Prosecution for food safety violations cannot proceed if samples were taken before the specified date, as per the competent authority's directions.

O R D E R

The petitioners in Crl.M.C. No.6904 of 2018 are accused Nos.1 to 10 and the petitioners in Crl.M.C. No.5296 of 2019 are accused Nos.11 and 12 in C.C.No.1316 of 2017 on the file of the Judicial Magistrate of First Class-II, Ernakulam. The calendar case has been registered based on a complaint filed by the Food Safety OfÏcer, Ernakulam Circle, alleging offences under Sections 3 .1 (zz)(iii) and (xi), and Section 3 .1 (zz) (v) and (vii), 3 (1), 26(1) (2) (i), (27) (2) (c ), 59(i) and 63 of the Food Safety and Standards Act, 2006 (Act No.34 of 2006) (for short ‘the Act 2006’).

2. The petitioners are the Executive Committee members of the Ernakulam District Transport (Road) Employees Co-operative Society, which manages a shop on the premises of KSRTC Bus Stand, Ernakulam. On 02.02.2016 at 4.00 p.m., the Food Safety OfÏcer, Ernakulam Circle inspected the shop and took samples of Tea Dust from the bag kept for sale and sent for analysis. The analyst reported presence of Extraneous Matter (Iron Fillings) to an extent not less than 401.09 mg per Kilogram and added synthetic food colours, Carmoisine and Sunset Yellow.

3. Based on the report of the analyst, on 20.09.2017, the respondent No.2-Food Safety OfÏcer filed a complaint before the Judicial Magistrate of First Class-II, Ernakulam, which led to the prosecution referred to herein.

4. The learned counsel for the petitioners contended that, in view of the order issued by the competent authority under the Food Safety and Standards Act, 2006 , no prosecution shall be initiated in respect of the offences relating to the presence of iron filling where samples were taken prior to 19.05.2016. The learned counsel for the petitioners relied on the relevant order issued by the competent authority to substantiate his contention.

5. The learned Additional Director General of Prosecution fairly conceded the contentions raised by the petitioners. As per Section 16(5) of the Food Safety and Standards Act, 2006 , the Food Authority may, from time to time give such directions, on matters relating to food safety and standards, to the Commissioner of Food Safety, who shall be bound by such directions while exercising his powers under this Act. Invoking the powers under Section 16(6) the Food Safety and Standards Authorities of India, the statutory authority under the as per order dated 02.11.2017 issued the following directions;

“ The Food Safety Standards Authority of India (FSSAI) had issued an order dated 21^st November 2014 in continuation of the statutory advisory dated 23^rd May, 2014 stating that the limit of iron fillings in Tea remained at 150 mg/kg and advising that the specific prosecution may not be launched up to 23^rd May 2015 or till further orders, whichever was earlier in case the iron fillings were within the prescribed limit of 150 mg/kg. Again, vide another order dated 25^th May 2015 the time line not to launch prosecution in such cases was extended upto 21^st November 2015.

2. Further vide directions dated 22^nd April 2016 issued under Section 16(5) of FSS Act 2006, it was stated that draft standards prescribing a limit of not more than 150 mg/kg of iron fillings in Tea were approved by the Food Authority and the draft notification was uploaded on FSSAI's website on 4th December 2015 for inviting comments from the stakeholders. Enforcement Authorities of States/UTs were instructed to implement the prescribed standards as in the draft till issuance of final notification in this regard.

3. FSSAI vide order dated 19^th May, 2015 issued an Order stating that due to non-finalization of appropriate and reliable methods of assessment/ testing of samples of iron fillings in Tea, and till such time those are finalized, the Enforcement Authorities