Tuesday, January 18, 2011

HIGH COURT COUNTER FOR FOOD ADULTERATION CASE.


                                     IN THE HIGH COURT OF JUDICATURE, MADRAS
(MADURAI BENCH)

                                                              Crl.O.P.No. 11867 of 2009

                                           in

                                                                     S.T.C.No.4192/ 2009

ON THE FILE OF LEARNED JUDICIAL MAGISTRATE No.IV, TIRUNELVELI.


1. Ubayathulla,                                            
S/o.Mohamad sultan Rowther,
3556-57,West 3rd st,
Pudukottai.    
2.Hajeera beevi,
W/o.Mohamad Iqbal,
3556-57,West 3rd st,
Pudukottai.                                                         ….   Petitioners/ Accused No.1 to 3.
3.Mohamad Sultan,                                 
S/o.M.Ubayathulla,
3556-57,West 3rd st,
Pudukottai.                                                                          
4.Mohamad Zubair,
S/o.M.Ubayathulla,
3556-57,West 3rd st,
Pudukottai.    
5.Raja, S/o.Subbaraman,
3556-57,West 3rd st,
Pudukottai.                 
                                                               Versus

Food Inspector,
Tirunelveli Corporation.                                     …..  Respondent/Complainant

COUNTER AFFIDAVIT FILED BY THE RESPONDENT
            1.It is submitted that the petition filed by the petitioners/Accused 1 to 5 is not maintainable in law nor can it be sustainable on the facts.
            2. It is submitted that all the allegations contained in the memorandum of Criminal Original Petition, except those that are specifically admitted hereunder, shall be deemed to be denied.
            3.It is submitted that on 29.07.2008 at about 09.00 A.M, the respondent purchased fifteen packets of Tajmahal Special tobacco from the first accused/Petitioner No.5, who was selling it in Tn-55-M-6166 van near D.No.120,East car st, Tirunelveli Town after serving Form-VI notice and the Food Inspector paid Rs.150 /-(One hundred and fifty only) and obtained a cash receipt. The Second and third accused/Petitiner No.1& 3 are the Partners of the M.S.Brothers tobacco traders P. Ltd. which distributed the above tobacco. The third,fifth and sixth accused/Petitioner No.3,2&4 are the Partners of the M.U.Mohamad Sultan &Co. which manufactured the Tajmahal Special tobacco.
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The Food Inspector has divided the fifteen pre-packed packets into three equal parts by bundling five packets each together.  The Food Inspector sent one part to the Public Analyst and sent the remaining two parts to the Local Health Authority. The Public Analyst sent a report to the Local Health Authority.
4.      It is submitted that the Public Analyst report revealed that “the sample is not labeled as per Rule 32(f),(i)&42(zzz)17 of the PFA Rules 1955.”
            5. It is submitted that the respondent collected the material documents and facts and sent the necessary proposals to the concerned officer for obtaining written consent on 10.11.2008. The Joint – Director (PFA) , Chennai accorded necessary consent on   29.07.2009 to the Food Inspector for launching prosecution against all accused U/s.7(ii),16(i)(a)(i)r/w 2(ix)(k) & Rule 32(f) ,(i)&42(zzz)17  of the PFA Rules,1955. Accordingly, the case was filed on 05.11.2009.
6. It is most humbly submitted that the food sample of Tajmahal Special tobacco did not contain the month of manufacture, which is to be mentioned on the label of every package of food as per Rule 32(f) of the Prevention of Food Adulteration Rules, 1955, the food sample of Tajmahal Special tobacco did not contain the Best Before declaration, which is to be mentioned on the label of every package of food as per Rule 32(i) of the Prevention of Food Adulteration Rules, 1955 and also the food sample of Tajmahal Special tobacco did not contain the vegetarian food symbol, which is to be mentioned on the label of every package of food as per Rule 42(zzz)17 of the Prevention of Food Adulteration Rules, 1955. As the above details are not mentioned on the label of the food sample, the food sample has been reported as Misbranded under section 2(ix) (k) of the Prevention of Food Adulteration Act, 1954..
Sec.2(ix) of the Prevention of Food Adulteration Act, 1954:
            “misbranded”- an article of food shall be deemed to be misbranded-
          (k) if it is not labeled in accordance with the requirements of this Act  
           or rules made there under.
This attracts penal Sec.16(1)(a)(i) of the Prevention of Food Adulteration Act,1954. There is no provision in the said act to issue only warning to the 1st offender.
            S.16(1)(a)(i) of the Prevention of Food Adulteration Act,1954:

            16(1)-Subject to the provisions of  Sub-section (1-A). if any person-

(a)   whether by himself or by any person on his behalf, imports into India or manufactures for sale, or stores, sells or distributes any article of food-

(i)    which is adulterated within the meaning of sub-clause (m) of
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 clause ( ia ) of Section 2 or misbranded within the meaning of  clause (ix) of that section or the sale of which is prohibited under any provision of this Act or any other rule made there under or by an order of the Food (Health) Authority;
            . . . . . . .          
           he shall, in addition to the penalty to which he may be liable under the provisions of Section 6,be punishable with  imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than one thousand rupees.      
            Hence, the selling of misbranded food is a punishable offence under the Prevention of Food Adulteration Act, 1954 and the rules made there under.
7.   It is most humbly submitted that the Food Inspectors are empowered to  
      take samples of any article of food from any person who is in the course
      of conveying ,delivering or preparing to deliver such article to a  
      purchaser or consignee.
       Section.10(1)(a)(ii) of the Prevention of Food Adulteration                     
       Act,1954:
                  S.10(1) A food inspector shall have power –
                   (a) to take samples of any article of food from –
                   (ii) any person who is in the course of
                    conveying,delivering or preparing to deliver such article
                    to a purchaser or consignee;
                 R. 9(f) of the Prevention of Food Adulteration Rules, 1955:
                           9. It shall be the duty of the food inspector –
                         (g) to stop any vehicle suspected to contain any food  
                                intended for sale or delivery for human consumption.
      Hence, the petitioners cannot contend that the Food Inspector has flouted the mandatory procedure to be followed by taking the sample from a van which was distributing and selling the tobacco, as stated in Para 7 of the petition.
             It is most humbly submitted that the respondent complied all the formalities & procedures prescribed under the said Act and Rules and filed a written complaint against all the accused (A-1 to A-7) before the Judicial Magistrate No. IV, Tirunelveli, who took cognizance and issued summons to all the accused. The case was taken on file on 07.11.2009.
            Hence it is most humbly prayed that this Honourable Court may be pleased to dismiss the Crl.O.P.11867 of 2009 with Cost.
Solemnly affirmed at Madurai                                                         Food Inspector,
On this the . . . day of January 2010                                      Tirunelveli Corporation.
and signed his name in my presence.                                               Before me
                
                                                                                                             Attested
          



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2 comments:

sakthi said...

I have gone through the counter affidavit.It is very useful .Thank you.

FOOD said...

YOU WILL GET MORE INFORMATIONS IN THE DAYS TO COME