Delayed Food Safety Notice Denying Re-Test Rights Vitiates Prosecution: Bombay HC [Read Order]

Bombay: The Bombay High Court has quashed criminal proceedings against Britannia Dairy Private Limited over the alleged sale of fungus-infested cheese cubes, holding that the Food Safety Officer's delayed notice, issued after the product's shelf life had expired and without forwarding the laboratory report, had deprived the company of its statutory rights to seek a re-test and to appeal, rendering continuation of the prosecution an abuse of the process of court.

Justice Ranjitsinha Raja Bhonsale was hearing an application filed by Britannia Dairy Private Limited under Section 482 of the Cr.P.C. (now Section 528 of the BNSS) seeking to quash Criminal Case pending before the Additional Chief Metropolitan Magistrate, 46th Court, Mazgaon, Mumbai, along with the order of issuance of process. The Court had earlier, by order dated 12.01.2018, stayed the proceedings before the Magistrate.

The case arose after Respondent No.2, a Food Safety Officer, purchased four packets of Britannia Cheese Cubes (Sour Cream and Onion) from a Big Bazaar store in Ghatkopar on 30.07.2013 for testing. The product, packed on 12.02.2013 with a shelf life of nine months expiring on 12.11.2013, was found by the Food Analyst's report dated 14.08.2013 to be infested with fungus and unsafe under Section 3(1)(zz)(iii) and (x) of the Food Safety and Standards Act, 2006. Notice was issued to the applicant, as marketer of the product, only on 17.05.2014, nearly six months after the shelf life had already expired, and the applicant's subsequent request for the laboratory report went unanswered. The complaint was filed on 28.07.2014 and process was issued the same day.

Counsel for the applicant contended that the complaint was filed after the shelf life of the product had already expired, that the order of issuance of process was a mechanical, rubber-stamp order passed the same day as the complaint without any application of mind, and that no enquiry under Section 202 Cr.P.C. had been conducted despite two of the accused residing outside the Magistrate's territorial jurisdiction. It was further submitted that the delayed notice had deprived the applicant of its rights under Rule 2.4.5(1) of the FSS Rules to have the fourth part of the sample independently analysed, and under Section 46(4) of the FSS Act to appeal against the Food Analyst's report, since the report itself was never furnished despite a request.

Counsel for the State opposed the application, submitting that the applicant held a valid FSS licence only for its Ballard Estate premises and not for the Reay Road address declared as the marketing address on the product label, amounting to a violation of Sections 31(1) and 63 of the FSS Act, that the statutory sampling and notice procedure under Section 47 of the Act had been duly followed, and that under Section 27 of the Act a marketer remained liable for unsafe food regardless of the manufacturer's role, with all directors personally liable under Section 66(1) in the absence of a valid nominee.

Examining the record, the Court found that the notice under Rule 2.4.1(4) and Rule 2.4.5 of the FSS Rules, issued only on 17.05.2014, came nearly six months after the product's shelf life had expired on 12.11.2013, by which time the applicant had lost the opportunity to exercise its option under Rule 2.4.5(1) to have the sample independently analysed. The Court held that since the Food Analyst's report was never forwarded to the applicant despite request, it had also been denied its right to appeal under Section 46(4) of the FSS Act and Rule 2.4.6 of the FSS Rules, and noted that the issuance of notice under these provisions was mandatory, given the use of the word "shall".

The Court also observed that the complaint itself did not allege violation of Sections 31(1) or 63 of the FSS Act, contrary to the State's submissions before it, and that the order of issuance of process was “clearly a rubber stamp order and does not indicate or reflect any application of mind,” particularly since two of the accused resided in Baramati, District Pune, beyond the Magistrate's territorial jurisdiction, making an enquiry under Section 202 Cr.P.C. mandatory before issuance of process.

Holding that the Respondent had clearly failed to comply with the mandatory statutory safeguards under the FSS Act, and that allowing the proceedings to continue in their present form would amount to a clear abuse of the process of the court, the Court invoked its inherent powers under Section 482 Cr.P.C. (now Section 528 BNSS) to quash and set aside the complaint, the order of issuance of process, and all further proceedings connected therewith. The application was accordingly allowed.

Appearances:

For the Applicant: Mr. Aabad Ponda, Senior Advocate, with Mr. Jay Zavei and Mr. Suraj Agarwal, instructed by Crawford Bayley & Co.

For Respondent-State: Mr. Yogesh Dabke, Additional Public Prosecutor.

Case Title: Britannia Dairy Private Limited v. The State of Maharashtra and Another, Criminal Application No. 842 of 2017

[Read Order]