IMPORTANT POINT
Substantial compliance with procedural requirements in food safety law suffices; mere delay in analysis does not invalidate prosecution unless prejudice to the accused is demonstrated.

ORDER :

Accused Nos.1 to 5 in C.C.No.498/2019 on the files of the Judicial First Class Magistrate Court, Pala, have filed this petition under Section 482 of the Code of Criminal Procedure, 1973 (in short, ‘Cr.PC’), to quash the proceedings against them in the said case. The aforesaid case arose out of a complaint filed by the Food Safety Officer, Pala Circle, under Section 42(5) of the Food Safety and Standards Act, 2006 (in short, ‘Act’).

2. The prosecution case relates to the sale of two kilograms of chilli hybrid which contained the insecticide residue ‘Triazophos’ exceeding tolerance limit to the Food Safety Officer on 14.06.2018 at the shop by name ‘Reliance Retail Limited’ at Pala. The first accused is stated to be the Food Business Operator of the firm ‘M/s.Reliance Retail Limited’, and the second accused is said to be the person in-charge of the above said firm, which sold the food article to the Food Safety Officer. The third accused is mentioned as the establishment from which the aforesaid food item was sold to the Food Safety Officer. The fourth accused is the nominee of the warrantor, and the fifth accused is the warrantee firm which supplied the unsafe food article to the third accused.

3. The proprietary food ‘chilli hybrid’ was purchased by the Food Safety Officer on 14.06.2018. The samples were sent for analysis to the Food Analyst on the same day, but it was received by the Food Analyst on 16.06.2018. The analysis started on 09.07.2018 and completed on 24.07.2018. In the meanwhile, on 27.06.2018, the Food Analyst submitted a statement under the proviso to Section 46(3)(ii) of the Act to the Designated Officer and the Commissioner of Food Safety, that the analysis report of 25 samples mentioned in the schedule given thereunder, which included the food sample in the present case, cannot be sent within 14 days due to the incompletion of analysis within the stipulated time. It was further stated in the aforesaid statement that the analysis report of those samples will be sent within 50 days from the date of receipt of the samples. Accordingly, the Food Analyst sent the report of the analysis on 24.07.2018 indicating that the sample contained the insecticide residue ‘Triazophos’, which exceeded the tolerance limit prescribed for chillies under Regulation 2.3.1(2) of Food Safety and Standards (Contaminants, Toxins and Residues) Regulations, 2011, and hence it was unsafe under Sections 3(1)(zz)(iii)and (xii) of the Act. It is based on the aforesaid report of the Food Analyst that the present prosecution has been launched by the first respondent.

4. In the present petition, the petitioners would contend that the prosecution initiated against them are not maintainable due to multiple reasons including the infraction of procedural formalities, which are mandatory in nature.

5. Heard the learned counsel for the petitioners and the learned Additional Director General of Prosecution representing the respondents.

6. The learned counsel for the petitioners raised the preliminary challenge against the maintainability of the prosecution against the petitioners on the ground that it is in violation of the provisions contained in Section 42(2) and the proviso to Section 46(3) of the Act. Adverting to Sub-Section (3) of Section 42 of the Act, the learned counsel for the petitioners argued that it is mandatory on the part of the Food Analyst to complete the analysis and send his recommendations within 14 days from the date of receipt of the food sample. It is further pointed out that as per the proviso to Section 46(3) of the Act, if the sample cannot be analysed within 14 days of its receipt, the Food Analyst shall inform the Designated Officer and the Commissioner of Food Safety, giving reasons and specifying the time to be taken for analysis. According to the learned counsel for the petitioners, the statement which the Food Analyst claims to have given to the Designated Officer and the Commissioner of Food Safety on 27.06.2018, do