IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on : 02.11.2023 Pronounced on : 08.11.2023 CORAM:

THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN Crl.O.P. No.3506 of 2021 and Crl.M.P.Nos.2036 & 2037 of 2021

1. S.Ravikumar

2. R.Ramesh

3. Mukunth

4. M/s.Adyar Bakery Pvt., Ltd., all having address at M/s.Adyar Bakery Pvt., Ltd., No.110, Sardar Patel Road, Adyar, Chennai-600 020. ... Petitioners Vs.

State of TamilNadu, Represented by Food Safety Officer, A Chidambaram, Adyar Region, Code No.550 ... Respondent PRAYER: Criminal Original Petition has been filed under Section 482 of Criminal Procedure Code, praying to call for the records in respect of C.C.No.775 of 2020 on the file of the IX Metropolitan Magistrate, Saidapet at Chennai and quash the same.

For Petitioners : Mr.N.Ramesh For Respondent : Mr.A.Gopinath, Govt., Advocate (Crl.Side)

ORDER

This Criminal Original Petition is filed to quash the proceedings in C.C.No.775 of 2020 on the file of the IX Additional Metropolitan Magistrate, Saidapet, Chennai taken cognizance for the offences under Section 59(1) of the Food Safety Act 2006.

2. The respondent filed a complaint for the offences punishable under section 59(1) of the Food Safety Act 2006 (hereinafter referred as 'Act'). The crux of the complaint is that on 22.09.2018, the respondent conducted an inspection in the petitioners/accused premises and found selling of food “Nathan's Ring Murukku'' and collected samples. One of the sample was sent to Food Analysis Lab and as per the report, food samples are declared as unsafe as it contains ''Tartrazine'' (Colouring Agent) which shall be negative. After accorded sanction for prosecution, the respondent filed a complaint.

3. The learned counsel for the petitioner would submit that the Food was not manufactured by the petitioners and they are only sellers. The manufacturer is arrayed as 5^th accused. Section 27 of the Act relates to liabilities of the manufacturer, packers, wholesalers, distributors and sellers. Under Section 27(2) of the Act in respect of the unsafe food, the wholesaler or distributor alone shall be liable and not the seller. The liability of the seller is defined under section 27(3) of the Act. Therefore the entire prosecution cannot be sustained as against the petitioner sellers.

4. He further submitted that as per Section 42(2) of the Act, after receipt of the sample, the food Analyst shall Analyse the sample and send the analysis report within a period of 14 days to the designated officer. Whereas in the case on hand, the Analyst had sent its report beyond the period of 14 days i.e., with the delay of nine months. In support of the contention, he also relied upon various judgements of this Court.

5. Heard, the learned counsel appearing on either side.

6. On perusal of the food Analyst report dated 03.06.2019 reveals that the food is unsafe due to the presence of Tartrazine 45.42mg\kg which shall be negative and the same was scrutinized within 14 days from the date of report by the designated officer and the prosecution recommendation was sent to the Commissioner of Food Safety on 18.06.2019. Thereafter, on

30.08.2019, a complaint was filed and the same has been taken cognizance in C.C.No.775 of 2020. There are totally 5 accused and these petitioners/accused are arrayed as Accused No.1 to 4. The first ground raised by the petitioners is that they are only sellers.

7. The contravention of unsafe is coming under section 27(2) of the Act. It relates to wholesalers or distributors alone. Whereas the petitioners are sellers and the liability of them is defined under section 27(3) of the Act.

The provision under Section 27(3) of the Act is extracted hereunder:

''Section 27(3) Liability of manufacturers, packers, wholesalers, distributors and sellers.

''The manufacturer or packer of an article of food shall be liable for such article of food if it does not meet the requirements of this Act and the rules and regulations made thereunder.

(3) The seller shall be liable under this Act for