Kerala High Court
Rajesh Gupta vs Food Safety Officer on 9 April, 2019
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941
Crl.MC.No. 2018 of 2019
AGAINST THE PROCEEDINGS IN CC NO.2564/2014 ON THE FILES OF THE
JUDICIAL MAGISTRATE OF FIRST CLASS, VADAKKANCHERRY
PETITIONER/3RD ACCUSED:
RAJESH GUPTA,
M/S. GLOBAL TEA BROKERS,
(A DIVISION OF SUNITHA FINLEASE LTD),
INDIRA GANDHI ROAD, WILLINGTON ISLAND,
COCHIN-682 003.
BY ADVS.SRI.C.R.SIVAKUMAR
SMT.MINI.M.NAIR
RESPONDENTS/COMPLAINANT & ACCUSED 1, 2 AND 4:
1 FOOD SAFETY OFFICER,
CHELAKKARA CIRCLE, WADAKKANCHERRY,
THRISSUR DISTRICT REPRESENTED BY THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682 031
2 MOHANDAS CC,
S/O. CHANDHU, CHULLIVALAPPIL HOUSE,
IRUNILAM CODE PO, MULLOORKARA - 680 583,
THRISSUR DISTRICT
3 SP KAREEM
S/O. SAYED PAREED, VALIAPPAT HOUSE,
BTR MOUNT TEA DEALERS, 24/500 ESSAR BUILDING.
GV AYYAR ROAD, WILLINGTON ISLAND,
COCHIN - 682 003.
SRI. SURESH BABU THOMAS-SR. PUBLIC PROSECUTOR
FOR ADGP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
09.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC:2018/2019 2
ORDER
This petition is filed under Section 482 of the Cr.P.C.
2. The petitioner herein is the accused in C.C. No.2564 of 2014 on the file of the Judicial First Class Magistrate Court, Wadakanchery. In the aforesaid case, he is being proceeded against for having committed offence punishable under Sections 3(1) (zz)
(v) & (xi), 26(1), 26(2)(i) and 59(i) of the Food Safety and Standards Act, 2006 and Rules 2.1.3.4(iii)(c) and Regulations 2.10.1.1. of the Food Safety Standards (Food Products Standards & Food Addictives) Regulations, 2011.
3. According to the prosecution, on 8.10.2018, the Circle, Food Safety Officer, Wadakkancherry, inspected the shop room run by the 1st accused and took a sample of tea. The food was sent for analysis to the Regional Analytical Laboratory, Kakkanad. A report stating that the food was unsafe due to the presence of iron fillings more than the prescribed limit was issued. As requested by the accused, the second sample was forwarded to the Refer Laboratory, Calcutta. The report from the Refer Laboratory also showed that the food sample is unsafe due to the presence of iron fillings beyond the prescribed limit.
CRL.MC:2018/2019 3
4. The learned counsel appearing for the petitioner would contend that the Food Safety and Standards Authority of India had issued Annexure-A3 order on 19.05.2016, took note of the wide variation in the test results and it came to the conclusion that it would not be appropriate to rely on test results for iron filings in tea, till such time the method of assessment is finalized. She would also refer to Annexure-A4 order dated 02.11.2017 issued by the Food Safety Standards Authority of India calling upon the Commissioners of Food Safety of all States/Union Territories to refrain from launching prosecution for non-confirmation of limit of iron filings in respect of cases where samples were picked up or tested prior to 19.05.2016. In the very same order, the officers were advised to withdraw all prosecutions launched prior to 19.05.2016 either under the Food Safety and Standards Act, 2006 or under the Prevention of Food Adulteration Act, 1954. According to the learned counsel, in view of Annexures-A3 and A4, the continuance of proceedings is an abuse of process.
5. The learned Public Prosecutor was directed to get instructions.
6. When the matter was taken up today, the learned Additional Director General of Prosecution has filed a statement. CRL.MC:2018/2019 4 Along with the statement, the statement of the Food Safety Officer, Chelakkara is also produced. In the said statement, the Food Safety Officer has stated as follows:
"As per FSSAI order dated 2 nd November 2017, it is stated that "Commissioner of food Safety, All states/Uts are, therefore, directed not to launch prosecutions for non-conformance of limit of iron fillings for cases where samples were picked up/tested prior to 19.05.2016. They are also advised to withdraw all such prosecution launched prior to 19.05.2016 either under FSS Act, 2006 or PFA Act, 1954."
7. In the case on hand, the sample was taken on 08.10.2013, which is much prior to the cut off date prescribed by FSSAI. In that view of the matter, I am of the view that the petitioner is entitled to succeed.
In the result, this petition is allowed. Annexure-A1 complaint and all further proceedings pursuant thereto against the petitioner now pending as C.C. No.2564 of 2014 on the file of the Judicial First Class Magistrate Court, Wadakanchery are quashed.
Sd/-
RAJA VIJAYARAGHAVAN V., JUDGE KRJ CRL.MC:2018/2019 5 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A1 THE TRUE COPY OF THE COMPLIANT FILED BY THE 1ST RESPONDENT DATED 19/09/2014 ANNEXURE A2 THE TRUE COPY OF THE SUMMONS ISSUED BY HONOURABLE JUDICIAL FIRST CLASS MAGISTRATE COURT, WADAKKANCHERRRY DATED 07/01/2018 ANNEXURE A3 THE TRUE COPY OF THE ORDER DATED 19/05/2016 ISSUED BY FSSAI ANNEXURE A4 THE TRUE COPY OF THE FSSAI NOTIFICATION DATED 02/11/2017 RESPONDENTS' EXHIBITS:-NIL //TRUE COPY// P.A TO JUDGE