Divergent findings from Food Analyst and Referral Laboratory render prosecution under food safety laws unsustainable, highlighting a procedural gap in the legal framework.

ORDER

Petitioner is the 4^th accused in S.T. No.303/2016 on the file of the Chief Judicial Magistrate Court, Thalassery. The above case is filed by the 2^nd respondent alleging offences punishable under Sections 3 (1) (zz) (v) and 3(1) (zf) (B) (ii) & C(i), 26, 26(2) (i) & (ii), 27(1) & (2)(c), 27(3) (c) of the Food Safety and Standards Act, 2006 (for short, the FSS Act) read with Regulation No.2.12 of the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 (for short, the FSS Regulations) and Regulation No.2.4.5.(38) of the Food Safety and Standards (Packaging and Labelling) Regulations, 2011 (for short, FSS (P&L) Regulations).

2. On 22.06.2015 at about 11.15 am, the 2^nd respondent Food Safety Officer, Dharmadam Circle inspected the premises of M/s. Day Mart Hyper Market, running in door No: AP. 15/14 to 19, situated at Chakkarakal in Anjarakkandy Grama Panchayat. At the time of inspection, the 1^st accused was conducting the trade of food articles. After observing all formalities under the FSS Act, Rules and Regulations made thereunder and after giving Form-VA notice duly acknowledged by the 1^st accused and in the presence of the 1^st accused and the witnesses called there, the complainant purchased for analysis 4 sealed bottles of "Mint & Lemon Flavoured Green Ice Tea" (350ml x 4 bottles) having identical label declarations. Rs. 80/- was paid as its cost, and a cash receipt was obtained.

It is also stated that the sample so purchased was sampled as per Rule 2.4.1 (15) of the Food Safety and Standards Rules, 2011 (for short, the FSS Rules). It is further stated that the signature of the designated officer was affixed lengthwise around each packet and obtained signature of the 1^st accused on each Packet as per Rule 2.4.1 (9) (iv) of the FSS Rules. It is submitted that the 4 sample packets were further secured with thick twine and sealed in accordance with the Rules. One Part of the sample along with Form-VII memorandum in a sealed packet was sent to the Food Analyst, Regional Analytical Laboratory, Kozhikode on 23.06.2015 through Trackon Couriers. A copy of the Form-VI memorandum and specimen impression of the seal used to seal the sample in a sealed packet was also sent to the Food Analyst, Kozhikode through Trackon couriers on 23.06.2015. The remaining 3 parts of the sample with 3 copies of Form-VI memorandum in a sealed packet along with intimation letter under Sections 47 (1)(c)(i) & (iii) of the FSS Act and specimen impression of the seal were handed over to the designated officer, Kannur on the same day, in the manner prescribed by Law is the submission. It is also submitted that the Food Analyst, Kozhikode delivered Form-B Report No.139 through designated officer, Kannur in which he opined that the said sample contains saccharin as sodium saccharine and is therefore unsafe as per the FSS Act and the FSS Regulations. Form-VA intimation notice sent to the 4^th accused as per the label declarations on 22.6.2015 is the submission. The 1^st accused produced tax invoice Bill No.F004646 dated 28.05.2015 on 10.09.2015. Form-V intimation notice was also sent to the 3^rd accused as per the bill address on 10.09.2015. Letters were sent to accused Nos.3 and 4 requesting their FSS License details for conducting the trade of food articles, but no response was received is the submission. On enquiry, it is found that the FSS License was issued to the 2^nd accused firm as per online verification. It is further submitted that, based on the appeal filed under Section 46 (4) of the FSS Act, the sample was sent to the referral Laboratory and the Director of the Referral Food Laboratory, Kolkata in his Form-A report opined that the said sample is unsafe and misbranded under Sections 3 (1) (zz) (v) and 3(1)(zf) (B) (ii) & (C) (i) respectively of the FSS Act. Thereafter the commissioner of Food Safety, Thiruvananthapuram issued a sanction order, after considering all the documents forwarded by the designated Office