Food business operators are liable for ensuring compliance with food safety standards, including the safety of packaged food sold.

O R D E R

The petitioners are the accused Nos.1 and 2 in C.C No.45/2019 on the files of the Chief Judicial Magistrate Court, Thrissur. The first petitioner is stated to be a food business operator who conducts the second petitioner firm, which is a hyper market functioning at Thrissur. The petitioners were booked by the Food Safety Officer, Thrissur Circle, for violation of Sections 27 , 59(1), 52 and 3(1)(zz)(v)(viii), 3.1(zf)(C)(i) of the Food Safety and Standards Act, 2006 , and Regulations 2.2.2:4 and 2.2.2:6 of Food Safety and Standards (Packaging and Labelling) Regulations, 2011 .

2. The allegation against the petitioners is that the first petitioner stored unsafe and misbranded baby rusk for sale in the second petitioner hypermarket firm. The Food Safety Officer, Thrissur Circle is said to have inspected the second petitioner hypermarket firm and took the samples of packed baby rusk, which were found to be misbranded. The aforesaid baby rusk, upon analysis at the Regional Analytical Laboratory, Ernakulam, were found to have contained synthetic food colour, tartrazine, in contravention of Regulation 3.1.2:6 of Food Safety and Standards (Packaging and Labelling) Regulations, 2011 which was unsafe as per Section 3 .1.(zz)(vii) of Food Safety and Standards Act, 2006 . At the request of the third accused/ manufacturer, one sample of the food item was sent for analysis at the Referral Food Laboratory, Mysore. However, the certificate issued from the said Laboratory also confirmed the findings of the Regional Analytical Laboratory.

3. In the present petition, the petitioners would contend that the prosecution initiated against them is totally unsustainable. It is stated that the food analysis was not done in accordance with the standing rules. According to the petitioners, they cannot be held liable for misbranding of packaged food commodities sold to them by the manufacturer. It is further contended that the findings in the laboratory test cannot be attributed any value since the food item was not toasted bread.

4. Heard the learned counsel for the petitioners, the learned Additional Director General of Prosecution representing respondents 1 and 2, and the learned Public Prosecutor representing the State of Kerala.

5. As regards the allegation of misbranding, it is argued by the learned counsel for the petitioners that they cannot be held liable for the above violation since the food item involved was a packaged commodity. According to the petitioners, the manufacturer alone can be held liable for the above violation of law.

6. The argument advanced by the learned counsel for the petitioner in the above regard cannot be accepted in view of the provisions contained in Section 26 of the Food Safety and Standards Act, 2006 dealing with the responsibilities of the food business operator. As per the above provision of law, every food business operator shall ensure that the articles of food satisfy the requirements of the said Act, and the Rules and Regulations made thereunder, at all stages of production, processing, import, distribution and sale. Going by the definition of ‘Food Business Operator’ and ‘Food Business’ in Section 3 (o) and 3(n) respectively of , the seller would also come under the definition of food business operator. Therefore, the petitioners cannot be heard to say that they are not liable to be prosecuted for selling misbranded packaged commodities of food in their establishment. Even otherwise, a defence in the above regard is a matter to be considered during trial, and that cannot be a reason to exerci