This revision petition has been filed by the petitioner, Amway India Enterprises Pvt. Ltd.          against the order dated 3.8.2009  passed by the State Consumer Disputes Redressal Commission, Circuit Bench Vijayawada, Andhra Pradesh (for short, ‘State Commission’) in First Appeal No.1700 of 2007.

2.      Brief facts of the case are that the respondent/complainant obtained a reply under RTI Act from the Chief Public Analyst of State Food Testing Laboratory about the test results of samples of products of the petitioner/OP company having been tested by the laboratory. The Chief Public Analyst gave a reply that the samples were tested between 23.12.2006 and 6.3.2007 and most of the samples tested were found to be in compliance with the provisions of the Prevention of Food Adulteration Act, but three samples were found to be misbranded or adulterated as per the following details :

3.      Based on the information received from the Chief Public Analyst of the State Food Testing Laboratory of Andhra Pradesh, Respondent/complainant filed complaint baring No.140 of 2007 before the District Forum, Vijayawada(for short ‘District Forum ‘). The complaint was resisted by petitioner/OP on the ground  that the complainant was not a consumer and that criminal complaint was also lodged by the State Government which was pending before the competent court and hence, the proceedings under the Consumer Protection Act, 1986 were not maintainable.

4.      The District Forum after considering the submissions of both the parties allowed the complaint vide its order dated 16.10.2007 as under:

“In the result the C.C. is allowed and the opposite parties 1 and 2 are directed to remove the adulterated products and misbranded products as pointed out in Ex.A3 by the State Food Laboratory from the market. Opposite parties 1 and 2 are further directed not to indulge in such unfair trade practices in future.  Opposite parties are further directed to issue a corrective advertisement regarding the products misbranded or misstated. It is a fit case to impose Rs.1,00,000/- (Rupees one lakh only) as exemplary damages and the opposite parties are directed to deposit this amount in the Consumer Welfare Fund under the control of Joint Collector, Krishna. Complainant is entitled to costs of Rs.2,000/-. Time for compliance 30 days.

5.      Aggrieved by the above order of the District Forum, the OP preferred an appeal bearing no.1700 of 2007 before the State Commission and the State Commission vide its order dated 3.8.2009 partly allowed the appeal as under:

     “Hence, we find no merit in the appeal and hold that the appeal is liable to be dismissed. However, we do not find it proper for the District Forum to award  Rs.one lakh as exemplary damages in the absence of any evidence to show that the respondent suffered any loss. Hence, we set aside this part of the order dealing with the imposition of Rs.one lakh as exemplary damages. Rest of the order is upheld.

      In the result, the appeal is partly allowed. The order of the District Forum is modified. The appellants no.1 and 2 are directed to not to indulge any unfair trade practice and issue corrective advertisement  relating to the products misbranded by the State Food Laboratory. No order as to costs.”

6.      Hence, the present revision petition.

7.      Heard the learned counsel for the petitioner. The respondent/complainant was proceeded ex parte on 12.1.2017. However, on the next date i.e. 28.3.2017 learned advocate  Ch. Leela Sarveswar appeared on behalf of the respondent and noted the next date of hearing which was fixed as 29.5.2017. However, at the time of hearing, none was present on behalf of the respondent/complainant.

8.      Learned counsel for the petitioner stated that the criminal court had sent the samples for testing to the Central Food Laboratory, Pune and the report of the Central Food Laboratory, Pune dated 16.11.2007 has confirmed that sample conforms to P.F.A. Rules, 1955. Based on this report, the concerned Judicial Magistrate vide order dated 7.7.2008 has acquitted the accused/OP as the samples have been found to be conforming to the provisions of P.F.A. Rules. Thus, the basis of filing the complaint under the Consumer Protection Act, 1986 has fallen flat and the complaint needs to be dismissed.

9.      I have given a thoughtful consideration to the arguments advanced by the learned counsel for the petitioner and have examined the material on record. As stated earlier, the report of the Chief Public Analyst of the State Food Testing Laboratory has alleged adulteration or misbranding of three products. The order of the Judicial Magistrate dated 7.7.2008 has been passed in C.C. No.12 of 2007 which is based on the report of Central Food Laboratory, Pune dated 16.11.2007 which relates only to sample of Nutrilite Protein Tins.  So far as the other two misbranded samples are concerned, the learned counsel has not argued anything about these two products. However, from the record it is found that for Amway Madrid Safed Musli (Apple), there was some other criminal complaint bearing No.CC08/2007 filed by the State Government and there also the sample was sent for testing to Central Food Laboratory. The Central Food Laboratory, Pune vide its report dated 27.7.2007 has not found sample conforming to the P.F.A Rules, 1955. The report reads as follows:-

“Opinion:-  I am of  the opinion that, the above sample of Amway Madrid Safed Musli (Apple) containing synthetic food colour viz. Ponceau 4R hence it contravenes Rule 29 also. On the label given “Safed Musli reinvigorates your mind & body suggest food is approved for medical purpose hence it contravenes R. No.39 as per P.F.A. Rules, 1955.”

10.    Moreover, the OP had gone to the High Court of Andhra Pradesh for staying the proceedings in the criminal court.  However, the criminal petition no.591 of 2008 was dismissed vide order dated 20.7.2010 of the High Court of Andhra Pradesh and the order reads as under:

“No, doubt, Ponceau 4R is a permissible colour under the 1955  Rules. But the label should contain  the name of food colour. That why the Public Analyst treated the sample as a misbranded one. Under Section 16(1)(a)(i) of the Act, any person who sells a misbranded article of food is liable for punishment with imprisonment for a term which shall not be less than 6     months but which may extend to three years, and with fine which shall not be less than one thousand rupees.”                              

11.    From the above discussion, it becomes clear that the sample of Amway Madrid Safed Musli (Apple) has been found to be misbranded by the State Testing Laboratory  as well as by the Central Food Laboratory, Pune. Petitioner has not shown any document contrary to these reports or that he has been acquitted by an order of the competent court in Complaint NO.08 of 2007. So, as long as the report of Central Food Laboratory has found the product  to be misbranded, I find the observation of the State Commission that criminal proceedings will not have a bearing on the proceedings under the Consumer Protection Act, 1986 in order.

12.    The State Food Testing Laboratory has also found that the sample of Kohinoor Ginger Garlic Paste does not conform to  the Class II preservative, hence is adulterated.  The learned counsel has not shown any papers relating to this product, whether any criminal case was filed in this regard or whether  the sample was tested by the Central Food Laboratory. There seems to be no report of the Central Food Laboratory in respect of this sample available on the record. Thus, the adulteration in Kohinoor Ginger Garlic Paste has not been challenged and the same is confirmed by Chief Public Analyst of the State Food Testing Laboratory.

13.    Based on the above examination, I find that the order of the District Forum dated  16.10.2007 as well as order of the State Commission dated 3.8.2009 do not hold good and the same are set aside in respect of the product Nutrilite Protein Tins. However, the order of the State Commission and the District Forum are upheld  so far as the product of Amway Madrid safed Musli (Apple) and Kohinoor Ginger Garlic Paste are concerned. The petitioner company is directed to remove these two products namely, Amway Madrid Safed Musli (Apple)  and Kohinoor Ginger Garlic Paste  from the market within a period of six weeks.  The petitioner company shall also issue the corrective advertisement as ordered by the District Forum. If the petitioner company wants to reintroduce these products, the same may be introduced after getting the approval from the Food Safety and Standards Authority of India. The State Commission has set aside the order of the District Forum in respect of award of exemplary damages of Rs.1,00,000/- on the ground that the respondent has not suffered any loss.  I consider this to be a material irregularity in the order of the State Commission on the ground that the State Commission has perhaps mistook this cost to have been awarded to the respondent which is not correct. As these products have been sold to certain consumers and they have suffered on account of the unfair trade practice adopted by the petitioner in respect of these two products, I deem it appropriate to set aside the order of the State Commission setting aside the order of the District Forum for awarding exemplary damages of Rs.1,00,000/- to be deposited with the Consumer Welfare Fund mentioned in the order. Accordingly, the order of the District Forum in respect of the exemplary damages of Rs.1,00,000/-  (Rupees one lakh only) is restored, which is in the shape of a cost.

14.    The Revision Petition No.3624 of 2009 is disposed of in terms of the above order. Order be complied within a period of 45 days.