Delhi District Court
Food Safety Officer vs Ram Bahadur Sreshtha on 21 March, 2024
IN THE COURT OF SH. ABHISHEK KUMAR
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE-01
PATIALA HOUSE COURTS, NEW DELHI DISTRICT:
NEW DELHI
Ct Cases 11039/2020
FOOD SAFETY OFFICER Vs. RAM BAHADUR SRESHTHA
JUDGMENT
(a) Serial number of the case : 19238-2020
(b) Name of the complainant : Food Safety Officer,
Department of Food Safety
(c) Name of the accused person : (1) Ram Bahadur Sreshtha
S/o Sh. Shuse Sreshtra, R/o H.
No. 16, Nizamuddin East,
Hazrat Nizamuddin, New Delhi-
110013.
(2) VR Anirudh Krishna
S/o Sh. VM Ramgopal R/o T-
265, 2nd Floor, Chirag Delhi,
New Delhi-110024.
(3) M/s Pind Balluchi (A unit
of JS Hospitality Services Pvt
Ltd) M-58, Lajpat Nagar-II,
New Delhi-110024.
(d) Offences charged of : Section 59(i) of FSS Act, 2006.
(e) Plea of the accused : Accused persons pleaded not
guilty.
(f) Final Judgment : Accused persons stands
acquitted.
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(g) Date of institution of case : 28.11.2020
(h) Date of final arguments : 19.03.2024
(i) Date of Judgment : 21.03.2024
1. The present complaint has been filed by the Food Safety Department through a Food Safety Officer under Section 26/59 of the Food Safety & Standards Act, 2006 (hereinafter referred to as the 'Act') against the accused persons.
PROSECUTIONS' CASE
2. It is stated in the complaint that on 16/05/2019 at about 05:00 PM, Ms Anjali Bhardwaj, Food Safety officer (FSO) along with Sh. Pankaj Kumar Meena, Food Safety Officer upon the directions of the then Designated Officer (DO), Dr. Pramod M Kothekar visited the premises of M/s Pind Balluchi (A unit of JS Hospitality Services Pvt Ltd), M-58, Lajpat Nagar-II, New Delhi-110024, where the accused/FBO, Sh. Ram Bahadur Sreshtha S/o Sh. Shuse Shrestha had stored food article, "Paneer Tikka Masala" used in the preparation of 'Paneer Tikka Masala (Subzi)' which is ready for sale and meant for human consumption at the above mentioned premises.
3. Further, Ms. Anjali Bhardwaj disclosed her identity to the accused and after inspection of the premises, showed her intention of taking a sample of "Paneer Tikka Masala" for analysis by purchase, Cr. Case 19238-2020 FSO v. Ram Bahadur Sreshtha & Ors.. Page No. 2 of 25 where the said food article was stored in an open tray for use in the preparation of 'Paneer Tikka Masala (Subzi)' for the sale for human consumption, to which he agreed.
4. Then, the Food Safety Officer tried to associate some public witnesses by requesting customers and passersby but when none came forward, then she had requested Sh. Pankaj Kumar Meena, Food Safety Officer to which he agreed and joined as witness in the sample proceedings.
5. Thereafter, Ms. Anjali Bhardwaj purchased a sample of approx. 2 Kg of "Paneer Tikka Masala" (ready for use) for analysis from the FBO, Sh. Ram Bahadur Sreshtha S/o Sh. Shuse Shrestha and a Food Business Operator's Receipt dated 16/05/2019 was prepared on the spot for the payment of sample price of Rs. 826/- (Rupees Eight hundred twenty-six only) which was paid to the FBO in cash.
6. After the purchase of the sample, it was cut into smallest possible pieces with the help of clean & dry knife in a clean & dry tray. It was then mixed thoroughly with the help of clean and dry spoon by rotating it several times in all possible directions. Thereafter, sample was poured into four clean and dry sample bottle of glass equally with the same spoon and 40 drops of formalin was added to each counterpart of sample with the help of clean and dry dropper.
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7. Thereafter, each bottle containing the sample was separately marked, packed, fastened and sealed according to the provisions of the Food Safety and standard Act, 2006 and Rules & Regulations made there under by Ms Anjali Bhardwaj. The Food Business Operator's signature were obtained on the Designated Officer slip bearing signature of the then Designated Officer and wrapper of the bottle containing the sample in such a manner as to partly appear on the then Designated Officer slip and partly on the wrapper of the sample bottles. Ms Anjali Bhardwaj also obtained signatures of the FBO on the labels of all counterparts of the sample.
8. Then, notice in Form VA was prepared on the spot and copy of the same was given to FBO, Sh. Ram Bahadur Sreshtha S/o Sh. Shuse Sreshtha by Ms Anjali Bhardwaj. The Food Business Operator did not request to send the fourth counterpart of the sample for analysis from an NABL accredited Laboratory under Rule 2.4.5 of The Food Safety and Standards Rules, 2011.
9. Apart from that Panchnama and Raid report were also prepared on the spot by Ms. Anjali Bhardwaj. All the sampled documents prepared by Ms Anjali Bhardwaj were read over and explained to FBO, Sh. Ram Bahadur Sreshtha S/o Sh.Shuse Sreshtha, who signed the same after he understood. These documents were also signed by Ms. Anjali Bhardwaj and by the witness Sh. Pankaj Kumar Meena, Food Safety Officer.
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10. Accordingly, one part of the aforesaid sample of "Paneer Tikka Masala" bearing Sample number 1055/1047/49/2019 and Designated Officer code number 10/DO15/13607 was sent by Ms. Anjali Bhardwaj, Food Safety Officer to the Food Analyst, Govt. of Delhi for analysis on 17/05/2019. The Food Business Operator did not request to send the fourth part of the sample for analysis from an NABL accredited Laboratory under Rule 2.4.5 of The Food Safety and Standards Rules, 2011. The remaining two counterparts of the sample in sealed packet as well as the fourth counterpart of the sample in a separate sealed packet while already fulfilling the statutory requirements as per FSS Act, 2006 were deposited by FSO concerned to the then Designated Officer, Dr. Pramod M Kothekar on 21/05/2019.
11. After the analysis of the food sample, Food Analyst opined vide his report No. FSS/660/2019 dated 21.05.2019 that the sample is unsafe because it is colored with synthetic coloring matter viz Sunset Yellow fef. And Carmoisine in contravention of section 3(1) (zz) (v),
(vii) & (viii) of the Food Safety and Standards Act, 2006.
12. Then, Designated Officer concerned, Dr. Pramod M Kothekar sent a copy of the Food Analyst report to the Food Business Operator, Sh. Ram Bahadur on 22/05/2019 for giving him an opportunity to file an appeal against the report of the Food Analyst under section 46(4) of The Food Safety and Standards Act, 2006 for sending one part of the Cr. Case 19238-2020 FSO v. Ram Bahadur Sreshtha & Ors.. Page No. 5 of 25 sample to the Referral Food Laboratory, if so desired by the Food Business Operator. In response, Food Business Operator preferred an appeal against the report of Food Analyst on 07.06.2019. The Director, Referral Food Laboratory Kolkata (West Bengal) vide Certificate No- G.1414/D.O/2019(Pt-1)-427 dated 19.08.2019 opined that "The sample does not conform to Food Safety and Standards (Food Products and Food Additive) regulation, 2011 as it shows presence of synthetic color 'Sunset Yellow FCF' in it and found the sample 'unsafe' as per section 3(1)(zz)(vii) of FSS Act, 2006".
13. During investigation, it revealed that Sh. Ram Bahadur Shreshtha S/o Sh. Sushe Bahadur is the FBO-cum-Assistant Manager at M/s Pind Balluchi (A unit of JS Hospitality Services Pvt Ltd, M-58, Lajpat Nagar-II, New Delhi-110024 and appointed Sh. V R Anirudh Krishna S/o Sh. V M Ramgopal as nominee under provision of FSS Act,2006, Rules & Regulations made there under, who were looking after day-to-day business and as such were in-charge of and responsible for the conduct of its business. Further, being a company, M/s JS Hospitality Services Private Limited along with FBO and nominee were found liable under the provision of Section 26(1),Section 26(2)(i) read with Section 3(1)(zz)(vii) of the Food Safety and Standards Act, 2006 which is punishable under Section 59(i) of Food Safety & Standards Act, 2006.
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14. As the then Food Safety Officer, Ms. Anjali Bhardwaj proceeded on maternity leave while she was conducting investigation, the Commissioner (Food Safety) granted extension time of eight months beyond one year time limit under section 77 of the Food Safety & Standards Act, 2006 to the subsequent investigating officer upon request.
15. Upon conclusion of the investigation, the file including the statutory documents and Food Analyst report was sent by Sh. Ashok Kumar Singh, Designated Officer, District-South East to the Commissioner (Food Safety), Department of Food Safety, Government of NCT of Delhi, who accorded consent under Section 42(4)(a) of the Food Safety and Standards Act, 2006 for the prosecution of accused persons and accordingly, the complaint was filed in the court.
PROCEEDINGS BEFORE THE COURT
16. Upon filing of the complaint, the cognizance of the offence under section 26 and 59 of the FSS Act, 2006 was taken. The examination of the complainant was dispensed with, as he was public servant and complaint was filed in his official capacity. Accordingly, summons were issued to the accused persons.
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17. Upon service of summons, accused persons entered their appearance before the court and were admitted to bail as offences were bailable in nature.
18. Thereafter, notice was framed against the accused persons under section 26/59 of the act, to which accused persons pleaded not guilty and claimed trial. Accordingly, the matter was fixed for Prosecution Evidence.
19. During the prosecution evidence, the department has examined five witnesses to prove its case. Thereafter, statement of the accused persons was recorded under section 313 CrPC. The accused persons have also lead the defence evidence and examined two witnesses, in support of the defence. Accordingly, Final arguments were heard and matter was kept for orders.
PROSECUTION EVIDENCE
20. During the prosecution evidence, four witnesses namely PW1 FSO Sh. Tarun Negi, PW2 Sh A.K. Singh, , PW-3 Dr. Pramod M. Kothekar, PW-4 Pankaj Kumar Meena and PW-5 FSO Anjali Bhardwaj were examined. All the witnesses were duly cross examined by the accused.
21. PW-1 has deposed that he was posted as Food Safety Officer on 06.07.2020 and upon the directions of the DO, further investigation Cr. Case 19238-2020 FSO v. Ram Bahadur Sreshtha & Ors.. Page No. 8 of 25 was conducted by him as the previous FSO Anjali Bhardwaj had proceeded on maternity leave. He further stated that he sent a letter Ex.PW-1/A to the FBO and received the reply from M/s J. S. Hospitality Services Pvt. Ltd which is Ex.PW1/A-1. He also sent a letter to Assistant Commissioner GST and Central Excise which is Ex.PW1/B and received the reply which is Ex.PW1/B-1. He also sent a letter to GST Officer which is Ex.PW1/C and did not receive any reply. Thereafter, he submitted the report to the DO for seeking the sanction from the Commissioner of Food Safety which was received later on and is Ex.PW1/D and then filed the present complaint which is Ex.PW1/E.
22. During the cross examination, it was contended that PW-1/D does not bear any date and admitted that no separate reasoned order in writing for the approval for the extension of time U/s 77 of the Act is filed alongwith the complaint and stated that no separate order was passed. He also admitted that the reason for which the investigation could not be completed on time was that the FSO Anjali Bhardwaj had proceeded on maternity leave.
23. PW-2 Sh. A.K. Singh has deposed that on 06.07.2020, he handed over the case file the FSO Tarun Negi for further investigation and during the course of the investigation, FSO submitted the file to him for the extension of the time limit for prosecution and he Cr. Case 19238-2020 FSO v. Ram Bahadur Sreshtha & Ors.. Page No. 9 of 25 forwarded the same to the Commissioner of Food Safety, who granted the extension and thereafter, investigation was completed and sanction was obtained which is already Ex.PW1/D.
24. During the cross-examination, witness denied the suggestion that extension was sought for investigation only. He also admitted that the sanction does not bear the date but voluntarily stated that the same is mentioned on the office noting sheet. He denied the suggestion that accused has been falsely implicated in the present case.
25. PW-3 has stated that on 16.05.2019, FSO had conducted a general raid as per his directions and deposited the two counterparts of the sample alongwith two copies of Form VI in intact conditions in a separate sealed cover and one copy with the Food Analyst. The FBO did not request to sent the fourth counterpart for analysis and the same was deposited in the intact condition with him. The receipt of the sample was exhibited by him as ExPW-3/A. Further, he also signed the raid report which is Ex.PW3/B and received the FA report which is Ex.PW3/C. Thereafter, vide letter dated 22.05.2019, opportunity was given to the FBO to file appeal against the report of the FA and the letter was Ex.PW3/D. Thereafter, accused preferred the appeal by furnishing application which is Ex.PW3/E. Then, the counterpart sample was sent to Director RFL, Kolkata alongwith the documents and samples vide letter Ex.PW3/F. Cr. Case 19238-2020 FSO v. Ram Bahadur Sreshtha & Ors.. Page No. 10 of 25
26. During cross-examination, witness admitted that the report of the FA mentions light orange color sample of mix veg having paneer, capsicum, tomato and onion. He admitted that three counterpart of the sample were received by him on 21.05.2019.
27. PW-4 has deposed that he alongwith FSO Ms. Anjali Bhardwaj had conducted raid at the restaurant of the accused and took out the sample of Paneer Tikka Masala used in the preparation of Paneer Tikka Masala Subzi. The FSO had expressed the intention to take the sample and asked the public witnesses to join, but none came forward. Thereafter, the sample was purchased after the payment of Rs.826/- and the receipt in this regard was Ex.PW4/A. He also stated that sample was cut into smallest possible pieces with the help of clean and dry knife in a clean and dry tray and mixed with the help of clean and dry spoon in all possible directions by dividing equally in four clean and dry glass bottles with 40 drops of formaline. The samples were properly marked and stored. Further, notice in Form VA was prepared which is Ex.PW4/B and panchanama was drawn which is Ex.PW4/C.
28. During the cross-examination, the witness denied the suggestion that the FBO was denied to mention the actual name of the food article or that was not allowed to disclose the ingredients of the sample. Further, it was also denied that the complete list of the articles were Cr. Case 19238-2020 FSO v. Ram Bahadur Sreshtha & Ors.. Page No. 11 of 25 not allowed to be written on the Ex.PW4/B. He denied the suggestion that FBO had asked to let the nominee come, who can disclose the complete particulars of the ingredients. He denied the suggestion that the tray used was not clean and dry and FBO had also asked the FSO to clean the tray but it was not accepted.
29. PW-5 has deposed on the similar lines as PW-4 as the witness conducted the raid alongwith PW-4. The witness further stated that she sent a letter to the FBO seeking the constitution of the firm which is Ex.PW5/A and also sent reminder letter which is Ex.PW5/B.
30. During cross-examination, the witness stated that utensils including the separate tray were provided by the FBO and denied the suggestion that the same were not clean. She denied the suggestion that the FBO was forced to declare the particles in Form No. VA and no conversation regarding the nominee ever took place. She denied the suggestion that nominee has disclosed the complete ingredients but the same were not noted deliberately. She denied the suggestion that the accused persons have been falsely implicated and did not answer question related to food additives being in the domain of expert.
DEFENCE EVIDENCE
31. DW-1 Sh. A.K. Adhikari, Director, NFL, Ghaziabad was examined by the accused and admitted that the sample which was Cr. Case 19238-2020 FSO v. Ram Bahadur Sreshtha & Ors.. Page No. 12 of 25 analyzed belongs to the Food Category 16 of the Regulation and is a prepared food. Further, he analyzed the sample on the basis of list of ingredients supplied by the DO. The witness also stated that the synthetic color was not permissible in the ready to eat foods like Paneer Tikka Masala and carry forward of the color to the final products is not mentioned or allowed under the Regulations. He also stated that the method of paper chromatography was used for conducting the test. He further stated that in food sample of Paneer Tikka Masala no standard regarding the quantity is required and only the presence of color needs to be detected. The witness was not cross- examined by the prosecution despite opportunity.
32. DW-2 Sh. Ram Bahadur Shreshta has deposed that he was working as the Assistant Manager at the restaurant and FSO and collected the sample of Paneer Tikka Masala Subzi and the container used to store the sample was not clean and dry and was dirty. Further, he has only disclosed basic ingredients and the main ingredients were known to the nominee, who was not present at the spot and requested them to wait. Upon the arrival of the nominee, they tried to tell further ingredients to the FSO but the same were not recorded stating that it is only a formality.
33. During the cross-examination, the witness stated that he has written from point X to X in the Ex.PW4/B and the sane does not Cr. Case 19238-2020 FSO v. Ram Bahadur Sreshtha & Ors.. Page No. 13 of 25 mention that the ingredients disclosed are the basic ingredients. He denied the suggestion that he was deposing falsely and admitted that no written complaint was given for the non-payment of the sample amount of by the raiding team. He admitted that suggestion that the raiding team did not pressurize him during the course of the sample proceedings. He denied the suggestion that sample commodity was Paneer Tikka Masala.
ARGUMENTS ON BEHALF OF THE DEPARTMENT
34. The learned Special Public Prosecutor for the department has asserted that all the essential elements necessary to establish the offense have been satisfied. Furthermore, the report from the Director of the Forensic Science Laboratory (FSL) is conclusive, confirming the presence of synthetic food color, which is prohibited in prepared food.
ARGUMENTS ON BEHALF OF THE ACCUSED PERSONS.
35. On the contrary, the counsel representing the accused persons argued that the prosecution has not succeeded in proving its case beyond a reasonable doubt. According to the counsel, there is a flaw in the collection of the sample, as the utensils and containers used were not adequately cleaned and dried.
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36. The counsel emphatically stressed that following the amendment of Regulation 3.1 of the Food Safety Act in 2016, the use of coloring material in prepared food is now permitted. The counsel referred to Rule 16 of the appendix attached to the amended provision in support of this argument.
37. In rebuttal, the learned Special Public Prosecutor submitted that coloring material is not permitted in the present case based on the list of ingredients disclosed by the Food Business Operator (FBO). The act prohibits the use of synthetic coloring material in any food material, as disclosed in Form No. VA.
38. Continuing with his line of argument on food color, counsel further emphasized that the act does not mandate the disclosure of food ingredients. Moreover, the Food Business Operator (FBO) explicitly stated to the Food Safety Officer (FSO) that a nominee would come to the restaurant and disclose the complete food ingredients, but this was not permitted. This fact is also confirmed by the report of the Food Analyst (FA), which detected additional ingredients beyond those already disclosed. Therefore, the disclosed ingredients cannot be the sole criterion to establish the guilt of the accused persons. To support this point, Defense Witness 1 (DW1) testified and provided details of other ingredients such as flavored processed cheese and hot mustard. Furthermore, the yardstick to Cr. Case 19238-2020 FSO v. Ram Bahadur Sreshtha & Ors.. Page No. 15 of 25 determine guilt should be the levels of synthetic coloring material. According to the Public Analyst (PA) report, the level is within permissible limits, whereas the report of the Referral Food Laboratory (RFL) is silent on this aspect. Further, Table no. 1, containing food category system no. 1.6.4.2, with respect to flavoured processed cheese and table no. 12, containing food category system no. 12.4, with respect to the mustard, allows the use of coloring material, and in this case, it is within permissible limits.
39. The accused persons have also disputed the authenticity of the sanction stating that the same does not bear the date and reflects that the sanction was granted without the application of mind and the complaint was filed beyond the period of one year in contravention of Section 77 of FSS Act.
FINDINGS
40. I have gone through the record and given due thoughts to the submissions made by parties before me. Before proceeding further, it will be pertinent to refer to the relevant provisions of law involved in the present case for ready reference, which are as follows:
Section 26 deals with Responsibilities of the food business operator - (1) Every food business operator shall ensure that the articles of food satisfy the requirements of this Act and the rules and regulations made thereunder at all stages of production, processing, import, distribution and sale within the businesses under his control. (2) No food business operator shall himself or by any person on his behalf manufacture, store, sell or distribute any article of food- (i) which is unsafe;
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1. Section 3(1)(zz) defines "unsafe food" which means an article of food whose nature, substance or quality is so affected as to render it injurious to health; (v) by addition of a substance directly or as an ingredient which is not permitted; (vii) by the article being so coloured, flavoured or coated, powdered or polished, as to damage or conceal the article or to make it appear better or of greater value than it really is; (viii) by the presence of any colouring matter or preservatives other than that specified in respect thereof.
2. Section 59 deals with Punishment for unsafe food: Any person who, whether by himself or by any other person on his behalf, manufactures for sale or stores or sells or distributes or imports any article of food for human consumption which is unsafe, shall be punishable- (i) where such failure or contravention does not result in injury, with imprisonment for a term which may extend to six months and also with fine which may extend to one lakh rupees.
41. Let's begin with the first line of the defence of the accused persons who argued before the Court that the container in which the sample was stored was not clean and dry and thus, the sample proceedings were conducted in utter disregard to the regulations requiring the FSO to ensure that the sample is lifted with the help of clean and dry utensils and in a clean/dry container.
42. Perusal of the testimony of PW-4 and PW-5, would show that the sample was cut into smallest possible pieces with the help of clean and dry knife in a clean and dry tray and properly mixed with the help of a clean and dry spoon in all possible directions. Further, nothing contradictory could be brought on record by the accused persons to show that the utensils were not clean and dry except putting suggestions. However, those suggestions are not sufficient to doubt the Cr. Case 19238-2020 FSO v. Ram Bahadur Sreshtha & Ors.. Page No. 17 of 25 proceedings conducted by the public servant and the fact that the sample proceedings were conducted as per the regulations stands proved beyond reasonable doubt.
43. Now, let's address the arguments put forth by the accused persons regarding the permissibility of coloring material, including synthetic colors, following the enactment of the 2016 amendment.
44. Before proceeding further, let's examine the pertinent regulation and its implications in light of the 2016 amendment.
45. As per the 2016 Amendment, the regulation 3.1 with respect to the food additives in the Food Safety and Standards (Food Products Standards and Food Additives), Regulations 2011 were amended and regulation 3.1 was substituted. The Regulation 3.1 of the Regulation, amended in the year 2016, pertains to food additives and provides what food additives may be used in a food, wherein a food category system was made and was appended with the Regulation 3.1 as appendix 'A' and separate tables were annexed with the same to indicate the permissible food additives and their limits with respect to different food categories.
46. Since, the case of the accused persons falls within the category of prepared food, which is regulated by Rule 16 attached to the Cr. Case 19238-2020 FSO v. Ram Bahadur Sreshtha & Ors.. Page No. 18 of 25 appendix A, in Regulation 3.1.1. The Rule 16 provides that the foods which are not included in the remaining rules are to be considered on a case by case basis. Further, prepared foods are mixture of multiple components, the said components are included in other food categories. Also, prepared foods required minimal preparation by the consumer and the provisions for additives will be listed in this food category in these regulations only if the additive is needed; (i) Solely to have a technological function in the prepared food as sold to the consumer or (ii) at a use level that has an intentional technological function in the prepared food that exceeds the use level that can be accounted for by carry over from the individual components.
47. Furthermore, the functional classes, definitions and technological purposes have been stated in the part three, wherein the definition of color is mentioned as a food additive which adds or restores color in a food and the technological purpose for the same is color, decorative pigment, surface colorant for the eye appeal. Also, color retention agent is defined as a food additive, which stabilizes, retains or intensifies the color of a food and the technological purpose is mentioned as color fixation/retention/stabilization.
48. Further, if we read Part 1 of the Appendix A, relating to food category system, it reveals that food category system is a tool for assigning food additives uses in these regulations and the food Cr. Case 19238-2020 FSO v. Ram Bahadur Sreshtha & Ors.. Page No. 19 of 25 category system applies to all food stuffs wherein, food category system takes into consideration the carry over principle. It has been stated that the food category system does not meet to specifically mentioned compound food stuffs unless the compound food stuff needs an additive that is not endorsed for use in any of its components.
49. In reference to the above, reliance has to be placed upon the Regulation 3.1.1.10, wherein it is mentioned that other than by direct addition, an additive may be present in a food as a result of carry over from a raw material or ingredient used to produce the food provided;
(i) The additive is acceptable for use in raw material or other ingredients as per the regulations, (ii) the amount of the additive in the raw materials or other ingredients does not exceed the maximum use level specified in the regulations and (iii) the food into which the additive is carried over does not contain the additive in a quantity grater than that shall be introduced by the use of raw materials, or ingredients under proper technological conditions or manufacturing practices consistent with the provisions of the regulations.
50. In light of the preceding discussion, it is evident that following the enactment of the 2016 amendment, coloring materials, including synthetic colors, are permissible. Separate tables have been appended, delineating different types of food ingredients and listing the colors that are allowed along with their permissible limits.
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51. Furthermore, Rule 16 pertains to prepared foods, permitting the usage of coloring material either directly added or carried forward. Therefore, the assessment of the sampled food must be conducted on a case-by-case basis. While the Referral Food Laboratory (RFL) report mentioning that sunset FCF coloring material is impermissible may appear conclusive, it must be determined whether any provision has been violated in light of this report. The report will conclusively establish the presence or absence of coloring material. However, this does not imply that the court must unquestionably accept the report; rather, it can scrutinize the validity of the alleged contravention against the accused persons.
52. Since there is no mechanism for listing the categories of prepared foods and permissible coloring material usage, it would have been an arduous task to highlight the same due to the vast food network in the country. Therefore, one must rely on the ingredients used in the preparation of food to understand whether there was any possibility of coloring material being carried forward, after analyzing the same from tables appended to the regulation. There may be situations where the accused persons, being food proprietors, might not have knowledge of whether any ingredients used by them had any coloring material additionally added to them Cr. Case 19238-2020 FSO v. Ram Bahadur Sreshtha & Ors.. Page No. 21 of 25
53. Additionally, apart from Form No. VA filled during the sample lifting proceedings, there is apparently no rule in the regulations, or brought to the notice of the court by either party, mandating the disclosure of food ingredients in a particular manner. In this case, the prosecution heavily relies upon the ingredients disclosed in Form No. VA. However, this approach has been vehemently opposed by the defense, mentioning that no reasonable opportunity was granted to them despite pleading before the Food Safety Officer (FSO) that the entire ingredients could be disclosed by the nominee with knowledge about it.
54. To emphasize this point, the defense has posed questions regarding the failure to provide a reasonable opportunity to disclose the ingredients to the prosecution witnesses. Although categorically denied by the witnesses, the report of the Food Analyst (FA) casts doubt on the witnesses stance by mentioning that particles of onion and capsicum were notably visible. This leads to the conclusion that the ingredients mentioned in Form No. VA does not indicate the detailed ingredients of the prepared food in question, making the point of the accused persons more tenable and plausible.
55. During the defense evidence, it was stated that ingredients like processed cheese and mustard were also used in the prepared food. The prosecution failed to demonstrate anything contrary to highlight Cr. Case 19238-2020 FSO v. Ram Bahadur Sreshtha & Ors.. Page No. 22 of 25 that such ingredients could not have been used in the prepared food in question, i.e. Paneer Tikka Masala. Thus, the existence of ingredients as disclosed during the defense evidence must be taken note of.
56. Evidently, the act permits the usage of sunset yellow FC in ingredients such as processed cheese and mustard, provided it is within permissible limits. The relevant table as already discussed in the preceding paragraphs provides that the level of the coloring material i.e. sunset yellow FC in mustard and processed cheese is allowed upto 100 mg/kg.
57. The report of the Referral Food Laboratory (RFL) does not indicate the levels of coloring material used in the food. Hence, reliance must be placed upon the report of the Food Analyst (FA) where the levels have been mentioned as 15.67 ppm, and it will be found that the usage of coloring material is within permissible limits. Therefore, no violation is found in this regard by the accused persons.
58. The question regarding the complaint not being filed within one year stands amply clarified on the basis of the prosecution witnesses, wherein it has been mentioned that the time to launch the prosecution and investigation was extended by the Commissioner and is reflected in the sanction order. It has also been clarified that the previous FSO has proceeded on maternity leave and the case was subsequently Cr. Case 19238-2020 FSO v. Ram Bahadur Sreshtha & Ors.. Page No. 23 of 25 marked to another FSO. Also, summoning order passed by the Court was never challenged and the controversy regarding the limitation period has been put to rest on the basis of the order regarding the sanction, mentioning about the extension of the time limit U/s 77 of the Act. The fact that no separate order was passed is of no consequence as there is no requirement as per the Regulation qua the same. Secondly, the sanction being undated cannot signify that the sanction was granted without the application of mind. It has been categorically stated by the witness that the date has been mentioned in the official noting. This anomaly could be inadvertence on the part of the Commissioner, which should not have happened but the same cannot lead to the conclusion that no application of mind was exercised at the time of grant of the sanction. Thus, these arguments addressed on behalf of the accused are without merits.
59. Therefore, in view of the aforesaid discussion, the prosecution could not establish the case beyond reasonable doubt and any doubt in the case has to go in favour of the accused persons. As already discussed, no grounds are made out to declare that the sample lifted was unsafe. Accordingly, accused persons namely Ram Bahadur Sreshtha, VR Anirudh Krishna and accused no. 3 M/s Pind Balluchi (A Unit of JS Hospitatlity Services Pvt. Ltd) represented through its AR Sh. Shakti Prasad stand acquitted for the offence U/s 59(i) of FSS Act, 2006.
Cr. Case 19238-2020 FSO v. Ram Bahadur Sreshtha & Ors.. Page No. 24 of 25
60. Accused persons are directed to furnish personal bonds U/s 437A Cr.PC in the sum of Rs.10,000/- each.
Announced in the open Court on 21st March, 2024 This judgment contains twenty five pages and each page is signed by me. Digitally signed by ABHISHEK ABHISHEK KUMAR Date:
KUMAR 2024.03.21
17:02:52
+0530
(ABHISHEK KUMAR)
ACMM-01/NEW DELHI DISTRICT
PATIALA HOUSE COURTS/NEW DELHI
21.03.2024
Cr. Case 19238-2020 FSO v. Ram Bahadur Sreshtha & Ors.. Page No. 25 of 25