Delay in prosecution recommendation under Food Safety Act does not invalidate proceedings; statutory 'shall' interpreted as 'may' due to context and absence of consequences for such delay.

ORDER :

(V.G. ARUN, J.)

The petitioners are accused Nos.1 and 2 in S.T.No.4937 of 2023 pending on the files of the Judicial First Class Magistrate -I, Kottayam. The case originated from a complaint filed by the 2^nd respondent, initiating prosecution under Section 37 (1) of the Food Safety and Standards Act, 2006 (the Act for short).

The allegations in the complaint are to the following effect;

On 11.01.2023, the Food Safety Officer inspected the shop premises, wherein the petitioners are functioning a food outlet named 'M/s.Al–Keyaan', and collected the sample of chicken shawarma for analysis. On analysis, the sample was found to contain added synthetic food colour, Sunset Yellow FCF (CI-15985), the use of which is not permitted for the heat treated processes for meat and poultry products as per Table 8 of Appendix A Food Category System 8.2.2 of Food Safety and Standards (Food Products Standards and Food Additives) Regulations 2011. Being thus unsafe as per Section 3 (1)(zz)(v) and 3(1)(zz)(vii) of Food Safety and Standards Act, 2006, its use amounts to a contravention punishable with imprisonment under Section 59 of the Act. The petitioners are seeking to get the prosecution against them quashed on the premise that the mandatory requirement under Section 42 (3) stands violated, the Designated Officer having sent the recommendation for prosecution to the Commissioner for Food Safety after fourteen days of receipt of the report from the Food Analyst.

2. Learned counsel for the petitioners submitted that Annexure-3 report of the Food Analyst is dated 19.01.2023, but the Designated Officer had forwarded his recommendation to the Commissioner only on 15.07.2023. According to the counsel the expression used in Section 42 (3) being 'shall', the time limit has to be followed mandatorily and violation would render the prosecution illegal.

3. Learned Additional Director General of Prosecution submitted that no prejudice is caused to the petitioners by reason of the delay in submitting the recommendation under Section 42 (3). It is pointed out that, although Section 46 (4) provides for appeal against the report of the Food Analyst and the Designated Officer had sent a notice under Section 46 (4) to the petitioners, enquiring whether they intended to file an appeal and the second sample analysed, the petitioners did not avail the opportunity. It is contended that the expression 'shall' in Section 42 (3) has to be understood as 'may', since the consequence of non-compliance is not provided in the Act. In support of this contention reliance is placed on the decision in Subramanian v. State of Kerala [2024 (6) KHC 375].

4. Being contextually relevant, Section 42 of the Act, prescribing the procedure for launching prosecution, is extracted below;

“42. Procedure for launching prosecution.–(1) The Food Safety Officer shall be responsible for inspection of food business, drawing samples and sending them to Food Analyst for analysis.

(2) The Food Analyst after receiving the sample from the Food Safety Officer shall analyse the sample and send the analysis report mentioning method of sampling and analysis within fourteen days to Designated Officer with a copy to Commissioner of Food Safety.

(3) The Designated Officer after scrutiny of the report of Food Analyst shall decide as to whether the contravention is punishable with imprisonment or fine only and in the case of contravention punishable with imprisonment, he shall send his recommendations within fourteen days to the Commissioner of Food Safety for sanctioning prosecution.

(4) The Commissioner of Food Safety shall, if he so deems fit, decide, within the period prescribed by the Central Government, as per the gravity of offence, whether the matter be referred to, –

(a) a court of ordinary jurisdiction in cas