top of page

Non-compliance with Section 13(2) of Food Adulteration Act would not be fatal, when the sample is fi

ALKEM LABORATORIES LTD. v. STATE OF MADHYA PRADESH & ANOTHER, SLP Criminal No. 3995/2018 – 29th November, 2019

CORAM: Two judge bench, comprising of Justice Mohan. M. Shantanagoudar & Justice Krishna Murari

It was held in this case that “The petition which was filed on behalf of the appellant Alkem Laboraties Ltd., under S. 482 of the Code of Criminal Procedure, 1973; to quash the order against the Appellant on account of denial of their valuable right u/s. 13(2)”

The facts of this case are as follows: The appellant was the marketer of the packed food article ‘Orange Tammy Sugarless Jelly.’ This Jelly was being produced & manufactured separately by one namely Cachet Pharmaceuticals Pvt Ltd, which is not connected to the Appellant entity. On 3.10.2008, one of the Respondents, who is a Food Inspector from the Food & Drugs Administration of Bhopal District, had conducted an inspection in the Valecha Enterprises, Bhopal. The proprietor’s name of that enterprise is Mr. Dinesh Valecha. The respondent had bought three jelly jars packed by the Company, which weighed 350 grams each from the retailer & the same samples were being deposited in the State Food Testing Laboratory as well as in the Local Health Authority, Bhopal for the purpose of testing them. At this point of stage, the retailer did not have a receipt for the purchase & was unable to produce it from the Appellant/Marketer & said that the receipt would be duly produced to the Respondent at a later stage for sure.

The local authority informed through a letter, dated 26.11.2008 to the Respondent that the Report of the Public Analyst, State Laboratory had detected sugar in the Jelly that projects itself a s sugarless jelly, thereby implying that the jelly is being misbranded. Subsequently after receiving this letter, the Respondent made further queries and the retailer showed a receipt which indicated that he males purchases of the jelly from the Appellant. The Respondent then sent a letter to the Local Health Authority & also to the Indore branch of the Appellant’s Company, for more information regarding to the Manager / Director/ Partner / Nominee of the Appellant. The respondents state that the Appellant did not respond to the query that was being raised in the letter & the letter was subsequently received back. The efforts of the Respondent to gather more information about the Appellant’s Company from the Office of the Deputy Director, Foods and Drug Administration & the Commissioner, Nagar Nigam, Indore also failed.

Consequently, the Respondent filed a complaint in the Court of the Judicial Magistrate, First Class, Bhopal, for the offence of selling a misbranded food item under Section 16(1)(a)(ii) read with Section 2(ix)(g) & 7(ii) of the Prevention of the Food Adulteration Act, 1954. The Retailer appeared and was examined as a witness for defence under Section 315 of the Code of Criminal Procedure, 1973. Later, on 26.8.2014, the Retailer moved an application under Section 20A of the Prevention of the Food Adulteration Act, 1954, to implead the appellant as an accused, which was allowed by the Special Magistrate of Bhopal under the Prevention of the Food Adulteration Act, 1954, in Bhopal, by order dated 1.9.2015 & so the Appellant filed a petition in the High Court under Section 482 of the Code of Criminal Procedure, 1973 to quash the above said order.

The issue or question of law that arose in the case was as to:

  1. Whether the denial of right to get the Jelly sample tested by the Central Laboratory under Section 13(2) of the Prevention of the Food Adulteration Act, 1954, would entitle the quashing of the proceedings against the appellant for the offence of misbranding the jelly?

  2. What is the procedure to be followed in the cases where ‘misbranding’ requires testing of the relevant food samples, but the corresponding charge of ‘adulteration’ has not been made?

The following provisions of the Prevention of the Food Adulteration Act, 1954 were examined:

Section 8 of the Prevention of the Food Adulteration Act, 1954 provides for the appointment of Public Analysts provided by the Central/ State Govt to carry out analysis/ testing of food samples in a local area, Section 9, Section 14 A, Section 11 was also examined.

Section 13 too was examined upon which it was held that the purpose of Section 13 was that it gave second opportunity to the accused persons, against whom prosecution is initiated under the Prevention of the Food Adulteration Act, 1954

The Appellant’s contention was that the application for impleadment under Section 20A is not maintainable at the outset as such an application can only be made by a person who is ‘not a manufacturer or a dealer or a distributor’ of the food article and the retailer comes under the phrase ‘a manufacturer or a dealer or a distributor’. Also if an accused is denied their statutory right to get their sample tested by a Central Testing Laboratory on account of delay, such delay will get prosecution of the offence futile. He also contended that the right conferred under Section 13(2) of the Prevention of the Food Adulteration Act, 1954 is not restricted to the cases of adulterated food articles but also to testing of samples for other offences under the Prevention of the Food Adulteration Act, 1954 too.

The respondents contended that plain reading of S. 13(2) shows right available is only for adulteration of food samples. Also they contended that the powers conferred under S. 482 of Cr. PC are to be used very sparingly

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

The Court observed that the respondent had erred in not making the query to the retailer at the first instance about the marketer of the Jelly, as she was empowered to do under S.14 A of the Prevention of the Food Adulteration Act, 1954. However, the Respondents have not disputed the shell life of the jelly in all probability would have, expired at this stage.

Hence, the appeal is allowed and the impugned judgement and the impleadment order are set aside

– Nardhana Ram



bottom of page