MP High Court Refuses To Quash Summons Against CocaCola For Expired ‘Maaza’ In Restaurant, Says Manufacturer Should Recall Such Products

Madhya Pradesh High Court has recently refused to quash criminal proceedings lodged against CocaCola for an allegedly fungal infected ‘Maaza Mango Drink’ displayed for sale by a retailer.

While dismissing the petition filed under Section 482 of CrPC   by the Company and its nominee, the court observed that the former was responsible for ensuring that none of the food products deemed as unsafe post expiry period remain in the store of the retailers, even if the product is not directly sold to the end consumer by the Company.

“…The manufacturer is also a seller and it is his duty that unsafe food product should not be put to sale to consumers. All- packer, wholesaler, distributor and seller work on a contract with a manufacturer. Therefore, it is the duty of the manufacturer to see that none of its product is there in the store of wholesaler, distributor or seller and before its expiry date, it should be removed or should have been recalled…”, the court noted.

Under Section 27 of the Food Safety and Standards Act, the liability of the manufacturers, packers, wholesalers and distributors for the sale of unsafe food products is enumerated.

The single judge bench of Justice Vivek Rusia also held that it is still unclear as to whether the manufactured drink reached the distributor and the retailer well before its printed expiry date of 02.08.2012. The court opined that it is an issue that must be decided at the stage of trial by the Judicial First-Class Magistrate after relying upon sufficient evidence.

“At this stage, it cannot be said that only Accused No.1 was responsible for sale of unsafe food product i.e. “Mazza Mango Drink” and the fungal developed in the product while keeping in the shop of petitioners / Accused No.1 or it was there when it was dispatched from the manufacturing unit. At this stage, no such finding in this petition under Section 482 of the Code can be given”, the court reasoned about Coco Cola’s liability regarding the drink that was manufactured on 02.02.2012 and marked as ‘Best Before Six Months’ on the label.

It is pertinent to note that Regulation 1 of Regulation 1.2 of Food Safety & Standard (Packaging and Labelling) Regulations, 2011 stipulates that the word “Best before” indicates that ‘the food shall not be sold if at any stage, the product becomes unsafe’ after the period mentioned.

The bench also pointed out that Coco Cola has not produced any documents like sale document, dispatch or invoice that indicates when exactly the product was dispatched from the manufacturing unit to subsequent recipients.

Background & Court’s Reasoning

The sampling of the drink was taken on 24.03.2013 by the Food Safety Officer on suspicion of adulteration. The Food Analyst from the State Food Testing Laboratory vide a report dated 08.04.2013 opined the drink as unsafe for consumption due to ‘fungus growth formation on neck and mouth of bottle and also on product’s surface’. The Designated Officer of Food and Drugs Administration found violations of Sections 51, 52, 58 and 59 of Food Safety & Standard Act, 2006 (FSAA, 2006). Therefore, the designated officer granted sanction for filing a complaint before the magistrate and authorised the Food Safety Officer to do the same by virtue of the powers conferred upon him by Section36(3)(e) of FSAA, 2006. On 22.03.2014, the Food Safety Officer filed a complaint against eight accused persons including the petitioners before JFMC, Tonk Khurd, Dewas District.

On 20.08.2014, the Magistrate directed issuance of summons against the absconding accused persons including the petitioners. The current petition was filed seeking quashment of the order dated 20.08.2014 by the Magistrate.

While considering the argument by the petitioners’ counsel that Magistrate has wrongly taken cognizance in the matter by passing a common order for issuance of process in a bunch of unrelated cases, Justice Vivek Rusia observed that the order dated 20.08.2014 is not the one by which the magistrate has taken cognizance.

“…This order was passed during physical inspection of record room from 20.06.2014 to 27.06.2014 and various irregularities were found in the record room, hence orders have been issued to serve all the pending warrants against absconding accused persons. In the present case, the complaint was filed by the Food Safety Officer on 22.03.2014…”, the single judge bench remarked after pointing out that the petitioners have also failed to produce all the order sheets that might have thrown some light on this issue.

Regarding Coco Cola’s argument that the Designated Officer cannot grant sanction or launch prosecution on his own in offences that entail imprisonment as punishment and not just fine, the court invalidated the said proposition by stating that the same can be examined at the stage of trial.

“…in this case the complaint has been filed under various sections alleging violation of the Act under which some of them are punishable with fine only and some of them are punishable with imprisonment; and power has been delegated to the Designated Officer by Commissioner, therefore, trial Court can examine this issue during the trial because the issue of validity of sanction is liable to be examined by the trial Court itself during trial by framing a specific issue. At this stage, it cannot be held that petitioner No.2 would be punished for imprisonment also.”

Case Title: Hindustan Coca Cola Beverages Pvt. Ltd & Anr v. The State Of Madhya Pradesh, Through Smt. Nirmala Somkuwar, Food Safety Officer

Case No: Misc. Criminal Case No. 36435 of 2019

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