At, High Court of Judicature at Madras
By, THE HONOURABLE MR. JUSTICE N. SATHISH KUMAR
For the Petitioners: S. Vijayan, Advocate. For the Respondent: Leonard Arul Joseph Selvam, Government Advocate (Crl. Side).
(Prayer: Petition filed under Section 482 of Cr.P.C.to call for the entire records pertaining to the case in CC.No.1241 of 2020 on the file of the X Metropolitan Magistrate's Court, Egmore, Chennai and quash the same.)
1. This petition has been filed to quash the Charge Sheet filed in CC.No.1241 of 2020 on the file of the X Metropolitan Magistrate, Egmore, Chennai for the offences under Section 59(i) of the Food Safety and Standards Act.
2. It is the case of the prosecution that the petitioners are in the hospitality industry and selling `Prepared Food`. On 22.08.2019 Food Safety Officers lifted samples of 'Prepared Food' after following the necessary procedures and samples were sent to the analysis on the same day i.e., on 22.08.2019. The Report was received by the Respondent on 30.09.2019 indicating that the food is unsafe. Hence, recommendation was made on 03.10.2019 and filed the prosecution.
3. Learned counsel appearing for the Petitioner would submit that while samples were lifted on 22.08.2019 it was received by the food analyst only on 26.09.2019, whereas report has been sent only on 30.09.2019 and the notice has been sent to the petitioner only on 03.10.2019. On the same day, the Respondent recommended for prosecution which is violation of the mandatory provisions and it is his contention that mandatory provision in Section 42 has not been followed. Therefore, the complaint is not maintainable. Further the reasons required for delayed analysis is also mechanical and no special reasons assigned for delay of testing the samples. Hence it is his contention that the entire mandatory provisions have been violated, therefore, the entire proceedings has to be quashed.
4. Learned Government Advocate (Criminal Side) submitted that Section 42 of the Act prescribes mandatory period of 14 days to send Analysis Report; But proviso to Section 46 of the Act make it clear that Section 42 would not be mandatory in nature. It is his contention that in this case the food analyst has given proper reason for delay in analysing. Hence submitted that the prosecution cannot be quashed at this stage.
5. I have perused the entire materials. The samples were lifted on 22.08.2019. It appears on the same day samples have been sent to the Analyst by the Food Safety Officer. The sample was received on 26.08.2019 by the Analyst. Whereas food was analysed only on 26.09.2019 beyond the period of 14 days as against the stipulation in Section 42 of the Food Safety and Standards Act. It is relevant to extract Section 42 of the Act.
“42, Procedure for launching prosecution.-
(1) The Food Safety Officer shall be responsible for inspection of food business, drawing samples and sending them to Food Analyst for analysis.
(2) The Food Analyst after receiving the sample from the Food Safety Officer shall analyse the sample and send the analysis report mentioning method of sampling and analysis within fourteen days to Designated Officer with a copy to Commissioner of Food Safety.
(3) The Designated Officer after scrutiny of the report of Food Analyst shall decide as to whether the contravention is punishable with imprisonment or fine only and in the case of contravention punishable with imprisonment, he shall send his recommendations within fourteen days to the Commissioner of Food Safety for sanctioning prosecution.
(4) The Commissioner of Food Safety shall, if he so deems fit, decide, within the period prescribed by the Central Government, as per the gravity of offence, whether the matter be referred to,-
(a) a court of ordinary jurisdiction in case of offences punishable with imprisonment for a term up to three years; or
(b) a Special Court in case of offences punishable with imprisonment for a term exceeding three years where such Special Court is established and in case no Special Court is established, such cases shall be tried by a court of ordinary jurisdiction.
(5) The Commissioner of Food Safety shall communicate his decision to the Designated Officer and the concerned Food Safety Officer who shall launch prosecution before courts of ordinary jurisdiction or Special Court, as the case may be; and such communication shall also be sent to the purchaser if the sample was taken under section 40.”
6. Sub-Clause (2) makes it very clear that the Food Analyst after receiving the samples shall analyse the sample and send the analysis report within fourteen (14) days to the Designated Officer with a copy to Commissioner of Food Safety. Sub-clause (3) makes it clear that food analyst shall analyse within a period of fourteen days from the date of receipt of any samples. The proviso to Section 46(3) makes it very clear if the samples cannot be analysed within 14 days after the receipt, Food Analyst shall inform the Designated Officer and the Commissioner of Food Safety giving reasons to specific time to be taken for analysis. The report of the analyst indicates that due to administrative reasons and also 14th day falls on the same day for many of the samples the samples could not be analysed within 14 days. Thereby report was made ready on 26.09.2019.
7. Thereafter, it appears that Notice dated 30.09.2019 was sent to the Petitioner herein indicating that if the petitioner wish to appeal for sending the one part of sample which is kept under safe custody of the Designated Officer, to the referral laboratory and given a time to file an appeal within 30 days from the receipt of the report. It is relevant to note that as per Section 46(4) of the Act an appeal against the report of the Food Analyst shall lie before the Designated Officer. If he so decides, refer the matter to the referral food laboratory as notified by the Food Authority for opinion. Though notice sent on 30.09.2019 intimating the Petitioner to file appeal within 30 days from the report, from the respondent document it is clear that though the letter was dated 30.09.2019 the same was despatched only on 03.10.2019. Having sent the report on 03.10.2019 on the same day the Designated Officer recommended for prosecution. Thereafter the prosecution has been launched. Analysis report was sent only on 03.10.2019 though it is dated as 03.09.2019. Therefore, recommending prosecution on 03.10.2019 when the report was actually sent certainly defeated the right of the Petitioner to file an appeal. That itself clearly indicate that the prosecution has launched mechanically. When appeal is providing under Sub-section 4 of Section 46 of the Act. Only after the appeal period is over, the prosecution could have been recommended. Whereas in the recommendation for prosecution by the Designated Officer it is stated as if the petitioners have waived their right such finding was recorded without any substance. Very prosecution proceeded as if they issued notice on 30.09.20
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19. But they sent the above communication only on 03.10.2019. Even before the notice being served on the petitioner the prosecuting authority has concluded that the petitioners have waived their right. The above fact itself clearly indicate that the prosecution is nothing but mechanical and violation of the statutory provision. In such a view of the matter, taking cognizance by the trial Court on private complaint is also not in accordance with law and the entire complaint is vitiated for non-following the statutory provisions. 8. In view of the above, the charge sheet in C.C.No.1241 of 2020 on the file of the X Metropolitan Magistrate, Egmore, Chennai, is quashed and the Criminal Original Petition is allowed. Consequently, connected Crl.M.Ps are closed.