M/S ALKEM LABORATORIES LTD.versusSTATE OF MADHYA PRADESH AND ANR.

                         [2019] 14 S.C.R. 1081                            1081


               M/S ALKEM LABORATORIES LTD.                                A
                                  v.
           STATE OF MADHYA PRADESH AND ANR.
                 (Criminal Appeal No.1798 of 2019)
                       NOVEMBER 29, 2019                                  B
           [MOHAN M. SHANTANAGOUDAR AND
                KRISHNA MURARI, JJ.]
      Prevention of Food Adulteration Act, 1954: s.20A –
Impleadment of appellant who was marketer of packed food articles
                                                                          C
‘sugarless Jelly’ – The said food article was manufactured by a
separate entity – Prosecution case was that Food Inspector-
Respondent no.2 purchased packed jars of Jelly from the retailer
for testing – As per report of Public Analyst, the Jelly sample
contained sugar and therefore was misbranded – Retailer produced
a receipt showing that the jelly was purchased from appellant –           D
Complaint filed by respondent no.2 for offence of sale of misbranded
food article under s.16(1)(a)(ii) r/w s.2(ix)(g) and 7(ii) – During
the course of trial, after closing of prosecution witness, the Retailer
examined himself as a witness for the defence under s.315 Cr.P.C. –
Subsequently, the Retailer moved an application under s.20A for
                                                                          E
impleading the appellant as an accused, which was allowed by the
Special Magistrate – In the instant appeal, the plea of the appellant
was that the application for impleadment under s.20A could not
have been made by the Retailer – Held: Plea is not tenable – The
provisions of the 1954 Act clearly distinguish between a ‘vendor’
and ‘manufacturer’ of a food article – The very purpose of s.20A is       F
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.
      Prevention of Food Adulteration Act, 1954: s.2(ia) and s.2(ix)
– Adulterated and misbranded – A comparison of s.2(ia) of the             G
1954 Act which defines ‘adulterated’ and s.2(ix) which defines
‘misbranded’, shows that there is an overlap between the two
provisions – s.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’ – Whereas
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                                 1081
1082            SUPREME COURT REPORTS                        [2019] 14 S.C.R.


 A     s.2(i)(ix)(g) includes within the definition of ‘misbranded’ the label
       on the package bearing any statement, design or device regarding
       the ingredients or the substances contained therein, which is false
       or misleading in any material particular; or if the package is
       otherwise deceptive with respect to its contents.
 B            Prevention of Food Adulteration Act, 1954: s.11 – Prior notice
       to the accused – Held: Under the scheme of the 1954 Act, the
       accused has to be given prior notice, as provided under s.11, that
       samples of a food article manufactured and/or sold by them have
       been sent for analysis, before the Public Analyst prepares report –
       The 1954 Act does not envisage a situation such as the present case
 C     where the sample is sent for analysis, and the Public Analyst’s report
       is also prepared, but the marketer is informed several years later
       that prosecution is sought to be instituted against them – During
       such period, the food article being perishable in nature would most
       probably be incapable of being sent for re-testing to the Central
 D     Laboratory.
              Prevention of Food Adulteration Act, 1954: s.13(1) to (3) –
       Whether denial of right to get Jelly sample tested by the Central
       Laboratory under s.13(2) of the 1954 Act would entitled quashing
       of proceedings against the appellant for the offence of misbranding
 E     – What is 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 – Held:
       It is absurd and discriminatory for the prosecution to, on one hand,
       rely on the report of the Public Analyst under s.13(1) for proving
       the offence of ‘misbranding’, and on the other hand, claim that the
 F     accused cannot avail of their right to challenge the said report as
       per ss.13(2) and 13(3) because it is not a case of ‘adulteration’ – In
       such a scenario, the word ‘adulterated’ in s.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 s.13 have
 G     to be complied with in their entirety – Therefore, where examination
       of the contents/ingredients of the food article is integral to proving
       the offence ‘misbranding’, the procedure prescribed under ss.11 to
       13 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 s.13(2) – The
 H
        M/S ALKEM LABORATORIES LTD. v. STATE OF                           1083
                  MADHYA PRADESH

same test would apply in respect of any other offence for which           A
penalty is prescribed under the 1954 Act – Interpretation of Statutes.
       Prevention of Food Adulteration Act, 1954: s.2(ix)(g) –
Misbranding – Label on the packaging that the Jelly is ‘sugarless’
– Case of Respondents based on Public Analyst’s Report that the
Jelly contained ‘sugar/sucrose’ – Whether appellant was entitled to       B
get Jelly sample tested by the Central Laboratory under s.13(2) of
the 1954 Act – Held: Public Analyst’s finding on whether ‘sugar’ as
an ingredient is present in the Jelly sample is crucial to proving the
offence of ‘misbranding’ against the Appellant – Thus, the Appellant
ought to have been given opportunity to make an application under
s.13(2) for a second opinion from the Central Laboratory on the           C
contents of the Jelly sample.
       Interpretation of Statutes: Ambiguity in a penal statute – It is
settled principle of statutory interpretation that any ambiguity in a
penal statute has to be interpreted in favour of the accused.
                                                                          D
      Allowing the appeal, the Court
       HELD: 1. The Appellant’s contention that an application
under Section 20A could not have been made by a retailer is
misguided. The provisions of the 1954 Act clearly distinguish
between a ‘vendor’ and ‘manufacturer’ of a food article. The very         E
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. Admittedly, the prosecution may have to
prove, for the purpose of trying the Retailer and the Appellant in
a joint trial, that they shared a common object that the misbranded       F
Jelly should reach consumers as food. However, this question
need not be looked into at the stage of mere impleadment of the
Appellant for the offence of misbranding. [Para 5] [1090-D-F]
      Bhagwan Das Jagdish Chander v. Delhi Administration
      (1975) 1 SCC 866 : [1975] Suppl. SCR 30 –                           G
      relied on.
      2. It is explained in the Statement of Objects and Reasons
of the 1954 Act that prior to its enactment, there were numerous
State legislations on the subject of prevention of adulteration of
                                                                          H
1084            SUPREME COURT REPORTS                     [2019] 14 S.C.R.


 A     food-stuffs but these lacked uniformity. Hence the need for a
       Central legislation was felt which could inter alia, provide for a
       uniform procedure and the constitution of ‘a Central Food
       Laboratory to which food samples can be referred to for final
       opinion in disputed cases.’ [Para 6] [1091-B]
 B            3. Section 11 stipulates the procedure to be followed by
       Food Inspectors while taking food samples for analysis. The first
       step of the procedure is to immediately notify on the spot, not
       only the vendor but also the person whose particulars are
       disclosed under Section 14A (which would include a distributor/
       marketer such as the Appellant), that a sample is being sent for
 C     analysis. The sample is then divided into three parts-while the
       first part is sent to the Public Analyst, the other two are deposited
       with the Local Health Authority as a contingency in case the first
       part is lost or damaged. Section 13 of the 1954 Act prescribes
       the subsequent procedure to be followed after the Public Analyst
 D     prepares their report. Therefore, the purpose of Section 13 is to
       give a second opportunity to accused persons, against whom
       prosecution is initiated under the 1954 Act based on the Public
       Analyst’s report, to get the relevant food sample tested again by
       the Central Laboratory. Since the Central Laboratory’s report
       will have precedence over that of the Public Analyst, this is a
 E     valuable opportunity for accused persons to claim exoneration
       from criminal proceedings. Under the scheme of the 1954 Act,
       the accused has to be given prior notice, as provided under Section
       11, that samples of a food article manufactured and/or sold by
       them have been sent for analysis, before the Public Analyst
 F     prepares their report. The 1954 Act does not envisage a situation
       such as the instant case where the sample is sent for analysis,
       and the Public Analyst’s report is also prepared, but the marketer
       is informed several years later that prosecution is sought to be
       instituted against them. During such period, the food article being
       perishable in nature would most probably be incapable of being
 G     sent for re-testing to the Central Laboratory. [Paras 6, 7]
       [1091-E-G; 1092-F-H; 1093-A-B]
             Municipal Corporation of Delhi v. Ghisa Ram, AIR 1967
             SC 970; Girishbhai Dahyabhai Shah v. C.C. Jani (2009)
             15 SCC 64 : [2009] 12 SCR 229 – relied on.
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        M/S ALKEM LABORATORIES LTD. v. STATE OF                         1085
                  MADHYA PRADESH

      4. Upon a comparison of Section 2(ia) of the 1954 Act which       A
defines ‘adulterated’ and Section 2(ix) which defines ‘misbranded’,
there is an overlap between the two provisions. [Para 7]
[1093-E]
       5. The question which arises then is, what is the procedure
to be followed in cases where proving ‘misbranding’ requires            B
testing of the relevant food samples, but the corresponding charge
of ‘adulteration’ has not been made? Section 13(2) is unfortunately
silent in this regard. It is a settled principle of statutory
interpretation that any ambiguity in a penal statute has to be
interpreted in favour of the accused. It is absurd and
discriminatory for the prosecution to, on one hand, rely on the         C
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   D
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 where examination of the contents/
ingredients of the food article is integral to proving the offence
‘misbranding’, the procedure prescribed under Sections 11-13            E
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).
This rule would not apply if proving the offence does not
necessarily require sampling of the food article. [Para 8] [1094-       F
C-H]
       6.1 Applying the above-mentioned test to the instant case,
it has to be seen whether first, the Appellant was entitled to apply
for testing of the Jelly by the Central Laboratory under Section
13(2); second, whether the denial of the right was the                  G
Respondents’ fault and third, whether such denial is prejudicial
to the Appellant’s case. With respect to the first point, the
Respondents have relied upon the Public Analyst’s Report which
states that the Jelly contains ‘sugar/sucrose’, so as to institute a
complaint for misbranding under Section 2(ix)(g) of the 1954 Act.
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1086            SUPREME COURT REPORTS                       [2019] 14 S.C.R.


 A     This is because the label on the packaging claims that the Jelly
       is ‘sugarless’. Hence, the Public Analyst’s finding on whether
       ‘sugar’ as an ingredient is present in the Jelly sample is crucial
       to proving the offence of ‘misbranding’ against the Appellant.
       Thus, the Appellant ought to have had the opportunity to make
       an application under Section 13(2) for a second opinion from the
 B
       Central Laboratory on the contents of the Jelly sample.
       [Para 9] [1095-B-D]
             6.2 With respect to the second point, Respondent No. 2
       erred in not making query to the Retailer, at the first instance,
       about the marketer of the Jelly, as she was empowered to do
 C     under Section 14A of the 1954 Act. If she had done so, the
       Appellant could have been notified in 2008 itself that the Jelly is
       being taken for analysis. Even if this lapse is condoned, once the
       Retailer had intimated the Respondents that the Appellant was
       the marketer of the Jelly, they ought to have made more efforts
 D     in notifying the Appellant of the alleged irregularity found in the
       Jelly sample, as per Section 13(2). There is no merit in the
       Respondents’ submission that the delay in informing the Appellant
       was because the Appellant was deliberately avoiding service of
       notice. Even if the address produced by the Retailer was of the
       Appellant’s Indore Branch, the label on the packaging of the Jelly
 E     clearly indicated that the official address for communication would
       be “Alkem House, … Mumbai..”. Hence even if no response
       was being received from the Indore branch, the Respondents
       could have attempted to send the details of the Public Analyst’s
       Report to the Appellant’s Mumbai address. Thus, it is clear that
 F     the Appellant lost their chance to get the Jelly sample re-tested
       under Section 13(2) on account of the Respondents’ negligence.
       Finally, with regard to the third point, it is true that non-compliance
       with Section 13(2) would not be fatal in every case, if it is found
       that the sample is still fit for analysis. However the Respondents
       have not disputed that the shelf life of the Jelly sample would
 G     have, in all probability, expired at this stage. Hence that this is a
       fit case for quashing of proceedings against the Appellant on
       account of denial of their valuable right under Section 13(2). The
       impugned judgment and the impleadment order are set aside.
       [Paras 9 and 10] [1095-E-H; 1096-A-C]
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        M/S ALKEM LABORATORIES LTD. v. STATE OF                                1087
                  MADHYA PRADESH

      T. V. Usman v. Food Inspector, Tellicherry Municipality,                 A
      Tellicherry (1994) 1 SCC 754 – relied on.
                          Case Law Reference
      [1975] Suppl. SCR 30               relied on        Para 5
      AIR 1967 SC 970                    relied on        Para 7               B
      [2009] 12 SCR 229                  relied on        Para 7
      1994) 1 SCC 754                    relied on        Para 9


     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal                          C
No.1798 of 2019
      From the Judgment and Order dated 11.04.2018 of the High Court
of Madhya Pradesh, Principal Seat at Jabalpur in Criminal Miscellaneous
Case No.1003 of 2018.
      C.U. Singh, Anupam Lal Das, Sr. Advs., Arun Siwach, Kunal                D
Cheema, Anirudh Singh, Krishanu Barua, Ms. Ila Sheel, Amjid Maqbool,
Ms. Vidushi, Advs. for the Appellant.
      Parthiv K. Goswami Rahul Kaushik, Advs. for the Respondents.
      The Judgment of the Court was delivered by                               E
      MOHAN M. SHANTANAGOUDAR, J.
      1. Leave granted.
      2. This appeal by special leave arises out of judgment dated
11.04.2018 of the High Court of Madhya Pradesh at Jabalpur, dismissing
                                                                               F
the Appellant’s application under Section 482 of the Criminal Procedure
Code (‘CrPC’) for quashing of order dated 01.09.2015 of the Special
Magistrate (Prevention of Food Adulteration Act), Bhopal.
       3. The facts giving rise to this appeal are as follows: The Appellant
was the marketer of packed food article ‘Orange Tammy Sugarless
Jelly’ (‘Jelly’). The Jelly was manufactured separately by one Cachet          G
Pharmaceuticals Private Limited (‘Manufacturer’), which is not
connected to the Appellant entity. On 3.10.2008, Respondent No. 2 Food
Inspector, (from the Food and Drugs Administration, Bhopal District),
conducted inspection in Valecha Enterprises in Bhopal, the proprietor of
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1088            SUPREME COURT REPORTS                          [2019] 14 S.C.R.


 A     which is one Mr. Dinesh Valecha (‘Retailer’). Respondent No. 2
       purchased three company packed jars of the Jelly, weighing 350 grams
       each, from the Retailer and the said samples were deposited with the
       State Food Testing Laboratory (‘State Laboratory’) and the Local Health
       Authority, Bhopal for the purpose of testing. At this stage, the Retailer
       did not have receipt of purchase from the Appellant/marketer and stated
 B
       that they would produce it before Respondent No. 2 at a later stage.
              The Local Health Authority by letter dated 26.11.2008 informed
       Respondent No. 2 that the Report of the Public Analyst, State Laboratory
       had found ‘sugar’ in the Jelly sample, hence the Jelly was misbranded.
       Notably, it was pursuant to this letter that, Respondent No. 2 made
 C     further query and the Retailer produced a receipt showing that the Jelly
       was purchased from the Appellant. Respondent No. 2 sent a letter to
       the Local Health Authority and to the Indore branch of the Appellant
       company, for information as regards the Manager/Director/Partner or
       nominee of the Appellant. However, as the Respondents claim, the
 D     Appellant did not respond to this query and the letter was received back.
       The attempts of Respondent No. 2 to obtain information about the
       Appellant from the Office of the Deputy Director, Food and Drugs
       Administration and the Commissioner, Nagar Nigam, Indore also failed.
              Consequently, Respondent No. 2 filed a complaint in the Court of
 E     the Judicial Magistrate, First Class, Bhopal for the 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, 1954 (‘1954
       Act’). During the course of the trial, after the closing of the prosecution
       evidence, the Retailer examined himself as a witness for the defence
       under Section 315 of the CrPC. Subsequently on 26.8.2014, the Retailer
 F     moved an application under Section 20A of the 1954 Act for impleading
       the Appellant as an accused, which was allowed by the Special Magistrate
       (Prevention of Food Adulteration Act), Bhopal by order dated 1.9.2015.
       Hence the Appellant approached the High Court under Section 482 of
       the CrPC for quashing the said order.
 G            The High Court in the impugned judgment held that firstly, mens
       rea was not an ingredient of the offence under Section 7 of the 1954
       Act. Therefore the Appellant could not avail of the defense that since
       they were only the marketer of the Jelly, they were not privy to the
       ingredients thereof. Secondly, that the Appellant could not have availed
 H     of the right to get the sample re-tested by the Central Food Laboratory
     M/S ALKEM LABORATORIES LTD. v. STATE OF                                  1089
 MADHYA PRADESH [MOHAN M. SHANTANAGOUDAR, J.]

(‘Central Laboratory’) under Section 13(2) of the 1954 Act as the same        A
was only available to the vendor of an ‘adulterated’ food article and not
a ‘misbranded’ one. Hence the denial of the said right would not prejudice
the case against the Appellant.
        Thirdly, that the delay of 5 years in arraying the Appellant as co-
accused would also not be fatal inasmuch as Respondent No. 2 had              B
made best attempts to contact the Appellant, and the Appellant’s name
was probably omitted to avoid delay in filing the complaint. Lastly, that
the application under Section 20A was maintainable as the Court may
be satisfied on the basis of evidence adduced by either of the parties,
including the prosecution, that the distributor/dealer of a food article is
also concerned with the offence and such evidence need not be adduced         C
by the applicant only. In any case the applicant/Retailer had given his
evidence prior to impleadment. Hence the High Court declined to exercise
its inherent powers under Section 482 of CrPC and quash the impleadment
order dated 01.09.2015. However, this Court has directed stay of
proceedings before the trial court against the Appellant during pendency      D
of this appeal.
       4. Learned senior counsel for the Appellant, Mr. C.U. Singh argued
that the application for impleadment under Section 20A was not
maintainable at the outset as such an application can only be made by a
person who is not the ‘manufacturer, distributor or dealer’ of the food       E
article, and the Retailer would be included in the phrase ‘manufacturer,
distributor or dealer’. That in any case, as a catena of decisions dealing
with the 1954 Act as well as similar legislations such as the Seeds Act,
1966 and the Insecticides Act, 1968 have held, where an accused is
denied their statutory right to get a sample re-tested by a Central testing
laboratory on account of delay, such denial will render prosecution of        F
the offence futile. He argued that the right under Section 13(2) of the
1954 Act is not restricted to cases of ‘adulterated’ food articles but
applies to testing of samples for other offences under the 1954 Act as
well; hence the order impleading the Appellant is liable to be quashed.
       Further, that the delay in impleading the Appellant was attributable   G
to the Respondents’ negligence as the label on the packaging of the Jelly
clearly stated that their registered office was in Mumbai whereas the
Respondents’ communications were addressed to their Indore branch
which is an old address.
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1090             SUPREME COURT REPORTS                          [2019] 14 S.C.R.


 A            Per contra, learned counsel for the Respondents stressed that a
       plain reading of Section 13(2) shows that the right available thereunder
       is only in respect of ‘adulterated’ food samples. Whereas in other
       provisions of the 1954 Act, where a provision is meant to be additionally
       applicable to misbranded food articles, the word ‘misbranded’ has been
       separately mentioned after ‘adulterated’. Hence, the legislative intent to
 B
       exclude misbranding from the purview of re-testing by the Central
       Laboratory is clear. Further that though the packaging on the Jelly stated
       that the Appellant had their office in Mumbai, the food license produced
       by the Retailer before Respondent No.2/Food Inspector showed that
       their address was in Indore and the cause title of the Appellant’s
 C     application under Section 482, CrPC states that their branch office/
       manufacturing unit is located at Indore; hence they cannot be blamed
       for the delay in impleading the Appellant. In any case, the High Court’s
       powers under Section 482 against an interlocutory order are to be
       exercised sparingly, and it was open to the Appellant to prove their
       innocence at the stage of trial.
 D
              5. At the outset, it must be noted that the Appellant’s contention
       that an application under Section 20A could not have been made by a
       retailer is misguided. 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
 E     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. Admittedly,
       the prosecution may have to prove, for the purpose of trying the Retailer
       and the Appellant in a joint trial, that they shared a common object that
       the misbranded Jelly should reach consumers as food, as per this Court’s
 F     decision in Bhagwan Das Jagdish Chander v. Delhi Administration,
       (1975) 1 SCC 866. However, we find that this question need not be
       looked into at the stage of mere impleadment of the Appellant for the
       offence of misbranding.
             It is pertinent to note that in Bhagwan Das Jagdish Chander,
 G     M.H. Beg J. in his majority opinion directed quashing of charge against
       the Appellant distributor on the ground that on account of long passage
       of time since the initiation of prosecution, it would be difficult for the
       Appellant to challenge the correctness of the Public Analyst’s Report.
       Hence the primary issue which arises for our consideration is whether
       the denial of the right to get the Jelly sample tested by the Central
 H
     M/S ALKEM LABORATORIES LTD. v. STATE OF                                   1091
 MADHYA PRADESH [MOHAN M. SHANTANAGOUDAR, J.]

Laboratory, under Section 13(2) of the 1954 Act, would entitle quashing        A
of proceedings against the Appellant for the offence of ‘misbranding’?
       6. Before we turn to the substantial question of law involved in
the appeal, it may be useful to refer to the relevant provisions of the
1954 Act. It is explained in the Statement of Objects and Reasons of the
1954 Act that prior to its enactment, there were numerous State legislations   B
on the subject of prevention of adulteration of food-stuffs but these lacked
uniformity. Hence the need for a Central legislation was felt which could
inter alia, provide for a uniform procedure and the constitution of ‘a
Central Food Laboratory to which food samples can be referred to for
final opinion in disputed cases.’
                                                                               C
       Section 8 of the 1954 Act provides for the appointment of Public
Analysts by the Central or the State Government as the case may be,
for the purpose of carrying out analysis and testing of food samples in a
given local area. Section 9 provides for the appointment of Food
Inspectors for the purpose of inter alia, carrying out inspection of
establishments where food articles are manufactured or sold, and seizing       D
food articles which require analysis. Section 14A mandates vendors of
food articles to disclose the name and other particulars of the person
from whom the food article was purchased, if the Food Inspector so
requires.
       Section 11 stipulates the procedure to be followed by Food              E
Inspectors while taking food samples for analysis. It is important to note
that the first step of the procedure is to immediately notify on the spot,
not only the vendor but also the person whose particulars are disclosed
under Section 14A (which would include a distributor/marketer such as
the Appellant), that a sample is being sent for analysis. The sample is        F
then divided into three parts-while the first part is sent to the Public
Analyst, the other two are deposited with the Local Health Authority as
a contingency in case the first part is lost or damaged.
        It is this backdrop that Section 13 of the 1954 Act prescribes the
subsequent procedure to be followed after the Public Analyst prepares          G
their report:
      “(1) The public analyst shall deliver, in such form as may be
      prescribed, a report to the Local (Health) Authority of the result
      of the analysis of any article of food submitted to him for analysis.
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1092            SUPREME COURT REPORTS                            [2019] 14 S.C.R.


 A           (2) On receipt of the report of the result of the analysis under
             sub-section (1) to the effect that the article of food is adulterated,
             the Local (Health) Authority shall, after the institution of prosecution
             against the persons from whom the sample of the article of food
             was taken and the person, if any, whose name, address and other
             particulars have been disclosed under section 14A, forward, in
 B
             such manner as may be prescribed, a copy of the report of the
             result of the analysis to such person or persons, as the case may
             be, informing such person or persons that if it is so desired, either
             or both of them may make an application to the court within a
             period of ten days from the date of receipt of the copy of the
 C           report to get the sample of the article of food kept by the Local
             (Health) Authority analysed by the Central Food Laboratory.
             (2B) On receipt of the part or parts of the sample from the Local
             (Health) Authority under sub-section (2A), the court shall first
             ascertain that the mark and seal or fastening as provided in clause
 D           (b) of sub-section (1) of section 11 are intact and the signature or
             thumb impression, as the case may be, is not tampered with, and
             despatch the part or, as the case may be, one of the parts of the
             sample under its own seal to the Director of the Central Food
             Laboratory who shall thereupon send a certificate to the court in
             the prescribed form within one month from the date of receipt of
 E           the part of the sample specifying the result of the analysis.
             (3) The certificate issued by the Director of the Central Food
             Laboratory under sub-section (2B) shall supersede the report given
             by the public analyst under sub-section (1).”

 F            Therefore the purpose of Section 13 is to give a second opportunity
       to accused persons, against whom prosecution is initiated under the 1954
       Act based on the Public Analyst’s report, to get the relevant food sample
       tested again by the Central Laboratory. Since the Central Laboratory’s
       report will have precedence over that of the Public Analyst, this is a
       valuable opportunity for accused persons to claim exoneration from
 G     criminal proceedings.
              7. It can be seen from the above-mentioned provisions that under
       the scheme of the 1954 Act, the accused has to be given prior notice, as
       provided under Section 11, that samples of a food article manufactured
       and/or sold by them have been sent for analysis, before the Public Analyst
 H
     M/S ALKEM LABORATORIES LTD. v. STATE OF                                   1093
 MADHYA PRADESH [MOHAN M. SHANTANAGOUDAR, J.]

prepares their report. The 1954 Act does not envisage a situation such         A
as the present case where the sample is sent for analysis, and the Public
Analyst’s report is also prepared, but the marketer is informed several
years later that prosecution is sought to be instituted against them. During
such period, the food article being perishable in nature would most
probably be incapable of being sent for re-testing to the Central
                                                                               B
Laboratory.
        Thus, it has been settled by this Court in Municipal Corporation
of Delhi v. Ghisa Ram, AIR 1967 SC 970, that where inordinate delay
in instituting prosecution has resulted in denial of the right under Section
13(2), it is deemed to have caused serious prejudice to the accused such
that their conviction on the basis of the Public Analyst’s report cannot be    C
upheld. In Girishbhai Dahyabhai Shah v. C.C. Jani, (2009) 15 SCC
64, this Court affirmed that a delay in sending a report of the Public
Analyst to the accused, such that he is no longer in a position to apply for
re-testing under Section 13(2) of the 1954 Act, would entitle quashing of
criminal proceedings under Section 482 of the CrPC. However the above-         D
mentioned decisions dealt with the offence of adulteration simplicitor
and did not touch upon the question of the consequence of non-
compliance with Section 13(2) in cases involving other offences.
        However, upon a comparison of Section 2(ia) of the 1954 Act
which defines ‘adulterated’ and Section 2(ix) which defines ‘misbranded’,      E
we find that there is an overlap between the two provisions. 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.’ Whereas Section 2(i)(ix)(g) includes within the
definition of ‘misbranded’ the following:
                                                                               F
      “if the package containing it, or the label on the package bears
      any statement, design or device regarding the ingredients or the
      substances contained therein, which is false or misleading in any
      material particular; or if the package is otherwise deceptive with
      respect to its contents.”
                                                                               G
       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
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1094             SUPREME COURT REPORTS                          [2019] 14 S.C.R.


 A     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
 B     ‘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.
 C
              8. The question which arises then is, what is 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? Section 13(2) is unfortunately silent in this regard. It
       is a settled principle of statutory interpretation that any ambiguity in a
 D     penal statute has to be interpreted in favour of the accused. 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
 E     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.

 F            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 11-13
       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
 G     would apply in respect of any other offence for which penalty is prescribed
       under the 1954 Act.
             It is needless to say that this rule would not apply if proving the
       offence does not necessarily require sampling of the food article. For

 H
     M/S ALKEM LABORATORIES LTD. v. STATE OF                                     1095
 MADHYA PRADESH [MOHAN M. SHANTANAGOUDAR, J.]

example, if the offence is one of ‘bearing the name of a fictitious individual   A
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.
       9. Applying the above-mentioned test to the present case, it has to       B
be seen whether first, the Appellant was entitled to apply for testing of
the Jelly by the Central Laboratory under Section 13(2); second, whether
the denial of the right was the Respondents’ fault and third, whether
such denial is prejudicial to the Appellant’s case. With respect to the first
point, the Respondents have relied upon the Public Analyst’s Report
which states that the Jelly contains ‘sugar/sucrose’, so as to institute a       C
complaint for misbranding under Section 2(ix)(g) of the 1954 Act. This
is because the label on the packaging claims that the Jelly is ‘sugarless’.
Hence, the Public Analyst’s finding on whether ‘sugar’ as an ingredient
is present in the Jelly sample is crucial to proving the offence of
‘misbranding’ against the Appellant. Thus, the Appellant ought to have           D
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.
       With respect to the second point, we are of the view that
Respondent No. 2 erred in not making query to the Retailer, at the first         E
instance, about the marketer of the Jelly, as she was empowered to do
under Section 14A of the 1954 Act. If she had done so, the Appellant
could have been notified in 2008 itself that the Jelly is being taken for
analysis. Even if this lapse is condoned, once the Retailer had intimated
the Respondents that the Appellant was the marketer of the Jelly, they
ought to have made more efforts in notifying the Appellant of the alleged        F
irregularity found in the Jelly sample, as per Section 13(2). We do not
find merit in the Respondents’ submission that the delay in informing the
Appellant was because the Appellant was deliberately avoiding service
of notice. Even if the address produced by the Retailer was of the
Appellant’s Indore Branch, the label on the packaging of the Jelly clearly       G
indicated that the official address for communication would be “Alkem
House, Senapati Bapat Marg, Lower Parel, Mumbai-400013”. Hence
even if no response was being received from the Indore branch, the
Respondents could have attempted to send the details of the Public

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1096              SUPREME COURT REPORTS                          [2019] 14 S.C.R.


 A     Analyst’s Report to the Appellant’s Mumbai address. Thus it is clear
       that the Appellant lost their chance to get the Jelly sample re-tested
       under Section 13(2) on account of the Respondents’ negligence.
              Finally, with regard to the third point, it is true that non-compliance
       with Section 13(2) would not be fatal in every case, if it is found that the
 B     sample is still fit for analysis (T. V. Usman v. Food Inspector,
       Tellicherry Municipality, Tellicherry, (1994) 1 SCC 754). However
       the Respondents have not disputed that the shelf life of the Jelly sample
       would have, in all probability, expired at this stage. Hence we find that
       this is a fit case for quashing of proceedings against the Appellant on
       account of denial of their valuable right under Section 13(2).
 C
             10. The appeal is allowed, and the impugned judgment dated
       11.04.2018 and the impleadment order dated 01.09.2015 are set aside, in
       the above terms.


 D     Devika Gujral                                                   Appeal allowed.




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