The discretion of the Commissioner of Food Safety to approve prosecution beyond one year under Section 77 and the liability of directors under Section 66 of the Food Safety and Standards Act, 2006.

JUDGMENT

(Prayer: Criminal Original Petition has been filed under Section 482 of Cr.P.C., to call for the records in C.C.No.2976 of 2020 pending on the file of the XVII Metropolitan Magistrate, Saidapet, Chennai and quash the same as against the petitioner/accused 1-7.)

1. The petitioners herein are accused 1 to 7 in C.C.No.2976 of 2020 on the file of XVII Metropolitan Magistrate, Saidapet, Chennai. The complaint is filed by a public servant namely, the Food Safety Officer, Chennai District under Section 59 (1) of the Food Safety and Standards Act, 2006.

2. The substance of the complaint is as under:- The complainant/Food Safety Officer (in short “FSO”), on 31.01.2019, after obtaining permission from the Designated Officer went to M/s The Forum Vijaya Mall at Vadapalani, Chennai at about 12.30 hrs. In the said Mall, at the second floor, he found M/s Salt Restaurant functioning under the banner of M/s Blue Planets Foods Pvt Ltd. The FSO enquired about the safety and standard of the food served in the restaurant with Mushtaque Alam, the seventh petitioner herein, who was the Manager of the restaurant. In the store, he found 5 Kgs of ‘FRYMS’. The seventh petitioner told the FSO that it was purchased from the local market and kept for the customers for whom on their order he will fry it and serve. After explaining to the 7 th petitioner, the provisions of Food Safety and Standards Act, 2006 and the right under theFood Safety and Standards Act, 2006, to opt for the samples to be sent to National Lab (NABL). The FSO informed to the 7 th petitioner that he is going to draw sample and sent it for lab test. The FSO draw 2 kgs of FRYMS paying Rs.100/- for the cost of the FRYMS. They were divided into 4 portions and labelled as I , II , III and IV. The mahazar for drawing samples prepared in the presence of witnesses. The seventh petitioner acknowledged by signing in it.

3. On the same day, one of the sample packet marked as ‘ I ‘ was sent to the Food Analysis Lab at Thanjavur. The remaining 3 samples labelled as II, III and IV were handed over the Commissioner, Food Safety, Chennai. On receipt of the sample for test, the Food Analyst at Food Analysis Laboratory, Thanjavur, wrote a letter dated 04/02/2019 to the Commissioner that it is not possible to complete the analysis within the period prescribed under Section 46 (3) (ii) and FSS Rules 2.4.2 (6) due to administrative reasons and also the 14th day falls for many of the samples due to report. Thereafter, from the Lab the Commissioner of Food Safety got the report dated 23/11/2019 stating that the sample drawn and sent for test is unsafe for consumption, since it contains added colour Sunset Yellow, Ponceau 4 R, Tartrazine and Brilliant Blue which shall be absent with respect to 6.7 of food category System in Appendix A of Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011.

4. The petitioners were informed about the analysis report dated 23/11/2019 and given opportunity to prefer appeal within 30 days and seek for test by referral lab. The petitioners did not avail the option. Hence, the FSO through his letter dated 09/12/2019 sought sanction to prosecute. The Commissioner of Food Safety after considering the materials placed, accorded sanction to prosecute vide his proceedings dated 16/06/2020.

5. Learned Senior Counsel appearing for the petitioners submitted that, under the Scheme of the Act, the FSO has to draw 4 samples of 500 grams each from the suspected food item. Should sent one sample to the notified lab forthwith following the procedure laid in Rule (2). On receipt of the sample the Food Analyst who receives the sample for test should complete the test and report within 14 days from the date of receipt of the sample. If the Food Analyst unable to complete the analysis within the time prescribed, then he should address the Commissioner of Food Safety and seek for time extension specifying the expected date for completing the lab test. In case ad