Madras High Court
Having Office At vs State Rep. By Its on 8 April, 2014
Crl.O.P.(MD)No.9346 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 10.12.2021
Delivered on : 22.12.2021
CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.O.P.(MD)No.9346 of 2017
and
Crl.M.P.(MD)Nos.6347 and 6348 of 2017
1.T.Padmasingh Isaac (A3)
2.P.Aswin Pandian (A4)
3.P.Abishek Isaac (A5)
4.M/s.Aachi Masala Foods (P) Ltd., (A6)
Marketing Company,
Rep. by A3, A4 and A5,
Having Office
at Plot No.1926, 34th Street,
Iswariya Colony, 1st Block,
Anna Nagar West,
Chennai – 600 040.
5.P.Theima Isaac (A7)
6.M.Kamali Jayaseelan (A8)
7.M/s.Nazareth Foods (P) Ltd., (A9)
Manufacturer,
Rep. by A7 and A8,
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Crl.O.P.(MD)No.9346 of 2017
Having Office at
No.64, Indira Nagar, Ayyanambakkam,
Chennai – 600 095. ... Petitioners / A3 to A9
-vs-
State Rep. by its
Food Safety Officer,
Ambasamudram Taluk,
Government Hospital Road,
Ambasamudram,
Tirunelveli District – 627 401. ... Respondent
Prayer:- Petition filed under Section 482 of the Criminal Procedure Code, to call
for the records in C.C.No.141 of 2017, on the file of the Judicial Magistrate
Court, Ambasamudram, and quash the same.
For Petitioners : Mr.R.Karthikeyan
For Respondent : Mr.S.Thiruvadikumar
Additional Public Prosecutor
ORDER
This Petition is filed under Section 482 of Criminal Procedure Code, to quash the criminal complaint initiated against the petitioners under the Food Safety and Standards Act, 2006 [hereinafter referred to as ''the FSSA'']. 2/24 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9346 of 2017
2.The content of the complaint initiated by the Food Safety Officer, which is sought to be quashed in this Petition, reads as below:-
On 31.03.2014 at 08.00 a.m., an information was received over phone from one Manokaran informing that adulterated food products are sold in M/s.Sri Haarini Traders, Vairavikulam. The said information was reduced into writing and was forwarded to the District Designated Officer. After obtaining permission from him, the premises of Sri Haarini Traders was inspected on 31.03.2014 at 02.00 p.m. In the presence of witnesses, ''Aachi Fish Fry Masala Powder'' pockets were seized under the Mahazar for test. Sample drawn from the seized pockets was sent to Food Laboratory, Palayamkottai, on 01.04.2014. The Lab Report, dated 08.04.2014, received by the Designated Officer indicating that the sample conforms the standards prescribed under the FSSA. Not being satisfied with the report of the State Laboratory, as per Rule 2.4.3 of the Food Safety and Standards Rules, 2011, the Designated Officer after serving a copy of the State Laboratory Report to the Manufacturer and Marketers of the Product, had forwarded second sample to the Central Laboratory at Kolkata. The report of the Central Laboratory, dated 07.06.2015, indicated that the sample does not conform to the standard laid down under the Regulation and it contains ''Monosodium 3/24 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9346 of 2017 Glutamate [MSG]'' as an ingredient, which is a prohibited substance under the FSSA. Thereafter, after obtaining sanction to prosecute, the complaint has been lodged against the petitioners herein for the offences under Sections 51 and 59(1) read with Sections 24, 26(1), 26(2)(i)(ii)(v), 27(1), 27(2)(c)(e) and 27(3)(e) of the FSSA.
2.1. According to the complaint, the first accused is the retailer, who had stocked the adulterated food product for sales; the second accused is the Distributor of the Product; the sixth accused M/s.Aachi Masala Foods (P) Ltd. is the Marketer of the Product and A3 to A5 are its Directors; and the 9 th accused M/s.Nazareth Foods (P) Ltd. is the Company, which manufactured the Product and it is represented by its Directors A7 and A8. Thus, A1 to A9 have committed the offences under the FSSA. The learned Judicial Magistrate, Ambasamudram, has taken cognizance of the complaint and taken the complaint on file in C.C.No. 141 of 2017. The said complaint is now sought to be quashed by Accused Nos.3 to 9, namely, the Manufacture and its Directors, the Marketer and its Directors. 4/24
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3.The grounds raised to quash the complaint are:-
The State Laboratory has rightly concluded that Fish Fry Masala Powder manufactured and marketed by them is a proprietary food, which has not been standardised under the Regulation, contrarily the Central Laboratory analysed the sample as Curry Powder, without assigning any reason how the sample falls under the classification of Curry Powder. The Central Laboratory tested the sample as Curry Powder instead as proprietary food and thereby, concluded erroneously that the sample contains 'Monosodium Glutamate' and it is substandard and unsafe.
4.As per Regulation 3.1.11 of the Food Safety and Standards [Food Products Standards and Food Additives] Regulations, 2011, Monosodium Glutamate [MSG] may be added to foods not meant for infants below twelve months. Monosodium Glutamate is a flavour enhancer, subject to Good Manufacturing Practices [GMP] level. It can be added in proprietary food under proper label declaration, except in food products, which are specifically prohibited. The petitioners have complied the said requirements. Therefore, the complaint is liable to be quashed.
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5.Further, the complaint is barred by limitation in view of Section 77 of the FSSA. The prosecution ought not to have launched after lapse of one year period from the date of commission of offence without written approval of the Commissioner of Food Safety, extending the time for launching the complaint. The reason whatever assigned by the Commissioner for extension of time is not tenable. Section 66 of the FSSA does not restrict a person can be a nominee for only one Company. Therefore, refusal to accept the nomination cannot be a cause for the delay in launching the prosecution. In the complaint, the petitioners' product is termed both substandard or unsafe. Substandard Products are not always unsafe. Monosodium Glutamate is a permitted flavour enhancer. Adding M.S.G. is neither renders the food product sub-standard or unsafe. Therefore, Sections 51 and 59(1) of the FSSA not attracted.
6.Similarly, the ingredient of Sections, like 24, 26 and 27 of the FSSA also not made out. If the Designated Officer not satisfied with the State Laboratory Report, he ought to have sent the second sample to the Central Laboratory within 30 days from the date of receipt of the Analyst Report from the State Laboratory. In the instant case, the second sample was forwarded to Central Laboratory, 6/24 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9346 of 2017 Kolkota, after lapse of six months, therefore, Section 47 of the FSSA read with Rule 2.4.6 of the Food Safety and Standards Rules, 2011, is contravened.
7.In addition to the above grounds, the learned counsel for the petitioners also submitted that the Manufacturing Company and the Marketing Company has nominated one Sukumaran under Section 66 of the FSSA as the person responsible for food safety. While so, the Authorities declined to accept the nomination on the ground that the same person cannot be the nominee of both the Manufacturing Company and the Marketing Company. When there is no bar to nominate the same person for two companies under Section 66 of the FSSA, the respondent has rejected the nomination erroneously and had wrongly prosecuted the petitioners, who are the Directors of the Company.
8.The learned counsel for the petitioners to buttress his submissions relied upon the following judgments:-
(i) R.Banerjee and others Vs. H.D. Dubey and others [1992 (2) SCC 552]
(ii) Pepsico India Holdings Private Limited Vs. Food Inspector and 7/24 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9346 of 2017 another [2011 (1) SCC 176]
(iii) Hindustan Unilever Limited Vs. State of Madhya Pradesh [2020 (10) SCC 751]
(iv) M/s.Cheminova India Ltd., and another Vs. State of Punjab and another [Crl.A.No.749 of 2021, decided on 04.08.2021].
9.In short, the threefold submissions made on behalf of the petitioners are:-
(1) Fish Fry Masala Powder is a proprietary food. Monosodium Glutamate [MSG] is a flavour enhancer, permitted under law to add in proprietary foods subject to certain restrictions. Therefore, the sample tested by Central Laboratory, Kolkata, cannot be termed as substandard and unsafe.
(2) On 31.03.2014 the samples were drawn from the pocket labelled as ''Aachi Fish Fry Masala Powder''. Out of four samples drawn, one sample was sent to the State Laboratory at Palayamkottai on 01.04.2014. The State Laboratory forwarded the Analyst Report, dated 08.04.2014, to the Designated Officer. The said report says, the sample conforms for the tests carried out to the provisions of the FSSA and Rules and Regulations, 2011. The Designated Officer opined that the report of the State Laboratory is erroneous and forwarded the 8/24 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9346 of 2017 second sample to referral laboratory at Kolkata, only on 25.02.2015 and the same was received by the Central Laboratory on 16.03.2015. The Central Laboratory tested the sample under the impression that it is Culinary Powder and gave its Analysis Report dated 07.06.2015 as if the sample does not conform to the standard prescribed under Regulation 2.9.19.1 of the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011. Since the second sample sent to the Referral Laboratory belatedly after 10 months from the date of receipt of a the Analyst Report from the State Laboratory and the complaint filed only on 27.03.2017, the period of three years from the date of alleged offence expired. Therefore, the complaint is barred by limitation as prescribed under Section 468 of Cr.P.C.
(3) Under Section 66 of the FSSA, the Company, which has different establishments or branches or different units in any establishment or branch, the concerned Head or the person in-charge of such establishment, branch, unit, nominated by the Company shall be responsible for the food safety and liable for any contravention. The petitioners have nominated one Sukumaran as in-charge of the establishment, both for the Manufacturing Company as well as the Marketing Company and therefore, he alone is liable for any contravention and 9/24 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9346 of 2017 not the petitioners.
Monosodium Glutamate [MSG]:-
10.Literatures on Monosodium Glutamate (MSG) say, it is one of the most widely used food-additives in commercial foods. MSG gives a special aroma to processed foods, which is known as ''Umami'' in Japanese. In many Countries, MSG goes by the name ''China Salt''. Besides, its flavour enhancing effects, MSG has been associated with various forms of toxicity. MSG has been linked with obesity, metabolic disorders, Chinese Restaurant Syndrome, neurotoxic effects, detrimental effects on the reproductive organs and release of glutamic metabolites after ingestion.
11.In India, use of MSG as flavouring enhancer, though not totally prohibited, use of MSG is substantially restricted under Regulation 3.1.11 of the Food Safety & Standards (Food Products Standards & Food Additives) Regulations, 2011. Particularly, MSG cannot be added to the foods meant for infants below 12 months and not be added in 51 items of foods listed under Regulation 3.1.11. If MSG is added to any permitted food, the level of adding 10/24 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9346 of 2017 MSG must be subject to Good Manufacturing Practices (GMP). The product added with MSG must be properly labeled with declaration that, ''this package of ….. (name of the food) contains added MONOSODIUM GLUTAMATE – NOT RECOMMENDED FOR INFANTS BELOW 12 MONTHS'' .
12.A glance at Regulation 3.1.11 indicates that in the list of foods where use of MSG is not allowed, Serial No.(xvi) is fresh fish and fish products, including mollusks, crustaceans and echinoderms. Serial No.(xvii) is processed fish and fish products, including mollusks, crustaceans and echinoderms. Serial No.xxiii is herbs, spices and condiments, seasoning (including salt substitutes), except seasoning for noodles and pastas, meat tenderizers, onion salt, garlic salt, oriental seasoning mix, topping to sprinkle on rice, fermented soyabean paste, yeast.
13.The sample sent for analysis, even as per the label, contains 'Monosodium Glutamate (MSG)' and the said Masala Powder is admittedly for preparing Fish Fry. The contention of the petitioners is that, the sample is a proprietary food falling under Regulation 2.12.1 of the Food Safety and Standards 11/24 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9346 of 2017 (Food Products Standards and Food Additives) Regulations, 2011 and not a culinary powder falling under Regulation 2.9.19.1 of the said Regulations.
14.Regulation 2.12.1 defines Proprietary food as food not been standardized under the Regulations. 2.12.2.(ii) mandates the proprietary food product shall comply with all other regulatory provisions specified in the regulations and in Appendices A and B. Regulation 2.9 deals with salt, spices, condiments and related products. Regulation 2.9.19.1 defines curry powder as under:-
''1.CURRY POWDER means the powder obtained from grinding clean, dried and sound spices belonging to the group of aromatic herbs and seeds such as black pepper, cinnamon, cloves, coriander, cardamom, chillies, cumin seeds, fenugreek, garlic, ginger, mustard, poppy seeds, turmeric, mace, nutmeg, curry leaves, white pepper, saffron and aniseeds. The material may contain added starch and edible common salt. The proposition of species used in the the preparation of curry powder shall be not less than 85.0 percent by weight. The powder shall be free from dirt, mould growth and insect infestation. It shall be free from any added colouring matter and preservatives other than edible 12/24 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9346 of 2017 common salt.''
15.On examining the Analysis Report, Central Laboratory, Kolkata, this Court finds the petitioners' product labeled as ''Aachi Fish Fry Masala'' contains the following ingredients:-
''Chilli, salt, cumin, garlic, ginger, aniseed, cloves, gram dhall, pepper, cinnamon and Monosodium Glutamate.'' The declaration on the package of Fish Fry Masala says it contains added Monosodium Glutamate, not recommended for infants below – 12 months. Thus, while considering the definition of Proprietary food and curry powder as said in the Regulation, the petitioners' Fish Fry Masala falls very close to the definition of Curry Powder well standardized under the regulation 2.9.19.1. Even otherwise, if the product has to be considered as proprietary food as claimed by the petitioners, even a proprietary food as per Regulation 2.12.2.(ii) has to comply with all other regulatory provisions specified in the Regulation and in Appendices A and B. Therefore, with all certainty, the petitioners' product 'Fish Fry Masala' has to conform the test laid under the provisions of the FSSA and Rules and Regulations. A combined reading of Regulations 3.1.11 (xxiii), 2.12.2.(ii) and 13/24 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9346 of 2017 2.9.19.1 undoubtedly leads to the conclusion that Monosodium Glutamate is not permitted to be added as flavor enhancer to Fish Fry Masala, which is a Curry Powder ingrained with spices belonging to group of aromatic herbs and seeds.
16.The complaint against the petitioners is under the penal provisions of the FSSA, referred in Sections 51 and 59. Section 51 of the FSSA deals about penalty for sub-standard food and Section 59 deals with punishment for manufacturing, selling, storing and distributing the unsafe food article for human consumption. Section 77 of the FSSA deals with time limit for prosecution, wherein it has been specifically stated that no Court shall take cognizance of an offence under the Act after the expiry of the period one year from the date of commission of an offence, provided, that the Commissioner of Food Safety may, for reasons to be recorded in writing, approve prosecution within an extended period of upto three years.
17.In the instant case, the learned counsel appearing for the petitioners while contending that the prosecution is barred by limitation, would submit that to reckon the limitation, the date of commission of offence to be fixed from the 14/24 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9346 of 2017 date on which the report of the Analyst was received. In this case, the report of referral Analyst was received on 07.06.2015. Whereas the complaint was filed on 27.03.2017. As per Section 77 of the FSSA, the limitation is one year. Therefore, the prosecution ought to have launched on or before 31.05.2016, within a period of one year. If the prosecution wants to take advantage of the proviso to Section 77 of the FSSA, which empowers the Commissioner to approve the prosecution within the extended period of three years, the said approval must be supported by reasons in writing. But, in this case, the extension of time for approving the prosecution is not supported by any reason. Since the time limit prescribed under Section 77 of the FSSA as well as the limitation prescribed under Section 468 of Cr.P.C., has expired, the complaint is barred by limitation.
17.This Court, on perusal of the sanction accorded by the Commissioner of Food Safety, vide proceedings dated 14.03.2017, finds that the Commissioner has taken note of the delay in according sanction and assigned reasons that the efforts to find out the address of the Marketing Company and the Manufacturing Company, had caused delay and therefore, extended the time and granted sanction. In the said proceedings dated 14.03.2017, this Court finds reference to 15/24 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9346 of 2017 the letter dated 09.09.2015 of the Designated Officer, Tirunelveli, vide Letter R.No.174/A1/2015, seeking sanction to prosecute the petitioners.
18.On going through Section 470(3) of Cr.P.C., this Court finds that wherever sanction to prosecute is pre-condition, the period taken for granting sanction to take cognizance has to be excluded. In the instant case, the request to grant sanction is on 09.09.2015. Sanction accorded on 14.03.2017. Therefore, the period from 09.09.2015 till 14.03.2017 has to be excluded for reckoning limitation. If that period is excluded, the complaint filed on 27.03.2017 is well within the period of extended period of three years limitation, which commences from the date of receipt of the Referral Laboratory Report, dated 07.06.2015.
19.Yet another point regarding the limitation raised by the counsel for the petitioners is that, forwarding of the second sample to the Referral Laboratory, Kolkata, itself is beyond the period of limitation. In this regard, from the reading of Rule 2.4.3 of the Food Safety and Standards Rules, 2011, this Court finds that no period is prescribed for forwarding the second sample to the Referral Laboratory, if the designated Officer finds that the report of the State Laboratory 16/24 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9346 of 2017 is erroneous. While the provision of the Rule, which enables the Manufacturer to seek for referral, fix 30 days limitation, such limitation is consciously omitted in Rule 2.4.3 of the Food Safety and Standards Rules, 2011, which enables the Designated Officer to seek second opinion from the Referral Laboratory. In this case, this Court finds that after receipt of the report from the State Laboratory on 08.04.2014, the second sample has been forwarded to the Central Laboratory on 25.02.2015. The Central Laboratory has taken three months time to complete the test and forward the report. Since the subject matter involves the safety and health of the public and there is no time limit prescribed for the designated Officer to forward second sample to the Referral Laboratory, as he opined that the report of the State Laboratory is erroneous, the complaint, which has been lodged against the petitioners, cannot be quashed for this reason.
20.The third point raised by the petitioners is with regard to nomination under Section 66 of the FSSA. At this juncture, it is useful to see Section 66 of the FSSA, which reads as follows:-
''66. Offences by companies.-
(1) Where an offence under this Act which has been committed by a company, every person who at the time 17/24 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9346 of 2017 the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that where a company has different establishments or branches or different units in any establishment or branch, the concerned Head or the person in-charge of such establishment, branch, unit nominated by the company as responsible for food safety shall be liable for contravention in respect of such establishment, branch or unit:
Provided further that nothing contained in this sub- section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be 18/24 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9346 of 2017 deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.-For the purpose of this section,-
(a) "company" means any body corporate and includes a firm or other association of individuals; and
(b) "director" in relation to a firm, means a partner in the firm.''
21.Thus, being a juristic body, law provides for person to represent the Company and such person will be deemed to be guilty of offence and liable to be proceeded against and punished. The first Proviso to Section 66 of the FSSA permits the Company to nominate any person responsible for the food safety and shall be liable for contravention in respect of such establishments. In the present case, the inspection of the first accused premises was conducted on 31.03.2014 and sample was sent to the State Laboratory for analysis on 01.04.2014 and the report, dated 08.04.2014, was received indicating that the sample conforms for the tests carried out to the provisions of the FSSA and Rules and Regulations, 2011. Thereafter, the second sample was sent to the Referral Laboratory, Kolkata, which reported that the sample contains Monosodium Glutamate, the prohibited item under Regulation 3.1.11 of the Food Safety and Standards [Food Products 19/24 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9346 of 2017 Standards and Food Additives] Regulations, 2011, therefore, the sample is sub- standard and unsafe. This report is dated 07.06.2015. The complaint indicates that efforts was taken by the Food Safety Officer to get the details about the Marketing Company and Manufacturing Company. Since it was brought to the notice of the Food Safety Officer that the Marketing Company and the Manufacturing Company are at Thiruvallur District and for both the Companies one and the same person has been nominated, he sought for entire particulars from the Thiruvallur District Food Safety Officer. The Manufacturing Company failed to clarify how the same person can be the nominee for both the Companies, so, the resolution of the Board of Directors of the Company, nominating the said Sukumaran under Section 66 of the FSSA, was called for. The petitioners 4 and 7, who are the Marketing and Manufacturing Company respectively, and the other petitioners, who are the Directors of the Company, have not chosen to furnish particulars whether they have nominated the said Sukumaran on the strength of Board Resolution and the same being accepted by the Department, recording him as nominee of the Company. In such circumstances, certainly, on the date of commission of the offence, there was no proper nomination duly recorded. The records indicates that only after searching and seizure on 31.03.2014, the 20/24 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9346 of 2017 petitioners have passed resolution recording the appointment of the nominee and forwarded the same to the authorities. Since the same person was shown as nominee for two Companies located at two different places, the authorities have not accepted the said nomination. Further, under Section 66(2) of the FSSA, notwithstanding nomination, if the addition of M.S.G. in the prohibited food item was with connivance or consent or negligence of the Directors, they shall be deemed to have committed the offence.
22.A reading of Section 66 of the FSSA clearly indicates that the nomination to represent the Company and hold him responsibility for food safety is not an empty formality when law say he shall be liable for contravention of the provisions of law. This provision is also amply clarifies that where the Company has different establishments or branches or different units in any establishment or branch, the concerned Head or the person in-charge of such establishment, branch, unit, nominated by the Company shall be responsible for food safety and liable for contravention in respect of such establishment, branch or unit [emphasis added]. The said person must either be a head of the establishment, branch, unit or the person in-charge of the establishment, branch, unit. 21/24 https://www.mhc.tn.gov.in/judis Crl.O.P.(MD)No.9346 of 2017
23.As far as the petitioners herein are concerned, they have nominated one Sukumaran, responsible for both the Manufacturing Unit and Marketing Unit, which are located at two different places, that too after the seizure of unsafe food product. He is not the person in-charge of the establishment, but a Consultant even according to their Board Resolution, which is passed after the date of seizure. Therefore, it is only an afterthought to avoid prosecution of the actual persons in-charge of the affairs of the Company and responsibility for the safety of the food manufactured and marketed by them.
24.In the light of the above said discussion and reason set out, this Court is of the view that the Criminal Original Petition deserves to be dismissed as devoid of merits. Accordingly, it is dismissed. Consequently, connected Miscellaneous Petitions are closed.
Index : Yes 22.12.2021
To
1.The Judicial Magistrate,
Ambasamudram.
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Crl.O.P.(MD)No.9346 of 2017
2.The Food Safety Officer,
Ambasamudram Taluk,
Government Hospital Road,
Ambasamudram,
Tirunelveli District – 627 401.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4.The Section Officer,
Criminal Section (Records),
Madurai Bench of Madras High Court,
Madurai.
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Dr.G.JAYACHANDRAN, J.
smn2
Crl.O.P.(MD)No.9346 of 2017
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