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IN THE HIGH COURT OF BOMBAY
G.A. Sanap, J.
Kaushik Keshavlal Lakhani - Appellant
Versus
State of Maharashtra - Respondent
Criminal Application (Apl) No. 490 of 20 16
Decided On : 26-09-2023
CRIMINAL LAW - FOOD SAFETY AND STANDARDS - FSS ACT 2006, SECTIONS 3(1)(zz)(v), 26(1), 26(2)(i), 27(1); REGULATIONS 2011, REGULATION 3.1.2(7) - The court discussed the provisions of the FSS Act 2006 and the Food Products (Standards and Food Additives) Regulations, 2011, particularly focusing on the definitions of 'unsafe food' and the permissible limits of food coloring. The court emphasized the necessity for the prosecution to demonstrate intent and the requirement for prior permission from the Commissioner before filing a complaint, which was not adhered to in this case. The lack of application of mind by the magistrate in issuing summons was also highlighted, leading to the conclusion that the complaint was unsustainable.
Fact of the Case:
The applicants sought to quash a summons issued in a criminal case regarding alleged violations of the FSS Act 2006 and related regulations concerning the sale of lozenges with excessive coloring. The complaint was based on an inspection that revealed the lozenges did not conform to safety standards, leading to the issuance of summons by the magistrate.
Finding of the Court:
The court found that the prosecution was not sustainable due to the lack of prior permission from the Commissioner as mandated by existing guidelines. It also noted that the magistrate failed to apply his mind to the facts before issuing the summons, which was a procedural requirement.
Issues: Whether the complaint was sustainable given the lack of prior permission from the Commissioner and whether the magistrate properly applied his mind before issuing the summons.
Ratio Decidendi: The court held that the prosecution could not proceed without the necessary permission from the Commissioner as per the guidelines in force at the time. Additionally, the magistrate's failure to record reasons for issuing the summons constituted a lack of due process.
Final Decision: The court quashed the summons issued by the magistrate and the underlying complaint, concluding that the prosecution was not valid under the circumstances.
JUDGMENT/ORDER
1. Heard.
2. In this criminal application, filed under Sec. 482 of the Code of Criminal Procedure, 1973 the applicants (original accused) have prayed for quashing and setting aside the order issuing summons dtd. 13/11/2013 in Regular Criminal Case No. 4376 of 2013 passed by the learned Additional Chief Judicial Magistrate, Nagpur and also for quashing and setting aside the complaint bearing Regular Criminal Case No. 4376 of 2013.
3. Background facts: The complaint in question was filed by respondent No.1 against the applicants for contravention of the provisions of Sec. 26(1) read with Sec. 26 (2)(i) read with Sec. 27(1) of the Foods, Safety and Standards Act, 2006 (For short 'the FSS Act 2006') and read with Sec. 3(1)(zz) (vii) read with Regulation 3.1.2 (7) of the Food Products (Standards and Food Additives) Regulations, 2011 (For short 'the Regulation of 2011). It is the case of the respondent No.1 in the complaint, that on 17/11/2012 at about 11:00 a.m. alongwith independent witnesses he visited the premises of M/s. V. K. Agencies owned by applicant No.1. On inspection of the premises he discovered about 200 wholesale packs of lozenges of 584.2 grams each. Respondent No.1 purchased the samples of lozenges of all flavors and seized the rest of the stock. Respondent No.1 issued notice under Form VA and Rule 2.4.1 (4) and 2.4.5 of the Regulations to the applicants.
4. Respondent No.1 forwarded the sample to the Food Analyst, Regional Public Health Officer, Nagpur on 19/11/2012. Respondent No.1 received the report of the analyst dtd. 11/3/2013. The analyst opined that the sample of lozenges did not confirm to the standards laid down under the Regulation of 2011. It was stated that this was in contravention of Sec. 3(1)(zz)(v) of the FSS Act 2006. The copy of this report was provided to the applicants. The applicants exercised the right of appeal. The designated officer allowed the appeal and directed the sample to be sent to the Referral Laboratory, Gaziabad for fresh analysis.
5. The report of the Referral Laboratory, Gaziabad was received on 11/3/2013. The Referral Laboratory, Gaziabad analyst opined as follows: "The Sample of Lozenges (Cinnamon Flavour) does not conform to standards laid down under Regulation No. 2.7.2 of FSS (Food Products Standards & Food Activities) regulations, 2011 in that colour content is above the maximum prescribed limits laid down under Regulation 3.1.2(7) and additive added as Lubricant (570) is not permitted under Regulation 2.7.2 (Appendix A). Hence sample is unsafe under Sec. 3(1)(zz)(vii)(v) of FSS Act, 2006."
6. The respondent No.2 on receipt of this report sought the approval for initiation of proceeding against the applicants. Respondent No.3- the Joint Commissioner, Food and Drugs Administration (MS) on 23/10/2013 sanctioned the initiation of proceedings against the applicants. Pursuant to this sanction the complaint was filed. Learned Magistrate took cognizance and issued the process/summons against the accused for the above offences.
7. The applicants being aggrieved by this complaint and the order of issuance of summons have filed this application seeking quashment of the criminal complaint as well as the order of issuance of summons. The grounds have been stated in the application. It is contended that the prosecution is not sustainable because the samples of identical lozenges, bearing the same lot/batch number and manufacture date, were sent for analysis to the same laboratory at Gaziabad in other independent cases. The report of the analyst in the said identical sample of lozenges reveled there was no excess amount of colouring matter in the sample. It is stated that considering the report of the three samples of the same batch/lot the department should not have initiated complaint against the applicants. It is contended that the conclusion drawn by the Referral Laboratory, Gaziabad of presence of excess colouring matter is either flawed or suffers from an error of judgment
AI
The necessity for prior permission from the Commissioner before prosecuting under the FSS Act and the requirement for magistrates to provide reasons when issuing summons are critical for ensuring due....
Directors who resign before the alleged offense cannot be held vicariously liable under food safety laws without specific allegations of their involvement at the time of the offense.
Prosecutions for food safety violations must comply with the procedures established by the Food Safety and Standards Act, 2006, and cannot be based on complaints filed under the repealed Prevention o....
The Magistrate must provide a reasoned order reflecting application of mind when summoning accused, ensuring sufficient grounds exist for proceeding with the case.
The court can quash proceedings to prevent abuse of process and secure justice under Section 482 of Cr.P.C. Summoning an accused under Section 20A requires a prima facie inquiry and legally admissibl....
Prosecution under the Food Safety and Standards Act requires a confirming report from the Referral Laboratory; divergence in findings precludes legal action.
The Food Safety and Standard Act, 2006 allows for prosecution within three years from the date of commission of an offence, overriding general limitation provisions in the Cr.P.C.
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