Kerala High Court
Jemini Anil vs Food Safety Officer on 17 March, 2025
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Crl.M.C.No.6348/2019 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
MONDAY, THE 17TH DAY OF MARCH 2025 / 26TH PHALGUNA, 1946
CRL.MC NO. 6348 OF 2019
AGAINST THE COMPLAINT REGISTERED AS CC NO.498 OF 2019
OF JUDICIAL MAGISTRATE OF FIRST CLASS, PALA UNDER SECTION
42(5) OF THE FOOD SAFETY & STANDARDS ACT, 2006, RULES 2011
AND REGULATIONS 2011
PETITIONERS/ACCUSED 1 TO 5:
1 JEMINI ANIL, AGED 40 YEARS
D/O.PRABHAKARAN, THUNDATHIL HOUSE,
EDAPPADY PO, PALA.
2 PRAKASH M.S.,
S/O.K.MONIKANDAN NAIR, SAYUJYAM,
THURUTHEPARAMBU ROAD, VAZHAKKALA, ERNAKULAM-682021.
3 M/S.RELIANCE RETAIL LTD.,
21/487, SANTHOM COMMERCIAL COMPLEX, OPP. KOTTARAMATTOM
BUS STAND, PALA-686575.
4 SATHISH BABU,
S/O.MAYAN, KAMPAMPADDY,
THEKKEDESAM, NALLEPPALLY, PALAKKAD-678553.
5 M/S.RELIANCE RETAIL LTD.,
GROUND FLOOR, KATTUPARAMBIL BUILDING, V/152 C AND D
PONNARAM JUNCTION, MUPPATHAPADAM, KADAVU ROAD,
KOCHI-653110.
BY ADVS.
E.K.NANDAKUMAR (SR.) (N-23)
M.GOPIKRISHNAN NAMBIAR
K.JOHN MATHAI
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Crl.M.C.No.6348/2019 2
JOSON MANAVALAN
KURYAN THOMAS
PAULOSE C. ABRAHAM
RAJA KANNAN
JAI MOHAN
RESPONDENT/COMPLAINANT, STATE:
1 FOOD SAFETY OFFICER
PALA CIRCLE, MINI CIVIL STATION,
2ND FLOOR, PALA P.O., KOTTAYAM-686575.
2 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
BY SRI.GRASHIOUS KURIAKOSE, ADGP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
12.03.2025, THE COURT ON 17.03.2025 PASSED THE FOLLOWING:
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Crl.M.C.No.6348/2019 3
''CR''
ORDER
Accused Nos.1 to 5 in C.C.No.498/2019 on the files of the Judicial
First Class Magistrate Court, Pala, have filed this petition under Section
482 of the Code of Criminal Procedure, 1973 (in short, 'Cr.PC'), to
quash the proceedings against them in the said case. The aforesaid
case arose out of a complaint filed by the Food Safety Officer, Pala
Circle, under Section 42(5) of the Food Safety and Standards Act, 2006
(in short, 'Act').
2. The prosecution case relates to the sale of two kilograms of
chilli hybrid which contained the insecticide residue 'Triazophos'
exceeding tolerance limit to the Food Safety Officer on 14.06.2018 at
the shop by name 'Reliance Retail Limited' at Pala. The first accused is
stated to be the Food Business Operator of the firm 'M/s.Reliance Retail
Limited', and the second accused is said to be the person in-charge of
the above said firm, which sold the food article to the Food Safety
Officer. The third accused is mentioned as the establishment from
which the aforesaid food item was sold to the Food Safety Officer. The
fourth accused is the nominee of the warrantor, and the fifth accused is
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the warrantee firm which supplied the unsafe food article to the third
accused.
3. The proprietary food 'chilli hybrid' was purchased by the
Food Safety Officer on 14.06.2018. The samples were sent for analysis
to the Food Analyst on the same day, but it was received by the Food
Analyst on 16.06.2018. The analysis started on 09.07.2018 and
completed on 24.07.2018. In the meanwhile, on 27.06.2018, the Food
Analyst submitted a statement under the proviso to Section 46(3)(ii) of
the Act to the Designated Officer and the Commissioner of Food Safety,
that the analysis report of 25 samples mentioned in the schedule given
thereunder, which included the food sample in the present case, cannot
be sent within 14 days due to the incompletion of analysis within the
stipulated time. It was further stated in the aforesaid statement that
the analysis report of those samples will be sent within 50 days from
the date of receipt of the samples. Accordingly, the Food Analyst sent
the report of the analysis on 24.07.2018 indicating that the sample
contained the insecticide residue 'Triazophos', which exceeded the
tolerance limit prescribed for chillies under Regulation 2.3.1(2) of Food
Safety and Standards (Contaminants, Toxins and Residues)
Regulations, 2011, and hence it was unsafe under Sections 3(1)(zz)(iii)
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and (xii) of the Act. It is based on the aforesaid report of the Food
Analyst that the present prosecution has been launched by the first
respondent.
4. In the present petition, the petitioners would contend that
the prosecution initiated against them are not maintainable due to
multiple reasons including the infraction of procedural formalities,
which are mandatory in nature.
5. Heard the learned counsel for the petitioners and the
learned Additional Director General of Prosecution representing the
respondents.
6. The learned counsel for the petitioners raised the
preliminary challenge against the maintainability of the prosecution
against the petitioners on the ground that it is in violation of the
provisions contained in Section 42(2) and the proviso to Section 46(3)
of the Act. Adverting to Sub-Section (3) of Section 42 of the Act, the
learned counsel for the petitioners argued that it is mandatory on the
part of the Food Analyst to complete the analysis and send his
recommendations within 14 days from the date of receipt of the food
sample. It is further pointed out that as per the proviso to Section
46(3) of the Act, if the sample cannot be analysed within 14 days of its
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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. According to the learned counsel for the
petitioners, the statement which the Food Analyst claims to have given
to the Designated Officer and the Commissioner of Food Safety on
27.06.2018, does not contain the reasons for the failure to complete
the analysis within 14 days. Thus, it is pointed out that the mandatory
requirements of Section 42(2) and the proviso to Section 46(3) of the
said Act, are not fulfilled in the instant case. Stressing upon the term
'shall' used in the above provisions of law, the learned counsel for the
petitioners submitted that the non-compliance of the requirements in
letter and spirit would vitiate the prosecution initiated against the
petitioners.
7. Per contra, it is submitted by the learned Additional Director
General of Prosecution that there is substantial compliance of the
provisions mentioned above, and hence the challenge raised by the
petitioners in the above regard is devoid of merit. According to the
learned Additional Director General of Prosecution, the Food Analyst
has stated in the statement submitted under Section 46(3)(ii) to the
Designated Officer and the Commissioner of Food Safety that the
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analysis report of the sample cannot be sent within 14 days due to
incompletion of analysis. It is further submitted that the Food Analyst
has mentioned in the same statement that the analysis report will be
sent within 50 days from the date of receipt of the samples. Thus, it is
argued that the above indication in the statement submitted by the
Food Analyst is in substantial compliance with the proviso to Section
46(3)(ii) of the Act.
8. Section 42(2) of the Food Safety and Standards Act, 2006
reads as follows:
"42. Procedure for launching prosecution.-
(1) xxxxxxx
(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."
9. As per the aforesaid Section, it is incumbent upon the Food
Analyst to analyse the sample, and send the analysis report mentioning
the method of sampling to the Designated Officer with a copy to the
Commissioner of Food Safety, within 14 days from the date of receipt
of the sample.
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10. Section 46(3) of the Food Safety and Standards Act, 2006
reads as follows:
"46. Functions of Food Analyst.-
(1) xxxxxx
(2) xxxxxx
(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."
11. It appears from the provisions contained in the aforesaid two
Sections of the Act that it is mandatory for the Food Analyst to
complete the analysis within 14 days from the date of receipt of the
food samples, and to send the analysis report mentioning the method
of sampling and analysis within 14 days to the Designated Officer, with
a copy to the Commissioner of Food Safety. In any case, if the Food
Analyst is not in a position to comply with the above requirement of
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analysis and report within 14 days, the proviso to Section 46(3) of the
Act requires the Food Analyst to inform the Designated Officer and the
Commissioner of Food Safety, giving reasons, and specifying the time
to be taken for analysis. As far as the present case is concerned, the
Food Analyst is seen to have submitted a statement to the Designated
Officer and the Commissioner of Food Safety on 27.06.2018, indicating
that the analysis report of the 25 samples shown in the table
thereunder, which include the food sample in the present case, could
not be sent within 14 days due to incompletion of analysis, including
pesticide residue of sample within the stipulated time. It is further
made clear by the Food Analyst in the aforesaid statement that the
analysis report of the above samples will be sent within 50 days from
the date of receipt of the samples.
12. According to the learned counsel for the petitioners, the
aforesaid statement given by the Food Analyst cannot be taken as the
information as required under the proviso to Section 46(3) of the Act,
since it does not contain the reasons why the sample could not be
analysed within 14 days of its receipt. The learned counsel for the
petitioners would further contend that the term 'shall' incorporated in
the aforesaid proviso would make it clear that the requirements of the
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said proviso are mandatory, and that the failure of the Food Analyst to
mention the reasons why the analysis could not be completed within 14
days, can only show that there has been violation of the procedural
mandate contained under Sections 42 & 46 of the Act. According to
the learned counsel for the petitioners, the above infraction of law
would vitiate the prosecution proceedings initiated in this case.
13. As regards the aspect relating to the mandatory nature of
a provision, there are no ready reckoner tests or straight jacket formula
to determine whether a provision is mandatory or directory. The
cardinal principle to be followed is to ascertain the broad purpose of
legislation and the object sought to be achieved by that particular
provision. Where the design of the statute is the avoidance or
prevention of damage to public health, and the enforcement of a
particular provision literally to its letter will tend to defeat that design,
then that provision must be taken as directory so that proof of
prejudice is necessary to invalidate the act complained of. The failure
of those Departmental Officials to follow a procedural requirement in
letter and spirit cannot, by statutory interpretation, be allowed to be to
the detriment of the health safety of the public, and defeat the main
object of the statute. The Hon'ble Apex Court while dealing with the
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failure to supply a copy of the report of the Public Analyst within a
period of 10 days, as stipulated by Rule 9(j) of the erstwhile Prevention
of Food Adulteration Rules, as it was in force at the relevant time,
observed in Dalchand v. Municipal Corpn. [(1984) 2 SCC 486],
as follows:
"One of the questions raised in this petition for special leave to
appeal to this Court is whether the failure to supply a copy of the
report of the Public Analyst within the period of 10 days stipulated
by Rule 9(j) of the Prevention of Food Adulteration Act, as it was in
force at the relevant time -- it may be noticed here that Rule 9(j)
which was in force at the relevant time has since been omitted with
effect from January 4, 1977 -- was fatal to a prosecution under the
Prevention of Food Adulteration Act. Was Rule 9(j) mandatory or
directory? There are no ready tests or invariable formulae to
determine whether a provision is mandatory or directory. The
broad purpose of the statute is important. The object of the
particular provision must be considered. The link between the two
is most important. The weighing of the consequence of holding a
provision to be mandatory or directory is vital and, more often than
not, determinative of the very question whether the provision is
mandatory or directory. Where the design of the statute is the
avoidance or prevention of public mischief, but the enforcement of
a particular provision literally to its letter will tend to defeat that
design, the provision must be held to be directory, so that proof of
prejudice in addition to non-compliance of the provision is
necessary to invalidate the act complained of. It is well to
remember that quite often many rules, though couched in
language which appears to be imperative, are no more than mere
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instructions to those entrusted with the task of discharging
statutory duties for public benefit. The negligence of those to
whom public duties are entrusted cannot by statutory
interpretation be allowed to promote public mischief and cause
public inconvenience and defeat the main object of the statute. It
is as well to realise that every prescription of a period within which
an act must be done, is not the prescription of a period of
limitation with painful consequences if the act is not done within
that period. Rule 9(j) of the Prevention of Food Adulteration Act, as
it then stood, merely instructed the Food Inspector to send by
registered post copy of the Public Analyst's report to the person
from whom the sample was taken within 10 days of the receipt of
the report. Quite obviously the period of 10 days was not a period
of limitation within which an action was to be initiated or on the
expiry of which a vested right accrued. The period of 10 days was
prescribed with a view to expedition and with the object of giving
sufficient time to the person from whom the sample was taken to
make such arrangements as he might like to challenge the report
of the Public Analyst, for example, by making a request to the
Magistrate to send the other sample to the Director of the Central
Food Laboratory for analysis. Where the effect of non-compliance
with the rule was such as to wholly deprive the right of the person
to challenge the Public Analyst's report by obtaining the report of
the Director of the Central Food Laboratory, there might be just
cause for complaint, as prejudice would then be writ large. Where
no prejudice was caused there could be no cause for complaint. I
am clearly of the view that Rule 9(j) of the Prevention of Food
Adulteration Rules was directory and not mandatory. The decisions
in Public Prosecutor v. Murlidhar [1977 Cr LJ 1634 (AP) : 1977
Andh LT 34 : 1977 MLJ (Cri) 205] and Bhola Nath v. State [1977 Cr
LJ 154 (Cal) : (1977) 1 FAC 38] to the extent that they hold that
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Rule 9(j) was mandatory are not good law. The petition is
dismissed."
14. As regards the legal implications in the use of the word
'shall' in a statute, the Hon'ble Supreme Court held in State of
Haryana v. Raghubir Dayal [(1995) 1 SCC 133], as follows:
"The use of the word 'shall' is ordinarily mandatory but it is
sometimes not so interpreted if the scope of the enactment, on
consequences to flow from such construction would not so
demand. Normally, the word 'shall' prima facie ought to be
considered mandatory but it is the function of the court to
ascertain the real intention of the legislature by a careful
examination of the whole scope of the statute, the purpose it seeks
to serve and the consequences that would flow from the
construction to be placed thereon. The word 'shall', therefore,
ought to be construed not according to the language with which it
is clothed but in the context in which it is used and the purpose it
seeks to serve. The meaning has to be ascribed to the word 'shall'
as mandatory or as directory, accordingly. Equally, it is settled law
that when a statute is passed for the purpose of enabling the doing
of something and prescribes the formalities which are to be
attended for the purpose, those prescribed formalities which are
essential to the validity of such thing, would be mandatory.
However, if by holding them to be mandatory, serious general
inconvenience is caused to innocent persons or general public,
without very much furthering the object of the Act, the same would
be construed as directory."
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15. On the same point, in State of Kerala v. Alasserry
Mohd.[(1978) 2 SCC 386], the Hon'ble Supreme Court held as
follows:
"It is not necessary to refer to the numerous decided cases on
this point. Applying the salutary principles extracted above, it
would be noticed that the use of the word "shall" in sub-section
(3) of Section 11 and in Rule 22 would, on its face, indicate that
an imperative duty has been cast upon the Food Inspector to
send a sample in accordance with the prescribed Rules. But it is
well known that the mere use of the word "shall" does not
invariably lead to this result. The whole purpose and the context
of the provision has to be kept in view for deciding the issue. The
object of the Act is to obtain the conviction of a person dealing in
adulterated food. It was brought to our notice by counsel on
either side that the quantities of various samples of food to be
sent to the Public Analyst as fixed from time to time have varied.
As observed by this Court in the case of State of U.P. v. Kartar
Singh [AIR 1964 SC 1135 : (1964) 5 SCR 679 : (1964) 2 Cri LJ
229] the standards of food are fixed after consultation with the
Committee constituted under Section 3 of the Act. The quantities
of samples are also fixed from time to time by the Government
presumably in consultation with the Committee and on the basis
of the experts' opinions. By and large, it appears, as was stated
before us by the learned Attorney General with reference to the
various tests and the quantities required therefore from the
Manual of Methods of Tests and Analysis for food, that generally
the quantities fixed are more than double the quantity required
for analysis by the Public Analyst. As, for example, the total
quantity required for the various tests of Ghee is approximately
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55 gms. But the quantity prescribed in Rule 22 is 150 gms The
purpose of prescribing more than double the quantity required for
analysis is that a Food Inspector while taking a sample of food for
analysis in accordance with Section 11 is not aware at the
threshold whether the person from whom the sample has been
taken would decline to accept one of the three parts. It is to
guard against such an eventuality that the quantity prescribed is
more than double because if the person declines to accept one
part of the sample, then, as mentioned in sub-section (2), the
Food Inspector has to send an intimation to the Public Analyst of
such refusal and thereupon the latter has to divide the 1/3rd part
sent to him into two parts. The half of the one third is retained
for further tests, if necessary, or for production in case legal
proceedings are taken. It would thus be seen that the whole
object of Section 11 and Rule 22 is to find out by a correct
analysis, subject to further verifications and tests by the Director
of the Central Laboratory or otherwise, as to whether the sample
of food is adulterated or not. If the quantity sent to the Public
Analyst, even though it is less than that prescribed, is sufficient
and enables the Public Analyst to make a correct analysis, then
merely because the quantity sent was not in strict compliance
with the Rule will not result in the nullification of the report and
obliterate its evidentiary value. If the quantity sent is less, it is for
the Public Analyst to see whether it is sufficient for analysis or
not. If he finds it insufficient, there is an end of the matter. If
however he finds it sufficient, but due to one reason or the other,
either because of further tests or otherwise, it is shown that the
report of the Public Analyst based upon the short quantity sent to
him is not trustworthy or beyond doubt, the case may fail. In
other words, if the object is frustrated by the sending of the short
quantity by the Food Inspector to the Public Analyst, it is obvious,
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that the case may end in acquittal. But if the object is not
frustrated and is squarely and justifiably achieved without any
shadow of doubt, then it will endanger public health to acquit
offenders on technical grounds which have no substance. To
quote the words of Sir George Rankin, C.J. from the decision of
the Calcutta High Court in Chandra Nath Bagchi v. Nabadwip
Chandra Dutt [AIR 1931 Cal 476 : 53 CLJ 329 : 35 CWN 9] at p.
478, it would "be merely piling unreason upon technicality...". In
our considered judgment the Rule is directory and not mandatory.
But we must hasten to reiterate what we have said above that,
even so, Food Inspectors should take care to see that they
comply with the Rule as far as possible."
( emphasis supplied )
16. Again, in T.V. Usman v. Food Inspector, Tellicherry
Municipality [(1994) 1 SCC 754], the Apex Court, in the context of
the mandatory requirement of Rule 7(3) of the erstwhile Prevention of
Food Adulteration Rules, held as follows:
"In Rule 7(3) no doubt the expression "shall" is used but it must
be borne in mind that the rule deals with stages prior to launching
the prosecution and it is also clear that by the date of receipt of
the report of the Public Analyst the case is not yet instituted in the
court and it is only on the basis of this report of the Public Analyst
that the authority concerned has to take a decision whether to
institute a prosecution or not. There is no time-limit prescribed
within which the prosecution has to be instituted and when there
is no such limit prescribed then there is no valid reason for holding
the period of 45 days as mandatory. Of course that does not mean
that the Public Analyst can ignore the time-limit prescribed under
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the rules. He must in all cases try to comply with the time-limit.
But if there is some delay, in a given case, there is no reason to
hold that the very report is void and on that basis to hold that
even prosecution cannot be launched. May be, in a given case, if
there is inordinate delay, the court may not attach any value to
the report but merely because the time-limit is prescribed, it
cannot be said that even a slight delay would render the report
void or inadmissible in law. In this context it must be noted that
Rule 7(3) is only a procedural provision meant to speed up the
process of investigation on the basis of which the prosecution has
to be launched. No doubt, sub-section (2) of Section 13 of the Act
confers valuable right on the accused under which provision the
accused can make an application to the court within a period of 10
days from the receipt of copy of the report of Public Analyst to get
the samples of food analysed in the Central Food Laboratory and
in case the sample is found by the said Central Food Laboratory
unfit for analysis due to decomposition by passage of time or for
any other reason attributable to the lapses on the side of
prosecution, that valuable right would stand denied. This would
constitute prejudice to the accused entitling him to acquittal but
mere delay as such will not per se be fatal to the prosecution case
even in cases where the sample continues to remain fit for
analysis in spite of the delay because the accused is in no way
prejudiced on the merits of the case in respect of such delay.
Therefore it must be shown that the delay has led to the denial of
right conferred under Section 13(2) and that depends on the facts
of each case and violation of the time-limit given in sub-rule (3) of
Rule 7 by itself cannot be a ground for the prosecution case being
thrown out."
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17. It is pertinent to note that all the above decisions are rendered
in the context of the law relating to prevention of food adulteration
during the relevant time. The consistent legal view laid down in all the
aforesaid dictums is that the mere use of the term 'shall' in a statute by
itself does not mean that it is of such mandatory nature that the
non-compliance of the provision in letter and spirit would vitiate the
whole procedures initiated thereunder. On the other hand, what has
been laid down is that the word 'shall' ought to be construed not
according to the language with which it is clothed, but in the context in
which it is used and the purpose it seeks to serve.
18. As far as the present case is concerned, it could be seen
that the Food Analyst had informed the Designated Officer as well as
the Commissioner of Food Safety within 10 days of the date of receipt
of the sample that the analysis report of the sample cannot be sent
within 14 days due to incompletion of analysis, including pesticide
residue of the sample. The reason for not sending the analysis report
is thus stated as the inability to complete the analysis including
pesticide residue within the stipulated time. True that the reason for
the inability to complete the analysis has not been mentioned in the
aforesaid report. The omission in the above regard cannot be taken as
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a fatal defect which would vitiate the whole procedures, in view of the
settled principles of law enunciated in the case laws discussed above.
It is not possible to say that the delay in completing the analysis within
14 days from the date of receipt of the sample, had caused prejudice of
any sort to the petitioners. This is especially so in view of the fact that
the food item was found to be unsafe for the reason that the
insecticide 'Triazophos' residue exceeded the prescribed tolerance limit,
and not due to any other reason for which the delay in analysis would
have an adverse impact on the findings on its quality. The extent of the
above insecticide content in the food sample analysed in this case
cannot be expected to increase due to a few days' delay in conducting
the analysis. If at all there is the possibility of any variation, it can only
be a reduction in the insecticide content due to the disintegration
caused by the efflux of time. Triazophos is an organophosphate
pesticide that can degrade over time. Its stability can be affected by
factors such as temperature, pH and moisture levels. Triazophos can
break down into less harmful metabolites, reducing its concentration in
vegetables. The delay in the analysis of the food sample cannot, thus,
be said to have caused any prejudice to the petitioners. Therefore, the
mere reason that the Food Analyst did not indicate in the report sent to
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the Designated Officer and the Commissioner of Food Safety, about the
reason why the analysis could not be completed within 14 days, cannot
be taken as a ground to annul the prosecution proceedings initiated in
this case. The above requirement to indicate in the report to
Designated Officer, the reason why analysis could not be done in 14
days, is intended to enable the Designated Officer and Food Safety
Commissioner to oversee the promptness and diligence on the part of
the Food Analysts in completing their work in a time bound manner;
and not to provide a shot in the arm for the errant food business
operators to stifle the prosecution.
19. On merits, it has been argued by the learned counsel for the
petitioners that the accused Nos.1 to 3, who are the sellers, cannot be
mulcted with the liability, since the complaint does not disclose that
they have received the food item from the manufacturer with the
knowledge that it was unsafe. Adverting to Section 27(3)(e) of the Act,
the learned counsel for the petitioners submitted that the liability of the
seller in connection with the violation alleged in this case would arise if
only it is shown that the 'chilly hybrid' involved in this case was
received by the accused Nos.1 to 3 with the knowledge that the said
item was unsafe due to excess content of pesticides.
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20. It is true that Section 27(3)(e) of the Act fixes the liability
upon the seller for any article of food not conforming to the prescribed
standards if it is shown that the said food item was received by the
seller with the knowledge of it being unsafe. At the same time, it is
pertinent to note that, as per Section 26 of the Act, it is the
responsibility of every food business operator to ensure that the articles
of food satisfied the requirements of the Act, and the Rules and
Regulations made thereunder at all stages of production, processing,
import, distribution and sale within the business, under his control. As
per Section 59(i) of the Act, any person who, whether by himself or by
any other person on his behalf, manufactures for sale or stores or sells
or distributes or imports any article of food for human consumption,
which is unsafe, is punishable even if such failure or contravention does
not result in injury. Therefore, for establishing the penal liability in the
above regard, the prosecution need only show that accused Nos.1 to 3
had sold an article food for human consumption, which was unsafe.
The question whether the accused Nos.1 to 3, had received the above
food item, without the knowledge of it being unsafe is, in fact, a matter
of defence to be dealt with at the time of trial. Therefore, the
argument of the learned counsel for the petitioners that the petitioners
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1 to 3 (accused Nos.1 to 3) are not liable to be proceeded against for
the violation alleged in this case, due to the absence of any indication
in the complaint about their act of receiving the food item with the
knowledge of it being unsafe, cannot be countenanced.
21. Another challenge raised by the petitioners against the
maintainability of the prosecution against them is that there is no
specific overt act alleged against the accused, and that the complaint
makes no mention of the role played by each of the accused in the
commission of offence. There is absolutely no basis for the above
contention of the petitioners since the complaint lodged by the Food
Safety Officer contains the requisite particulars fixing the criminal
liability upon each of the accused. The other challenge raised by the
petitioners that there is no reason to frame the other accused, except
the second accused, who has been nominated by the third accused, is
also bereft of merit, in view of the collective liability of all the accused
as envisaged under Section 26 of the Act.
22. The petitioners are not able to substantiate any other procedural
violations which would vitiate the prosecution proceedings initiated
2025:KER:22257
against them. Therefore, the prayer in this petition to quash the
proceedings against the petitioners, cannot be allowed.
In the result, the petition is hereby dismissed.
(sd/-)
G. GIRISH, JUDGE
jsr/DST
2025:KER:22257
PETITIONER ANNEXURES
ANNEXURE A1 TRUE COPY OF THE CASH VOUCHER ISSUED BY THE
1ST ACCUSED TO THE RESPONDENT.
ANNEXURE A2 TRUE COPY OF FORM V-A NOTICE ISSUED TO THE
1ST ACCUSED.
ANNEXURE A2(A) TRUE COPY OF FORM V-A NOTICE ISSUED TO THE
5TH ACCUSED.
ANNEXURE A3 TRUE COPY OF THE SPOT MAHAZAR PREPARED BY THE
RESPONDENT.
ANNEXURE A4 TRUE COPY OF FORM VI MEMORANDUM SENT TO THE
FOOD ANALYST BY THE RESPONDENT DATED
14.06.2018.
ANNEXURE A5 TRUE COPY OF FORM VI MEMORANDUM SENT TO THE
FOOD ANALYST BY THE RESPONDENT DATED
14.06.2018.
ANNEXURE A6 TRUE COPY OF THE LETTER FORWARDING THE
ANALYSIS REPORT SENT BY THE DESIGNATED
OFFICER TO THE PETITIONERS.
ANNEXURE A7 TRUE COPY OF THE ORDER ISSUED BY THE
COMMISSIONER OF FOOD SAFETY, KERALA DATED
17.04.2019.
ANNEXURE A8 CERTIFIED COPY OF THE COMPLAINT FILED BY THE
RESPONDENT BEFORE THE JFCM, PALA WHICH HAS
BEEN TAKEN ON FILES AS CC NO.489/19.
ANNEXURE A9 TRUE COPY OF GOODS RECEIPT NOTE NO.5096819826
DATED 13.06.2018.
ANNEXURE A10 TRUE COPY OF GOODS RECEIPT NOTE NO.5096819265
DATED 13.06.2018.
