The central legal point established is that the procedure for launching prosecution under the Food Safety and Standard Act, 2006 must be followed, and the designated officers must have the necessary authorization to initiate the case.

JUDGMENT :

1. Heard Mr. Nilesh Kumar, learned counsel for the petitioner and Mr. Manoj Kumar assisted by Mr. P.C. Sinha, learned counsel for the State.

2. This petition has been filed for quashing the FIR and the entire criminal prosecution in connection with Ratu P.S. Case No.230/2021 lodged as against the petitioner under Section 59 of the Food Safety and Standard Act, 2006 (hereinafter to be referred to as “the Act, 2006”) as well as Sections 419, 420, 467, 468, 469, 471, 290, 120B of the Indian Penal Code as well as Sections 7 and 20 of COTPA (Cigarette and Other Tobacco Product Act, 2020), lodged by respondent no.2, pending in the court of the learned Judicial Magistrate, 1st Class, Ranchi.

3. On the written report dated 15.08.2021 of the Food Safety Officer (respondent) no.2, the case was lodged wherein it was alleged that on 14.08.2021 on secret information, he went to the office of M/s. Suraj Freight Carriers Pvt. Ltd., Kamre. The raid was conducted in the leadership of respondent no.2. It was further alleged that against the order of the State Government dated 28.05.2021, some cigarette and other pan masala was found present in the Carrier company in presence of local independent witnesses, recovered pan masala and cigarette and the same has been seized. One Nirmal Kumar Sharma was apprehended from the spot. It was also alleged that recovered pan masala was banned in Jharkhand i.e. by an order issued by the Government of Jharkhand. It was suspected that cigarette was also against fixed standard and the same has illegally been packed. It was further alleged that the said go down has been taken on lease by the petitioner-Kishor Kumar Srivastava i.e. Transport Company namely M/s. Suraj Freight Carrier Pvt. Ltd. On the basis of search and seizure, the present case has been instituted.

4. Mr. Nilesh Kumar, learned counsel for the petitioner submits that the procedure for launching the case under Section 42 of the Act, 2006 has not been followed. He further submits that the FIR has been launched before the Officer-in-charge of the Ratu Police Station by the Food Safety Officer, which is absolutely against the provision of the statute i.e. the Special Act. He also submits that it is a settled principle that the provision of Special Law would prevail over and above the general law. He further submits that the final decision where the prosecution may be launched in court or where should be report to the adjudicating authority means only with the designated officer as provided under Section 42(3) of the Act, 2006. If the designated officer found that the contravention requires prosecution in court, he shall send his recommendation to the Commissioner of the Food Safety seeking sanction for prosecution.

5. Mr. Manoj Kumar, learned counsel for the State submits that the FIR has been lodged in accordance with law and the same is not contrary to any provision of law, as alleged by the petitioner.

6. In view of the above submissions, the only question which required to be looked into by this Court is that whether in absence of following the procedure under Section 42 of the Act, 2006 the prosecution can stand against the petitioner or not. The provision of Section 42 of the Act, 2006 which lays down the procedure for launching prosecution for any offence under the said Act is quoted herein 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 punish