.

(3.) THE trial Court framed two issues as to whether there was a valid sanction for prosecution and whether the accused persons had violated the provisions of section 7 (1) (2) and (5) by manufacturing and packing adulterated and misbranded Zero Calorie Sweetener; and decided both the issues in the negative. It held that respondent No.2 was not nominated by respondent No.3 as nominee at the time of production of the food article and despite thereof, sanction was granted and hence it was not proved to be legal under section 20 of the Act as it appeared to be without application of mind. In respect of the second issue, the Court relied upon cross -examination of the complainant to hold that no standards were prescribed for Zero Calorie Sweetener in Appendix -B of the Act and, relying upon judgment of the Apex Court in Hindustan Lever Ltd. v. Food Inspector, 2006 (1) SCC (Cri.) 288, the sample was held to be not adulterated. It also accepted the argument that there was material discrepancy between the statement of the complainant and the Local Health Authority (Ex.96). However, as the stock of goods seized as muddamal was not claimed by anyone and it was stated to be "Best before 24 months from the date of manufacture" and there was no evidence of it being fit for human consumption, it was ordered to be destroyed.