IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 30.06.2023 PRONOUNCED ON : 06.07.2023 CORAM THE HONOURABLE MR. JUSTICE SUNDER MOHAN Crl.O.P. No.23692 of 2021 &

Crl.M.P.Nos. 13059 & 13060 of 2021

1.K.T.Venkates Raja 2.K.T.Srinivasa Raja

3.A.Srinivasan

4. M/s.Adyar Ananda Bhavan Sweets India Pvt. Ltd., No.53, South Phase, Second Sector, Third Street, Ambattur Industrial Estate, Chennai – 600 058.

...Petitioners/Accused 1 to 4 Vs.

State by P.Sundararaj, Food Safety Officer, Code No.551, Velachery Zone Chennai District Tamil Nadu Food Safety and Drugs Administration Department, No.33, West Jones Road, Saidapet, Chennai – 600 015.

...Respondent/Complainant PRAYER: Criminal Original Petition filed under Section 482 of the Criminal Procedure Code, to call for the records relating to the complaint in C.C.No.2079 of 2021 on the file of the learned XVIII Metropolitan Magistrate, Saidapet, Chennai and to quash the same.

For Petitioners : Mr.V.Gopinath Senior Counsel for M/s.R.Harishankar For Respondent : Mr.A.Damodaran Additional Public Prosecutor

O R D E R

The petition is to quash the complaint filed under Sections 51 and

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

2. It is alleged in the complaint that the respondent/food safety officer conducted an inspection in the Velacherry branch of the Restaurant run by the fourth petitioner/fourth accused/M/s.Adyar Ananda Bhavan Sweets India Pvt. Ltd., on 12.12.2020; that the respondent found that the Restaurant was selling a food item by the name “A2B Singles Dosa,” which had been prepared with non-permitted colours; that the food item fell under the category of proprietary food under regulations 2.12.1; that the food item was found to be sub-standard and unsafe and hence, the petitioners were liable for the violations of provisions under Section 26 (1) (2) (i) (ii) & (v) of Food Safety and Standards Act, 2006 punishable under Sections 51 and 59 (1) of the Food Safety and Standards Act, 2006.

3. Mr. V. Gopinath, the learned Senior Counsel for the petitioners, submitted that;

(a) It is alleged in the complaint that the “Dosa” seized by the respondent contained charcoal which is not a permitted addictive as per Table 6.6 of Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011. The learned Senior Counsel submitted that table 6.6 of Appendix - A only refers to a batter. Admittedly, the seized item was only a “Dosa,” and hence, the respondent cannot claim that the product, namely “Dosa,” does not conform to the standards.

(b) The learned Senior Counsel contended that since the respondent had not taken samples of batter to prove the content of activated Charcoal in the Batter, the prosecution cannot be maintained on the basis of the alleged presence of activated Charcoal in the end product, which could be even due to excessive heat.

(c) It is the admitted case of the respondent that the third accused/third petitioner/Mr. A. Srinivasan was the nominee appointed by the fourth petitioner/company as responsible for food safety in the branch where the samples were drawn. In such circumstances, the respondent ought not to have prosecuted the company and its Directors. The Proviso to Section 66 (1) of the Food Safety and Standards Act, 2006, states that if the nominee is appointed, he shall only be liable for the contravention, if any.

(d) In any event, there is no allegation against the first and the second petitioners in order to invoke Section 66 of the Food Safety and Standards Act, 2006, which provides for vicarious liability of the Directors where the offence is committed by the Company. Hence, he prayed for the quashing of the complaint.

4. Mr. A. Damodaran, the learned Additional Public Prosecutor, per contra, submitted that:

(a) The question as to whether the batter or the end product contained activated Charcoal is factual and has to be adjudicated only before the Trial Court. Further, it is for the petitioners to establish before the Trial that there was no “charc