JUDGEMENT
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(1.)One Krishna Prasad Singh, Food Inspector, Ranchi, took samples of Krishna Spray Dried Skimmed Milk Powder and Krishna Marks Ghee from the shop of M/s. Shah Traders. Upper Bazar, Ranchi on 25/04/2008 and sent it for its analysis before the Public Analyst. Upon its analysis, a report was submitted to the effect that the sample of Krishna Spray Dried Skimmed Milk Powder is misbranded in terms of the provision as contained in Section 2(ix)(j) and (k) of the Prevention of Food Adulteration Act, as Batch number, Lot number and Date of Manufacture was not there over the packet of the milk powder. It was reported that it is in contravention of Rule 32(e) and (f) of the Prevention of Food Adulteration Rules, 1955. Thereupon, when sanction for prosecution was accorded by the competent authority, a prosecution report was submitted before the Chief Judicial Magistrate, Ranchi, on 25/07/2008, alleging therein that on account of contravention of Rule 32(e) and (f) of the Prevention of Food Adulteration Rule, petitioners have committed offence which is punishable under Section 16(1)(a)(i)(ii) of the Food Adulteration Act, 1954, upon which cognizance of the offence was taken for the said offences vide order dated 25/07/2008, which is under challenge. Mr. V. Shivnath, learned senior counsel appearing for the petitioners submitted that on receipt of the analysis report when the prosecution was launched copy of the report of the Public Analyst was never furnished to the petitioners though it should have been served upon the petitioners in terms of the provision as contained in Sub-Section-2 of Section 13 of the Prevention of Food Adulteration Act, 1954. Since, the report has not been served, instant prosecution becomes quite bad on account of non-compliance of the statutory provision of the Act and on account of it the entire prosecution gets vitiated. Further it was submitted that petitioner No. 1 Amit Kumar Shah had purchased the milk products from M/s. Bhola Baba Milk Food Industries Limited, manufacturer of the product for retail sales and, as such, he was not responsible for putting Lot number, Batch number and Date of Manufacture over the packets of the product and, hence, any prosecution against him is quite bad.
Further, it was submitted that so far petitioner No. 2 Subhash Chandra Shah is concerned, he happens to be the father of petitioner No. 1 and had nothing to do with the business of the said products, still he is being prosecuted without there being any accusation of contravening the provision of Actor Rules and moreover, petitioner No. 2 has not been given any show cause for its prosecution and, hence, any such prosecution in absence of any show cause is bad and is fit to be quashed.
(2.)In spite of notice being served upon O.P. No. 2, he did not chose to appear in this case.
(3.)Having heard learned counsel for the parties, it does appear that when the sample of Krishna Spray Dried Skimmed Milk Powder and Krishna Marka Ghee was collected from a shop being run in the name and style of M/s. Shah Traders, Upper Bazar, Ranchi, it was sent before the Public Analyst. Upon its analysis, it was found that the Batch number, Lot number and the Date of Manufacture has not been given over the packets of the product, which is in contravention of Rule 32(e) and (f) of the Rules. It be stated that as per Sub-rule (e) of Rule 32 a distinctive batch number or lot number or code number either in the numericals or alphabets is required to be put in over the packets. Likewise, in terms of Sub-rule (f) of Rule 32 the month and year in which the commodity is manufactured or prepacked is required to be given. Since, it was never found to be there over the packets, it is in contravention of Rule 32(e) and (f) of the said Rules, which is punishable under Sections 16(1)(a)(i)(ii), which reads as follows:-
16. Penalties-(1) Subject to the provisions of sub-section (1A) if any persons-
(a) whether by himself or by any other person on his behalf, imports into India or manufactures for sales or stores, sells or distributes any article of food-
(i) which is adulterated within the meaning of sub-clause (m) of clause (ia) of section 2 or misbranded within the meaning of clause (ix) of that section or the sale of which is prohibited under any provision of this Act or any rule made thereunder or by an order of the Food (Health) Authority;
(ii) other than an article of food referred to in sub-clause (I), in contravention of any of the provisions of this Act or of any rule made thereunder.