2024:BHC-AS:11378 Sayali Upasani IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 373 OF 2023

1. Ranjitsinh H. N. Nimbalkar

2. Mrs. Jijamala R. N. Nimbalkar

3. Vinay Shrikant Thakur ...Petitioners

4. Dhanaji Maruti Tone

5. Swaraj India Industries Ltd Versus

1. State of Maharashtra

2. Ashok Bhupal Koli …Respondents Mr. Nikhil Sakhardande, Senior Advocate, a/w Harsh Gursahani, Ms. Subhra Paranchpe i/b PLR Chambers, for the Petitioners.

Mrs. Geeta Mulekar, APP for the State/Respondent No.1.

CORAM: N. J. JAMADAR, J.

DATED: 5^th MARCH, 2024 JUDGMENT:-

1. This petition under Article 227 of the Constitution of India calls in question the legality, propriety and correctness of an order dated 20^th August, 2022, passed by the learned Additional Sessions Judge, Sangli, in Criminal Revision Application No.52 of 2018, whereby the learned Additional Sessions Judge was persuaded to dismiss the revision application preferred by the petitioners against an order passed by the learned Chief Judicial Magistrate, Sangli of issue of process against the petitioners for the offences punishable under Section 59 read with 26(2)(i),3(1)(zz)(v), 26(2) (v) and 63 read with 31(1) of the Food Safety and Standards Act, 2006 (“the Act, 2006”).

2. Background facts leading to this petition can be stated in brief as under:

(a) M/s. Swaraj India Industries Limited (“Swaraj”) -

petitioner No.5, is a Company registered under the Companies Act, 1956. Petitioner Nos.1 to 4 claim to be the erstwhile directors of Swaraj.

(b) Swaraj is engaged in manufacturing and selling products made of milk and holds FSSAI Central Licence bearing No.10013022001422, since the year 2013. Swaraj collects milk at various milk collection and chilling centers located across the Maharashtra, the details of which are included in the list annexed to the said licence.

(c) On 15^th July, 2013 Mr. N. S. Masare, the then Food Safety Officer (“FSO”), conducted inspection at the premises of Swaraj located at Plot No.11, M.I.D.C.,Jath, Taluka Jath, District Sangli. Two samples of the raw material i.e. ice mixed milk were collected from the said center, which the petitioners claimed to be the milk collection and chilling centre. The FSO, inter alia, noted that there was no licence to run the establishment at the said premises.

(d) An inspection report was prepared. The samples were sent for testing on 16^th July, 2013. Vide Report No.705 of 2013, the food analyst opined that the sample did not conform to the standards of buffalo milk.

(e) On 24^th April, 2014, the FSO sent a proposal for sanction for prosecution. The designated officer, in turn, forwarded the proposal to the Joint Commissioner on 10^th July, 2014. Armed with the said sanction, the FSO filed the complaint.

(f) By an order dated 17^th July, 2014, the learned Chief Judicial Magistrate took cognizance of the offences and issued process for the offences punishable under Section 59 read with

26(2)(i), 3(1)(zz)(v), 26(2)(v) and 63 read with 31(1) of the Act, 2006.

3. Being aggrieved, the petitioners preferred Criminal Revision Application No.52 of 2018. By the impugned order, the learned Additional Sessions Judge was persuaded to dismiss the revision opining, inter alia, that the question as to whether there was compliance of the mandatory requirements prescribed under the Act is a matter for trial and the learned Magistrate was not required to delve into those aspects at the time of issue of process.

4. Being aggrieved, the petitioners have invoked the writ jurisdiction.

5. An affidavit-in-reply is filed by Mr. N. S. Masare, the Assistant Commissioner - the then FSO, on behalf of respondent No.2, controverting the averments in the petition.

6. I have heard Mr. Sakhardande, the learned Senior Advocate for the petitioners, and Mrs. Mulekar, the learned APP for the State/Respondent No.1, at some length. With the assistance of the learned Counsel for the parties, I have perused the pleadings and the material on record.

7. Mr. Sa