JUDGMENT : 1. Heard learned counsel for the petitioner and learned Additional Public Prosecutor for the State in both these applications. 2. The petitioner is a licensee manufacturer of food grains. The godown/business premise of the petitioner was inspected by the concerned authority on 10.12.2011. Food grains were seized and it was found that the petitioner had violated the requirement of food safety and standards as per the law. As such, two different government complaints were filed. One was G.O. Case No.15 of 2013 whereunder cognizance was taken under Sections 26, 27 and 59(ii) of the Food Safety and Standards Act, 2006 on 22.04.2013, which is under challenge in Cr. Misc. No.28677 of 2015 and another complaint was G.O. Case No.16 of 2013 wherein cognizance was taken under Section 26/27 and 59(iii) of the Food Safety and Standards Act, 2006 by the order dated 22.04.2013 challenged in Cr. Misc. No.28477 of 2015. Both these orders of cognizance were passed by Special Judge, Gaya. 3. According to complaint petition of G.O. Case No.16 of 2013, the sample of ‘masur whole’, seized from the premise of the petitioner, on examination, was found not in conformity with the prescribed standard of quality required under the Food Safety and Standards Act, 2006, and, as such, the petitioner contravened the provisions of Sections 26 and 27 of the Food Safety and Standards Act, 2006, as well as of Section 59(iii) of the Act. 4. In complaint petition of G.O. Case No.15 of 2013, the sample of ‘masur whole’ was found not in conformity with the prescribed standard of quality laid down under the Food Safety & Standards Regulations, 2011. Hence, was “unsafe” as defined in Section 3(zz) of the Food Safety and Standards Act, 2006. As such, the petitioner was found to have prima facie committed the offences under Section 26, 27 and 59(iii) of the Food Safety and Standards Act, 2006. 5. Submission of the learned counsel for the petitioner is that the petitioner is a licensee manufacturer of food grains including paddy, rice, wheat, pulses vide licence granted in March, 2007. A copy of licence is at Annexure-7. The Food Safety and Standards (Licensing & Registration of Food Businesss) Regulations, 2011, came into force from of 5th August, 2011 and prescribed requirement of grant of licence on fulfillment of food safety norms. A copy of licence is at Annexure-7. The Food Safety and Standards (Licensing & Registration of Food Businesss) Regulations, 2011, came into force from of 5th August, 2011 and prescribed requirement of grant of licence on fulfillment of food safety norms. Regulation 2.1.2 provided that no person shall commence any food business unless he possess a valid licence under the Regulation. Provided that any person or Food Business Operator carrying on food business on the date of notification of these Regulations, under a licence, registration or permission, as the case may be, under the Acts or orders mentioned in the Second Schedule of the Act shall get their existing licence converted into the licence/registration under these regulations within sixty months from the date of commencement of these regulations. 6. Submission is that the petitioner converted the said licence under the New Regulations on 05.05.2012 vide Licence at Annexure-6. Though the said licence was obtained after the date of inspection of the premise. However, the same was within the time permitted by the Regulation. Hence, it was a valid licence. Therefore, no allegation of lack of valid licence for manufacturing business is made out. Contention is that the inspection report would reveal that 175 bags of Masur whole, each containing 50 Kg, was seized by the authorities as the same did not bear the name of the food, nutritional information, logo, name and complete address of the manufacturer, net quantity, lot/code/B.No./date of manufacturing or packing & Best Before. 7. Submission is that the manufactured articles were kept in the godown for further processing which includes putting/stamping the required information on the bag. Hence, it cannot be alleged that any violation of the Act or Regulation was committed by the petitioner. The seized bags were not found to be displayed for sale or being carried for sale. Hence, a manufacturer under licence is competent enough to do the required formality after packing the food grains. Moreover, the report of the analyst, in respect of the sample obtained from the said 175 bags (Annexure-3) reveals that the masur dal was in conformity with the prescribed standard and quality of food laid down under the Food Safety and Standards Act, 2006. Therefore, there was no violation in respect of the standard of the food. 8. Moreover, the report of the analyst, in respect of the sample obtained from the said 175 bags (Annexure-3) reveals that the masur dal was in conformity with the prescribed standard and quality of food laid down under the Food Safety and Standards Act, 2006. Therefore, there was no violation in respect of the standard of the food. 8. Next submission is that some raw grains were also seized by the authorities and they were also sent for analyst report. Individually they conform to the requirement of the Regulation 2.4.6.1 (Item-14) of Food Safety and Standards (Food Products Standards & Food Additives) Regulations, 2011. However, the same was found exceeding the requirement in totality. The excess item is ‘moisture’ as per report at Annexure-3. The raw materials under process of manufacturing can be processed as per the standard by removing the moisture etc. likewise living insects was found in one of the sample which was also removable before it is sent for use. 9. Contention is that it is normal phenomenon that food grains contains, sometimes, living insects which the manufacturer is required to remove before it is made for human use. Therefore, apparently, no offences whereunder cognizance has been taken are made out. As such, the order of cognizance and criminal prosecution of the petitioner amounts to an abuse of the process of Court. 10. Learned Additional Public Prosecutor submits that the raw material of food grains (masur dal) found to be not in conformity with the food standard. The report of the analyst also reveals non-conformity with the norms of standard. Hence, its use was certainly unsafe. As such, the offences alleged are prima facie made out against the petitioner. The requirement of the provisions of Sections 26, 27 and 59 of the Food Safety and Standards Act, 2006, must be looked into to ascertain whether the material available on the record discloses commission of offences under any of the aforesaid provisions. Sections 26, 27 and 59 of the Food Safety and Standards Act, 2006 reads as follows: “26. Responsibilities of the Food business operator.– (1) Every food business operator shall ensure that the articles of food satisfy the requirements of this Act and the rules and regulations made thereunder at all stages of production, processing, import, distribution and sale within the businesses under his control. Responsibilities of the Food business operator.– (1) Every food business operator shall ensure that the articles of food satisfy the requirements of this Act and the rules and regulations made thereunder at all stages of production, processing, import, distribution and sale within the businesses under his control. (2) No food business operator shall himself or by any person on his behalf manufacture, store, sell or distribute any article of food– (i) which is unsafe; or (ii) which is misbranded or sub-standard or contains extraneous matter; or (iii) for which a licence is required, except in accordance with the conditions of the licence; or (iv) which is for the time being prohibited by the Food Authority or the Central Government or the State Government in the interest of public health; or (v) in contravention of any other provision of this Act or of any rule or regulation made thereunder. (3) No food business operator shall employ any person who is suffering from infectious, contagious or loathsome disease. (4) No food business operator shall sell or offer for sale any article of food to any vendor unless he also gives a guarantee in writing in the form specified by regulations about the nature and quality of such article to the vendor: Provided that a bill, cash memo, or invoice in respect of the sale of any article of food given by a food business operator to the vendor shall be deemed to be a guarantee under this section, even if a guarantee in the specified form is not included in the bill, cash memo or invoice. (5) Where any food which is unsafe is part of a batch, lot or consignment of food of the same class or description, it shall be presumed that all the food in that batch, lot or consignment is also unsafe, unless following a detailed assessment within a specified time, it is found that there is no evidence that the rest of the batch, lot or consignment is unsafe: Provided that any conformity of a food with specific provisions applicable to that food shall be without prejudice to the competent authorities taking appropriate measures to impose restrictions on that food being placed on the market or to require its withdrawal from the market for the reasons to be recorded in writing where such authorities suspect that, despite the conformity, the food is unsafe. 27. 27. Liability of manufacturers, packers, wholesalers, distributors and sellers.– (1) The manufacturer or packer of an article of food shall be liable for such article of food if it does not meet the requirements of this Act and the rules and regulations made thereunder. (2) The wholesaler or distributor shall be liable under this Act for any article of food which is– (a) supplied after the date of its expiry; or (b) stored or supplied in violation of the safety instructions of the manufacturer; or (c) unsafe or misbranded; or (d) unidentifiable of manufacturer from whom the articles of food have been received; or (e) stored or handled or kept in violation of the provisions of this Act, the rules and regulations made thereunder; or (f) received by him with knowledge of being unsafe. (3) The seller shall be liable under this Act for any article of food which is– (a) sold after the date of its expiry; or (b) handled or kept in unhygienic conditions; or (c) misbranded; or (d) unidentifiable of the manufacturer or the distributors from whom such articles of food were received; or (e) received by him with knowledge of being unsafe.” “59. Punishment for unsafe food.–Any person who, whether by himself or by any other person on his behalf, manufactures for sale or stores or sells or distributes or imports any article of food for human consumption which is unsafe, shall be punishable,– (i) where such failure or contravention does not result in injury, with imprisonment for a term which may extend to six months and also with fine which may extend to one lakh rupees; (ii) where such failure or contravention results in a non-grievous injury, with imprisonment for a term which may extend to one year and also with fine which may extend to three lakh rupees; (iii) where such failure or contravention results in a grievous injury, with imprisonment for a term which may extend to six years and also with fine which may extend to five lakh rupees; (iv) where such failure or contravention results in death, with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and also with fine which shall not be less than ten lakh rupees.” 11. “Unsafe Food” is defined in Section 3(zz) of the Food Safety and Standards Act, 2006, which reads as under:- “3(zz) “unsafe food” means an article of food whose nature, substance or quality is so affected as to render it injurious to health: (i) by the article itself, or its package thereof, which is composed, whether wholly or in part, of poisonous or deleterious substances; or (ii) by the article consisting, wholly or in part, of any filthy, putrid, rotten, decomposed or diseased animal substance or vegetable substance; or (iii) by virtue of its unhygienic processing or the presence in that article of any harmful substance; or (iv) by the substitution of any inferior or cheaper substance whether wholly or in part; or (v) by addition of a substance directly or as an ingredient which is not permitted; or (vi) by the abstraction, wholly or in part, of any of its constituents; or (vii) by the article being so coloured, favoured or coated, powdered or polished, as to damage or conceal the article or to make it appear better or of greater value than it really is; or (viii) by the presence of any colouring matter or preservatives other than that specified in respect thereof; or (ix) by the article having been infected or infested with worms, weevils, or insects; or (x) by virtue of its being prepared, packed or kept under insanitary conditions; or (xi) by virtue of its being mis-branded or sub-standard or food containing extraneous matter; or (xii) by virtue of containing pesticides and other contaminants in excess of quantities specified by regulations.” 12. In this case there are two fold allegations against the petitioner. First is that packeted food grains were not properly labeled as per the requirement of the Act and Regulations. Since, the petitioner is a manufacturer, the labeling on the food packet is a process which is to be performed only after sealing of the food grains. In the circumstance, the petitioner had still opportunity and occasion to put proper labeling on the sealed packets. Therefore, it cannot be alleged that the petitioner contravened the requirement of law. The matter would have been different if the bags would have been found traveling outside the godown for the purpose of sale or for the purpose of storage for sale. Therefore, it cannot be alleged that the petitioner contravened the requirement of law. The matter would have been different if the bags would have been found traveling outside the godown for the purpose of sale or for the purpose of storage for sale. Moreover, the food grains taken as sample from the seized bags were found in conformity with the food standard prescribed under the Act and Regulations. Hence, no offence appears to have been committed by the petitioner on that score. 13. The second category of seized food grains was of raw food grains (masur dal). The following table of the requirement of standard of food under Regulation 2.4.6.1 (14) and the report of the analyst on seized raw food would show that there is negligible deviation individually; rather slight deviation is there while taken collectively. The raw food grains were still to be processed. Hence, the deficiency was to be cured during manufacturing process and its transmission for sale. 14. The requirement of Regulation 2.4.6.1 (14) regarding standard and the reports of the analyst in both the cases are being reproduced in a comparative chart. (IN Cr. Misc. No.28477 of 2015) Sl. Quality Prescribed standards as per FSSA, Rules & Regulations Analysts report 1. Moisture Not more than 14% by weight 8.9% 2. Foreign matter Not more than 1% by weight 0.4% 3. Damaged grains Not more than 5% by weight 0.5% 4. Weevilled grains Not more than 3% by count 0.6% 5. Added colouring matter Presence of water soluble colour 6. Other edible grains Not more than 2% by weight Nil 7. Rodent hair & excreta Nil 8. Living insect Absent 9. Sest for khesari Negative Sl. Quality Prescribed standards as per FSSA, Rules & Regulations Analysts report 1. Moisture Not more than 14% by weight 8.3% 2. Foreign matter Not more than 1% by weight 1.8% 3. Weevilled grains Not more than 3% by count 0.8% 4. Damaged grains Not more than 5% by weight 6.0% 5. Other edible grains Not more than 2% by weight 0.4% 6. Test for khesari Negative 7. Added colouring matter Negative 8. Rodent hair & excreta Nil 9. Living insect Present Provided that the total of foreign matter, other edible grains and damaged grains shall not exceed 7 percent by weight. Hence, the excess is of 1.8% only. 15. Other edible grains Not more than 2% by weight 0.4% 6. Test for khesari Negative 7. Added colouring matter Negative 8. Rodent hair & excreta Nil 9. Living insect Present Provided that the total of foreign matter, other edible grains and damaged grains shall not exceed 7 percent by weight. Hence, the excess is of 1.8% only. 15. This is not the prosecution case that the contravention of the Rules caused non-grievous injury or grievous injury to anyone. Hence, the offences under Sections 59(ii) & (iii) of the Act are not attracted at all. 16. On careful perusal of the requirement of Sections 26 and 27, it is evident that the deficiency alleged does not fall within any of the category mentioned in Sections 26 and 27 of the Act. The allegation does not cover the mischief of unsafe food quoted above. Therefore, prima facie offences alleged are not made out. Consequently, the criminal prosecution of the petitioner amounts to an abuse of the process of the Court. Hence, both the impugned orders stand quashed and both the applications stand allowed.