NESTLE INDIA LTD Vs. A K CHAND

JUDGEMENT

(1.) In this application under Section 482 of the Code of Criminal Procedure, 1973 (in short, the 'Code'), legality of the proceeding in 2(c) C. C. No. 153 of 1993 pending in the Court of sub-divisional Judicial Magistrate, Bhawanipatna (in Short, the SDJM') is under challenge. The said proceedings was initiated on the basis of prosecution report submitted by the Food Inspector, Bhawanipatna.

(2.) Background facts leading to the filing of the application are as follows : On 18-9-1992, the Food Inspector visited business premises of Shri Motilal Jain, M/s. Samaleswari Agencies. Following food items amongst others were stored for sale. (a) 30 packets of Lactogen (b) 43 packets of Cerelac wheat Apple. (c) 36 Packets of Farex Veg. The shopkeeper produced purchase invoices before the Food Inspector to show that first two items were purchased from M/s. Nestle India Limited, Cuttack and the last item from M/s. Glaxo India Limited, Cuttack depot. Since the food items were suspected to be adulterated and misbranded, he served written notice under Section 11(1)(a) of the Food Adulteration Act, 1954 (in short, the 'Act') read with rule 12 of the Food Adulteration Rules. 1955 (in short, the 'Rules'). Samples were purchased from the shop-keeper. The samples were sent to Public Analyst, Orissa for analysis. The Public Analyst prepared the analysis reports on 13-10-1992. The reports were received by the Food Inspector on 4-11-1992. Report Nos. 976, 977 and 978 of 1992 related to (a) lactogen, (b) Cerelac Wheat Apple, and (c) Farex Veg. respectively. According to the concerned report Lactogen was neither adulterated nor misbranded. But in respect of Cerelac Wheat Apple, following were the findings : (a) The sample was misbranded under Rule 37(b)(i) inasmuch as the picture of infant was appearing on the label : (b) The sample of Cerelac Wheat Apple is adulterated in respect of crude fibre content. On the basis of aforementioned findings, prosecution report was submitted after obtaining written consent of Local Health Authority. Though a plea was taken by the petitioner that the written consent was not filed along with the prosecution records, that was not perused, as on verification of reports it was conceded that the plea was factually incorrect. Accusation in the prosecution report related to contraventions, attracting culpability under Section 16(1), a(i), a(ii), relatable to Section 7(i), (ii) and (v) read with Section 2(ia)(a), (m), 2(ix)(g), (k) of the Act, and rule 37B(i), with Rule 5 read with item A. 11.0218 of Appendix 'B' of the Rules. Learned SDJM took cognizance of offence punishable under Section 16(1)(a)(i), a(ii) of the Act.

(3.) According to petitioner, valuable right available to it under Section 13(2) of the Act was prejudicially affected because of delayed filing of the prosecution report. The life of the sample analysed was 9 months from the date of manufacture, as indicted in the packet itself. Even if petitioner would have opted for analysis by Public Analyst that would have been an exercise in futile. No explanation, having been offered for the delay, prosecution is liable to be quashed. It is further urged that there is no contravention of Rule 37B, as Cerelac Wheat Apple is Weaning food meant to supplement food for baby more than four months of age. It is not a breast milk substitute. Learned counsel for the State submitted that the points urged by the petitioner are essentially to be adjudicated during trial and a case for interference under Section 482 of the Code is not made out.