Prosecution under the Food Safety Act requires confirmation of findings by a referral laboratory; divergent reports invalidate proceedings.

O R D E R

These Criminal Miscellaneous cases are connected and the same legal issue is raised in these cases. Therefore, I am disposing of these two cases by a common order.

2. Crl.M.C. No. 2371/2017 is filed to quash the complaint in AC No. 7/2014 before the Adjudicating Officer, Mananthavady. The petitioner is the 2^nd accused in AC No.7/2014 before the Adjudicating Officer, Manathavady initiated under Sec.68 of the Food Safety and Standards Act, 2006 (for short 'FSS Act') alleging violation of Secs.3(1)(zx) (i), 26.2(ii), 27(1)(2e), 50, 51 r/w Regulation 2.9.3:2 of the Food Safety and Standards (Food Products Standards & Food Additives) Regulations, 2011 (for short 'Regulations, 2011'). The 2^nd respondent herein is the complainant. The allegation is that on 10.09.2013 at 11 am, the Food Safety Officer, Kalpetta Circle collected 4 packets of Chilly Powder from the shop M/s. Golden Hyper Traders and the sample of the chilly powder when sent for analysis was found not to conform to the standards prescribed for Chilly Powder falling under Reg.2.9.3:2 of Regulations, 2011 and hence, the sample was found sub-standard. Annexure-I is the complaint filed by the Food Safety Officer, Kalpetta before the adjudicating officer. The 2^nd respondent is the nominee of the distributing and manufacturing firm - M/s. Devon Foods Ltd., Mariamthuruth, Kottayam and the 3^rd respondent is the firm – M/s. Devon Foods Ltd. When the sample was sent to the analyst, it is found that the presence of “total ash” in the chilly powder was found more than the prescribed standard. Hence, the Food Analyst submitted a report that the sample do not conform to standard prescribed for the Chilly Powder falling under Reg. 2.9.3:2 of Regulations, 2011 and therefore, sub-standard. Annexure-II is the report. Annexure-I complaint shows that the remaining sample of the Chilly Powder was sent for re-analysis to the Central Food Laboratory, Kolkata. Annexure-III is the report of the Central Food Laboratory. As per the Central Laboratory report, the sample does not conform to the standard laid down under Regulations, 2011 as it shows higher in moisture content and hence, it is substandard.

3. Crl.M.C. No.7827/2023 is filed by the accused in ST No. 410/2022 of Chief Judicial Magistrate Court, Thrissur. The petitioners are accused Nos. 3 and 4. In this case, the article seized was Coriander Powder. As per Annexure-A1 analyst report, the opinion of the analyst is that the sample contains insecticides Malathion and Chlorpyriphos to an extent of not less than 0.011 mg/kg and 0.019 mg/kg respectively which exceeds the Maximum Residue Limit (MRL) as per Regulation 2.3.1 of Food Safety and Standards (Contaminants, Toxins and Residues) Regulations, 2011 read with note. It is also observed in the report, that the tolerance Limit of 0.01 mg/kg shall apply in cases of pesticides for which MRL have not been fixed and is therefore, Unsafe as per section 3.1(zz)(iii) and (xii) of FSS Act.

4. Aggrieved by the same, an application was filed under Sec. 46 (4) of the FSS Act. The referral laboratory submitted a report as evident by Annexure-A2 in which the opinion is as follows :

“And I am of the opinion that the sample is “unsafe” as defined under Section 3(1)(zz)(viii) of Food Safety and Standards Act, 2006 as it does not conform to the standards laid down for Dhaniya Powder under the provisions of Food Safety and Standards (Food Products, Standards and Food Additives) Regulation 2011 thereof, in that a) Test for the presence of preservative-Sulfur dioxide is positive.”

5. The short point raised by the petitioners is that there are divergent finding in the reports of the Food Analyst and referral food laboratory and therefore, the proceedings against the petitioners are not maintainable. The petitioners relied Rule 3.