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2023 DIGILAW 1476 (BOM)

Indranath Roy v. State of Maharashtra

2023-07-10

G.A.SANAP

body2023
JUDGMENT/ORDER 1. Heard. 2. ADMIT. Taken up for final disposal forthwith by the consent of learned advocates for the parties. 3. In this criminal application, filed under Sec. 482 of the Code of Criminal Procedure, the applicants, who have been arrayed as accused nos. 4 to 7 in a criminal proceeding bearing Summary Criminal Case No. 2347/2015 for the offences punishable under Ss. 3(1) (zz)(iii) and (x) read with Ss. 26(2)(i), 27(1), 27(2)(c) punishable under Ss. 59 and 66 of the Food Safety and Standards Act, 2006 (hereinafter referred to as "the Act of 2006" for short), pending on the file of learned Additional Chief Judicial Magistrate, Nagpur, have prayed for quashing and setting aside the proceeding against them. 4. The relevant facts are as follows : The Food Safety Officer along with panch witnesses, on 31/1/2014, had visited the premises of M/s J. K. Daily Needs, situated at CPWD Quarters, Opposite Nirmala Girls Hostel, Katol Road, Nagpur and purchased 16 company packed, sealed and labeled, each 65 gms weight, Milk Chocolate (Cadbury Dairy Milk Silk) from accused no.1 - Mohd. Rashid. The notice in Form V-A under Rule 2.4.1(3) was issued to accused no.1. The sample was sent to Food Analyst, Food Testing Laboratory, Mumbai on 1/2/2014. The respondent on 10/3/2014 received the report dtd. 20/2/2014 of the Food Analyst, wherein it is opined that the sample chocolate was unsafe under Sec. 3(1)(zz)(iii) and (x) of the Act of 2006. The respondent received sanction from the Asstt. Commissioner (Food) for filing the complaint. The respondent on 21/1/2015 filed the criminal complaint in the Court of Additional Chief Judicial Magistrate, Nagpur for the offences referred above. In the said complaint, the applicants have been arrayed as accused nos.4 to 7. They are the manufacturer of the product. Learned Addl. Chief Judicial Magistrate, on the basis of the facts stated in the complaint as well as on going through the accompanied documents, issued process against the accused. 5. The applicants/accused nos. 4 to 7 have challenged the prosecution on multiple grounds. The most important ground pressed into service at the time of argument of this application, is denial of right of appeal, conferred under Sec. 46(4) read with Rule 2.4.6 of the Food Safety and Standard Rules, 2011 (hereinafter referred to as "the Rules of 2011" for short). It is stated that the report in this case was received on 10/3/2014. The most important ground pressed into service at the time of argument of this application, is denial of right of appeal, conferred under Sec. 46(4) read with Rule 2.4.6 of the Food Safety and Standard Rules, 2011 (hereinafter referred to as "the Rules of 2011" for short). It is stated that the report in this case was received on 10/3/2014. Before filing the complaint, copy of the report of the Food Analyst was not provided to the applicants so as to enable them to exercise their right of appeal as provided under Sec. 46 subsec. (4) of the Act of 2006 and Rule 2.4.6 of the Rules of 2011. Learned advocate for the applicants submitted that copy of the report must be provided immediately to the manufacturer so as to enable the manufacturer to exercise the right of appeal. Learned advocate submitted that in any case the manufacturer must receive copy of the report before expiry of shelf-life of the product. 6. Learned advocate submitted that in this case, admittedly, the product was packed in April-2013. The Best Before date for its use was twelve months from the date of packing. Learned advocate, therefore, pointed out that the shelf-life of the product expired in April2014. It is further submitted that the summons in the complaint was served to the applicants in 2021. Learned advocate submitted that on receipt of the report of the analyst, a copy of the same was required to be served upon the manufacturer and the applicants so as to enable them to exercise their right of appeal provided under Sec. 46, sub-sec. (4) of the Act of 2006. Learned advocate submitted that the procedural mechanism for disposal of the appeal and the evidentiary value of the said report after re-analysis has been provided in Sec. 46(4) of the Act of 2006 and Rule 2.4.6 of the Rules of 2011. Learned advocate submitted that this lapse committed by the respondent has denied the right of appeal to the applicants and as such the prosecution against them has been vitiated. Learned advocate submitted that denial of opportunity could not be said to be mere irregularity. It has to be held as illegality causing dent to their right of fair trial. Learned advocate pointed out that on account of inaction on the part of the Food Safety Officer, the applicants/accused have been gravely prejudiced. Learned advocate submitted that denial of opportunity could not be said to be mere irregularity. It has to be held as illegality causing dent to their right of fair trial. Learned advocate pointed out that on account of inaction on the part of the Food Safety Officer, the applicants/accused have been gravely prejudiced. Learned advocate, therefore, submitted that the proceedings against the applicants/accused nos. 4 to 7 is liable to be quashed. 7. The Food Safety Officer has filed his affidavit-in-reply 2/5/2023. In the additional affidavit filed by the Food Safety Officer, Nagpur, dtd. 6/7/2023, it is admitted that the right of the applicants/accused recognized under the law of re-analysis of the sample was denied inasmuch as a copy of the report of the Food Analyst was not provided to them within time i.e. Best Before use date. 8. In order to appreciate the submissions, which are mainly based on Sec. 46 of the Act of 2006 and Rule 2.4.6 of the Rules of 2011, the same are extracted below : "46. Functions of Food Analyst - (1) On receipt of a package containing a sample for analysis from a Food Safety Officer or any other person, the Food Analyst shall compare the seal on the container and the outer cover with specimen impression received separately and shall note the conditions of the seal thereon: Provided that in case a sample container received by the Food Analyst is found to be in broken condition or unfit for analysis, he shall within a period of seven days from the date of receipt of such sample inform the Designated Officer about the same and send requisition to him for sending second part of the sample. (2) The Food Analyst shall cause to be analysed such samples of article of food as may be sent to him by Food Safety Officer or by any other person authorised under this Act. (2) The Food Analyst shall cause to be analysed such samples of article of food as may be sent to him by Food Safety Officer or by any other person authorised under this Act. (3) The Food Analyst shall, within a period of fourteen days from the date of receipt of any sample for analysis, send:- (i) where such sample is received under Sec. 38 or Sec. 47, to the Designated Officer, four copies of the report indicating the method of sampling and analysis; and (ii) where such sample is received under Sec. 40, a copy of the report indicating the method of sampling and analysis to the person who had purchased such article of food with a copy to the Designated Officer: Provided that in case the sample can not be analysed within fourteen days of its receipt, the Food Analyst shall inform the Designated Officer and the Commissioner of Food Safety giving reasons and specifying the time to be taken for analysis. (4) An appeal against the report of Food Analyst shall lie before the Designated Officer who shall, if he so decides, refer the matter to the referral food laboratory as notified by the Food Authority for opinion. 2.4.6 - Appeal to the Designated Officer - 1. When an appeal as provided under sub-sec. (4) of Sec. 46 is preferred to the Designated Officer by the Food Business Operator against the report of the Food Analyst, the Designated Officer, shall if he so decides within thirty days from the receipt of such appeal after considering the material placed before him and after giving an opportunity to Food Business Operator to be heard shall forward one part of the sample to the referral lab. Such appeal shall be in Form VIII which shall be filed within 30 days from the date of the receipt of the copy of the analysis report from the Designated Officer. Report of the referral laboratory shall be final in this regard. 2. The Designated Officer shall forward one part of the sample under appropriate condition as specified for the product including transport, to retain the integrity of the sample. The cost of analysis of the sample shall be borne by the Food Business Operator. The remaining samples will also be safely kept under appropriate conditions to prevent deterioration. 3. 2. The Designated Officer shall forward one part of the sample under appropriate condition as specified for the product including transport, to retain the integrity of the sample. The cost of analysis of the sample shall be borne by the Food Business Operator. The remaining samples will also be safely kept under appropriate conditions to prevent deterioration. 3. The certificate of analysis in the Form XI duly signed by the Director of the Referral Laboratory shall be forwarded within fourteen days of receipt of sample. Provided that in case the Referral Laboratory is unable to analyse the sample within fourteen days of its receipt, the Referral laboratory shall inform the Designated Officer and the Commissioner of Food Safety giving reasons and specifying the time to be taken for analysis.</ WXY> 9. It is to be noted that right of appeal under Sec. 46 subsec. (4) of the Act of 2006 is a valuable right of the manufacturer against the report of the Food Analyst. After filing of the appeal, the Designated Officer has to refer the matter to the referral food laboratory as notified by the Food Authority for opinion. The Designated Officer cannot pass an order under Sec. 46 sub-sec. (4) of the Act of 2006, unless and until the report is made available or brought to the notice of the manufacturer after granting an opportunity to the manufacturer to exercise his right of appeal. As per Rule 2.4.6 of the Rules of 2011, a complete mechanism of appeal as also the evidentiary value of the report of the Referral Laboratory has been provided. It is provided that after exercise of the right of appeal and on analysis of the sample afresh, the report of Designated Officer and the report of Referral lab shall be final in all respect. It needs to be stated that this exercise has to be completed within the prescribed time frame. It, therefore, goes without saying that the right of appeal provided under Sec. 46(4) of the Act of 2006, in any case, has to be made available before the expiry of the shelf-life of the product. The exercise of right of appeal even if granted after the expiry of shelf-life of the product, would become meaningless. 10. In this case, the shelf-life of the product expired in April2014. A copy of the report of Food Analyst was not provided to the applicants/accused. The exercise of right of appeal even if granted after the expiry of shelf-life of the product, would become meaningless. 10. In this case, the shelf-life of the product expired in April2014. A copy of the report of Food Analyst was not provided to the applicants/accused. Their valuable right to have the sample re-analyzed has been denied. In my view, denial of this right goes to the very root of the prosecution initiated against them on the basis of the report of the Food Analyst. Failure on the part of the Food Safety Officer to comply the mandatory provisions could not be said to be mere irregularity. It is an illegality. It has denied them the basic right of the appeal conferred by the law. In my view, therefore, the action contrary to the mandate of law cannot be sustained. Continuation of such action, which is contrary to law, in my view, would amount a misuse of the process of law. In the facts and circumstances, on account of non-compliance of the basic requirement mentioned above, the complaint filed against accused nos. 4 to 7 cannot be continued. 11. Accordingly, the application is allowed. The complaint/proceedings bearing S.C.C. No. 2347/2015 pending before the Court of Additional Chief Judicial Magistrate, Nagpur, is quashed and set aside against the applicants/accused nos.4 to 7 only. The application stands disposed of.