IMPORTANT POINT
Procedural violations in food safety regulations can lead to quashing of prosecution if they cause prejudice to the accused's rights.

ORDER :

The petitioners are the accused in C.C.No.113/2019 on the files of the Judicial First Class Magistrate Court, Haripad, a case which arose out of a complaint filed by the Food Safety Officer, Haripad Circle under section 42(5) of the Food Safety and Standards Act, 2006 (hereinafter referred to as ‘the Act’). In the present petition filed under Section 482 Cr.P.C, the petitioners seek to quash the proceedings in the said case.

2. The complainant had purchased 2 Kgs of Coriander from the shop conducted by the first petitioner as licensee in Building No.337 situated in Ward No.17 at Nangiarkulangara in Chingoli Panchayat. The second petitioner is the warrantor who sold the above food item to the first petitioner. The aforesaid food item was found to have been unsafe under Section 3.1.(zz).(ix) of the Act since it contained dead and living insects in the analysis conducted by the Food Analyst. The second part of the sample was not sent to the Referral Food Laboratory since there was no such request in the appeal filed by the petitioners. In view of the above violation detected by the Food Safety Officer, he preferred a complaint before the learned Magistrate on 12.04.2019. The learned Magistrate took the complaint to files and issued summons to the petitioners to answer the charge under Section 26(1)(2)(i) read with Section 59(i) of the Act.

3. In the present petition, the petitioners would contend that the prosecution launched against them is prima facie unsustainable since the complaint does not bring out the offence alleged against them. It is further contended that there is infraction of the mandatory procedural requirements of the Act and the Rules framed thereunder, and hence the prosecution against them is liable to be quashed.

4. Heard the learned counsel for the petitioners and the learned Public Prosecutor representing the State of Kerala.

5. It is pointed out by the learned counsel for the petitioners that there had been flagrant violation of the requirement of Section 42(2) of the Act to analyse the food sample and to send the report mentioning the method of sampling and analysis within 14 days to the designated officer with a copy to the Commissioner of Food Safety. Thus, it is argued that the non-compliance of the aforesaid provision of law would vitiate the prosecution initiated against the petitioners. Per contra, the learned Additional Director General of Prosecution would submit that the time limit prescribed in the aforesaid Section is having no consequence if the Food Analyst had informed the Designated Officer and the Commissioner of Food Safety giving reasons for the failure to analyse the food sample within the aforesaid period and specifying the time to be taken for analysis in accordance with the proviso to Section 46(3) of the Act. By adverting to a statement submitted by the Food Analyst on 31.01.2018 mentioning that the analysis report of the 11 food samples described in the table thereunder could not be sent due to incompletion of the analysis of the sample within the stipulated time, the learned Additional Director General of Prosecution submitted that the requirement of the proviso to Section 46(3) of the Act is fulfilled since the food sample involved in this case is shown as item No.4 in that table. Thus, it is argued that the failure of the Food Analyst to send the analysis report within 14 days of the receipt of the sample cannot be taken as a reason to assail the prosecution in the present case. The argument advanced by the learned Additional Director General of Prosecution in the above regard has to be accepted since it is seen that there is substantial compliance of the requirements of the proviso to Section 46(3) of the Act, and hence the failure of the Food Analyst to complete the analysis of food within 14 days and to send the report to the Designated Officer and the Commissioner of Food Safety, cannot be taken as a ground to quash the prosecution initiated against the petitioners.

6. The