CRIMINAL APPLICATION (APL) NO. 650 OF 2018

14th January 2019

Petitioner Counsel: Shri Kirti Parekh Shri P. M. Shukla
Respondent Counsel: Ms. Tajwar Khan
Act Name: Food Safety and Standards Act, 2006 Food Safety and Standards Rule, 2011 Criminal Procedure Code, 1973

Section :
Section 3(1)(zx) Food Safety and Standards Act, 2006 Section 3(1)(zz)(v) Food Safety and Standards Act, 2006 Section 26(1) Food Safety and Standards Act, 2006 Section 26(2)(i) Food Safety and Standards Act, 2006 Section 26(2)(v) Food Safety and Standards Act, 2006 Section 27(2)(c) Food Safety and Standards Act, 2006 Section 42(3) Food Safety and Standards Act, 2006 Section 46(4) Food Safety and Standards Act, 2006 Section 51 Food Safety and Standards Act, 2006 Section 59 Food Safety and Standards Act, 2006 Section 66(2) Food Safety and Standards Act, 2006 Section 482 Criminal Procedure Code, 1973

Cases Cited :

JUDGEMENT

1. Heard.

2. RULE. Rule made returnable forthwith.

3. The applicant Nos. 2 to 8 are the trustees of the applicant No.9­ Charitable Trust and the applicant No.1 is Manager and according to the applicant Nos. 2 to 9, the applicant No.1 is in­charge of the business of the Charitable Trust. The applicant No.9 Charitable Trust is in the business of selling dairy products.
On 8th January 2014, Food Safety Officer had visited the premises of the applicant No.9 and had drawn samples as per the procedure laid down under the Food Safety and Standards Act, 2006 (hereinafter referred to as “the Act of 2006”) and the Rules in presence of the panch witnesses. On 9th January 2014, the sample collected from the establishment of applicant No.9 was sent for analysis to the Food Testing Laboratory, Mumbai. The Food Testing Laboratory gave report dated 31st January 2014 to the effect that the cow milk sample sent to it was “unsafe” as per Section 3(1)(zz)(v) of the Act of 2006. This report was received by the applicants on 11th March 2014. On receipt of the adverse report, the applicant No.1 exercised his right under Section 46(4) of the Act of 2006 and preferred appeal against the report of food analysis before the Designated Officer. The applicant No.1 received the Certificate of Analysis by the Referral Food Laboratory on 9th July 2014. As per this Certificate of Analysis, the sample which was collected from the establishment of the applicant No.9­Charitable Trust was found to be “sub­standard” as per Section 3(1)(zx) of the Act of 2006.
After the Certificate of Analysis was received, the non­applicant filed complaint against the applicants under Section 3(1)(zx), 3(1)(zz)(v) read with Section 26(1), 26(2)(i), 26(2)(v), 27(2)(c) punishable under Sections 59 and 66(2) of the Act of 2006.

4. By this application under Section 482 of the Code of Criminal Procedure, the applicants have prayed that the prosecution launched against them be quashed. The alternate submission is made that the applicant Nos. 2 to 8 are the trustees of the applicant No.9­Charitable Trust and are not responsible and concerned with the business and it is being looked after by the applicant No.1(Manager). Relying on the provisions of Section 66 of the Act of 2006, it is submitted that the applicant Nos. 2 to 8 cannot be prosecuted.

5. The learned advocate for the applicants has pointed out the relevant provisions i.e. Section 3(1)(zx), 3(1)(zz)(v), 42(3), 46(4) and 51 of the Act of 2006 and Rule 2.4.6 and Rule 3.1.1 of the Food Safety and Standards Rules, 2011 (hereinafter referred to as “the Rules of 2011”).
Section 3(1)(zx) and 3(1)(zz)(v) define “sub­standard” and “unsafe Food”, respectively as follows:
“3(1)(zx). “sub­standard”, an article of food shall be deemed to be sub­standard if it does not meet the specified standards but not so as to render the article of food unsafe;”
“3(1)(zz) “unsafe food” means an article of food whose nature, substance or quality is so affected as to render it injurious to health.”
Thus, there is clear distinction between an article of food deemed to be 'sub­standard' and an article of food whose nature, substance or quality is so affected as to render it injurious to health.

6. Chapter­IX of the Act of 2006 deals with Offences and Penalties under the Act. Section 59 of the Act of 2006 provides for punishment for manufacture, sale, storage, distribution or import of any article of food for human consumption which is unsafe. Sub­sections (i) to (iv) provide for different punishments of imprisonment and also fine.
Section 51 of the Act of 2006 provides for penalty for manufacture, sale, storage, distribution or import of sub­standard food.

7. Chapter­III of the Rules of 2011 provides for the mechanism for 'Adjudication and Appeal to Tribunal'. Rule 3.1 of the Rules of 2011 deals with adjudication proceedings and, various sub­rules provide for the procedure for filing of appeal by the person from whom the sample is taken and the powers of the Designated Officer and the procedure to be followed by the Designated Officer for deciding the appeal.
Rule 3.1.1 of the Rules of 2011 lays down that whether the appeal is filed or not the Designated Officer shall examine the case on the basis of the Section/Sections under which the person has been charged and as to whether the contravention is punishable with imprisonment or the same is punishable with fine only under the Act, or whether the contravention is established and the sample conforms to the requirements of the Food Safety and Standards Regulations, 2011.
Rule 3.1.1(2) lays down that if the Designated Officer decides that such contravention is not punishable with imprisonment but only with fine under the provisions of the Act, he shall cause and authorize the Food Safety Officer to file with the Adjudicating Officer, an application for adjudication of the offence alleged to have been committed by the person from whom the food sample is taken or the person whose name and address and other particulars have been disclosed under Rule 2.5 of the Rules of 2011 and / or the seller or manufacturer of the food item in respect of which the report has been received.
Rule 3.1.1(5) provides for the procedure to be followed by the Adjudicating Officer for deciding the application referred to him by the Food Safety Officer. Adjudicating Officer has has the power to conduct enquiry for the purposes of adjudicating the offences punishable under Sections 50, 51, 52, 53, 54, 55, 56, 57, 58, 64, 65, 66 and 67 of the Act of 2006.
Rule 3.1.1(6) lays down that for holding inquiry for the purposes of adjudication under Section 68 of the Act of 2006 as to whether any person has committed any contravention of any of the above referred provisions of the Act of 2006 or of the Rules or Regulations in respect of which offence is alleged to have been committed, the Adjudicating Officer shall first issue notice to such person or persons, grant an opportunity to make representation in the matter within a specified period, hear such person/ persons, grant opportunity to produce documents or evidence and pass final order. It is laid down that the notice issued to the person/ persons against whom inquiry is conducted shall be accompanied by the report of Food Analyst. On the date of hearing, the Adjudicating Officer shall explain to such person or persons or their authorized representative, the offence alleged to have been committed.
Rule 3.1.1(11) of the Rules of 2011 provides that the Adjudicating Officer shall have the power to summon and enforce the attendance of any person acquainted with the facts and circumstances of the case, to give evidence or to produce any document which, in the opinion of the Adjudicating Officer may be useful for or relevant to, the subject matter of the inquiry.
Rule 3.1.2(1) of the Rules of 2011 provides that after conducting inquiry as provided under Rule 3.1.1, if the Adjudicating Officer is satisfied that the person or persons against whom the inquiry is conducted is/are liable to penalty and / or any suitable administrative action under any of the sections referred in Rule 3.1.1 (5), he may pass order imposing such penalty as he thinks fit in accordance with the provisions of the relevant section or sections of the Act.
Rule 3.1.2(2) of the Rules of 2011 lays down that if the Adjudicating Officer is satisfied that the person or persons against whom the inquiry is conducted for the contravention of the provisions of the Act, or that the allegations against such person or persons have not been proved beyond doubt, the Adjudicating Officer shall dismiss the case.

8. Thus, I find that Rule 3.1, which deals with adjudication proceedings and the procedure for holding inquiry and is a complete Code in itself. Rule 3.1.1(1) provides for examination of the case by the Designated Officer to ascertain as to whether the contravention is punishable with imprisonment or only with fine, under the Act of 2006. Rules 3.1.1(2) and 3.1.1(3) of the Rules of 2011 provide for duties and functions of the Designated Officer to cause and authorize the Food Safety Officer to file an application before the Adjudicating Officer for adjudication of the offence in cases where contravention is punishable only with fine and not with imprisonment. Rule 3.1.1(4) to Rule 3.1.1(12) provide for powers and functions of the Adjudicating Officer and Rule 3.1.2 provides for the powers of the Adjudicating Officer to pass orders.

9. The learned Advocates for the applicants argued that as per Certificate of Analysis of the Referral Food Laboratory, the sample which was collected from the establishment of the applicant No.9­Charitable Trust was found to be “sub­standard” as contemplated by Section 3(1)(zx) of the Act of 2006, and as the Certificate of Analysis issued by the Laboratory is final as laid down by Rule 2.4.6 of the Rules of 2011, penalty as laid down by Section 51 of the Act of 2006 can only be imposed and there can't be punishment of imprisonment as laid down in Section 59 of the Act of 2006. Emphasis on the distinction between “sub­standard food” and “unsafe food” and the difference in punishment i.e. imposition of penalty on the accused and sentencing the accused to imprisonment, it is submitted that as in the present case the charge is of contravention punishable with fine only, the adjudication has to be by the Adjudicating Officer as per the provisions laid down in Rule 3.1.1 of the Rules of 2011 and the prosecution cannot be filed before the Chief Judicial Magistrate.

10. After examining the relevant provisions referred earlier, I find that the statute has created clear dichotomy and separate Fora are provided for prosecution of the persons charged for contravention “punishable with imprisonment” and prosecution of persons charged for contravention punishable “with fine only”, under the Act of 2006. In view of the above, I find substance in the submission made on behalf of the applicants. As the charge against the applicants is of contravention of the provisions of the Act of 2006 which provide for punishment of imposition of penalty only, the complaint filed by the non­applicant against the applicants before the learned Chief Judicial Magistrate is not maintainable.
The concerned Authorities will have to take appropriate action as provided under the Act of 2006 and the Rules of 2011.

11. The learned Additional Public Prosecutor has submitted that the competent Authority has granted sanction for prosecution of the applicants and therefore, filing of the complaint before the learned Chief Judicial Magistrate is proper cannot be faulted with. This submission cannot be accepted. It cannot be said that only because the Competent Authority has granted sanction for prosecution of the applicants, the complaint filed against the applicants before the Chief Judicial Magistrate is maintainable. The concerned Authorities will have to take appropriate action as provided under the provisions of Rule 3.1 of the Rules of 2011

12. The other submission made on behalf of the applicants is that the material on record is not sufficient to prosecute the applicant Nos. 2 to 8 as they are not in­charge of the business of the applicant No.9­Charitable Trust. In view of the finding recorded as above, this submission cannot be examined by this Court at this stage. It would be open for the applicants to agitate this issue before the appropriate Authority/ Forum in appropriate proceedings, when occasion arises.

13. Hence, the following order:
i) The proceedings of Regular Criminal Case No. 12 of 2015 filed by the non­applicant against the applicants in the Court of Chief Judicial Magistrate, Gondia are quashed.
Consequently, the order passed by the learned Chief Judicial Magistrate on 7th January 2015, directing issuance of process against the applicants, does not survive and is quashed accordingly.
ii) The concerned Authority shall take appropriate action in the matter as per rule 3.1 of the Food Safety and Standards Rules, 2011.
iii) The concerned Authority shall send action taken report to the Commissioner of the Food and Drugs, Mumbai within two months from the date of receipt of copy of this judgment.
iv) The Commissioner, Food and Drugs, Mumbai shall examine the matter after receiving the action taken report and if it is found that the concerned Authority has not been vigilant in discharging its duties/ functions, appropriate disciplinary action shall be taken by the Commissioner, Food and Drugs, Mumbai against the concerned Authority.
Rule is made absolute in the above terms. In the circumstances, the parties to bear their own costs.