Right To Get Sample Tested Also Available To Vendor Of Misbranded Food Article When Its Testing Is Integral To Prove The Offence: SC [Read Judgment]

The Supreme Court has observed that, where examination of the contents/ingredients of the food article is integral to proving the offence 'misbranding', the procedure prescribed under Sections 11-­13 of the Prevention of Food Adulteration Act has to be complied with, regardless of whether 'adulteration' is alleged or not.

M/s Alkem Laboratories Ltd. had approached the High Court seeking to quash the complaint filed against it alleging an offence of selling a misbranded food article under Section 16(1)(a)(ii) read with Sections 2(ix)(g) and 7(ii)of the Prevention of Food Adulteration Act. Dismissing the plea, the High Court held that right to get the sample re­tested by the Central Food Laboratory under Section 13(2) of the 1954 Act was only available to the vendor of an 'adulterated' food article and not a 'misbranded' one.

Therefore the issue before the Apex Court bench of Justice Mohan M. Shanthanagoudar and Justice Krishna Murari was whether the denial of the right to get the sample tested by the Central Laboratory, under Section 13(2) of the 1954 Act, would entitle quashing of proceedings against the Appellant for the offence of 'misbranding'?

Upon a comparison of Section 2(ia) of the Act which defines 'adulterated' and Section 2(ix) which defines 'misbranded', the Court found that there is an overlap between the two provisions in as much as Section 2(ia)(a) includes within the definition of 'adulterated' a case where a food article is 'not of the nature, substance, or quality which it purports or is represented to be.' It said:

"Therefore for example, in cases where it is found that a food article contains an additional ingredient which is not advertised on its packaging, or vice versa, where a food article is found to be missing an ingredient which is purported to be included in the contents thereof in the labelling/packaging of the article; or where the food article has used an inferior quality substitute but the labelling purports to use the superior quality original ingredient, it would be a case of both adulteration and misbranding."

This is not an exhaustive list of examples, but it suffices to say that in certain situations, even for the purpose of proving the offence of 'misbranding', samples of the article would have to be taken according to the procedure prescribed under Sections 11-­13 of the 1954 Act. This is because in such cases it would not be possible to conclude whether or not the manufacturer, marketer or vendor has put a deceptive label/package on the food article, without making a finding as to whether there has been any adulteration in the contents thereof."

The bench then noted that Section 13(2) is silent about the procedure to be followed in cases where proving 'misbranding' requires testing of the relevant food samples, but the corresponding charge of 'adulteration' has not been made? The court observed:

"It would be absurd and discriminatory for the prosecution to, on one hand, rely on the report of the Public Analyst under Section 13(1) for proving the offence of 'misbranding', and on the other hand, claim that the accused cannot avail of their right to challenge the said report as per Sections 13(2) and 13(3) because it is not a case of 'adulteration'. In such a scenario, the word 'adulterated' in Section 13(2) would have to be read as including 'misbranded' in so far as it relates to the ingredients of the concerned food article, and the relevant clauses of Section 13 have to be complied with in their entirety. Hence we are of the considered opinion that where examination of the contents/ingredients of the food article is integral to proving the offence 'misbranding', the procedure prescribed under Sections 11­13 of the 1954 Act has to be complied with, regardless of whether 'adulteration' is alleged or not. This includes the right to obtain a second opinion from the Central Laboratory under Section 13(2). The same test would apply in respect of any other offence for which penalty is prescribed under the 1954 Act.

The bench clarified that the above rule would not apply if proving the offence does not necessarily require sampling of the food article.

For example, if the offence is one of 'bearing the name of a fictitious individual or company as the manufacturer or producer of the article' under Section 2(ix)(h) it may not be necessary to analyse the contents of the food article to prove the offence so long as the prosecution is able to establish that the real manufacturer has deceptively concealed their identity.

In the facts of the case, the bench held that the vendor ought to have had the opportunity to make an application under Section 13(2) for a second opinion from the Central Laboratory on the contents of the Jelly sample. Allowing the appeal, the Court said that this is a fit case for quashing of proceedings against the vendor on account of denial of their valuable right under Section 13(2). 

Retailer can move application under Section 20A

In this case, the Retailer had moved an application under Section 20A for impleading the vendor as an accused, which was allowed. In this regard, the contention in appeal was that an application under Section 20A could not have been made by a retailer. Terming the contention 'misguided'. It said:

"The provisions of the 1954 Act clearly distinguish between a 'vendor' and 'manufacturer' of a food article. The very purpose of Section 20A is to enable the Court to implead the manufacturer or distributor during the trial of the vendor of the food article, so as to detect and punish adulteration at all stages of the supply chain"

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