Bombay High Court
Kaushik Keshavlal Lakhani And ... vs The State Of Maharashtra, Thr. ... on 26 September, 2023
Bench: G. A. Sanap
2023:BHC-NAG:14088
370.apl.490.2016 judge.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO.490 OF 2016
1. Kaushik Keshavlal Lakhani,
Food Business Operator and Proprietor
of M/s. V. K. Agencies, Plot No. 51,
Ward No. 72, Lendra Park,
Ramdaspeth, Nagpur
2. Rajendra K. Rajput,
Nominee M/s. Nestle India Limited,
C/o. Logistic Hub, Shed No.2,
Near Gondkhairi Toll Naka,
NH. 6, Amravati Road,
Gondkhairi, Tahsil Kalmeshwar,
District Nagar Pin 440 023
3. M/s. Nestle India Limited,
C/o. Logistic Hub, Shed No.2,
Near Gondkhairi Toll Naka,
NH. 6, Amravati Road,
Gondkhairi, Tahsil Kalmeshwar,
District Nagar Pin 440 023
4. Dilipkumar Narbherambhai Kotadiya,
Nominee of M/s. Makson Pharmaceutical
(I) Pvt. Ltd., 195, Rajkot Highway,
Surendranagar, 363 020
5. M/s. Makson Pharmaceutical (I) Pvt. Ltd.,
195, Rajkot Highway, Surendranagar,
363 020 .... APPLICANTS
// V E R S U S //
1. The State of Maharashtra,
370.apl.490.2016 judge.odt
2
At the Instance of Shri V. P. Dhawad,
Food Safety Officer, Food and Drugs
Administration (M.S.), Nagpur
2. Designated Officer and Assistant
Commissioner, Food and Drugs
Administration (M.S.), Nagpur
3. The Joint Commissioner, (Food)
Headquarter, Food and Drug
Administration, Maharashtra State.
2. The State of Maharashtra,
Department of Food and Drugs
Administration, Mantralaya, Madam
Cama Road, Mumbai 440 003. ... NON-APPLICANTS
--------------------------------------------------------------------------------------------------
Mr S. V. Manohar, Sr. Advocate assisted by Adv. Akshay Naik and Adv.
Y. N. Sambre, Advocates for the applicants
Mr Amit Chutke, APP for the non-applicants/State
--------------------------------------------------------------------------------------------------
CORAM : G. A. SANAP, J.
JUDGMENT RESERVED ON : 26/07/2023
JUDGMENT PRONOUNCED ON : 26/09/2023
JUDGMENT :
1 Heard.
2 In this criminal application, filed under Section 482 of
the Code of Criminal Procedure, 1973 the applicants (original
accused) have prayed for quashing and setting aside the order
370.apl.490.2016 judge.odt
issuing summons dated 13.11.2013 in Regular Criminal Case No.
4376 of 2013 passed by the learned Additional Chief Judicial
Magistrate, Nagpur and also for quashing and setting aside the
complaint bearing Regular Criminal Case No. 4376 of 2013.
3 Background facts:
The complaint in question was filed by respondent
No.1 against the applicants for contravention of the provisions of
Section 26(1) read with Section 26 (2)(i) read with Section 27(1) of
the Foods, Safety and Standards Act, 2006 (For short 'the FSS Act
2006') and read with Section 3(1)(zz) (vii) read with Regulation
3.1.2 (7) of the Food Products (Standards and Food Additives)
Regulations, 2011 (For short 'the Regulation of 2011). It is the
case of the respondent No.1 in the complaint, that on 17.11.2012
at about 11:00 a.m. alongwith independent witnesses he visited the
premises of M/s. V. K. Agencies owned by applicant No.1. On
inspection of the premises he discovered about 200 wholesale packs
of lozenges of 584.2 grams each. Respondent No.1 purchased the
samples of lozenges of all flavors and seized the rest of the stock.
370.apl.490.2016 judge.odt
Respondent No.1 issued notice under Form VA and Rule 2.4.1 (4)
and 2.4.5 of the Regulations to the applicants.
4 Respondent No.1 forwarded the sample to the Food
Analyst, Regional Public Health Officer, Nagpur on 19.11.2012.
Respondent No.1 received the report of the analyst dated
11.03.2013. The analyst opined that the sample of lozenges did not
confirm to the standards laid down under the Regulation of 2011. It
was stated that this was in contravention of Section 3(1)(zz)(v) of
the FSS Act 2006. The copy of this report was provided to the
applicants. The applicants exercised the right of appeal. The
designated officer allowed the appeal and directed the sample to be
sent to the Referral Laboratory, Gaziabad for fresh analysis.
5 The report of the Referral Laboratory, Gaziabad was
received on 11.03.2013. The Referral Laboratory, Gaziabad analyst
opined as follows:
"The Sample of Lozenges (Cinnamon Flavour) does not conform to
standards laid down under Regulation No. 2.7.2 of FSS (Food
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Products Standards & Food Activities) regulations, 2011 in that
colour content is above the maximum prescribed limits laid down
under Regulation 3.1.2(7) and additive added as Lubricant (570) is
not permitted under Regulation 2.7.2 (Appendix A). Hence sample
is unsafe under Section 3(1)(zz)(vii)(v) of FSS Act, 2006."
6 The respondent No.2 on receipt of this report sought
the approval for initiation of proceeding against the applicants.
Respondent No.3- the Joint Commissioner, Food and Drugs
Administration (MS) on 23.10.2013 sanctioned the initiation of
proceedings against the applicants. Pursuant to this sanction the
complaint was filed. Learned Magistrate took cognizance and
issued the process/summons against the accused for the above
offences.
7 The applicants being aggrieved by this complaint and
the order of issuance of summons have filed this application seeking
quashment of the criminal complaint as well as the order of issuance
of summons. The grounds have been stated in the application. It is
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contended that the prosecution is not sustainable because the
samples of identical lozenges, bearing the same lot/batch number
and manufacture date, were sent for analysis to the same laboratory
at Gaziabad in other independent cases. The report of the analyst in
the said identical sample of lozenges reveled there was no excess
amount of colouring matter in the sample. It is stated that
considering the report of the three samples of the same batch/lot the
department should not have initiated complaint against the
applicants. It is contended that the conclusion drawn by the
Referral Laboratory, Gaziabad of presence of excess colouring
matter is either flawed or suffers from an error of judgment.
8 It is further stated that the applicants have been
prosecuted on the ground that the product was covered under the
definition of 'unsafe food' provided under Section 3(zz) FSS Act
2006. It is stated that the use of coloring matter in manufacturing
of the instant food article is permissible as provided under the FSS
Act 2006. It is further stated that in certain cases Regulation
3.1.2(7) permits use of synthetic Food Colour up to 200 ppm (parts
370.apl.490.2016 judge.odt
per million). In this case, it is alleged that the colour in the instant
sample was in excess of 100 ppm i.e. approximately 131.70 ppm. It
is submitted that in terms of guidelines of the department, solely on
the ground of the excess colour content found in the sample the
prosecution is not advisable. It is further stated that the sanction for
the prosecution of the applicants accorded by respondent No.2 is
without considering the relevant facts. The sanction order indicates
total non-application of mind. It is further stated that the learned
Additional Chief Judicial Magistrate before issuing the summons has
not applied his mind to the facts. He has not recorded the reasons.
The order is passed mechanically. It is therefore submitted that the
order cannot be sustained.
9 The respondents have filed reply and reiterated the
facts from the complaint as stated herein above.
10 I have heard the learned Senior Advocate Mr. S. V.
Manohar for the applicants and learned APP Mr. Amit Chutke for
the State.
370.apl.490.2016 judge.odt
11 Learned Senior Advocate Mr S. V. Manohar for the
applicants submitted that the order passed by the learned Additional
Chief Judicial Magistrate, Nagpur dated 13.11.2013 issuing
summons cannot be sustained inasmuch as the learned Additional
Chief Judicial Magistrate failed to record the reasons. Learned
Senior Advocate submitted that the order passed by learned
Additional Chief Judicial Magistrate, Nagpur therefore does not
reflect application of mind to the facts stated in the complaint and
documents relied upon by respondent No.1. Learned Advocate
pointed out that in this case the sanction for prosecution filed with
the complaint does not reflect the application of mind by the
sanctioning authority. In the submission of the learned Senior
Advocate this fact was required to be considered appropriately by
the learned Additional Chief Judicial Magistrate, Nagpur.
12 Learned Senior Advocate submitted that the process
was issued against the accused for the offence defined under Section
3(1)(zz)(vii) of the FSS Act 2006. Learned senior Advocate
submitted that the material placed on record is not sufficient to
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establish the ingredients of Section 3(1)(zz)(vii). Learned senior
Advocate took me through the record and particularly, the report of
the analyst dated 11.03.2013 and pointed out that the violation was
only with regard to the excess colour contents namely 131.70 ppm
against the permitted synthetic food colour up to 100 ppm.
Learned senior Advocate relying upon this report submitted that in
terms of the order dated 01.03.2006 issued by the Commissioner,
Food and Drugs Administration, State of Maharashtra the
prosecution could not have been lodged against the applicants.
Learned Advocate took me through this order and annexures
attached to the order and submitted that in this case the
complainant was required to seek a previous permission/guidance of
Commissioner before filing the prosecution. Learned Senior
Advocate drew my attention to Annexure 'D' Clause 9, which inter
alia provides that no prosecution should be lodged if permitted food
colour added in food article, in which it is allowed, but it is added in
quantity more than the prescribed limit under the Rules. Learned
Senior Advocate pointed out that this order was passed by the
Commissioner under Sections 3 and 4 of the Maharashtra Food
370.apl.490.2016 judge.odt
Adulteration Prevention Rules, 1962. These rules were framed
under the Food Adulteration Act, 1954. Learned senior Advocate
being conscious of the fact that the process was issued under the FSS
Act 2006, submitted that this order issued by the Commissioner on
01.03.2006 would be applicable to this case because after coming
into force of new act the order issued under the repealed Act of
1954 was in force inasmuch as it was neither superseded by any
notification or order issued under the provisions of re-enacted act.
He therefore submitted that therefore this order would be deemed
to have been part of the new enactment till it was specifically
repealed or reversed by separate notification. Learned Senior
Advocate on the basis of the reply affidavit filed by the respondents
pointed out that fresh guidelines/order came to be issued for the
first time on 03.12.2021. Learned senior Advocate therefore
submitted that this order dated 01.03.2006 was holding the field till
3.12.2021, as per provisions of Sections 6 and 24 of the General
Clauses Act, 1897. Learned senior Advocate therefore submitted
that on this ground, in view of the alleged breach, the prosecution
against the accused is not sustainable. In order to seek support to
370.apl.490.2016 judge.odt
this submission learned senior Advocate has placed heavy reliance
on two decisions in the cases Neel alias Niranjan Majumdar .v/s.
The State of West Bengal1, and State of Punjab .v/s. Harnek Singh2.
13 Learned APP submitted that with the repeal of the
Food Adulteration Act, 1954 by the FSS Act 2006, which came
into force on 05.08.2011, the order dated 01.03.2006 relied upon
by the accused stood repealed. Learned APP pointed out that under
the FSS Act 2006 the separate guidelines have been issued on
03.12.2021 and as per the guideline No. (viii), the food article
having presence of any colouring matter or preservatives other than
that specified under the Act has been declared as 'unsafe food' as
understood by Section 3(1)(zz)(vii) of FSS Act 2006. Learned APP
submitted that in view of this, the decisions relied upon by the
learned senior Advocate may not be applicable to the case of the
accused. Learned APP relying upon the decision in the case
Rajkumar .v/s. State of Uttar Pradesh3 submitted that food article
failing to comply with the standards, which may not be injurious to
1 (1972) 2 SCC 668
2 (2002) 3 SCC 481
3 (2019) 9 SCC 427
370.apl.490.2016 judge.odt
health, needs to be treated as adulterated food. Learned APP
further submitted that necessary facts have been pleaded in the
complaint. The complainant placed on record the necessary
documents which includes the report of the analyst and the sanction
order for the prosecution of the accused. Learned APP submitted
that the learned Additional Chief Judicial Magistrate has taken into
consideration the material facts pleaded in the complaint and the
documents relied upon by the complainant before issuance of
process. Learned APP therefore submitted that it cannot be said
that the order passed by the learned Additional Chief Judicial
Magistrate was passed mechanically.
14 In order to appreciate the rival submissions I have gone
through the record and proceedings. Learned senior Advocate has
mainly relied upon the order dated 01.03.2006 issued by the
Commissioner, Food and Drug Administration, Government of
Maharashtra and the Annexure D. At the outset, it would be
necessary to see what the Annexure D contemplates. Reliance is
placed on Annexure D Clause 9 Section 2 (ia)(j). It provides that if
370.apl.490.2016 judge.odt
a permitted food colour added in food article, in which it is allowed,
but it is added in quantity more than the prescribed limit under the
rule, then the prosecution shall not be lodged. The order dated
01.03.2006, mandates that in such cases if it is found that the
criminal case has to be filed then the reference be made to the
Commissioner and his order should be obtained. It is to be noted
that in this case, in terms of the report of the analyst, the color
content found was above the maximum prescribed limit. In this
case, the maximum prescribed limit of colour content was up to 100
ppm. As per the report, the colour content found in the sample was
131.70 ppm. It has come on record that depending upon the food
article the maximum colour content provided under Regulation is
up to 200 ppm. In the backdrop of this factual position it appears
that the case of the accused would be squarely covered by the order
dated 01.03.2006. The main contentions that needs to be
addressed is whether this order would be applicable to the case on
hand, which has been filed under the FSS Act 2006 and Rules
framed thereunder. At this stage, it is necessary to state that the
Food, Safety and Standards Rules 2011 came into force on
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5.05.2011. It is not out of place to mention that on the date of
order dated 01.03.2006, the Food Adulteration Act 1954 as well as
the Maharashtra Food Adulteration Prevention Rules, 1962 were in
existence. The question is whether this order dated 01.03.2006
would be applicable to the case on hand or not. It is undisputed
that the fresh guidelines have been issued on 03.12.2021 by the
Food safety Commissioner, Food and Drug Administration, (M.S.),
Mumbai. In my view, this issue has been fully covered by the
decisions relied upon by the learned senior Advocate for the
accused.
15 In the case of Neel alias Niranjan Majumdar .v/s
State (supra) the issue was as to whether the notification issued
under Section 4 of the Arms Act 1959 or the rules made there
under would automatically get repealed after the repeal of Arms
Act, 1878 under which the relevant notification was issued. The
Hon'ble Apex Court in this case has considered Sections 6 and 24 of
the General Clauses Act, 1898. The relevant observation can be
found in para Nos. 8 and 9 of the decision. The same are extracted
370.apl.490.2016 judge.odt
below:
"8. Section 6(b) of the General Clauses Act, however,
provides that where any Central Act or regulation made after
the commencement of the Act repeals any earlier enactment,
then, unless a different intention appears, such repeal shall
not "affect the previous operation of any enactment so
repealed or anything duly done or suffered thereunder".
Section 24 next provides that where any Central Act is
repealed and re-enacted with or without modification, then,
unless it is otherwise expressly provided, any notification
issued under such repealed Act shall, so far as it is
inconsistent with the provisions re-enacted, continue in force
and be deemed to have been made under the provisions so
re-enacted unless it is superseded by any notification or order
issued under the provisions so re-enacted. The new Act
nowhere contains an intention to the contrary signifying that
the operation of the repealed Act or of a notification issued
thereunder was not to continue. Further, the new Act re-
enacts the provisions of the earlier Act, and Section 4 in
particular, as already stated, has provisions practically
identical to those of Section 15 of the earlier Act. The
combined effect of Sections 6 and 24 of the General Clauses
Act is that the said notification of 1923 issued under Section
15 of the Act of 1878 not only continued to operate but has
to be deemed to have been enacted under the new Act.
9. Possession of arms, such as a sword without a licence or
contrary to the terms and conditions of such a licence would
thus be an offence punishable with imprisonment under the
Arms Act, 1959. Though the possession of and carrying a
sword were alleged to have been committed in 1970, that is,
370.apl.490.2016 judge.odt
after the repeal of the Arms Act, 1878, the said notification
of 1923 issued under the repealed Act would, despite its
repeal, continue to be in force and its provisions would be
deemed to have been enacted under the new Act by virtue of
S.24 of the General Clauses Act."
16 Somewhat similar question fell for consideration in the
case of State of Punjab .v/s. Harnek Singh (supra). In this case, the
issue was whether the notification issued under the Prevention of
Corruption Act, 1947 authorizing the inspector of police to
investigate the anti corruption cases would get repealed on coming
into force of the Act of 1988 by repealing the Act of 1947. In this
case the Hon'ble Apex Court has considered the provisions of
Section 6 as well as Section 24 of the General Clauses Act, 1897.
The Hon'ble Apex Court has held that the notification would
continue to be in force and be deemed to have been issued under
the Act of 1988 till the same are superseded or specifically
withdrawn. It is therefore crystal clear that the notification or order
issued under the repealed Act remains in force till the same are
superseded or specifically withdrawn in terms of the provisions of
the repealing Act. It is further pertinent to mention that no
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provision has been made in the FSS Act 2006 to expressly repeal all
the circulars, notification or order issued under the repealed Act of
1954. In my view, therefore, the submissions advanced on this
point by the learned senior Advocate deserves acceptance. Learned
APP has relied upon the circulars/guidelines dated 03.12.2021
issued in terms of the provisions and the rules framed under the FSS
Act 2006. Learned APP has not been able to point out any such
circular notification or order to fill the vacuum till 03.12.2021. In
my view, therefore, the submissions advanced by the learned APP
that the order dated 01.03.2006 and the Annexures there to would
not be applicable to the case on hand cannot be accepted. On the
basis of this order dated 01.03.2006 and by relying upon the
decisions the learned senior Advocate has been able to make good
his point. In my view, therefore this is one aspect which is in favour
of the accused.
17 It is not the case of the respondents that any guidance
or order in terms of the order dated 01.03.2006 was sought from
the Commissioner before filing complaint. Since this order dated
370.apl.490.2016 judge.odt
01.03.2006, issued under Rules 3 and 4 of the Maharashtra
Prevention of Food Adulteration Rules 1962, was in operation, it
was necessary to make compliance of the same. In terms of
Annexure D attached to this order the prosecution without the
permission, order and guidance of the Commissioner could not have
been filed. No justification has been provided or placed on record.
Therefore, in my view, on this ground the complaint filed against
the accused was not sustainable.
18 The next important issue is with regard to the non
application of mind by the learned Additional Chief Judicial
Magistrate Nagpur while passing the order of issuance of summons.
It is seen on perusal of the order that it is a one line order of
issuance of summons. Learned Additional Chief Judicial Magistrate
Nagpur has not recorded any reasons. Learned Magistrate was
required to apply his mind to the facts stated in the complaint and
the documents relied upon by the respondents. On the basis of the
material on record by recording brief reasons learned Additional
Chief Judicial Magistrate was required to record his prima facie
370.apl.490.2016 judge.odt
satisfaction. It is to be noted that for the purpose of invoking
Section 3(1)(zz)(vii) of the FSS Act 2006 the intention to commit
the offence must be spelt out. In case of addition of excess colour
there ought to have been intention to cause damage or to conceal
the article or to make it appear better or of a greater value than it
really is. It is to be noted that three different samples of lozenges of
cinnamon flavor bearing the same lot or batch number and
manufacturing date contains the colouring content of 100 ppm as
prescribed under the FSS Act 2006. The report in the case on hand
was therefore required to be appropriately considered, first by the
officer filing the complaint and subsequently by the learned
Additional Chief judicial Magistrate.
19 Learned senior Advocate submitted that the sanction
order indicates total non application of mind. The sanction order is
dated 23.10.2013. Perusal of the sanction order would show that
there is no reference to the relevant matter and material considered
by the sanctioning authority. The order indicates that the relevant
sections of the Act were not considered. In my view, learned
370.apl.490.2016 judge.odt
Additional Chief Judicial Magistrate before issuing process was
required to consider this fact. He was required to record his
satisfaction that this sanction order was consistent with the law.
20 The Hon'ble Apex Court in Lalankumar Singh and
others .v/s. State of Maharashtra4 has considered the issue of failure
to record the reasons and the consequences flowing from the same.
In this case, the Hon'ble Apex Court has held that under Section
204 of the Code of Criminal Procedure, 1973 the Magistrate is
required to apply his mind as to whether sufficient ground for
proceeding against the accused exists in the case or not. The
formation of such an opinion is required to be stated in the order
itself. The order cannot be maintained if reasons have not been
stated while coming to the conclusion that there is prima facie case
against the accused. It is held that order need not contain the detail
reasons but the reasons to record the satisfaction must be stated. It
is held that the order of issuance of process is not an empty
formality. The criminal prosecution is a serious matter. In my view,
this proposition is squarely applicable to the facts of this case.
4 2022 LiveLaw (SC) 833
370.apl.490.2016 judge.odt
21 In view of the above, I conclude that the complaint as
well as the impugned order is liable to be quashed and set aside. The
law laid down in the decision relied upon by the learned APP for the
State is not applicable to the facts of the case for the reasons
recorded herein above. Accordingly, the application is allowed.
22 The order issuing summons dated 13.11.2013 passed
by the learned Additional Chief Judicial Magistrate, Nagpur is
quashed and set aside. Consequently, the Regular Criminal Case
No. 4376 of 2013 is also quashed.
23 The application stands disposed of, accordingly.
(G. A. SANAP, J.)
Namrata
Signed by: Miss Namrata Suryawanshi
Designation: PA To Honourable Judge
Date: 26/09/2023 18:02:14
