ORDER :

These applications are filed under Section 438 of the Code of Criminal Procedure, 1973, seeking pre-arrest bail by the accused in crime Nos.2020/2023, 2047/2023 and 2048/2023 of Thrikkakara police station for the offence under Sections 284 and 308 IPC.

2. The prosecution allegation is that the petitioner, who is running a hotel, with the knowledge that death would be caused, prepared and sold 'shawarma' at his restaurant, which was ordered by the brother of the de facto complainant through Zomatto on 18-10-2023 at 9.30 p.m. The deceased was admitted to the hospital on 22-10-2023 due to some physical ailments due to the consumption of the said foodstuff, and on 25-10-2023, he succumbed to the ailments. The death of the deceased happened due to the consumption of 'shawarma' sold out by the petitioner herein through the restaurant. The petitioner sold the obnoxious and adulterated food, which is not consumable, so as to obtain wrong gain and thus committed the offences. In the other two crimes, similar food item was consumed, which resulted in the victims being affected with food poisoning.

3. Sri. T. Asaf Ali, learned counsel for the petitioner, submitted that the petitioner operates the well-known restaurant Le Hayath Restaurant at Thrikkakkara, holding requisite licenses. The said establishment has maintained a flawless record for several years. According to the petitioner, the deceased ordered 'shawarma' through Zomatto at 9.38 p.m. on 18-10-2023. The petitioner is running the hotel in a hygienic manner. He prepares the food with abundant caution and care to maintain its quality. Nearly 150 to 200 shawarma is being sold out from his hotel. On the day of the occurrence, around 150 shawarma orders were served. Nobody has raised any complaint. It is learnt that the deceased worked the day after consuming shawarma. He sought medical care on 22-10-2023, showing signs of severe septicemia. The medical bulletin published by the Sun Rise Hospital shows that the deceased was admitted on 22-10-2023 at around 10.30 a.m. with a history of cardiac arrest. He further showed the symptoms of multi-organ dysfunction. He was declared dead by 25-10-2023 at 2.55 p.m. The petitioner did not commit any wrongdoing, which led to the death. He had taken due caution while preparing food. It is also to be noted that if the food supplied by the hotel to the petitioner were adulterated or contaminated, other consumers who consumed food from the petitioner's hotel would have shown the symptoms of food adulteration. Nobody has raised any allegation.

4. The learned counsel, Sri. T. Asaf Ali also raised the following legal contentions. He argued that even if the prosecution allegations are admitted to be true, only Section 284 of the IPC is attracted, and Section 308 of the IPC can never be said to be applicable. It is his further argument that when the food is being purchased through Apps like Zomato, there is a warning indicated in the bill itself that the food has to be taken within two hours from the preparation. If any complication arises due to a breach of the same, the petitioner cannot be held liable. It is also his argument that going by Section 5 of the Cr.P.C., there is a special law in place dealing with food, namely the Food Safety and Standards Act, 2006 (in short, “FSS Act”). Section 89 also makes it clear that IPC is excluded for acts taken care of by the said Act. According to him, punishment comes under Section 59 of the Act; therefore, the prosecution under the IPC cannot be valid. The Special Act talks about the detailed procedures of the analysis, the qualification of the analysts, defines unsafe food, and the procedure for prosecution and punishment. Under such circumstances, it is his argument that when the offence alleged itself is not maintainable, he prayed for granting anticipatory bail.

5. The learned counsel for the petitioner, to support his contentions, relied on the judgments of the Supreme Court reported in Centre for Publ