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ABA.464-22.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

ANTICIPATORY BAIL APPLICATION NO.464 OF 2022

Rupesh Rajgopal Zawar,

Age : 38 years, Occu. Business,

R/o Oppo. Central Bank, Vambori,

Tq. Rahuri, Dist. Ahmednagar.

… Applicant.

Versus

The State of Maharashtra

… Respondent

...

Advocate for Applicant : Mr. Satej S. Jadhav.

APP for Respondent-State : Mr. S. B. Narwade.

…

CORAM : S. G. MEHARE, J.

RESERVED ON

: 21.07.2022

PRONOUNCED ON : 02.08.2022

ORDER

:-

1.

The applicant is a Food Business Operator and owner of

M/s Ganesh Agencies and M/s Ganesh Foods. His plants are at

M.I.D.C., Ahmednagar.

2.

The Food Safety Officer, Mr. Kute, and others visited the

Ganesh Agency of the applicant on 13,07.2021. They drew

samples of whey powder (DMO40 Milky Ocean) for analysis.

After collecting the sample, the procedure of dividing the

samples into four parts and sealing each as per the Food Safety

and Standards Act, 2006 was done. The Safety Officer and his

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ABA.464-22.odt

team seized the whey powder as per the procedure and

delivered the remaining 48 bags into the custody of the

applicant. After taking the samples, one of the samples was

sent to the Food Analysis, Food and Drug, Mumbai, on

14.07.2021 for analysis. The Officers received the analysis

report on 06.09.2021 with an expressed opinion that "the

sample of whey powder conforms to the Standards of Food

Safety and Standards (Food Products Standards and Food

Additives) Regulations, 2011 with respect to the above

parameters". Later on, the Officer was changed. He has sent

the sample to the Referral Food Laboratory at Mysore for

test/analysis of the said powder by a letter dated 06.10.2021.

The Referral Food Laboratory, Mysore by its opinion dated

06.12.2021 has opined that, "the sample was '

substandard' as

defined under Section 3(1)(zx) of Food Safety and Standards

Act 2006, as it does not conform to the standards laid down for

whey powder under the provisions of Food Safety and

Standards (Food Products Standards and Food Additives)

Regulations, 2011 thereof, in that : (a) Milk Fat content

exceeds the maximum permissible limit. (b) Lactose content

falls below the minimum standard limit. After that, the

Assistant Commissioner-cum-Food and Drug Administration,

Ahmednagar, wrote a letter dated 23.12.2021 to the Food

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ABA.464-22.odt

Safety Commissioner declaring that the Food Products wad

unsafe as per Section 3(1)(zz)(v), and made the

recommendation for filing the criminal case against the

applicant. A copy of this report of Referral Food Laboratory,

Mysore was sent to the applicant by letter dated 23.12.2021.

On 27.10.2021 by letter, the applicant was called upon to

submit the accounts of purchase bills, stock transfer notes, bill

of selling whey powder etc., within eight (8) days. The

applicant has complied with the said letter belatedly

contending that the Officer has no right to call for the record

so demanded and still has supplied. On 19.01.2012, the

designated Officer again wrote a letter to the Director of

Referral Lab, Mysore, as regards its report dated 06.10.2021,

raising three questions with his own opinion. He has expressed

the opinion that "there might be the addition of such substance

in the said whey powder due to which there is a false increase

in protein value, and lastly, he requested to analyze the

product. Is has also been contended in the said letter that, "if

the Director come to the conclusion that in fact there is any

addition of substance then report with the name of that

substance (Adulterant) so that it will be possible for him to

take the correct action under the Act". In response to the said

letter, the Director of Referral of Food Laboratory, Mysore, has