O R D E R

The Designated Officer, Food Safety wing under the Food Safety and Standards Act inspected the premises of the petitioner/ Sri Venkatachalapathy Rice and Sago Factory, Thandavarayapuram, Attur Taluk, Salem District in the presence of one Mr.K.Venkatesan.

2.The license granted to the petitioner was valid from

24.03.2015 to 23.03.2020. The petitioner was found selling of Tapioca Starch Milk (loose) manufactured by Sri Venkatachalapthy Sago and Rice Factory, Thandavarayapuram, Attur, Salem District. The Designated Officer has ordered the Food Safety Officer, Attur to lift sample. On 21.08.2018, the FSO purchased Topioca Starch Milk(loose) from Mr.K.Venkatesan for sampling. The sample lifted by way of purchase from Mr.K.Venkatesan was sent to Food Analyst, Food Analysis Laboratory, Chennai on 21.08.2018. The 2nd, 3rd and 4th parts of the samples were sent to the office of the Designated Officer on the same day. The NABL opportunity has been given to FSO and he has waived his right by writing. The Food Analyst, Food Analysis Laboratory, Chennai sent its report dated 27.09.2018 to the office of the Designated Officer on 03.10.2018, which revealed that the sample was declared as “Substandard and unsafe”.

3.The Writ Petitioner filed W.P.No.11 of 2019 challenging the Analysis Report dated 27.09.2018 and the subsequent proceedings dated 08.10.2018 issued by the Designated Officer. The writ petition was disposed of on 11.02.2019 considering the objections filed by the petitioner as an appeal under Section 46(4) of the Food Safety and Standards Act, 2006. The appeal was directed to be disposed of within a period of four weeks. The petitioner was provided with an opportunity to raise further objections.

4.The learned counsel for the petitioner mainly contended that even before the receipt of the orders of this Court, the objections filed by the petitioner and the appeal was disposed of by the Authority, thereby, depriving the petitioner to submit further objections. Thus, the order is to be set aside and the Appellate Authority is to be directed to conduct a fresh enquiry.

5.The fact remains that on disposal of the appeal, a criminal prosecution was initiated under the provisions of the Act and the criminal prosecution initiated is now pending on the file of the Judicial Magistrate No.1, Attur, Salem District.

6.Section 46 provides functions of Food Analyst. Sub Section 4 to Section 46 stipulates that an appeal against the report of the Food Analyst shall lie before the Designated Officer who shall, if he so decides, refer the matter to the referral food laboratory as notified by the Food Authority for opinion. In the present case, it was not referred further and the report of the Food Analyst, Food Analysis Laboratory, Chennai was accepted by the competent authorities and accordingly, they found that the product manufactured by the petitioner company is declared as 'Substandard and Unsafe'.

7.It is not in dispute that the criminal proceedings has already been initiated in STC.No.623 of 2019, now pending on the file of Judicial Magistrate Court, Attur, Salem District. The petitioner submitted an application to withdraw the criminal complaint registered in STC.No.623 of 2019. The said application was also rejected by the Commissioner of Food Safety and Drug Administration in his proceedings dated 11.06.2019 on the ground that the criminal proceedings already initiated cannot be withdrawn and therefore, the petition to withdraw the criminal proceedings is not maintainable at all.

8.This Court is of the considered opinion that the sample collected by way of purchase from one Mr.K.Venkatesan cannot be found fault with. It is not collected directly as stated by the petitioner, nor the product can be construed as an intermediate product, since the product was purchased by the order of the Designated Officer from one Mr.Venkatesan for sampling.

9.The learned counsel for the petitioner states that it was not a purchase and it was collected fro