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2025 DIGILAW 589 (KER)

Ahammed Naseef S/o. Soopy v. State of Kerala

2025-03-14

P.G.AJITHKUMAR

body2025
ORDER : The 2 nd respondent filed Annexure-1 complaint before the Court of the Judicial Magistrate of the First Class-I, Perambra arraigning the petitioners and three others as the accused. The offences alleged against them are punishable under Section 3 (1)(zz)(viii), Section 26 (1), Section 26 (2)(i) and Section 59 (i) read with Section 66 of the Food Safety and Standards Act, 2006 . The learned Magistrate took cognizance of the offences and issued summons to all the accused. Accused Nos.3 to 9 have filed this petition invoking the provisions of Section 482 of the Code of Criminal Procedure, 1973 seeking to quash the complaint and further proceedings based on the complaint in C.C.No.397 of 2022 as against them. 2. The allegations based on which complaint was lodged are the following: At about 1.00 p.m on 18.10.2021 the 2 nd Respondent inspected the premises of "M/s.Malabar Bhavan Restaurant" at Perambra ("the Food Business Establishment"). The 1 st accused, who was the Food Business operator at that time. The 2 nd respondent revealed his intention to take sample of the food products and thereafter purchased 2kg chicken fry kept for sale as sample and had paid Rs.500/- towards its cost. The sample of chicken so purchased on analysis was found to contain added synthetic food colour, Sunset Yellow, a prohibited addent. Thereby, the 1 accused being the person in immediate charge of st the business, the partnership firm and its partners, who were conducting the food business establishment have committed the said offences. 3. Heard the learned counsel for the petitioners and the learned Additional Director General of Prosecution. 4. Going by the allegations in the complaint and the averments in the petition, it is seen that the first accused was the person in charge of the business at the time when the 2 nd respondent inspected the business establishment. It is contended that a partnership firm named M/s.Malabar Bhavan Restaurant was the food business establishment and the petitioners being its partners alone are not responsible for the offences. Annexure-IV is a copy of the deed of partnership. The allegation in the complaint is also to the same effect. 5. From the copy of the deed of partnership it is seen that the management of the firm business was entrusted with the managing partner who is Mohammed Ismail - the 2 nd accused. Annexure-IV is a copy of the deed of partnership. The allegation in the complaint is also to the same effect. 5. From the copy of the deed of partnership it is seen that the management of the firm business was entrusted with the managing partner who is Mohammed Ismail - the 2 nd accused. Petitioners who are accused Nos.3 to 9 are arraigned in the capacity of the partners of the firm. They have not been responsible for the conduct of the business, and they have not been personally involved in the affairs of the food business establishment. In that view of the matter they claim that Annexure-I complaint as against them is liable to be quashed. 6. The submissions of the learned counsel for the petitioners reiterating the aforesaid contentions are refuted by the learned Additional Director General of Prosecution by contending that Section 66 (2) of the Food Safety and Standards Act enables the Food Safety officer to prosecute every person involved in the business and on whose part there was negligence in the matter of running the food business. It is accordingly submitted that plea for quashing the complaint cannot be entertained. 7. Section 66 of the Food Safety and Standards Act reads as follows: “66. Offences by companies.- (1) Where an offence under this Act which has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that where a company has different establishments or branches or different units in any establishment or branch, the concerned Head or the person in-charge of such establishment, branch, unit nominated by the company as responsible for food safety shall be liable for contravention in respect of such establishment, branch or unit: Provided further that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.-For the purpose of this section,- (a) "company" means any body corporate and includes a firm or other association of individuals; and (b) "director" in relation to a firm, means a partner in the firm.” 8. As per sub-section (1) of Section 66, the company as well as every person who at the time of commission of the offence was in charge of and responsible to the company for the conduct of business of the company are liable to be proceeded against. Sub-section (2) enables the Food Safety Officer to initiate prosecution against any director, manager, secretary or other officers of the company, such as director, manager, secretary or other officers provided, negligence or connivance in the matter of commission of the offence can be attributed against them. 9. In the light of Explanation-(a) afore, a partnership firm also comes within the purview of the company referred to in Section 66 of the Food Safety and Standards Act. Therefore, parties of a firm are also liable for prosecution for the offences made mention of in the complaint. However, for that there must be specific allegations in the complaint as required in sub-section (2) of Section 66 of the Food Safety and Standards Act. 10. The allegations contained in Annexure-I complaint do not make out that any of the petitioners were in charge of or responsible for the business of Food Business Establishment, M/s.Malabar Bhavan Restaurant, Perambra. Annexure-III is a letter sent by the Assistant Commissioner in response to a query of the Food Safety, Kozhikode requesting for the details furnished in terms of Rule 2.5.1 of the Food Safety and Standard Rules, 2011 as to the person in-charge of the food business establishment. Annexure-III is a letter sent by the Assistant Commissioner in response to a query of the Food Safety, Kozhikode requesting for the details furnished in terms of Rule 2.5.1 of the Food Safety and Standard Rules, 2011 as to the person in-charge of the food business establishment. The information furnished to the 2 nd respondent as per Annexure III was to the effect that the person responsible for the business of the aforesaid food business establishment was the managing partner of the firm, the 2 nd accused Sri.Muhammed Ismail. Clause 8 in Annexure-IV, deed of partnership makes it very clear that the management of the firm shall be vested with the 2 nd accused Sri.Muhammed Ismail who is the managing partner of the firm. Thus, from the materials available on record, it is evident that the 2 nd accused among the partners alone was responsible for the business of the partnership firm. Of course, the 1 st accused was the person in immediate charge of the food business establishment and available at the time of inspection. 11. The 2 nd accused being the managing partner and the 10 th accused being the partnership firm are primarily responsible for the offence alleged in the complaint. The 1 st accused being the person in immediate charge of the food business establishment is also liable to answer the charges. Viewed so, the petitioners who are accused Nos.3 to 9 although are partners of the firm, they are not liable for prosecution for want of materials and necessary pleadings in Annexure-I complaint so as to implicate them to the offence in terms of sub-section (2) of Section 66 of the Food Safety and Standards Act. Hence, the complaint and further proceedings in C.C.No.397 of 2022 pending before the Judicial Magistrate of the First Class-I, Perambra as against the petitioners are liable to be quashed. Accordingly, this Crl.M.C is allowed. The complaint and further proceedings in C.C.No.397 of 2022 pending before the Judicial Magistrate of the First Class, Perambra as against the petitioners are quashed.