Food testing must be conducted in NABL-accredited laboratories; non-compliance invalidates the analysis and any subsequent prosecution.

JUDGMENT :

(URMILA JOSHI-PHALKE, J.)

1. The instant application is filed under Section 482 of the Code of Criminal Procedure for quashing of Summary Criminal Case No.5325/2016 pending before learned Additional Chief Judicial Magistrate, Nagpur.

2. The facts necessary for disposal of the application are as under:

The applicants are challenging complaint, lodged on 4.4.2016 by the Food Safety Officer, which is registered as Summary Criminal Case No.5325/2016 wherein the applicants are charged for violation of Sections 26(2)(i), 27(2)(c) read with 3(1)(zz) and Regulation 2.12 of the Food Safety Standards (Food Product Standards and Additives) Regulations 2011, Regulation 2.1.1 of the Food Safety Standards (Contaminants, Toxins and Residues) Regulations, 2011 punishable under Sections 59 and 66 of the FSS Act. The applicants are also assailing order of issuance of process by learned Magistrate on 17.4.2017.

3. In the complaint, complainant Food Inspector alleged that on 30.4.2015, he inspected premises of “Nestle India Limited’s Logistic Hub, wherein “Maggi Instant Noodles with Tastemaker” (Product) and “Baby and Me” Nutritional Supplement were stocked. The complainant purchased 4 packets of “Maggi Instant Noodles with Tastemaker” weighing 420 grams each and 4 packets of “Baby and Me” Maternal Nutritional Supplement with each packet weighing 400 grams. A sample was drawn from the said packets. Since the product was purchased by the stockist from the manufacturer, notice under Rule 2.4.1(4 ) was served to applicant No.5-Company. Accordingly, samples were drawn and panchanama was prepared. The product i.e. “Maggi Noodles” is subject matter of criminal complaint. The Food Analyst prepared a report in Form-B on 16.5.2015 stating that sample was in a fit condition and that the product confirmed to the standards “Macarony Products” as per the Food Safety Standards (Food Product Standards and Additives) Regulations 2011. The Food Analyst prepared the report on the premise that the product would be classified under “Macarony Products” even though it was a proprietary food. The Food Analyst’s Report clearly stated that the product was in conformity with the prescribed standards. In such circumstances, the Designated Officer sent sample of the product to the Referral Food Laboratory, Ghaziabad in Uttar Pradesh. The Referral Food Laboratory received the sample on 3.11.2015 and analyzed between 1.12.2015 to 23.12.2015. The product in question was manufactured in March 2015 and it was in a optimal condition only for 9 months. Thus, the sample had outlived its shelf life when it was analyzed by the Referral Food Laboratory. Though the product was not fit for analysis, it was sent by the complainant. The Referral Food Laboratory analyzed the sample and prepared its report on 31.12.2015 and opined that noodle cake of the product did not confirm to Regulation 2.4.10 of the Food Safety Standards (Food Product Standards and Additives) Regulations 2011 since total dry ash content was above the prescribed limit. It was also found that content of Nitrogen was 1.56% which was below the prescribed limit of 1.7% and the product was sub-standard. The report was also forwarded to the Designated Officer and, thereafter, the complaint was filed.

4. Heard learned Senior Counsel Shri S.V.Manohar for the applicants learned Additional Public Prosecutor Mrs.Swati Kolhe for the State.

5. Learned Senior Counsel for the applicants submitted that Section 3(p) of the FSS Act defines Food Laboratory is a Laboratory which is either State or Central Laboratory or any other Allied Laboratory which is accredited and recognized by The National Accreditation Board for Testing and Calibration Laboratories (NABL) and by the Food Authority under Section 43 of the Act. The Laboratory, therefore, has to pass twin test before it can be said to be recognized Laboratory (1) it has to be accredited by NABL and (2) it has also to be recognized by the Food Authority under Section 43 of the sai