1. An application for adjudication was filed by the Food Safety Officer, Payyanur Circle, under Section 68 of the Food Safety and Standards Act, 2006 (hereinafter referred to as “the Act, 2006”) and the Food Safety and Standards, Rules, 2011 (hereinafter referred to as “the Rules, 2011) for manufacture and sale of Synthetic Food Colour Preparation (Orange Red Powder), which was found to be misbranded by the Referral Food Laboratory, Ghaziabad. The 1st petitioner herein is roped in his capacity as the manufacturer and packer and the 2nd petitioner as the manufacturer and distributor of the food articles.
2. The factual background relating to the proceeding under challenge may be set out as under:
(a) On 4.2.12, the Food Safety Officer, Payyanur Circle, inspected the premises of “New Bazaar Supermarket” licensed in the name of Sri.Abdul Gafoor and purchased four sealed tins of Synthetic Food Colour Preparation (Orange Red Powder) in accordance with the procedure prescribed under the Act and Rules. The items were sampled in accordance with law. One part of the samples was forwarded to the Food Analyst, Regional Analytical Laboratory, Kozhikkode. By report dated 16.12.2015, the Food Analyst gave an opinion that the sample is unsafe as it contained added synthetic matter, which is prohibited, and, therefore, in violation to Section 3 (1)(zz)(v) & (viii) of the Act, 2011 read with Regulation 3.1.2 (4) of the Food Safety and Standards Act (Food Product Standards and Food Additives) Regulations, 2011 (hereinafter referred to as 'Additive Regulations, 2011').
(b) On receipt of the letter from the Designated Officer, the respondents filed appeal challenging the Form-B report. In the appeal, they demanded that the sample be forwarded to the Referral Laboratory for analysis as provided under Section 46(4) of the Act, 2011 and Rule 2.4.6 of Rules, 2011. The 2nd part of the samples was thus, forwarded to the Referral Food Laboratory, GOI, Ghaziabad.
(c) By report dated 21.04.2016, the Director, Referral Food Laboratory gave an opinion that the sample of Synthetic Food Colour Preparation (Orange Red Powder) does not confirm to the standards laid down under Regulation No.3.2.1 (12) of the Additive Regulations, 2011 as the dye content found in the sample is 62.70%, whereas the dye content declared on the label is 31.0%. The Director concluded that the sample is misbranded under Section 3 (1) (zf) of Act, 2006.
(d) On receipt of the report, the Designated Officer examined the case and decided that the contravention is not liable for punishment with imprisonment, but only with fine under the provisions of the Act, 2011. The Designated Officer authorised the Food Safety Officer to file with the adjudicating officer, an application for adjudication of the offence alleged to have been committed by the respondents. The said application is under challenge.
3. Heard Sri. Joseph Markos, the learned Senior Counsel appearing for the petitioners, as instructed by Sri. Abraham Joseph Markos, and Smt. M.K.Pushpalatha, the learned Senior Public Prosecutor.
4. Sri. Joseph Markos, the learned Senior Counsel, raised the following contentions to bring home his point that the proceedings are liable to be quashed at the threshold stage itself.
(i) The test results being at variance, Rule 3.1.1.(1) will come into play. If that be the case, a valid prosecution would be possible only if the Referral Laboratory confirms the findings of the Food Analyst. In other words, according to the learned Senior Counsel, only if the findings of the Food Analyst are confirmed by the Referral Laboratory, can the matter be sent for adjudication under Section 68 read with Rule 3.1.1.
(ii) Under the scheme of the Act and Rules, when the test results are at variance, the petitioners should have been granted an opportunity to contest the finding or alternatively, the matter ought to have been again referred to the Referral Laboratory as provided under the proviso to sub clause (1) of Section 47 of the Act, 2011.
(iii) The report of the Referral Laboratory is not conclusive as Section 46(4) clearly says that it is only an opinion, whereas the proviso to Section 47(1) states that the report of the Referral Laboratory on the sample being forwarded to it for confirmation would be final.
(iv) There is no prohibition under the Act for using dyes and merely because the dye content was found to be higher, while the food was tested in the Referral Laboratory, the food cannot be regarded as unsafe for consumption.
(v) The article of food was manufactured in August 2015 and since the item from which the samples were drawn has crossed the expiry date, the test conducted on the samples drawn from the said item cannot be relied on for a successful prosecution.
5. The submissions of the learned Senior Counsel appearing for the petitioners is vehemently refuted by Smt.M.K.Pushpalatha, the learned Senior Public Prosecutor. She would urge that though the use of synthetic food colours is not prohibited, it is of common knowledge that dyes are carcinogenic and its excessive use can cause incalculable harm. The dye content having found as 62.70% by the Referral Laboratory, the offence alleged would squarely be attracted. The learned Senior Public Prosecutor would then refer to Rule 2.4.1 of the Rules, 2011 and it is argued that it was on the strength of the appeal filed by the petitioners that the samples were forwarded to the Referral Food Laboratory. Relying on Rule 2.4.6, it is submitted that the result is final. She would further contend that Section 47 of the Act will have no application in a case, wherein the opportunity to have the samples sent to the NABL/Accredited lab is not availed, either by the FBO or the person whose name has been disclosed under Rule 2.5 of the Rules. It is submitted that no interference is warranted at this stage and the petition is liable to be dismissed.
6. I have anxiously considered the submissions advanced and have scrutinised the records, which have been made available.
7. The main contention of Sri. Joseph Markos is that when the report of the Public Analyst and the Referral Laboratory is at variance, no adjudication proceedings can be initiated. He also has a contention that the decision on an appeal filed under Section 46 (4) of the Act is only an opinion, whereas in Section 47, the report of the Referral Laboratory is stated to be the final word. The said contention is only to be rejected for the reasons below.
8. Sections 46 of the Act, 2011 deals with the functions of the Food Analyst. The said provision reads as follows:
“Section 46 - Functions of Food Analyst.
(1) 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.
(2) The Food Analyst shall cause to be analysed such samples of article of food as may be sent to him by Food Safety Officer or by any other person authorised under this Act.
(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:
Provided that in case the sample cannot be analysed within fourteen days of its receipt, the Food Analyst shall inform the Designated Officer and the Commissioner of Food Safety giving reasons and specifying the time to be taken for analysis.
(4) An appeal against the report of Food Analyst shall lie before the Designated Officer who shall, if he so decides, refer the matter to the referral food laboratory as notified by the Food Authority for opinion.”
9. This provision has to be read with Rule 2.4.6 of the Rules, 2011 which reads as under:
“2.4.6: Appeal to the Designated Officer-
1. When an appeal as provided under subsection 4 of section 46 is preferred to the Designated Officer by the Food Business Operator against the report of the Food Analyst, the Designated Officer, shall if he so decides, within thirty days from the receipt of such appeal after considering the material placed before him and after giving an opportunity to Food Business Operator to be heard shall forward one part of the sample to the referral lab. Such appeal shall be in Form VIII which shall be filed within 30 days from the date of the receipt of the copy of the analysis report from the Designated Officer. Report of the referral laboratory shall be final in this regard.
2. The Designated Officer shall forward one part of the sample under appropriate condition as specified for the product including transport, to retain the integrity of the sample. The cost of analysis of the sample shall be borne by the Food Business Operator. The remaining samples will also be safely kept under appropriate conditions to prevent deterioration.”
10. The above provisions enable the person aggrieved to file an appeal against the report of the Food Analyst, before the Designated Officer and if he so decides, he shall within a period of 30 days from the date of receipt of the appeal and after giving an opportunity to the parties to be heard, may forward one part of the sample to the Referral Laboratory. Such appeal has to be in Form-VIII, which shall be filed within 30 days from the date of the receipt of the copy of the analysis report from the Designated Officer. It clearly stated in the relevant rules that the report of the Referral Laboratory shall be final in this regard. On the other hand, Section 47 of the Act will come into play in a totally different scenario.
11. Section 47 reads as follows:
“47. Sampling and analysis.
(1) When a Food Safety Officer takes a sample of food for analysis, he shall –
(a) give notice in writing of his intention to have it so analysed to the person from whom he has taken the sample and to the person, if any, whose name, address and other particulars have been disclosed;
(b) except in special cases as may be provided by rules made under this Act, divide the sample into four parts and mark and seal or fasten up each part in such a manner as its nature permits and take the signature or thumb impression Of the person from whom the sample has been taken in such place and in such manner as may be prescribed by the Central Government:
Provided that where such person refuses to sign or put his thumb impression, the Food Safety Officer shall call upon one or more witnesses and take his signature or thumb impression, in lieu of the signature or thumb impression of such person;
(c) (i) send one of the parts for analysis to the Food Analyst under intimation to the Designated Officer;
(ii) send two parts to the Designated Officer for keeping these in safe custody; and
(iii) send the remaining part for analysis to an accredited laboratory, if so requested by the food business operator, under intimation to the Designated Officer:
Provided that if the test reports received under sub clauses (i) and (iii) are found to be at variance, then the Designated Officer shall send one part of the sample kept in his custody, to referral laboratory for analysis, whose decision thereon shall be final.
xxxx xxxx xxxx”
12. Section 47 will have to be read along with Rule 2.4.5 of the Rules 2011, which reads as under:-
“2.4.5: Food business operator’s right to have the food analysed
1. In case the Food business operator from whom the sample has been taken or the person whose name and address and other particulars have been disclosed under Rule 2.5 of these rules, desires to have the fourth part of the sample analysed, he shall request the Food Safety Officer in writing to send the sample to any NABL accredited/ FSSAI notified laboratory for analysis under intimation to the Designated Officer.
2. The Food Safety Officer shall send the sample to a NABL accredited/FSSAI notified laboratory, under intimation to the Designated Officer forthwith, in the manner prescribed under Rule 2.4.1. Provided that the cost of testing by the accredited lab will be borne by the Food Business Operator or the person identified under Rule 2.5. The payment shall be made by the Food Business Operator through Bank draft or online transfer or treasury chalan or any other suitable means as specified by the Designated Officer.
Provided further that the Accredited lab where the Food Safety Officer will send the sample, should be within the state or the neighbouring state wherever available.
3. The Food Analyst in-charge of the accredited laboratory shall analyse the sample within fourteen days from the date of the receipt of the sample Provided that in case the sample cannot be analysed within fourteen days from the date of its receipt, the Food Analyst/in-charge of the accredited laboratory, shall inform the Designated Officer and the Commissioner of Food Safety giving reasons and specify the time to be taken for analysis.
4. The Food Analyst shall send four copies of the analysis report to the Designated Officer, in the proforma given in Form VII A, indicating the method of analysis.”
13. Thus, there cannot be any doubt that Section 47 read with 2.4.5 of the Rules will apply when the Food Business Operator, from whom the samples have been taken or the person whose name and address and other particulars have been disclosed under Rule 2.5 of the Rules, desires to have the fourth part of the samples analysed. He may request the Food Safety Officer in writing to send the sample to any NABL accredited/ FSSAI notified laboratory for analysis under intimation to the Designated Officer. If the report of the NABL Accredited/FSSAI notified laboratory is at variance with the report of the Food Analyst, the sample may be forwarded to the Referral Laboratory and Act states that the said report shall be final.
14. Understanding the provisions as aforesaid, it is apparent that there are two options to the Food Business Operator or the person whose name and address and other particulars have been disclosed under Rule 2.5 of the Rules. Immediately after the samples are collected for the purpose of analysis, he may request to have the fourth part of the samples analysed, for which purpose, he shall request the Food Safety Officer to send the samples to any NABL accredited/FSSAI notified laboratory under intimation to the Designated Officer. On receipt of such application, the Food Safety Officer is bound to send the samples to a NABL accredited/FSSAI notified laboratory in the manner prescribed under Rule 2.4.1. The cost of testing is to be borne by the FBO or the person identified under Rule 2.5. If the result of analysis by the Food Analyst and the NABL accredited/FSSAI notified laboratory is at variance, then the Designated Officer shall sent one part of the samples kept in his custody to the Referral Laboratory for analysis, whose decision thereon shall be final.
15. Alternatively, after the receipt of the report from the Food Analyst, he may invoke the powers of the Designated Officer under Section 46 of the Act, which enable the FBO or the person identified under Rule 5 to prefer an appeal before the Designated Officer as provided under Rule 2.4.6. The question whether it should be despatched or not is the discretion of the said officer. It appears that this provision comes into play in those cases, wherein the FBO or the persons identified under Rule 2.5, do not make a request to send the samples to the Accredited/NABL certified laboratory in terms of Section 47(c)(iii) of the Act. Rule 2.4.6(1) further states that the report of the Referral Laboratory shall be final in this regard.
16. In view of the discussions above, I am unable to accept the submission of the learned Senior Counsel appearing for the petitioners that in view of Rule 3.1.1 of the FSS Rules, only if the report of the Food Analyst is confirmed by the Referral Laboratory, can the Designated Officer examine the case and decide whether the contravention is punishable with imprisonment or the same is punishable with fine alone. Rule 2.4.5 (1) clearly states that the report of the Referral Laboratory obtained on a referral under Section 46(4) shall be final in that regard. If that be the case, the report of the Food Analyst will clearly be superseded by the report of the Referral Laboratory. The prosecution on its basis will perfectly be maintainable. For the very same reason, the contention of the learned Senior Counsel that if the results are at variance, another sample should be forwarded again to the Referral Laboratory cannot be accepted.
17. The next contention of the learned Senior Counsel is that the excess dye content will not invite an adjudication and the same cannot be a ground to hold that the food is misbranded. In view of the report of the Referral Laboratory, the said contention has no basis.
18. The last contention is that there is huge delay in analysis. The same cannot be accepted. The samples were collected on 02.12.2015 and on the next day itself, it reached the Food Analyst. The report was obtained within 14 days as mandated under law. An appeal was filed by the petitioners as contemplated under Section 46(4) and the samples were forwarded on 29.02.2016. The samples were received on 09.03.2016 and it was analysed from 11.03.2016 to 08.04.2016. The report is dated 31.04.2016. Sanction was issued on 14.07.2016 and the complaint was lodged on 30.11.2016. The mahazar shows that the dye content was manufactured on August, 2015 and its “best before” date is 24 months from the date of manufacture. Thus, there is no delay as well.
19. In Chilakamarthi Venkateswarlu and Ors. v.
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State of Andhra Pradesh and Ors. ( (MANU/SC/1008/2019), the Apex Court had occasion to reiterate the principles governing the exercise of powers under Section 482 of the Code. It was held as under:- “13. The inherent jurisdiction, though wide and expansive, has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself, that is, to make orders as may be necessary to give effect to any order under the Code, to prevent the abuse of the process of any Court or to otherwise secure the ends of justice. 14. For interference Under Section 482, three conditions are to be fulfilled. The injustice which comes to light should be of a grave, and not of a trivial character; it should be palpable and clear and not doubtful and there should exist no other provision of law by which the party aggrieved could have sought relief. 15. In exercising jurisdiction Under Section 482 it is not permissible for the Court to act as if it were a trial Court. The Court is only to be prima facie satisfied about existence of sufficient ground for proceeding against the Accused. For that limited purpose, the Court can evaluate materials and documents on record, but it cannot appreciate the evidence to conclude whether the materials produced are sufficient or not for convicting the Accused. 16. The High Court should not, in exercise of jurisdiction Under Section 482, embark upon an enquiry into whether the evidence is reliable or not, or whether on a reasonable appreciation of the evidence the allegations are not sustainable, for this is the function of the trial Judge. This proposition finds support from the judgment of this Court in Zandu Pharmaceutical Works Ltd. and Ors. v. Mohd. Sharful Haque and Anr. (2005) 1 SCC 122.” 20. Having considered the entire facts, I find no reason to exercise the inherent powers under Section 482 of the Code to bring the proceedings under challenge to a premature termination. This petition will stand dismissed.