IMPORTANT POINT
The absence of the manufacturer as an accused in food safety violations renders prosecution against the licensee untenable, violating procedural requirements of the FSS Act.

ORDER :

V.Sujatha, J.

This criminal petition is filed under Section 482 of Criminal Procedure Code (for short “Cr.P.C.”) to quash the proceedings in C.C.No.830 of 2016 on the file of the Additional Judicial First Class Magistrate at Tadepalligudem, registered for the offence punishable under Sections 3 (1) (zz) (ix) (xi), 26 (2) (i) of the Food Safety and Standards (Food Products and Food Additives) Regulations, 2011 and punishable under Section 59 (i) of Food Safety and Standards Act, 2006 (for short “FSS Act”).

2. Petitioner herein is accused No.2. Respondent No.2, Food Safety Officer is the complainant. Respondent No.2 lodged complaint alleging that on 28.12.2015, he visited the retail shop of the accused No.1 and found 10 packets of sealed Heritage Basmati Rice in wooden shelf and on suspicion that the rice was substandard/unsafe, he purchased 4 packets of the rice and paid Rs.4000/- towards its cost. The complaint further states that respondent No.2 herein issued a notice in form VA under Rule 2.4.1(3) by disclosing his intention to send the purchased Heritage Basmati Rice to the Food Analyst, State Food Laboratory, Hyderabad. Later, each part of the Heritage Basmati Rice of 4 sealed packets were divided and each one Kg Heritage Basmati Rice sealed packet was kept in dry, empty plastic jars and tied with thread and seal. Further, Form VA notice was sent to the manufacturer on the same day and that on 29.12.2015, respondent No.2 sent one part of the sample packet along with Memorandum to the Food Analyst, Hyderabad. The remaining three parts along with form VI memorandum in triplicate with specimen impression of the Food Safety Officer handed over to the Food Safety Designated Officer, West Godavari District obtained acknowledgement dated 28.08.2015. After examination, the Food Analyst, State Food Laboratory, Hyderabad submitted his report stating that the sample is insect infested and does not conform to Uric Acid limit. Hence, it is unsafe. Thereafter, the Food Safety Officer gave intimation to the Food Safety Designated Officer for issuing notice to FBO. On 19.01.2016 the Food Safety Designated Officer send notice under Rule 2.4.6.(1) and Section 46 (4) of FSS Act, 2006 along with Food Analyst Report to the accused. The Petitioner herein then preferred an appeal in Form VIII before the Food Designated Officer and the Food Designated Officer requesting to sent another sample of the rice to the Referral Laboratory, Ghaziabad. The Referral Laboratory gave a certificate stating that the sample shows presence of 12 living and 9 dead insects'. The Food Analyst and the Referral Laboratory found the sample is above the standards in all aspects.

3. Thereafter, the Food Designated Officer, i.e., respondent No.3 instructed respondent No.4 herein to launch prosecution against the petitioner. Based on the letter of the Food Designated Officer in Lr.No.005II-06368/2015 dated 18.05.2016, the Commissioner for Food Safety, respondent No.4 herein gave his sanction under Section 30(2) (e) of the Act for initiating prosecution. Based on the sanction vide Rc.No.529/F2/2016 dated 06.09.2016, respondent No.2 herein filed the complaint in C.C.No.830 of 2016 in the Court of the Additional Judicial First Class Magistrate, at Tadepalligudem. The present petition has been filed to quash the said C.C.No.830 of 2016.

4. On 04.09.2019, when the present petition came up for admission, this Court passed the following interim order.

“.........

Therefore, post the matter on 19.09.2019. The further proceedings in C.C.No.830 of 2016 on the file of learned Additional Judicial Magistrate of First Class, at Tadepalligudem, are stayed”.

5. During hearing, learned counsel for the petitioner vehemently contended that without arraying the company/manufacturer, which produced the alleged adulterated food item, only adding the licensee as an accused is against the provision under Section 66 of the FSS Act and it would amount to abuse of the process of the Court, on this