IMPORTANT POINTS
• The FBO or the persons identified under Rule 2.5, do not make a request to send the samples to the Accredited/NABL certified laboratory in terms of Section 47(c)(iii) of the Act. Rule 2.4.6(1) further states that the report of the Referral Laboratory shall be final in this regard.
• Section 47 read with 2.4.5 of the Rules will apply when the Food Business Operator, from whom the samples have been taken or the person whose name and address and other particulars have been disclosed under Rule 2.5 of the Rules, desires to have the fourth part of the samples analysed. He may request the Food Safety Officer in writing to send the sample to any NABL accredited/ FSSAI notified laboratory for analysis under intimation to the Designated Officer. If the report of the NABL Accredited/FSSAI notified laboratory is at variance with the report of the Food Analyst, the sample may be forwarded to the Referral Laboratory and Act states that the said report shall be final.

ORDER :

An application for adjudication was filed by the Food Safety Officer, Payyanur Circle, under Section 68 of the Food Safety and Standards Act, 2006 (hereinafter referred to as “the Act, 2006”) and the Food Safety and Standards, Rules, 2011 (hereinafter referred to as “the Rules, 2011) for manufacture and sale of Synthetic Food Colour Preparation (Orange Red Powder), which was found to be misbranded by the Referral Food Laboratory, Ghaziabad. The 1st petitioner herein is roped in his capacity as the manufacturer and packer and the 2nd petitioner as the manufacturer and distributor of the food articles.

2. The factual background relating to the proceeding under challenge may be set out as under:

(a) On 4.2.12, the Food Safety Officer, Payyanur Circle, inspected the premises of “New Bazaar Supermarket” licensed in the name of Sri.Abdul Gafoor and purchased four sealed tins of Synthetic Food Colour Preparation (Orange Red Powder) in accordance with the procedure prescribed under the Act and Rules. The items were sampled in accordance with law. One part of the samples was forwarded to the Food Analyst, Regional Analytical Laboratory, Kozhikkode. By report dated 16.12.2015, the Food Analyst gave an opinion that the sample is unsafe as it contained added synthetic matter, which is prohibited, and, therefore, in violation to Section 3 (1)(zz)(v) & (viii) of the Act, 2011 read with Regulation 3.1.2 (4) of the Food Safety and Standards Act (Food Product Standards and Food Additives) Regulations, 2011 (hereinafter referred to as 'Additive Regulations, 2011').

(b) On receipt of the letter from the Designated Officer, the respondents filed appeal challenging the Form-B report. In the appeal, they demanded that the sample be forwarded to the Referral Laboratory for analysis as provided under Section 46(4) of the Act, 2011 and Rule 2.4.6 of Rules, 2011. The 2nd part of the samples was thus, forwarded to the Referral Food Laboratory, GOI, Ghaziabad.

(c) By report dated 21.04.2016, the Director, Referral Food Laboratory gave an opinion that the sample of Synthetic Food Colour Preparation (Orange Red Powder) does not confirm to the standards laid down under Regulation No.3.2.1 (12) of the Additive Regulations, 2011 as the dye content found in the sample is 62.70%, whereas the dye content declared on the label is 31.0%. The Director concluded that the sample is misbranded under Section 3 (1) (zf) of Act, 2006.

(d) On receipt of the report, the Designated Officer examined the case and decided that the contravention is not liable for punishment with imprisonment, but only with fine under the provisions of the Act, 2011. The Designated Officer authorised the Food Safety Officer to file with the adjudicating officer, an application for adjudication of the offence alleged to have been committed by the respondents. The said application is under challenge.

3. Heard Sri. Joseph Markos, the learned Senior Counsel appearing for the petitioners, as instructed by Sri. Abraham Joseph Markos, and Smt. M.K.Pushpalatha, the learned Senior Public Prosecutor.

4. Sri. Joseph Markos, the learned Senior Counsel, raised the following contentions to bring home his point that the proceedings are liable to be quashed at the threshold stage itself.

(i) The test results being at variance, Rule 3.1.1.(1) will come into play. If that be the case, a valid prosecution would be possible only if the Referral Laboratory confirms the findings of the Food Analyst. In other words, according to the learned Senior Counsel, only if the findings of the Food Analyst are confirmed by the Referral Laboratory, can the matter be sent for adjudication under Section 68 read with Rule 3.1.1.

(ii) Under the scheme of the Act and Rules, when the test results are at variance, the petitioners should have been granted an opportunity to contest the finding or alternatively, the matter ought to have been again referred to the Referral Laboratory as provided under the proviso to sub clause (1) of Section