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IN THE HIGH COURT OF MADHYA PRADESH
G.S. AHLUWALIA, J.
Mukesh Kumar Gupta – Petitioner
Versus
State of M.P. and Others – Respondents
M. Cr. C. No. 5289 of 2012
Decided On : 17-04-2017
Food Safety and Standards Act - Quashing of complaint - Sections 26, 27, 51 - Summary of Acts and Sections: The court discussed the provisions of the Food Safety and Standards Act, 2006, particularly focusing on the standards for food quality, accreditation of food testing laboratories, and the appointment of food analysts. The court emphasized that the Act does not provide for giving the benefit of doubt to the accused based on marginal differences in analysis, and highlighted the authority of the Food Analyst and the accreditation of the laboratories under the Act.
Fact of the Case:
The Food Safety Officer filed a complaint against the applicant for sub-standard coriander powder based on a report from the State Food Testing Laboratory. The applicant challenged the complaint, arguing that the difference in ash content was marginal and the laboratory was not accredited.
Finding of the Court:
The court found that the difference in ash content and the accreditation of the laboratory were disputed questions of fact to be decided at trial. The court dismissed the petition, emphasizing that the Act does not provide for giving the benefit of doubt to the accused based on marginal differences in analysis.
Issues: The issues revolved around the validity of the complaint, the accreditation of the laboratory, and the appointment of the Food Analyst under the Food Safety and Standards Act, 2006.
Ratio Decidendi: The court held that the Act does not provide for giving the benefit of doubt to the accused based on marginal differences in analysis, and emphasized the authority of the Food Analyst and the accreditation of the laboratories under the Act.
Final Decision: The court dismissed the petition and directed the trial court to conclude the trial within one year from the date of receipt of the order.
Key Points: - The Act does not provide for giving the benefit of doubt to the accused based on marginal differences in analysis. (!) (!) - The 0.5% marginal difference in total ash is a disputed question of fact to be decided at trial; no automatic exemption from prosecution. (!) (!) - The State’s argument regarding accreditation of the laboratory and the appointment/status of the Food Analyst is considered a disputed fact to be resolved at trial, though prior clarifications exist about continued functioning of labs under certain conditions. (!) (!) (!) - A declaration was made that the named Food Analyst is appointed; challenge to this certificate may be raised during trial. (!) - The court dismissed the petition under section 482 CrPC and directed the trial court to conclude the trial within one year from receipt of the order. (!) (!) - The legality of using the State Laboratory report hinges on accreditation status and legislative provisions; trial will decide the correctness of the analysis and any possibility of error. (!) (!) (!)
ORDER :
1. Shri Nirmal Kumar Sharma, counsel for the applicant. Shri B.P.S. Chauhan, Public Prosecutor for the respondent No. 1/State. None for the respondents No. 2 and 3. This petition under section 482 of Criminal Procedure Code has been filed for quashing the complaint filed by the Food Safety Officer against the applicant for offences under sections 26, 27 and 51 of the Food Safety and Standards Act, 2006 (in short ‘FSS Act 2006’).
2. The necessary facts for the disposal of the present petition in short are that the Food Safety Officer had taken a sample of coriander powder on 15-12-2011 and the said food article was sent for chemical analysis to State Food Testing Laboratory, Bhopal. A report dated 30-12-2011 from the State Food Testing Laboratory, Bhopal was received, according to which, the sample was found to be of sub-standard quality. Accordingly, after completing the formalities, the complaint was filed.
3. It is submitted by the counsel for the applicant that total ash (on dry) in the coriander powder was found 7.5% whereas the standard prescribed is 7% and since the difference is only 0.5%, therefore, there is a possibility of error of judgment in analysis. Thus, prima facie, no case is made out against the applicant warranting his prosecution. It is further submitted by the counsel for the applicant that the State Food Testing Laboratory, Bhopal is not accredited by National Accreditation Board for Testing and Calibration Laboratories or recognized by the Food Authority under section 43 of FSS Act, 2006, therefore, the report given by the State Food Testing Laboratory, Bhopal is not admissible in law and Chaturbhuj Meena has not been appointed as Food Analyst under section 45 of FSS Act, 2006.
4. Per contra, it is submitted by the counsel for the State that so far as the marginal difference of 0.5% is concerned, there is no provision in law which gives benefit to the accused granting exemption from prosecuting in a case if the margin of difference is upto 0.5%, therefore, it will be for the trial Court to decide this question that whether there was an error of judgment in analysis or not. It is further submitted that so far as accreditation of the Laboratory is concerned, the Food Safety and Standard Authority of India has issued a clarification dated 5th July, 2011 and has clarified that the existing Food Testing Laboratories which are testing food samples under PFA will continue to perform their function of food testing under section 98 of FSS Act, 2006 till any notification is issued under section 43 of FSS Act, 2006. The letter dated 5th July, 2011 issued by Food Safety and Standards Authority of India has been placed on record as Annexure A-1, which reads as under:-
Food Safety and Standards Authority of India
(A Statutory Regulatory Body of Govt. of India)
Ministry of Health and Family Welfare, 3rd Floor,
FDA Bhawan, Kotla Road, New Delhi-110002
Dated: 5.7.2011
To,
Food Safety Commissioners of all States/UTs
Subject: Clarification on the status of Public Labs functioning at Centre/State/UT after the promulgation of FSS Act, 2006 with effect from 5th August, 2011.
Section 43 of the FSS Act requires that all food testing under the Act will be done in NABL or any other FSSAI approved accredited lab. State Governments and UT Government have already been advised in this regard and the results of a ‘gap analysis’ commissioned by FSSAI in respect of the State Labs have been shared for appropriate action for the upgradation of the Labs to accredited standards. However, from the interaction with the State Government it is clear that the process is likely to take some time and the labs will not be able to get accreditation before 5th August, 2011 when the FSS Act will become operational. The matter has been examined and it is clarified that the existing Public Food Testing Laboratories which are testing food samples under PFA will continue to perform their function of food testing under section 98 of
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