COMMON ORDER

Both the petitions have been filed to call for the records in C.C.No.4052 of 2016 on the file of learned IX Metropolitan Magistrate, Saidapet, Chennai and quash the same.

2. There are totally five accused in C.C.No.4052 of 2016.

Petitioners in Crl.O.P.No.26918 of 2016 are 3rd and 5th accused and the petitioner in Crl.O.P.No.26919 of 2016 is 4th accused. Respondent filed this case against the petitioners and co-accused 1 & 2 for violating the provisions of Food Safety and Standards Act, 2006. The substance of the allegations made against the accused in this case is that Food and Safety Officer Mr.A.Chidambaram, inspected M/s.Chandrika Home Needs at about 12.50 p.m on 16.12.2014. After introducing himself and following necessary procedures, he took samples of “Diabetics Dezire Natural” on paying Rs.464/-. After purchasing the sample, he made appropriate sealing of the samples, in the presence of fourth accused, obtained his acknowledgment, sent one sample to Food Analysis Laboratory, Kings Institute, Guindy, for analysis. The analysis report dated 05.01.2015 shows that food sample is “sub-standard and misbranded”. It was intimated to the fifth accused and second accused on 21.01.2015. Second accused expressed his desire to send the second sample to the Central Food Laboratory through a letter dated 23.02.2015 and 27.03.2015. Accordingly, the second sample was sent for analysis to the Central Food Laboratory, Calcutta. The report of Central Food Laboratory, Calcutta dated 17.06.2015 was received on 19.06.2015, wherein it is stated that the sample is “unsafe and misbranded”. Thus, accused have committed the offences punishable under Sections 59(i) and

52(1) of Food Safety and Standards Act, 2006.

3. This case was taken cognizance by learned IX Metropolitan Magistrate, Saidapet. Challenging the taking cognizance, these petitions are filed for quashing.

4. Learned counsel for the petitioners in both the petitions submitted that the petitioners displayed “Diabetics Dezire Natural” only after verifying the existence of essential statutory licence given by the respondent. Petitioners are mere retail sellers and they cannot be expected to know the delicate details of contents of a product. Petitioners bonafidely displayed the product after verifying the statutory licence. There is no allegations against the petitioners that they intentionally and purposely sold the “Diabetics Dezire Natural”. The allegation of misbranding i.e., non- mentioning of anti-baking agent is completely within the domain of first and second accused and it is out of the domain of retail sellers. There are violations of certain mandatory provisions of Food Safety and Standards Act, 2006. As per section 42(2) of the Act, after receiving the sample, Food Analyst should send the analysis report within 14 days to the Designated Officer. In the case before hand, it is alleged that the food sample was sent to Food Analyst on 16.12.2014, but the Food Analyst report was received only on 05.01.2015. There is a delay of 5 days in sending the report. After scrutinizing the report of the Food Analyst, the Designated Officer should decide as to whether contravention is punishable with imprisonment or fine and in the case of contravention punishable with imprisonment, he shall send his recommendation within 14 days to the Commissioner of Food Safety and Drug Administration, for sanctioning prosecution. However, the Designated Officer had, only on 10.07.2015, addressed the Commissioner of Food Safety and Drug Administration, seeking permission to launch prosecution. There is a huge delay in seeking the permission. As per Section 77 of the Act, no Court shall take cognizance of the offence under this Act, after expiry of the period of one year from the date of commission of offence. However, in this case, the complaint was filed in the Court only on 16.08.2016, more than one year after the date of taking of samples. For the failure to avail the mandatory provisions, the