The court established that an offence under the Food Safety and Standards Act is committed upon receipt of the food analyst's report, and any prosecution must adhere to mandatory timelines; failure to do so invalidates the complaint.

JUDGMENT :

SANJAY DHAR, J.

1. The petitioners have challenged the complaint filed by the respondent against them alleging commission of offence under Section 26(1)(2)(i)(ii) punishable under Section 59 read with Section 3(1)(zz), Section 51 read with Section 3(1)(zx) of Food Safety and Standard Act, 2006 (for short “the FSS Act”) pending before the Court of Chief Judicial Magistrate, Srinagar (for short “the trial court”). Challenge has also been thrown to order dated 30.11.2023 passed by trial court, whereby cognizance of offences has been taken and process has been issued against the petitioners.

2. It is alleged in the impugned complaint that on 19.09.2022, the respondent, along with a team of Food Safety Officers, inspected the premises of petitioner No.1 (M/S The Daily Bazar) located at Saida Kadal, Srinagar. The complainant is stated to have collected the sample of Nestle Milkmaid, Sweetened condensed, partly skimmed milk and after completing the requisite formalities, the sample was sent for analysis to Food Analyst, National Food Laboratory, Ghaziabad. As per report of the Food Analyst dated 21.10.2022, the sample was found to be not conforming to the standard laid down under Regulation No.2.1.5 of Food Safety and Standards(Food Products Standards and Food Additive) Regulations, 2011 (for short “the Regulations”). It was further mentioned in the report that the sample was showing total plate count above the maximum prescribed limit and milk protein in milk solids not fat below the minimum prescribed limit. Thus, the sample was found to be sub-standard and unsafe. Corrigendum to the report was issued by the Food Analyst on 28.11.2022, thereby making corrections in the batch number.

3. Notice dated 17.11.2022 under Section 46(4) of the FSS Act was served upon petitioner No.1 herein, who did not prefer appeal before the Designated Officer. Thereafter petitioner No.1 was asked to disclose the name and address of any other person involved in the trade of the food article. In response, petitioner No.1 submitted the bills/invoices of M/S Malhotra Brothers, Court Road, Srinagar, from whom he had purchased the food article in question.

4. Notice under Section 46(4) dated 22.11.2022 was served upon petitioner No.2 and he was given opportunity to prefer an appeal before the Designated Officer. Upon seeking information from respondent No.2 with regard to source of the food article in question, it was informed that M/S Nestle India Limited, New Delhi, has supplied the said food article. In this regard bill/invoice was submitted by petitioner No.2.

5. Notice under Section 46(6) of FSS Act dated 30.11.2022 was served upon petitioner No.3 but it did not prefer to file any appeal.

6. Vide communication dated 28.03.2023, the Designated Officer, Food Safety, Srinagar, placed the information before the Commissioner, Food and Drug Administration, Srinagar, for grant of sanction for prosecution against the petitioners herein. Vide order No.165-FDA of 2023 dated 17.10.2023, Commissioner, Food & Drugs Administration, J&K, accorded sanction for prosecution against the petitioners.

7. On the basis of aforesaid allegations, it has been claimed by the respondent/complainant that the petitioners have committed offences under Section 26(1)(2)(i)(ii) punishable under Section 59 read with Section 3(1)(zz), Section 51 read with Section 3(1)(zx) of FSS Act.

8. The trial court vide order dated 30.11.2023, has proceeded to take cognizance of the offences and issued process against the petitioners.

9. The petitioners have challenged the impugned complaint and the impugned order whereby cognizance of the offences has been