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G.D. SHANBHAG versus THE FOOD INSPECTOR

High Court of Kerala

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G.D. SHANBHAG v. THE FOOD INSPECTOR - Crl MC No. 7849 of 2001 [2006] RD-KL 3313 (13 December 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl MC No. 7849 of 2001()

1. G.D. SHANBHAG
... Petitioner

Vs

1. THE FOOD INSPECTOR
... Respondent

For Petitioner :SRI.M.T.SURESHKUMAR

For Respondent :PUBLIC PROSECUTOR

The Hon'ble MR. Justice K.R.UDAYABHANU

Dated :13/12/2006

O R D E R

K.R. UDAYABHANU, J.

CRL.M.C.NO.7849 of 2001

DATED THIS THE 13TH DAY OF DECEMBER 2006

ORDER

The petitioners, who are the accused in C.C.No.248 of 2001 in the Court of the Chief Judicial Magistrate, Kottayam with respect to the offences under Sections 2(ia)(a)(m), 7(i)and 26 (1)(a)(i) of the Prevention of Food Adulteration Act, have sought for setting aside the above proceedings.

2. The prosecution case is that the Food Inspector purchased three packets of glucovita glucose-D from the shop by name Vaypookara Medicals situated in Kottayam Municipality and on subjecting the same for examination by the Public Analyst, it was found that the same did not conform to the standard prescribed for `Dextrose' under the P.F.A. Act and Rules and hence the same is adulterated. According to the petitioners, the above charge is not sustainable as glucovita glucose-D and dextrose are entirely different food articles. It is pointed out that the ingredients of glucovita-glucose-D as CRMC 7849/01 -2- mentioned in the complaint are as follows:

"Sugar, Dextrose Monohyderate, Malic acid, Calcium Phosphate, Fruit juice powder,Sodium Citrate, Common salt, Emulsifying and Stabilizing agents, vitamins and minerals" Glucovita-glucose-D manufactured by the 2nd petitioner Company is an energy drink powder for which no standard has been prescribed under the P.F.A. Act and Rules. The same is a proprietary food as mentioned in Rule 37(a) Explanation (b) of P.F.A.Rules. The proprietary food is a food which has not been standardised under the P.F.A.Rules. The standard of dextrose as per Rule 5 of Appendix-B is A.07.07 which is as follows: "A.07.07-Dextrose is a white or light cream granular

powder, odourless and having a sweet taste. When heated with potassium cupritartarate solution it shall produce a copious Precipitate of cuprous oxide. It shall conform to the following standards:- Sulphate ash - Not more than 0/1 per cent on dry basis. Acidity- 0.5 gm.dissolved in 50 ml.of freshly boiled and cooled water re requires for neutralization not more than 0.20 CRMC 7849/01 -3- ml.of N/10 Sodium hydroxide to phenolphthalein indicator. Glucose Not less than 99.0 per cent on dry basis. Sulphur dioxide content shall not exceed 70p.p.m."

3. The standard of dextrose shows that it is an article of food containing not less than 99 per cent of glucose on dry basis. As glucovita-glucose-D is a proprietary food of which Dextrose mono-hydrate is only one among the several ingredients. Hence, it cannot be tested on the standards prescribed for dextrose. The first petitioner is the Vice President (Technical) of the manufacturer and the 2nd petitioner is the company that manufactured the impugned article of food.

4. Counsel appearing for the Food Inspector has opposed the application.

5. I find that the proceedings have been initiated against the vendor, distributor and manufacturer. The article was purchased from a medical shop. Annexure-B is a certificate of the Public Analyst as per which the percentage of glucose is only 18.6 per cent on dry basis in the sample whereas as per CRMC 7849/01 -4- Appendix-B, the standard for dextrose, i.e.A.07.07, the content on glucose and dextrose is not less than 99.0 per cent on dry basis. Evidently on testing on the basis standard of dextrose, the article seized and analysed is adulterated. Counsel for the petitioner has relied on the decision in Hindustan Lever v. food Inspector [ (2004) 13 SCC 83] wherein the Apex Court has held that the instant diary whitener is an article for which no standards has been laid and hence the standard for skimmed milk powder cannot be applied to instant dairy whitener as it contained only partly skimmed milk powder with other ingredients. The decision of this Court in Crl.M.C.No.5499/2000 with respect to ice cream mix was also relied on wherein this Court has held that the standard specified for dried ice cream mix cannot be applied for Rex ice cream mix. The decision in Viswambharan Pillai

v. Food Inspector[2006(3)KLT 72] was also relied on wherein this Court has held that the pineapple cool drink sold by the petitioner therein cannot be tested with the standard prescribed for "fruit drink" as such. The sample obtained was 1800 ml.of "pineapple cool drink" that was prepared using CRMC 7849/01 -5- "Happy pineapple soft drink concentrate", sugar and water. Counsel has specifically relied on the decision of the Madras High Court in Corn Products Company, Bombay v. Food Inspector, Tirunelveli Municipality, Tirunelveli, 1993 Crl.L.J.1106, wherein the court has held that glucovita glucose-D is a proprietary food and hence the standard for dextrose cannot be applied. It has been held that the same has not been standardised in the Act. The content of the same was found to be dextrose mono-hydrate - 99.4 gms., calcium phosphate - 0.6 gms., vitamin D3(cholecalciferol) - 88.11U and that the same is not glucose simpliciter otherwise called dextrose. It was held that the above product cannot be said to be either a primary article of food or an article of food under a misbranded name .

6. On the other hand, counsel for the respondent has relied on the decision of this Court in Food Inspector, Corporation of Calicut v. Kochunni & Another, 1984 K.L.T.871 wherein the court has exhaustively analysed the matter involved. Therein the sample analysed was glucose-C.D kept for sale. It was cane sugar that was the major content, CRMC 7849/01 -6-

i.e.99.8 per cent by weight on dry basis and the test for glucose was negative. Dextrose is another name for glucose. This Court rejected the contention of the manufacturers/accused absolutely. I am unable to support the reasoning of the Madras High Court in Corn Products Company , Bombay (op.cit). It has also to be noted that in the sample tested in the above case contained 99.4 gms. of dextrose also. In the instant case, the content of dextrose/glucose is only 18.6 per cent. As explained in Kochunni's case (op.cit), the accused should not be permitted to get over the provisions of the P.F.A.Act and Rules by describing the article in another name and duping the customers incorporating the name glucose. It is pertinent to note that the same is sold through a medical store. Hence, I find that the contention that glucovita-glucose-D is only a proprietary food and the standards of dextrose cannot be applied, cannot be upheld. In the result the Crl.M.C.is dismissed.

ks. K.R.UDAYABHANU, JUDGE

CRMC 7849/01 -7-

K.R.UDAYABHANU, J


====================
CRL.M.C.NO.7849 OF 2001- A

ORDER


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13-12-2006
================


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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