By means of this revision, the revisionist M/s. Brooke Bond Lipton India Limited (subsequently known as Hindustan Lever Limited) has challenged the legality of the order dated 26.7.2000 passed by learned Metropolitan Magistrate-Ist, Kanpur Nagar in Criminal Case No.1042 of 1997 under Section 7/16 of Prevention of Food Adulteration Act, 1954, P.S. Bithoor, District Kanpur Nagar, whereby the application dated 4.7.1998 moved by the revisionist for recall of summoning order dated 12.8.1997 and for dropping of the criminal proceedings initiated on the complaint of Food Inspector, was rejected by the learned lower Court.
Some background facts in brief are that on 23.8.1996 Shri S.K. Awathi, Food Inspector, Kalyanpur area, District Kanpur Nagar purchased from the retail shop of Ram Chandar, six packets of Tiger Brand tea each containing 100 gms, bearing label of manufacturer namely "Brooke Bond Lipton India Limited". The Food Inspector sealed those packets as per Rules separately in three parts consisting two packets in each part. One part of the sample was sent to public analyst, Lucknow for analysis and the remaining two counter parts were deposited with the local health authority. Vide report of public analyst No.8801 dated 25.9.1996, the sample of tea was found to be adulterated because of presence of fungus on the tea leaves. Consequently, the Food Inspector made further investigation and after obtaining consent from the Local Health Authority filed a complaint in the court of Metropolitan Magistrate, Kanpur Nagar which was registered as Criminal Case No.1042 of 1997 in which the vendor Shri Ram Chander and the manufacturer Brooke Bond Lipton India Ltd, Calcutta, both were made the accused for contravening the provisions of Section -7 (2) r/w Section 2 (ia) (f) of Prevention of Food Adulteration Act, 1954.
The learned Metropolitan Magistrate on receiving the complaint took cognizance of the offence and vide order dated 12.8.1997 summoned the accused persons to appear in Court on 3.9.1997. The revisionist Company put in appearance through its officer in Court on 4.7.1998 and moved an application for recall of summoning order and also for dropping of the criminal proceedings on the ground that the manufacturer can be held liable under the Prevention of Food Adulteration Act, 1954 only in case the vendor proves that he has purchased the allegedly adulterated articles of food from the manufacturer, with a written warranty in a prescribed form, to the contrary in the present case, it has been admitted by the complainant that the vendor Ram Chandar failed to produce the cash memo/warranty as provided under Section 14 of the Act. One more ground taken by the revisionist's Company for recalling of the summoning order was that the mandatory legal provision regarding the procedure for sampling, testing etc have not been complied with by the Food Inspector.
The Court below after hearing learned counsel from both the sides rejected the application of the revisionist Company by the order impugned and fixed the date for further proceedings.
Aggrieved by the aforesaid order of the lower court, the revisionist's Company has approached this Court by way of instant revision challenging the impugned order mainly on the following grounds:-
(i) no bill/warranty given to the vendor from the revisionist has been placed on record to show any nexus of the revisionist with the vendor or with the offence complained of. Therefore, in absence of brevity of contract between the revisionist and the vendor, the proceedings against the revisionist were liable to be quashed but the learned lower Court, without any application of mind has rejected the application of the revisionist.
(ii) the sampled packets of tea were not manufactured by the revisionist's Company and were spurious. The alleged bill of M/s. Aney. Enterprises produced by the vendor in the court after a period of more than two years of the sampling, does not show that packets of 100 gms. each purchased by the Food Inspector were manufactured by the revisionist's company. The bill of M/s. Aney Enterprises reads only for the sale of 2 kgs of tiger tea. It does not reveal the manufacturer's name, batch number or the date of manufacturing of the product. Therefore, it cannot be said that the product sampled is a product of the revisionist's company. However, the learned lower court without keeping in view the fact that there is no legal cogent evidence against the company, has summoned it in anticipation that some evidence connecting the Company with the offence may be produced during the trial.
(iii) There is no evidence on record to show that M/s. Aney Enterprises was the distributor or authorised dealer of the revisionist's company, so continuation of the prosecution against the revisionist is an abuse of process of the court.
On the aforesaid grounds, it has been prayed that the revision be allowed and summoning order dated 12.8.1997 and the order dated 26.7.2000 rejecting the prayer to recall such summoning order passed by the Metropolitan Magistrate, Kanpur Nagar be quashed.
Learned AGA and learned counsel appearing for respondent no. 2 (Nagar Swasthya Adhikari) have vehemently opposed the revision by contending that the instant revision has been filed against an interlocutory order which is not maintainable. It has further been argued that both the above said orders passed by learned Metropolitan Magistrate are well reasoned orders which does not suffer from any illegality or irregularity requiring any interference by this Court. Moreover, the revisionist is not going to be prejudiced in any way by this order, because he has an opportunity of ventilating all his grievances before the Trial Court and to pray for his discharge.
I have heard Shri Gopal Swaroop Chaturvedi, learned Senior Advocate assisted by Shri Samit Gopal, appearing on behalf of the revisionist, learned AGA for the State and Mr. Sriram Pandey, learned counsel for opposite party no. 2. Perused the records.
After having heard rival submissions from both sides it appears that the arguments advanced by learned Senior Advocate Shri Gopal Swaroop Chaturvedi have force. At the very outset it may be mentioned that despite the fact that a considerable period has elapsed since 24.11.2000 i.e. the date when the opposite parties were directed by this Court to file counter affidavit within six weeks, no counter affidavit has been filed by them till today.
On behalf of opposite parties learned AGA has opposed the revision on the ground of its maintainability by arguing that summoning order being an interlocutory order, the revision against it is not maintainable.
This Court does not find any force in the aforesaid argument in wake of legal position which has been well settled by a catena of judgment of Hon'ble Apex Court.
In the case of Amar Nath vs. State of Haryana AIR 1977 SC 2185, the Judicial Magistrate had issued summons to the accused persons who had filed a revision against such summoning order. The Apex Court while interpreting the provision of Section 397 Cr.P.C. observed, "the term 'interlocutory order' in Section 397 (2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order. We are, therefore, satisfied that the order impugned was one which did involve a decision regarding the rights of the accused. If the accused-appellants were not summoned, then they could not have faced the trial at all, but compelling the appellants to face a trial without proper application of mind, cannot be held to be an interlocutory matter but one which decided a serious question as to the rights of the appellants to be put on trial".
In the land mark case of Madhu Limaye vs. State of Maharastra AIR 1978 SC 47 it was again observed by the Apex Court as under :-
"the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by Section 397(1).....
" it appears to us that the real intention of the Legislature was not to equate the expression "interlocutory order" as invariably being converse of the words "final order". There may be an order passed during the course of a proceeding which may not be final in the sense noted in Kuppuswami's case AIR 1949FC 1., but yet it may not be an interlocutory order pure and simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in sub-section (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders.
In V.C. Shukla v. State through CBI AIR 1980 SC 962 the court observed that :-
"We might reiterate here even at the risk of repetition that the term "interlocutory order" used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused. ?
In other words, the revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final."
In Rajendra Kumar Sitaram Pande & ors vs. Uttam and anor AIR 1999 SC 1028 it has been held by Hon'ble Supreme Court that:-
"order directing issuance of powers is not a purely interlocutory hence bar under Section 397 (2) is not applicable."
In the wake of above cited legal pronouncements, the instant revision filed against summoning order is maintainable specially when the facts clearly show that the learned lower court has not paid attention to so many facts before passing the impugned order in a mechanical way.
The material available on record clearly shows that the procedure as provided under the Prevention of Food Adulteration Act, 1954 has not been properly followed by the Food Inspector before submitting his report to the Local Health Authority/C.M.O., Kanpur Nagar.
Section 11 of the Act provides for the "Procedure to be followed by food inspectors" Sub section 1 (a) of Section 11 enacts as under :-
1.When a food inspector takes a sample of food for analysis, he shall-
(a) give notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample and to the person, if any, whose name, address and other particulars have been disclosed under section 14A"
Section 14 (a) of the Act makes it obligatory on the vendor to disclose the name etc of the person from whom the article of food was purchased by him.
Rule 12-A of the Prevention of Food Adulteration Rules 1955 makes provision regarding the warranty to be given by the manufacturer/distributor or dealer to a vendor.
So far as the case in hand is concerned, the facts show that none of the above procedure has been followed by the food inspector. There is no iota of evidence on record that the procedure prescribed by Section 11 (1) (a) of the Act was followed by the Food Inspector. Moreover, the report sent by the Food Inspector to Metropolitan Magistrate, Kanpur Nagar clearly shows that he has admitted the fact that when the sample of tea was purchased by him for the purposes of sending it to public analyst, the vendor could not produce any cash memo/warranty to show the name of manufacturer, distributor or dealer, he had purchased such tea. The vendor was given a time of one week on 10.11.1998 to file cash memo/warranty regarding the purchase of tea but the vendor after expiry of about more than two years, could produced a copy of some bill (No.1394 dated 20.8.1996) allegedly issued by Ms/ Aney Enterprises 123/68 Birhana Road, Kanpur, that too without any mention of date of purchase and the particulars of batch number, date of manufacturing of product on such bill. The bill only mentioned about the sale of 2 kgs of tiger tea without specifying the fact that whether it was one packet of 2 kgs or two packets of 1 kg tea or 20 packets of 100 gms each.
The aforesaid facts have not been disputed by learned AGA or by learned counsel for respondent no. 2.
Under these circumstances, it cannot be said that the cash memo/warranty was genuine and was related to Tiger tea manufactured by the revisionist Company or it was a product of some other Company M/s. Aney Enterprises from whom the tea was allegedly been purchased was neither made a party nor summoned by the Court.
Section 12 (A) of the Rules, 1955 reproduced below is a mandatory provision :-
Section 12-A 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 warranty in Form VI-A."
Form VI-A appended to Appendix A of the Prevention of Food Adulteration Rules 1955 has five columns to be filled by the manufacturer, distributor or dealer mentioning the date of sale, nature and quality of articles, brand name if any, batch number or code number, quantity and price. But nothing was found mentioned in the alleged Bill produced by the vendor with his bail application, that too after more than two years from the date of taking of sample by the Food Inspector.
The report of Food Analyst shows that fungus has been found on the tea leaves. Fungus can grow on any article due to various reasons, the most common of which is humidity damp weather and moisture due to rainy season. The Food Inspector has purchased the packets of tea in the last week of August i.e. on 23.8.1996 when there is heavy rainy season. Moreover, the sample has been collected from a small retail shop situated in village Tikra, P.S. Bithoor which cannot be expected to have equipped with proper moisture proof storage system i.e. almirahs etc. The most important point worth mentioning is that while taking the sample of tea packets for sending it to Food Analyst the Food Inspector has not mentioned anything about its date of manufacturing. Under these circumstances, the possibility cannot be ruled out that the tea might have expired and because of damp weather and also due to improper storage in a small village shop, the fungus had grown on the tea leaves. Therefore, it cannot be said that manufacturer of the tea i.e. Brooke Bond Lipton India Limited was in any way responsible for the growth of fungus on the tea leaves.
The report of Food Analyst is dated 25.9.1996 i.e. after expiry of about one month from the date of collecting the sample. There is no such evidence available that during this period the tea packets were kept in a cool and dry place to avoid its further deterioration by growth of fungus.
It is also worth mentioning that admittedly, there are no witness of the purchase of sample of tea packets by the Food Inspector but the Food inspector has not made any statement in his report as to what sincere efforts he had made to procure the witnesses. In Puri Municipality vs. Banada AIR 1967 Orissa 206 it has been held that :-
"The Food Inspector should prove that two witnesses were not available for which serious efforts were made and it should be explained to the satisfaction of the court".
However, the learned lower Court without applying its mind to all the above said facts and circumstances, the mandatory legal provisions as provided under Food Adulteration Act and by the various judicial pronouncements cited above, has mechanically passed the impugned order, which is liable to be set aside.
The revision deserves to be allowed and is allowed.
The order dated 26.7.2000 passed by learned Metropolitan Magistrate-Ist, Kanpur Nagar in Criminal Case No.1042 of 1997 under Section 7/16 of Prevention of Food Adulteration Act, 1954, P.S. Bithoor, District Kanpur Nagar as well as summoning order dated 12.8.1997 are hereby quashed.
Order Date :- 12.8.2014 Ps/.