While quashing a complaint under the Food Safety and Standard Act, 2006, the Jammu and Kashmir and Ladakh High Court has held that the provisions contained in Section 42, which provide for timelines for taking certain actions by the Food Analyst and the Designated Officer, are mandatory.

The petitioners had challenged the complaint filed by the respondents against them alleging commission of offence under Section 26(1)(2)(i)(ii) punishable under Section 59 read with Section 3(1)(zz), Section 51 read with Section 3(1)(zx) of Food Safety and Standard Act, 2006 (FSS Act) pending before the trial court. A challenge was also thrown to the order whereby cognisance of offences was taken and a process was issued against the petitioners.

The Single Bench of Justice Sanjay Dhar held, “In the face of aforesaid position of law, it is evident that the provisions contained in Section 42 of the FSS Act, which provide for timelines for taking certain actions by the Food Analyst and the Designated Officer, are mandatory in nature. In the present case, as already stated, the respondent has violated these timelines without explaining the reasons for delay in the complaint filed by him. Therefore, the prosecution against the petitioners cannot sustained.”

Senior Advocate Jahangir Iqbal Ganai represented the Petitioner while Dy. AG Hakeem Aman Ali represented the Respondent.

Factual Background

It was alleged in the impugned complaint that the respondent, along with a team of Food Safety Officers, inspected the premises of the petitioner (M/S The Daily Bazar). The complainant was stated to have collected the sample of Nestle Milkmaid, Sweetened condensed, partly skimmed milk, and after completing the requisite formalities, the sample was sent for analysis to the Food Analyst. The sample was found to be not conforming to the standard laid down under Regulation No.2.1.5 of Food Safety and Standards(Food Products Standards and Food Additive) Regulations, 2011 (Regulations).

A Notice issued under Section 46(4) was served upon the petitioner, and the petitioner submitted the bills/invoices of one M/S Malhotra Brothers, Court Road, Srinagar, from whom he had purchased the food article in question. It was claimed that the petitioners had committed offences under Section 26(1)(2)(i)(ii) punishable under Section 59 read with Section 3(1)(zz), Section 51 read with Section 3(1)(zx) of FSS Act. The trial court vide the impugned order proceeded to take cognizance of the offences and issued process against the petitioners.

Reasoning

Addressing the issue of limitation, the Bench explained that as per Section 77 of the FSS Act, a court cannot take cognizance of the offence under the said Act after the expiry of the period of one year from the date of commission of an offence. However, a Proviso to Section 77 vests power with the Commissioner, Food Safety, to approve prosecution within an extended period up to three years, subject to the condition that reasons for the same are recorded in writing.

The Bench observed, “Thus, at the time of lifting of the sample, it cannot be stated that an offence has been committed by the accused person. It is only when report of the Food Analyst is received declaring the sample as unsafe or sub-standard that commission of offence takes place and the sale of such food article by the accused is prohibited. Therefore, an offence under FSS Act can be stated to have been committed on the date when the report of the Food Analyst indicating that the sample of the food is unsafe or sub-standard.”

The Bench noted that the corrected report of the Food Analyst was received by the complainant on December 7, 2022, and therefore, the offence could be stated to have been committed on December 7, 2022. The impugned complaint was filed on November 30, 2023, by the respondent/complainant, which was within the prescribed period of one year from the date of commission of the offence, which was the date on which the complainant received the corrected report of Food Analyst.

Referring to Section 42 of the FSS Act, the Bench noted that the Food Analyst, after receiving the sample from the Food Safety Officer, has to analyze the same and send his report to the Designated Officer within fourteen days. The Designated Officer, after scrutinizing the report of the Food Analyst, has to decide whether the contravention is punishable with imprisonment or fine only and in case the contravention is punishable with imprisonment, he has to send his recommendation within fourteen days to the Commissioner of Food Safety for sanctioning prosecution.

In the instant matter, the Food Analyst rendered his report after eighteen days of receipt of the sample, which was clearly beyond the period prescribed under sub-section (2) of Section 42 of the FSS Act. Moreover, the Designated Officer made a recommendation to the Commissioner Food Safety to accord sanction for prosecution against the accused persons, which was 111 days after the receipt of the corrigendum to the report of the Food Analyst. As per the Bench, this was way beyond the stipulated fourteen days as laid down in sub-section (3) of Section 42. The Bench found the contention of the petitioners that the respondent/complainant had not adhered to the timelines to be well-founded.

The Bench also made it clear that without impleading M/S Nestle India Pvt. Ltd, of which the third petitioner was claimed to be the person incharge of operations, the said petitioner could not have been impleaded as an accused and proceeded against. Thus, allowing the Petition, the Bench quashed the impugned complaint and the proceedings emanating therefrom as against the petitioners.

Cause Title: Ali Mohammad Bhat & Ors. v. UT of J&K (Case No.: CRM(M) No.310/2024)

Appearance

Petitioner: Senior Advocate Jahangir Iqbal Ganai, Advocate Mehnaz Rather

Respondent: Dy. AG. Hakeem Aman Ali

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Jammu & Kashmir & Ladakh High CourtJustice Sanjay Dhar

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.