Delhi HC Directs Detailed Investigation Into Re-Packaging And Sale Of Expired Food Products, Including Counterfeit Hershey Chocolates

Going through the material brought on record, Justice Prathiba M Singh observed that the way in which expired products were being reintroduced into markets appeared to be coordinated and systematic.

“...it appears that a large quantity of goods especially on e-commerce platforms, which achieve expiry dates, are somehow purchased by unscrupulous persons, the manufacturing and expiry dates are changed and re-introduced into the stream of commerce.”

Considering that the Food Safety and Standards Authority of India (FSSAI) was unable to take urgent action in such cases, and that the matter at hand was beyond the scope of the commercial suit filed by Hershey, Justice Singh directed that the order be placed before Acting Chief Justice Manmohan for being taken up on the judicial side in appropriate manner.

In the meantime, Crime Branch, Delhi Police has been directed to carry out a detailed investigation and file status report.

The issue had come up before the court as Hershey filed for an injunction against the defendant, before Diwali, from selling expired chocolates by re-packing the same. It was alleged that the defendant had knowledge and access to Hershey's marks and packaging, and was misrepresenting expired and counterfeit chocolates as Hershey's.

In October, 2023, the court appointed Local Commissioners (LCs) for seizure of the expired products. Two Inspectors from FSSAI were to accompany the LCs to inspect and test the defendant's products.

Upon inspection, a significant inventory was seized. Expired products of companies other than Hershey were also found in the defendant's premises, besides tools and devices to facilitate erasing of expiry dates and printing of new ones.

After perusing the LC reports, the court noted that the suit only related to Hershey's products, but the scale of operations of the defendant was bigger. Despite FSSAI being aware of the same, no complaint had been lodged till date.

Rather, between the date of inspection by LCs and sealing of the defendant's premises, the defendant had been able to move the non-Hershey stock to another premises from where the business was being continued.

Accordingly, the court ordered a detailed investigation in the matter.

Counsels for Hershey: Advocates Urfee Roomi, Janaki Arun, Anuja Chaudhury, Jaskaran Singh, and Ayush Dixit

Counsels for respondents: Senior Advocate Raj Shekhar Rao with Advocates Dr. Vikrant Narayan Vausdeva, Sarthak Chiller, Rohit Lochav, Anshi Gupta, and Yamini Mokeerjee for defendant; CGSC Harish Vaidyanathan Shankar with Advocates Srish Kumar Mishra, Alexander Mathai Paikaday and Krishnan V.; ASC Anuj Aggarwal and Hetu Arora Sethi with Advocates Arjun Basra and Yash Upadhyay for GNCTD

Case Title: The Hershey Company v. Atul Jalan trading as Akshat Online Traders, CS(COMM) 780/2023

Citation: 2023 LiveLaw (Del) 1341