Shyamumar Tulsilal Warnawal And 4 ... vs State Of Mah. Thr. The Instance Of Kiran ...
2025 Latest Caselaw 2432 Bom

Bombay High Court

Shyamumar Tulsilal Warnawal And 4 ... vs State Of Mah. Thr. The Instance Of Kiran ... on 7 February, 2025

2025:BHC-NAG:1312


              Judgment

                                                              353 apl503.24

                                          1

                    IN THE HIGH COURT OF JUDICATURE AT
                      BOMBAY, NAGPUR BENCH, NAGPUR.

                    CRIMINAL APPLICATION (APL) NO.503 OF 2024

              1. Mr.Shyamkumar Tulsilal Warnawal,
              aged about 44 years, Food Business
              Operator and DC Manager, Nestle India
              Limited, c/o Logistic Hub, Shed No.2,
              Near Gondkheri Toll Gate, taluka:
              Kalmeshwar, district Nagpur - 440023.

              2. Mr.Denzil Bosco, Lobo, aged about 44
              years, nominee of Nestle India Limited,
              c/o Logistic Hub, Shed No.2, near
              Gondkheri Toll Gate, taluka:
              Kalmeshwar, district Nagpur-440023.

              3. Nestle India Limited, Logistic Hub, Shed
              No.2, Near Gondkheri Toll Gate, taluka:
              Kalmeshwar, district Nagpur - 440023.

              4. Priyanka Virmani, nominee - Nestle India
              Limited, post box No.1, village:
              Maulinguem, taluka: Bicholim Goa, Goa
              - 403504.

              5. Nestle India Limited (Manufacturer), post
              Box No.1- village "Maulinguem, taluka:
              Bicholim Goa, Goa - 403504.           ..... Applicants.

                                  :: V E R S U S ::

              State of Maharashtra at the instance of Kiran

                                                                    .....2/-
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                                               353 apl503.24

                            2

Rangaswamy Gedam, Food Safety Officer, Food
and Drug, Administration, Nagpur. ..... Non-applicant.

==============================
Shri S.V.Manohar, Senior Counsel assisted by Shri Rohan
Deo, Advocate for Applicants.
Mrs.Swati Kolhe, Additional Public Prosecutor for the
Non-applicant/State.
==============================

CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 22/01/2025
PRONOUNCED ON : 07/02/2025

JUDGMENT

1. The instant application is filed under Section 482

of the Code of Criminal Procedure for quashing of

Summary Criminal Case No.5325/2016 pending before

learned Additional Chief Judicial Magistrate, Nagpur.

2. The facts necessary for disposal of the application

are as under:

The applicants are challenging complaint, lodged

on 4.4.2016 by the Food Safety Officer, which is

registered as Summary Criminal Case No.5325/2016

.....3/-

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wherein the applicants are charged for violation of

Sections 26(2)(i), 27(2)(c) read with 3(1)(zz) and

Regulation 2.12 of the Food Safety Standards (Food

Product Standards and Additives) Regulations 2011,

Regulation 2.1.1 of the Food Safety Standards

(Contaminants, Toxins and Residues) Regulations, 2011

punishable under Sections 59 and 66 of the FSS Act. The

applicants are also assailing order of issuance of process

by learned Magistrate on 17.4.2017.

3. In the complaint, complainant Food Inspector

alleged that on 30.4.2015, he inspected premises of

"Nestle India Limited's Logistic Hub, wherein "Maggi

Instant Noodles with Tastemaker" (Product) and "Baby

and Me" Nutritional Supplement were stocked. The

complainant purchased 4 packets of "Maggi Instant

Noodles with Tastemaker" weighing 420 grams each and

4 packets of "Baby and Me" Maternal Nutritional

.....4/-

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Supplement with each packet weighing 400 grams. A

sample was drawn from the said packets. Since the

product was purchased by the stockist from the

manufacturer, notice under Rule 2.4.1(4 ) was served to

applicant No.5-Company. Accordingly, samples were

drawn and panchanama was prepared. The product i.e.

"Maggi Noodles" is subject matter of criminal complaint.

The Food Analyst prepared a report in Form-B on

16.5.2015 stating that sample was in a fit condition and

that the product confirmed to the standards "Macarony

Products" as per the Food Safety Standards (Food Product

Standards and Additives) Regulations 2011. The Food

Analyst prepared the report on the premise that the

product would be classified under "Macarony Products"

even though it was a proprietary food. The Food

Analyst's Report clearly stated that the product was in

conformity with the prescribed standards. In such

.....5/-

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circumstances, the Designated Officer sent sample of the

product to the Referral Food Laboratory, Ghaziabad in

Uttar Pradesh. The Referral Food Laboratory received

the sample on 3.11.2015 and analyzed between

1.12.2015 to 23.12.2015. The product in question was

manufactured in March 2015 and it was in a optimal

condition only for 9 months. Thus, the sample had

outlived its shelf life when it was analyzed by the Referral

Food Laboratory. Though the product was not fit for

analysis, it was sent by the complainant. The Referral

Food Laboratory analyzed the sample and prepared its

report on 31.12.2015 and opined that noodle cake of the

product did not confirm to Regulation 2.4.10 of the Food

Safety Standards (Food Product Standards and Additives)

Regulations 2011 since total dry ash content was above

the prescribed limit. It was also found that content of

Nitrogen was 1.56% which was below the prescribed

.....6/-

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limit of 1.7% and the product was sub-standard. The

report was also forwarded to the Designated Officer and,

thereafter, the complaint was filed.

4. Heard learned Senior Counsel Shri S.V.Manohar

for the applicants learned Additional Public Prosecutor

Mrs.Swati Kolhe for the State.

5. Learned Senior Counsel for the applicants

submitted that Section 3(p) of the FSS Act defines Food

Laboratory is a Laboratory which is either State or

Central Laboratory or any other Allied Laboratory which

is accredited and recognized by The National

Accreditation Board for Testing and Calibration

Laboratories (NABL) and by the Food Authority under

Section 43 of the Act. The Laboratory, therefore, has to

pass twin test before it can be said to be recognized

Laboratory (1) it has to be accredited by NABL and (2) it

has also to be recognized by the Food Authority under

.....7/-

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Section 43 of the said Act. Sub-section (1) of Section

makes it abundantly clear that only in that Laboratory

recognized by the Food Authority by Notification, food

can be sent for analysis by the Food Analyst. Section

43(1) mandates that the Food Analyst has to analyze the

food in Laboratory accredited by the NABL and also

recognized by the Food Authority and notified by it.

These provisions are mandatory. Section 47 of the FSS

Act states about sampling and analysis which is also not

followed in the present case. Without passing any formal

order as to the issuance of process, the summons is issued

to the applicants. He submitted that as per Section 43 of

FSS Act, the Food Authority may notify Food laboratories

and research institutions accredited by the NABL or any

other accreditation agency for the purpose of carrying out

analysis of samples by the Food Analysts under the FSS

Act. The Laboratory at Ghaziabad, whereat the

.....8/-

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subsequent sample was forwarded by the complainant, is

the accredited laboratory and, therefore, the report of

the Laboratory is not acceptable. He further submitted

that Section 43 of FSS Act provides that the Food

Authority may frame Regulations specifying the functions

of the Food Laboratories, Referral Food Laboratory, and

Local Area or areas within which such functions may be

carried out. The procedure for submission to the said

laboratory of samples and such other matters as may be

necessary or expedient to enable the said Laboratory to

carry out its functions effectively. He submitted that

there is absolutely non-compliance of the said provisions.

6. In support of his contentions, learned Senior

Counsel for the applicants placed reliance on following

decisions:

(1) Lalankumar Singh and ors vs. State of Maharashtra, reported in 2022 SCC OnLine SC 1383, and

.....9/-

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(2) M/s.Nestle India Limited vs. The Food Safety and Standards Authority of India, reported in 2015 SCC OnLine Bom 4713.

7. Per contra, learned Additional Public Prosecutor

for the State strongly opposed the application and

submitted that complainant K.R.Gedam working as Safety

Officer along with officers and panchas visited "Nestle

India Limited's Logistic Hub and carried out inspection.

He purchased 4 packets each of "Maggi Instant Noodles

with Tastemaker" (Product) and "Baby and Me". He

drawn the sample of instant noodles with tastemakers

from the application on 30.4.2015 and the sample was

analyzed by Food Analyst, State Public Health Laboratory,

Pune. As per the Food Analyst, Pune, the samples

confirmed to the standard of "Macarony Products" as per

the Food Safety Standards (Food Product Standards and

Additives) Regulations 2011. As the Designated Officer

.....10/-

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was not satisfied by this Analysis Report, he found it

erroneous. He has sent one sample part of reanalysis to

the Referral Food Laboratory, Ghaziabad in Uttar Pradesh

and the report of the sample received from Ghaziabad

shows that it is not of Standard quality and the product

did not confirm to regulations 2.2, 1.3/2.3, and 1.5 of the

FSS Act and, therefore, misbranded the product. Thus,

considering the "Maggi" is a food product and, therefore,

standards are to be maintained which are science based

standards. It is fundamental rights of every citizen to get

the safe food and, therefore, the application deserves to

be rejected.

8. On the basis of the aforesaid argument, it was

submitted that on the basis of the report issued by the

Referral Food Laboratory, Ghaziabad in Uttar Pradesh

which is not accredited Laboratory by ignoring the earlier

report of the Food Analyst at Pune. The action was taken

.....11/-

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against the present applicants. It is submitted that even

no order was passed as to the issuance of summons.

9. Admittedly, the complaint is filed under Section

200 of the Code of Criminal Procedure. The said Section

deals with the examination of complainant which states

that, "a magistrate taking cognizance of an offence on

complaint shall, examine upon oath the complainant and

witnesses present, if any and the substance of such

examination shall be reduced into writing and shall be

signed by the complainant and witnesses and also by the

magistrate."

Provided that when the complaint is made in

writing, the Magistrate need not examine the

complainant and the witnesses -

(a) if a public servant acting or purporting to act in

the discharge of his official duties or a Court has

made the complaint; or

.....12/-

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(b) if the Magistrate makes over the case for

inquiry or trial to another Magistrate under section

192:

Provided further that if the Magistrate makes over

the case to another Magistrate under section 192 after

examining the complainant and the witnesses, the latter

Magistrate need not re-examine them.

10. Thus, in view of Section 200(a), when the

complaint is lodged by a public servant i.e. Food

Inspector acting or purporting to act in the discharge of

his official duties, the examination of the complainant

was not required.

11. In view of Section 204 of the Code, if in the

opinion of a Magistrate taking cognizance of an offence

there is sufficient ground for proceeding, and the case

appears to be - (a) a summons case, he shall issue his

summons for the attendance of the accused, or (b) a

.....13/-

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warrant case, he may issue a warrant, or, if he thinks fit, a

summons, for causing the accused to be brought or to

appear at a certain time before such Magistrate or (if he

has no jurisdiction himself) some other Magistrate having

jurisdiction.

12. Thus, issuance of process under Section 204 is a

preliminary step in the stage of trial contemplated in

Chapter XX of the Code. Such an order made at a

preliminary stage being an interlocutory order. Section

204 does not mandate the Magistrate to explicitly state

the reason for issuance of summons. But, there has to be

an order of issuance of summons or issuance of process

after cognizance is taken.

13. The other ground raised by the applicants is as to

whether the Laboratory from where the food samples

were sent for testing was accredited by the The National

Accreditation Board for Testing and Calibration

.....14/-

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Laboratories. Admittedly, the Referral Food Laboratory,

Ghaziabad in Uttar Pradesh is not one of Laboratories

which was accredited by NABL and therefore, it cannot

be said to be the Laboratory recognized by the Food

Authority under Section 43(1) of the FSS Act. The

communication filed by learned Additional Public

Prosecutor for the State dated 20.1.2025 shows that the

Referral Food Laboratory, Ghaziabad in Uttar Pradesh

was granted NABL Accreditation on 15.12.2016 vide

Certificate No.TC-5351. Thus, at the time of analyzing

the samples on 31.12.2015, the said Laboratory was not

accredited Laboratory.

14. As such, the report of the Food Analyst dated

31.12.2015 loses its significance as the samples were not

analyzed by the Accredited Laboratory under Section 43

of the FSS Act and, therefore, the report which is the

foundation for launching the prosecution against the

.....15/-

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applicants cannot be relied upon. This aspect is also

considered by the Division Bench of this Court in the case

of M/s.Nestle India Limited supra wherein by referring

Section 43 of the FSS Act and the definition the Food

Laboratory given under Section 3(p) this court held that

upon conjoint reading of both these sections quoted

hereinabove, it is clear that under Section 3(p), "food

laboratory" is a laboratory which is either State or Central

laboratory or any other allied laboratory which is

accredited and recognized by NABL and by the Food

Authority under Section 43 of the Act. The laboratory,

therefore, has to pass twin test before it can be said to be

a recognized laboratory viz (i) it has to be accredited by

NABL and over and above that (ii) it has also to be

recognized by the Food Authority under Section 43 of

the Act. Sub-section (1) of Section 43 makes it

abundantly clear that only in that laboratory which is

.....16/-

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recognized by the Food Authority by Notification, food

can be sent for analysis by the Food Analyst. Upon

conjoint reading of the said two provisions, it is clear that

Section 43(1) mandates that the Food Analyst has to

analyze the food in a laboratory accredited by NABL and

also recognized by the Food Authority and notified by it.

It is apparent that, therefore, if there is non-compliance

of the said provisions and if the food is tested in a

laboratory which does not fall within the definition of

Section 3(p) and not recognized by the Food Authority,

the analysis made in such laboratory cannot be relied

upon.

15. Section 3(p) of the FSS Act, defines food

laboratory" means any food laboratory or institute

established by the Central or a State Government or any

other agency and accredited by National Accreditation

Board for Testing and Calibration Laboratories or an

.....17/-

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equivalent accreditation agency and recognised by the

Food Authority under Section 43.

16. Section 43 of the FSS Act states as under:

"43. Recognition and accreditation of laboratories, research institutions and referral food laboratory.-

(1) The Food Authority may notify food laboratories and research institutions accredited by National Accreditation Board for Testing and Calibration Laboratories or any other accreditation agency for the purposes of carrying out analysis of samples by the Food Analysts under this Act.

(2) The Food Authority shall, establish or recognise by notification, one or more referral food laboratory or laboratories to carry out the functions entrusted to the referral food laboratory by this Act or any rules and regulations made thereunder.

(3) The Food Authority may frame regulations specifying-

(a) the functions of food laboratory and referral food laboratory and the

.....18/-

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local area or areas within which such functions may be carried out;

(b) the procedure for submission to the said laboratory of samples of articles of food for analysis or tests, the forms of the laboratory's reports thereon and the fees payable in respect of such reports;

(c) such other matters as may be necessary or expedient to enable the said laboratory to carry out its functions effectively.

17. The Hon'ble Apex court in the case of Pepsico India

Holdings Pvt.Ltd vs. Food Inspector & anr, reported in

AIR 2011 SC (SUPP) 562 held that provisions are

mandatory.

18. If the provisions of Sections 43 and 47 of the FSS

Act are considered, it can be seen that notified

laboratories referred to Section 47(5) for analyzing

imported food are laboratories which are separately

.....19/-

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notified for testing imported food articles as can be seen

from the Food Safety Standards (Food Product Standards

and Additives) Regulations 2011.

19. Thus, it is not in dispute that the Laboratories in

which these food samples were tested were either not

accredited by the NABL or not recognized by the Food

Authority under Section 43(1) of the FSS Act or even if

they are accredited or notified, they are not accredited to

make analysis in respect of analysis of the samples.

There is no material on record to show that whether

procedure of testing samples which is mentioned under

the Act and Rules and Regulations framed thereunder has

been followed.

20. Section 43 of the FSS Act requires that all food

testing under the Act will be done in NABL or any other

FSSAI approved accredited laboratory.

.....20/-

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21. In the present case, the report of the Food Analyst

prepared by the Food Analyst, State Public Health Laboratory,

Pune shows the product was in conformity with the

prescribed standards. The food inspector has not assigned

any reason as to his dissatisfaction about the said analysis

and forwarded the said samples to the Referral Food

Laboratory, Ghaziabad in Uttar Pradesh and relied upon the

report which is not accredited and recognized laboratory as

provided under the Act and, therefore, no reliance can be

placed on the said results.

22. In view of the aforesaid discussion, Summary Criminal

Case No.5325/2016 which is foundation for launching the

prosecution against the applicants is hereby quashed.

Accordingly, the application stands allowed and

disposed.

(URMILA JOSHI-PHALKE, J.) !! BrWankhede !!

Signed by: Mr. B. R. Wankhede ...../-

Designation: PS To Honourable Judge Date: 13/02/2025 18:34:13