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PEPSICO INDIA HOLDINGS PVT. LTD. Versus FOOD INSPECTOR & ANR.

CRIMINAL APPEAL NO. 836 OF 2010 WITH CRIMINAL APPEAL NOS.837, 838-840, 841, 842, 843, 844 AND 845 OF 2010 - Dated:- 18-11-2010 - ALTAMAS KABIR, JOSEPH, CYRIAC AND VERMA, DEEPAK, JJ. JU D G M E N T ALTAMAS KABIR, J. 1. All these appeals are directed against the judgment dated 19th February, 2009, passed by a learned Single Judge of the Kerala High Court dismissing the several petitions filed by the Appellants under Section 482 of the Code of Criminal Procedure, 1973, for quashing of the several p .....

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f Food Adulteration Act, 1954, hereinafter referred to as "the 1954 Act", could a prosecution have been launched against the Appellants based on a report submitted by the Public Analyst using the method of the Directorate General of Health Services (D.G.H.S.) ? (2) Could a prosecution have been launched against the Appellants in the absence of any validated method of analysis to ascertain the percentage of pesticide residue present in a Carbonated beverage, which renders the report of .....

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1955 Rules"? and (4) What is the liability of the Directors of a company which is said to have committed defaults within the meaning of Section 17 of the 1954 Act, in the light of the decision of this Court in S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla & Anr. [2005 (8) SCC 89], when they were neither in charge of nor responsible for the conduct of the business of the Company? 2. On 25th October, 2006, the Food Inspector of Mobile Vigilance, Kozhikode, inspected the premises of Star M .....

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ticide residue- Carbofuran, to the extent of 0.001 mg per litre was detected therein. The said sample was, therefore, adulterated within the meaning of Rule 65 of the 1955 Rules and Section 2(ia)(h) of the 1954 Act. 3. Based upon the report of the Public Analyst, the Chief Judicial Magistrate, Kozhikode, took cognizance of the offence and issued process against the Appellants. 4. The Appellants moved the Kerala High Court under Section 482 Cr.P.C. for quashing of the aforesaid order of the Chief .....

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tioned the cognizance taken against the Appellants and urged that in the absence of any prescribed method of analysis under Section 23(1-A)(hh) of the 1954 Act by the Central Government, the Public Analyst had not been following any uniform method of analysis, but resorted to whatever method was convenient. It was submitted that the said approach was entirely wrong and the result of the analysis could not be accepted as valid. Furthermore, there being no validated method of analysis to ascertain .....

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. It was strenuously urged that even if it be assumed that the Public Analyst had detected the presence of pesticide residue, his opinion that the presence of the pesticide residue at such levels rendered the articles injurious to health under Section 2(ia)(h) of the 1954 Act, cannot be accepted in the absence of a validated method of analysis. Mr. Chagla submitted that whether an article of food is adulterated or not has to be determined under the Rules framed by the Central Government under Se .....

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ry the product of the Appellants is also included. It is also universally accepted that even the water which is used for manufacturing carbonated water, has to comply with the standards of packaged drinking water. Rule 65 is found in Part XIV of the 1955 Rules under the heading "Insecticides and Pesticides". Rule 65(2) makes it mandatory that the level of insecticide presence, mentioned in the Table in respect of various articles of food, shall not exceed the tolerance limit prescribed .....

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roducts are concerned, prior to June 17, 2009, no tolerance limits were prescribed under the Act and/or Rules, except for a few milk products. 7. Mr. Chagla submitted that the standard prescribed for "Mineral Water" was that the pesticide residue should be below detectable limits. However, for the first time, with effect from 1st April, 2004, a standard was included which mandated that the total pesticide residue in "packaged drinking water" was not to exceed 0.0005 mg/litre. .....

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parate standard of pesticide residue was prescribed. 8. Mr. Chagla submitted that the water used by the manufacturer in the process of manufacturing its carbonated drink, conforms to the standards prescribed for packaged drinking water and no one has contended to the contrary, nor is the Appellants being prosecuted for violating such standard. He contended that the complaint is based exclusively on the Public Analyst's report, which, in fact, stood vitiated for various reasons. It was urged .....

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he Act. Based on the said submissions, the High Court confined the allegations only to violation of the aforesaid provision of the Act and the same is also reflected in the impugned judgment of the High Court. 9. As will appear from the report of the Public Analyst filed in connection with Criminal Appeal No.836 of 2010, a pesticide residue of Carbofuran amounting to 0.001 mg/litre was detected in the sample of sweetened carbonated water manufactured by the Appellant, by employing the "DGHS .....

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e also discussed by the Central Committee for Food Standards on 16th April, 2007, and the Minutes of the meeting recorded that validated methods for detection of pesticides were not available. Apart from the above, Mr. Chagla also submitted that the opinion of the Public Analyst that the carbonated water contained an ingredient which was injurious to health, was not supported by any standard and the finding was based merely on account of the presence of Carbofuran therein. In fact, the Court als .....

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fy the conclusion that the manufactured articles were injurious to health, the High Court ought not to have relied on the report of the Public Analyst to arrive at a prima facie finding that the sample of sweetened carbonated water was adulterated. 11. Mr. Chagla pointed out that when the tolerance limit of Carbofuran in infant milk has been set at 0.05 mg/litre, the presence of 0.001 mg/litre of Carbofuran in the carbonated water manufactured by the Appellants, could certainly not have been mor .....

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ctor, Edapally Circle, Ernakulam District, under Sections 2(ia)(a) and (m), 7(1) and 16(1)(a)(i) and Section 17(1) of the Prevention of Food Adulteration Act, 1954 read with Rule 5 of the Prevention of Food Adulteration Rules, 1955, which were ultimately quashed, inter alia, on the ground that no prosecution would be maintainable where no standard is prescribed under the Rules. It was urged that the report not having disclosed any material to support the opinion, stood clearly vitiated and ought .....

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no validated method of analysis exists for detecting the presence of pesticide residue in carbonated water. Learned counsel also submitted that since the report of the Public Analyst does not disclose any violation of the provisions of the 1954 Act, there was no reason for the Appellants to approach the Central Food Laboratory under Section 13(2) of the 1954 Act. 14. On the question of the liability of the Directors of the Appellant-Company on account of the alleged violation of the provisions o .....

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es by companies.-(1) Where an offence under this Act has been committed by a company- (a)(i) the person, if any, who has been nominated under sub-section (2) to be in charge of, and responsible to, the company for the conduct of the business of the company (hereafter in this section referred to as the person responsible), or (ii) where no person has been so nominated, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of t .....

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s directors or managers (such manager being employed mainly in a managerial or supervisory capacity) to exercise all such powers and take all such steps as may be necessary or expedient to prevent the commission by the company of any offence under this Act and may give notice to the Local (Health) Authority, in such form and in such manner as may be prescribed, that it has nominated such director or manager as the person responsible, along with the written consent of such director or manager for .....

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uality Control, of the Company, had been nominated under Sub-section (2) of Section 17 to be in-charge and responsible for the conduct of the business of the Company and was, therefore, the person responsible within the meaning of Sub- section (1). 16. In addition to the above, Mr. Chagla submitted that since no allegation had been made in the complaint against the Directors of the Company as to whether they were either in charge or responsible to the Company for its day-to-day management, the l .....

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agla submitted that the High Court did not also appreciate the fact that the decision in S.M.S. Pharmaceuticals Ltd.'s case (supra) was based on the judgment of this Court in Municipal Corpn. of Delhi Vs. Ram Kishan Rohtagi [(1983) 1 SCC 1] which was a decision in the context of the 1954 Act. 17. Mr. Chagla submitted that it had perhaps been presumed that the Appellant-Company had not nominated an officer under Section 17(2) of the 1954 Act and consequently the entire Board of Directors were .....

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19. Mr. Chagla submitted that, the allegations made against the Company, its Directors and its employees were not maintainable under the provisions of the Prevention of Food Adulteration Act, 1954, not only on the ground of absence of any standard of validated method for the detection of pesticide residue in carbonated water but also on account of the fact that even the quantity of pesticide residue detected by the Public Analyst in the product of the Appellant-Company on the basis of the DGHS m .....

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mmenced against the Appellants and its Directors and employees for alleged violation of the provisions of Section 16(1)(a)(i) read with Section 2(ia)(a), 2(ia)(h), 7(1) of the 1954 Act and Rule 65 of the 1955 Rules, were, therefore, liable to be quashed. 20. Ms. Indu Malhotra, learned Senior Advocate, appearing for Pepsico India Holdings Pvt. Ltd. in Criminal Appeal No.842 of 2010 (arising out of SLP(Crl.)No.5818/2009), while adopting Mr. Chagla's submissions re-emphasised the decision of th .....

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of a Company may not be so aware, as in the instant case. 21. In this regard, Ms. Malhotra also referred to the provisions of the Insecticide Act, 1968, which by virtue of the Explanation to Rule 65 has been made applicable to the said Rule regarding usage of the expression "insecticide", and, in particular, Section 33 thereof, which relates to offences so committed by a company. Section 33 provides that in regard to offences by companies a person connected with the Company's affa .....

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learned Senior Advocate, who appeared for the State of Kerala in these appeals, firstly contended that Section 23 of the 1954 Act empowers the Central Government to make rules to inter alia define the laboratories where samples of articles of food may be analyzed by Public Analysts under the Act and also to define the method of analysis under Sub-section (1-A)(ee)(hh). It was submitted that such a power was discretionary and it was for the Central Government to act on the basis thereof. Accordi .....

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been initially appended to Sub-Rule (2) of Rule 65, carbonated water had not been included, the said item was included in the said Table under Item No.23 dealing with Chlorpyrifos by G.S.R. 427(E) dated 17.6.2009. It was submitted that it was the intention of the Legislature that sweetened carbonated water should not have any insecticide residue in it at all, but a specific tolerance limit was included in order to provide a margin on account of the use of various agents in the manufacture of swe .....

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ld lead to an anomalous situation. On the other hand, the High Court was of the view that the said provisions would be applicable in respect of certain tests which could not be conducted and permitted to be conducted in every laboratory. The non-formulation of Rules under Section 23(1-A)(ee)(hh) for analysis of carbonated beverages, could not, therefore, be construed as being fatal to the prosecution. 23. Mr. Bhat then submitted that Rule 4 of the 1955 Rules, provides for analysis of food sample .....

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for analysing the sample which had been forwarded and the adoption of such a method was valid and had been rightly relied upon by the courts below. In support of his submissions, Mr. Bhat referred to the decision of this Court in Prem Ballab & Anr. Vs. State (Delhi Admn.) [(1977) 1 SCC 173], wherein this Court was called upon, inter alia, to examine the question as to whether an article of food could be found to be adulterated under more than one clauses of Section 2(i) of the 1954 Act in t .....

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pellants amounted to adulteration or not, is a question which would depend to a large extent on the evidence to be adduced during trial having regard to the report of the Public Analyst that 0.001 mg per litre of insecticide residue had been detected in the sweetened carbonated water manufactured by the Appellant-Company. Learned counsel submitted that a prima facie case had been made out on behalf of the prosecution against the Appellants to go to trial and the same did not merit interference i .....

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question of vicarious liability, but had found that such liability did not extend to the Directors of the Company, who were not responsible to the Company for its day-to-day business. 26. Mr. Bhat also relied upon another decision of this Court in Municipal Corporation of Delhi Vs. Purshotam dass Jhunjunwala & Ors. [(1983) 1 SCC 9], in which the Chairman, Managing Director and Director of the Mill were found to be in-charge of and responsible for the conduct of its business at the time of c .....

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n was disputed by Mr. Bhat. He also added that Rule 65 deals with raw products and not finished products and the decision in Prem Ballab & Anr.'s case (supra) dealt with the addition of colour to a food article which has no relevance as far as the facts of these Appeals are concerned, since it is not the case of the prosecution that any insecticide had been directly introduced in sweetened carbonated water manufactured by the Company. 29. From the submissions made on behalf of the respec .....

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es. 30. The Public Analyst found the sample of Pepsi to be covered by the definition of non-alcoholic beverages defined in Appendix-B, as prescribed under Rule 5 of the 1955 Rules. Item A.01 deals with non-alcoholic beverages and Item A.01.01 defines carbonated water to mean water conforming to the standards prescribed for Packaged Drinking Water under the Prevention of Food Adulteration Rules, 1955, impregnated with carbon dioxide under pressure which may contain any of the agents mentioned the .....

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f the 1955 Rules, as stated hereinbefore, it was introduced in Item 23 of the Table under the heading "Chlorpyrifos" with effect from 17th June, 2009, and the tolerance limit of the presence of insecticide residue was prescribed as 0.001 mg/litre, which, in fact, was the amount of insecticide residue found by the Public Analyst in the sample of Pepsi submitted for such analysis. 31. Ordinarily, since the level of insecticide residue was within the limits of tolerance prescribed for car .....

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the fact that no specific tolerance limit had been prescribed for sweetened carbonated water under Rule 65 and it was, therefore, presumed that trace of any insecticide would amount to adulteration of the final product. In fact, the High Court, while considering the matter, seems to have misconstrued the submissions made on behalf of the Appellants that the mere presence of insecticide residue does not render the article of food as being adulterated. The presence of insecticides within the limit .....

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nds of challenge. Grounds 1 and 2 relate to the non-framing of Rules under Section 23(1-A) (ee) and (hh) of the 1954 Act. Grounds 3, 4 and 5 deal with the challenge thrown on behalf of the Appellants to the submissions that the report of the Public Analyst was not final and that the same could be challenged under Section 13(2) of the said Act. Ground 6 deals with the criminal liability of the Directors of the Company on account of the allegations against the Company. 34. As far as Grounds 1 and .....

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the Division Bench of the High Court that if the submissions made on behalf of the Appellants herein were to be accepted, the mechanism of the Act and the Rules framed thereunder would come to a grinding halt, is not acceptable to us, since the same could lead to a pick and choose method to suit the prosecution. However, in any event, the percentage of Carbofuran detected in the sample of Pepsico which was sent for examination to the Forensic Laboratory is within the tolerance limits prescribed .....

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e aforesaid provisions of the 1954 Act could not be said to be fatal for the prosecution. 36. As far as Grounds 3, 4 and 5 are concerned, the High Court failed to consider the reasons given on behalf of the Appellants for not sending the Company's sample to the Forensic Laboratory, to the effect that, since neither any validated method of analysis had been prescribed under Section 23(1- A)(ee) and (hh) of the 1954 Act, nor had any Laboratory been particularly specified for such examination, .....

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gh Court went on to hold that the Sweetened Carbonated Water manufactured by the Appellants was adulterated within the meaning of Section 2(ia)(h) of the 1954 Act. 37. On the question of liability of the Directors of the Company with respect to an offence alleged to have been committed by the Company, the High Court went beyond the ratio of the decision of this Court in S.M.S. Pharmaceuticals Ltd.'s case (supra) upon holding that the principles set out in the said decision could not be under .....

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Central Government to frame Rules to define the Laboratories, where samples of food could be analysed by the Public Analyst, or to define the validated methods of analysis and the liability of the Directors, who are the Appellants before us, are of great importance for the purpose of bringing home a charge against the accused for violation of the provisions of Rule 65 of the 1955 Rules and Section 2(ia)(h) of the 1954 Act and for holding that the Sweetened Carbonated Water manufactured by the A .....

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does not appear to have considered the implications of the failure of the Central Government to frame Rules for the aforesaid purpose. Even the view taken by the High Court with regard to Grounds 3, 4 and 5 is not very satisfactory, as the mere presence of pesticide residue does not ipso facto render the article of food adulterated. Tolerance limits have been prescribed in the Table for this very purpose and the subsequent inclusion of Sweetened Carbonated Water seems to indicate so and leans m .....

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