Aggrieved by the issuance of notice dated 28.11.2013, the petitioners have approached this Court. The petitioners have challenged the appointment of Food Analyst on the ground that the appointment was not published in the official gazette prior to the date of occurrence and therefore, the Food Analyst could not have analysed the food samples. A challenge to the appointment of Food Safety Officer has been made on the ground that the State Government is not competent to make such appointment and the appointment of Food Safety Officer was also not notified in the official gazette prior to the date of alleged occurrence.

2. The brief facts of the case as disclosed in the application for adjudication dated 04.04.2013, a copy of which has been annexed as Annexure4 to the writ petition are that, on 18.03.2013 the Food Safety Officer along with one Naresh Kumar Prasad visited the shop of the accused persons and they informed the accused no.2 (petitioner no.2) that they intended to take sample of “paneer” for the purpose of analysis and consequently, a notice in form VA was issued to the accused nos. 1 and 2 (petitioners). The Complainant, Food Safety Officer purchased (200x4) gms of “paneer” for the purpose of analysis on payment of Rs.192/- and it was sealed in sample packets which were sent for food analysis. After the report of the Food Analyst was received wherein, it was found that the “paneer” procured by the Complainant was of substandard grade, prosecution for an offence punishable under Section 51 of the Food Safety and Standards Act, 2006 was lodged and accordingly, notice dated 28.11.2013 was issued to the petitioners.

3. A counter-affidavit has been filed denying the allegations made in the writ petition. It has specifically been averred that the appointments of Food Safety Officer and the Food Analyst have been made in accordance with law.

4. Heard the learned counsel appearing for the parties.

5. Challenging the appointment of the Food Analyst, the learned counsel for the petitioners has submitted that the Food Safety and Standards Act, 2006 provides a particular mode for appointment of Public Analyst and since such prescribed mode has not been followed, the appointment so made would be vitiated. The learned counsel refers to provision under Section 3(1)(zg) and Section 45 of the Food Safety and Standards Act, 2006. The learned counsel for the petitioners has submitted that the notification with respect to appointment of the Food Analyst has to be published in official gazette and in this case admittedly it was published only on 18.07.2014 therefore, the Food Analyst who has examined the samples taken from the shop of petitioner no.1 was not competent to give a report. The learned counsel for the petitioners has relied on a decision of the Hon'ble Supreme Court in “I.T.C. Bhadrachalam Paperboards & Ors. Vs. Mandal Revenue Officer”, reported in (1996) 6 SCC 634. The learned counsel for the petitioners has further submitted that this writ petition was filed on 10.01.2014 whereas, the Food Analyst has been appointed vide gazette notification dated 18.07.2014 and therefore, the appointment so made would not validate his report as at the time when the alleged offence was committed his appointment was non-est.

6. A challenge to the appointment of Food Safety Officer has been made with reference to Section 37 of the Food Safety and Standards Act, 2006. It is contended that the appointment in the present case has been made by the State Government vide notification dated 25.01.2012 whereas, in terms of Section 37 of the Food Safety and Standards Act, 2006 only the Commissioner of Food Safety can make appointment of Food Safety Officer and thus Complainant was not validly appointed and he was not authorised to lodge prosecution against the petitioners. The learned counsel for the petitioners has relied on a decision of the Hon'ble Supreme Court in “A.K. Roy & Anr. Vs. State of Punjab & Ors.”, reported in (1986) 4 SCC 326.

7. Mr. Ra