Madras High Court
S.Ravikumar vs State Of Tamilnadu on 8 November, 2023
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.No.3506 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 02.11.2023
Pronounced on : 08.11.2023
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P. No.3506 of 2021 and
Crl.M.P.Nos.2036 & 2037 of 2021
1. S.Ravikumar
2. R.Ramesh
3. Mukunth
4. M/s.Adyar Bakery Pvt., Ltd.,
all having address at
M/s.Adyar Bakery Pvt., Ltd.,
No.110, Sardar Patel Road,
Adyar, Chennai-600 020. ... Petitioners
Vs.
State of TamilNadu,
Represented by Food Safety Officer,
A Chidambaram,
Adyar Region,
Code No.550 ... Respondent
PRAYER: Criminal Original Petition has been filed under Section 482 of
Criminal Procedure Code, praying to call for the records in respect of
C.C.No.775 of 2020 on the file of the IX Metropolitan Magistrate, Saidapet
at Chennai and quash the same.
1/11
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.3506 of 2021
For Petitioners : Mr.N.Ramesh
For Respondent : Mr.A.Gopinath,
Govt., Advocate (Crl.Side)
ORDER
This Criminal Original Petition is filed to quash the proceedings in C.C.No.775 of 2020 on the file of the IX Additional Metropolitan Magistrate, Saidapet, Chennai taken cognizance for the offences under Section 59(1) of the Food Safety Act 2006.
2. The respondent filed a complaint for the offences punishable under section 59(1) of the Food Safety Act 2006 (hereinafter referred as 'Act'). The crux of the complaint is that on 22.09.2018, the respondent conducted an inspection in the petitioners/accused premises and found selling of food “Nathan's Ring Murukku'' and collected samples. One of the sample was sent to Food Analysis Lab and as per the report, food samples are declared as unsafe as it contains ''Tartrazine'' (Colouring Agent) which shall be negative. After accorded sanction for prosecution, the respondent filed a complaint.
3. The learned counsel for the petitioner would submit that the Food was not manufactured by the petitioners and they are only sellers. The 2/11 https://www.mhc.tn.gov.in/judis Crl.O.P.No.3506 of 2021 manufacturer is arrayed as 5th accused. Section 27 of the Act relates to liabilities of the manufacturer, packers, wholesalers, distributors and sellers. Under Section 27(2) of the Act in respect of the unsafe food, the wholesaler or distributor alone shall be liable and not the seller. The liability of the seller is defined under section 27(3) of the Act. Therefore the entire prosecution cannot be sustained as against the petitioner sellers.
4. He further submitted that as per Section 42(2) of the Act, after receipt of the sample, the food Analyst shall Analyse the sample and send the analysis report within a period of 14 days to the designated officer. Whereas in the case on hand, the Analyst had sent its report beyond the period of 14 days i.e., with the delay of nine months. In support of the contention, he also relied upon various judgements of this Court.
5. Heard, the learned counsel appearing on either side.
6. On perusal of the food Analyst report dated 03.06.2019 reveals that the food is unsafe due to the presence of Tartrazine 45.42mg\kg which shall be negative and the same was scrutinized within 14 days from the date of report by the designated officer and the prosecution recommendation was sent to the Commissioner of Food Safety on 18.06.2019. Thereafter, on 3/11 https://www.mhc.tn.gov.in/judis Crl.O.P.No.3506 of 2021 30.08.2019, a complaint was filed and the same has been taken cognizance in C.C.No.775 of 2020. There are totally 5 accused and these petitioners/accused are arrayed as Accused No.1 to 4. The first ground raised by the petitioners is that they are only sellers.
7. The contravention of unsafe is coming under section 27(2) of the Act. It relates to wholesalers or distributors alone. Whereas the petitioners are sellers and the liability of them is defined under section 27(3) of the Act. The provision under Section 27(3) of the Act is extracted hereunder:
''Section 27(3) Liability of manufacturers, packers, wholesalers, distributors and sellers.
''The manufacturer or packer of an article of food shall be liable for such article of food if it does not meet the requirements of this Act and the rules and regulations made thereunder.
(3) The seller shall be liable under this Act for any article of food which is
(a) sold after the date of its expiry; or
(b) handled or kept in unhygienic conditions; or
(c) misbranded ; or
(d) unidentifiable of the manufacturer or the distributors from whom such articles of food were received;
or 4/11 https://www.mhc.tn.gov.in/judis Crl.O.P.No.3506 of 2021
(e) received by him with knowledge of being unsafe.''
8. Though the contravention of unsafe or misbranded relates to wholesaler or distributor, the seller shall be liable to be punished for the contravention as that is received by it with a knowledge of being unsafe. Further, as per Section 3(c)(2)(r) of the Act, the sale is defined as follows:
Section 3(C)(zr) ''Sale'' with its grammatical variations and cognate expressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article;
9. In the Act, seller is not defined. Whereas the sale is defined as stated above, accordingly sale of any article of food by wholesale or retail. The petitioners are retail sellers. On receipt of the products from the manufacturer, they are selling in retail. Further, Section 26 says about the responsibilities of the Food Business Operator and the same is extracted hereunder:
5/11
https://www.mhc.tn.gov.in/judis Crl.O.P.No.3506 of 2021 ''26. 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 there under at all stages of production, processing, import, distribution and sale within the business under his control.
(2) No food business operator shall himself or by any person on his behalf manufacturer, store, sell or distribute any article of food -
(i) which is unsafe; or
(ii) which is misbranded or sub-standard or contains extraneous matter; or''
10. Thus it is clear that the operator shall not sell unsafe food. Therefore, the petitioners are coming under the above said definition and they are liable to be prosecuted for selling unsafe food.
11. Insofar as the contravention of provision under section 42(2) of the Act is concerned, the samples were taken on 22.09.2018 and sent for Analysis. The Food Analysis Report dated 03.06.2019 was received by the designated officer on 06.06.2019, admittedly beyond 14 days. It is relevant to extract provision under section 46(3)(2) of the Act hereunder: 6/11
https://www.mhc.tn.gov.in/judis Crl.O.P.No.3506 of 2021 ''46. Functions of Food Analyst.– ''On receipt of a package containing a sample for analysis from a Food Safety Officer or any other person, the Food Analyst shall compare the seal on the container and the outer cover with specimen impression received separately and shall note the conditions of the seal thereon: Provided that in case a sample container received by the Food Analyst is found to be in broken condition or unfit for analysis, he shall within a period of seven days from the date of receipt of such sample inform the Designated Officer about the same and send requisition to him for sending second part of the sample.
(3) The Food Analyst shall, within a period of fourteen days from the date of receipt of any sample for analysis, send— (i) where such sample is received under section 38 or section 47, to the Designated Officer, four copies of the report indicating the method of sampling and analysis; and
(ii) where such sample is received under section 40, a copy of the report indicating the method of sampling and analysis to the person who had purchased such article of food with a copy to the Designated Officer:'' 7/11 https://www.mhc.tn.gov.in/judis Crl.O.P.No.3506 of 2021
12. It clearly indicates that sample cannot be Analysed beyond 14 days. On receipt of food, Analyst shall inform the designated officer and the Commissioner of Food Safety giving reason and specified time to be taken for Analysis. Accordingly, Food Analyst vide its communication dated 03.06.2019 has duly indicated to the Commissioner of Food Safety and Drug Administration Department, Chennai and the designated officer, Chennai District as follows :
''Sub : Reason for delay in Analysis and time required to complete -
Regarding.
Ref : 1. FSS Act 2006 and Rules 2011
2. Report No.0897/2018-19, dt-03.06.2019
--------
As specified in FSS Act 2006 Section 46, Sub Section (3) Clause (ii) and FSS Rules 2.4.2(6), I submit the following reason for non-completion of analysis of Act samples received vides reference 2nd cited within the stipulated time limit and furnish the extra time required to complete the same. Reason for delay in Analysis of Act Samples:
Due to Administrative Reason.
Sd.XXXXXXX Food Analyst, 8/11 https://www.mhc.tn.gov.in/judis Crl.O.P.No.3506 of 2021 Food Analysis Laboratory,Thanjavur''
13. Further it is not the case of the petitioners that the samples found to be in broken condition or unfit for analysis. That apart, the samples were duly preserved by adopting the method of preservation for Analysis. Therefore, the respondent duly followed the procedures laid down under the Act and launched prosecution. Therefore, there are no illegalities or procedural violation as pointed out by the learned counsel for the petitioners.
14. As such, this court finds no merits in this case to quash the impugned proceedings. Accordingly, this criminal original petition is dismissed. Consequently, connected miscellaneous petitions are closed.
08.11.2023 Index : Yes / No Internet : Yes / No Neutral Citation Case :Yes/No gvn 9/11 https://www.mhc.tn.gov.in/judis Crl.O.P.No.3506 of 2021 To
1) The Food Safety Officer, A Chidambaram, Adayar Region, Code No.550.
2) The IX Metropolitan Magistrate, Saidapet at Chennai
3) The Government Advocate High Court, Madras.
10/11 https://www.mhc.tn.gov.in/judis Crl.O.P.No.3506 of 2021 G.K.ILANTHIRAIYAN, J.
gvn Crl. O.P. No.3506 of 2021 and Crl.M.P.Nos.2036 & 2037 of 2021 08.11.2023 11/11 https://www.mhc.tn.gov.in/judis