JUDGMENT :-

1) By the present Application, under Section 482 of the Code of Criminal Procedure, 1973 (For short “CrPC”) (now Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023), the Applicant seeks to quash and set aside the complaint being Criminal Case No. 5349/SS/2014 pending before the Additional Chief Metropolitan Magistrate, 46th Court, Mazgaon, Mumbai, and the impugned Order of Issuance of Process dated 28th July 2014 and all further proceedings in connection with the said criminal case.

1.1) By Order dated 12th January 2018, this Court was pleased to grant Rule and interim relief in terms of prayer clause (b) inasmuch as the proceedings of Criminal Case No. 5349/SS/2014 pending before the Additional Chief Metropolitan Magistrate, 46th Court, Mazgaon, Mumbai were stayed.

2) Heard Mr. Aabad Ponda, learned Senior Counsel appearing for the Applicant and Mr. Yogesh Dabke, APP for the Respondent/State.

3) Some of the relevant facts are as under :-

3.1) The Applicant, Britannia Dairy Private Limited, is a wholly owned subsidiary of Britannia Industries Limited and is, inter alia, engaged in the marketing and distribution of various dairy products, including ghee, butter, cheese and other allied products under the Britannia Brand. The Applicant has a valid license under the FSS Act issued by the Food Safety and Standards Authority of India and is categorised as a wholesaler.

3.2) The Applicant also markets Britannia Cheese Cubes (Sour Cream and Onion) (for short “subject product”). The subject product is a food product falling within the definition of “food” under Section 3(1)(j) of the Food Safety and Standard Act, 2006 (for short “FSS Act”).

3.3) The Applicant executed a product supply agreement with Dynamix Dairy Industries Limited (“for short Dynamix”), under which Dynamix agreed to manufacture, pack and sell to the Applicant, amongst other products, processed Cheese. The Applicant was to market the said products.

3.4) On 30th July 2013 at 05.00 p.m., Respondent No.2, along with an independent panch witness, visited premises of Big Bazaar at R City Mall, Runwal Town Centre, Wyeth Lab, LBS Marg, Ghatkopar (West), Mumbai and purchased four packets of Britannia Cheese Cubes (Sour Cream and Onion), the subject product for test and analysis.

3.5) On 30th July 2013, notice was issued under Form V-A and under Rule 2.4.1(3) and 2.4.1(4) of the Food Safety and Standards Rules, 2011 (for short “FSS Rules”) to the food business operator, one Mr. Rupesh Marolie of the Big Bazaar Store. Notice under Form V-A would clearly mention the Applicant as the Marketer of the subject product. The subject product was packed on 12th February 2013 and that the shelf life of the subject product is “best before 9 months from the packing” i.e. 12th November 2013.

3.6) On 31st July 2013, Respondent No.2 delivered one sealed packet containing the sample of the subject product to the Food Analyst for testing. Respondent No.2 had delivered and deposited the sealed sample of the subject product with the Designated Officer. On 17th September 2013, Respondent No.2 received the report of the Food Analyst bearing No. 734 of 2013 dated 14th August 2013 (Food Analyst Report) wherein it is stated that, the sample of the subject product is infested with fungus and therefore, the subject product is unsafe under Section 3(1)(zz)(iii) and (x) of the FSS Act.

3.7) On 17th May 2014, Respondent No.2 issued notice to the Applicant under Rule 2.4.1(4) and Rule 2.4.5 of the FSS Rules calling for information as stated in the said notice. On 16th June 2014, the Applicant, while replying to the notice sought clarification in respect of the Laboratory Report and was informed of the fact that, the Laboratory Reports were not forwarded to the Applicant. That, the statutory rights of the Applicant to apply for a re-test was adversely affected. The Applicant neither replied to the said letter nor provided the Lab Report/information as requested.