IMPORTANT POINT
Sugandhit supari is classified as food under the Food Safety and Standards Act, 2006, and the addition of tobacco renders it unsafe, thus subjecting it to regulation under the Food Safety Act rather than COTPA.

JUDGMENT :

Hon'ble Arun Kumar Singh Deshwal, J.

1. Heard learned counsel for the applicants and Sri Rajeev Kr. Singh, learned A.G.A. for the State.

2. The instant application under Section 482 Cr.P.C. has been filed for quashing the summoning order dated 10.09.2021 passed by Special Judge Food Safety & Standards Act/ Additional Sessions Judge, Court No.9, Jhansi in Sessions Case No.643 of 2021, under Section 26(2)(v, i & ii)/58, 59(iii), 52(1) Food Safety & Standards Act, 2006 (hereinafter referred to as ‘Act, 2006’), Police Station Orai, District Jalaun as well as Non-bailable Warrant dated 27.10.2023 issued by Additional District Judge/FTC-IInd, Jhansi.

3. Facts giving rise to the present case are that applicant No.2 is the proprietor of a firm, named as M/s Balaji Traders Orai while applicant No.1 is the employee of the said firm of applicant No.2. The licence in Form -C under the Act, 2006 was also issued in the name of the firm of applicant No.2. In the above licence, applicant No.2 was mentioned as a person in charge of the operation of the firm and that licence is valid till 16.7.2024. An inspection was made by the Food Security Officer on 20.2.2020 in the manufacturing unit of applicant No.2 where the applicant No.1, who is an employee of the firm of applicant No.2, was present. In the presence of applicant No.1, 370 packets of sugandhit supari (Puja Brand) were found in the stock. Thereafter, four packets of the sugandhit supari were purchased from applicant No.1 by paying its price. On the spot, the format of Form 5-ka was prepared, out of which two samples were given to applicant No.1 and one sample was sent to the concerned laboratory for examination. It is claimed by the applicants that their firm is licence holder to manufacture pan masala and supari under the Act, 2006 which is valid up to 16.7.2024. On the basis of inspection of the Food Inspector on 20.2.2020, the sample of sugandhit supari (Puja Brand) was taken from the premises of the applicants and thereafter, on the basis of the report of the food analyst, the impugned complaint was filed. In the impugned complaint, it is mentioned that the sample of sugandhit supari contained tobacco. Therefore, the same is of sub standard quality and not fit for use. It was also mentioned in the report of food analyst that the sample of packets, containing supari, did not mention net quantity/net weight, date of manufacturing, batch number, manufacturer’s complete address, FSSAI licence number etc. In the complaint, it is further mentioned that the sample of sugandhit supari as well as its packets, were prepared in violation of Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restriction of Sale) Regulations, 2011 as well as regulation Nos. 2.2.2(7), 2.2.2(9), 2.2.2(8), 2.2.2(10), 2.2.2(6), 2.2.1(7) and 2.2.2(2) of the Food Safety and Standards (Packaging and Labelling) Regulations, 2011. The learned Magistrate, after receiving the aforesaid complaint, summoned the applicants, which is under challenge.

4. The contention of learned counsel for the applicants is that sugandhit supari is a tobacco product, therefore, the proceeding under the Act, 2006 is absolutely erroneous. In support of his contention, learned counsel for the applicants has relied upon the judgement of coordinate Bench of this Court passed in Application u/s 482 No. 9147 of 2023 (Manish Gupta vs. State of Uttar Pradesh and another) in which it is observed that the sample of a packet of baba supari is tobacco product and not a food item. It is further submitted that the tobacco product is not prohibited from selling, but it is regulated by Cigarette and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (hereinafter referred to as “COTPA, 2003’). It is lastly submitted that even if it is admitted that sugandhit supari is a food item, even then, applicants have a valid licence. Therefore, invoking the provi