The Bombay High Court has quashed the complaint and the order issuing process against Britannia Dairy Private Limited, holding that the Food Safety Officer issued the statutory notice under Rule 2.4.1(4) and Rule 2.4.5 of the Food Safety and Standards Rules, 2011 (FSS Rules) only on 17th May 2014, nearly six months after the shelf life of the product expired on 12th November 2013, thereby depriving the marketer of its right to seek re-analysis of the fourth part of the sample by an NABL accredited or FSSAI notified laboratory.
The Court held that the Food Analyst Report was never forwarded to the Applicant despite a specific request, which denied the Applicant its statutory right of appeal under Section 46(4) of the FSS Act read with Rule 2.4.6 of the FSS Rules, and that the use of the word ‘shall’ in Rule 2.4.1(4) and Rule 2.4.5 makes the issuance of notice mandatory and not directory. The Court also observed that the order issuing process was a rubber stamp order passed on the very same day the complaint was filed, reflecting a complete non-application of mind by the Magistrate.
The Court held that since Original Accused Nos. 12 and 13 resided at Baramati, District Pune, beyond the territorial jurisdiction of the Additional Chief Metropolitan Magistrate at Mazgaon, Mumbai, an enquiry under Section 202 of the CrPC was mandatory before issuance of process, and the failure to conduct such enquiry vitiated the proceedings.
A Single Judge Bench of Justice Ranjitsinha Raja Bhonsale noted that the shelf life of the subject product expired on 12th November 2013, but the notice under Rule 2.4.1(4) and Rule 2.4.5 of the FSS Rules was issued to the Applicant only on 17th May 2014, i.e., nearly 6 months after the expiry of the shelf life. The Court further observed that the Food Analyst Report was never provided or forwarded to the Applicant despite a request being made, thereby denying the Applicant its right of preferring an Appeal under Section 46(4) of the FSS Act and Rule 2.4.6 of the FSS Rules.
The Court observed that the Order of Issuance of Process was clearly a rubber stamp order and did not indicate or reflect any application of mind. The Court also noted that Original Accused Nos. 12 and 13 were situated at Baramati, District Pune, and were therefore beyond the territorial jurisdiction of the learned Additional Chief Metropolitan Magistrate, 46th Court at Mazgaon, Mumbai. Considering that some of the accused were beyond the territorial jurisdiction, the Court observed that it was necessary that an enquiry under Section 202 of the CrPC ought to have been conducted before issuance of process, and that the said provision is clearly mandatory with no discretion available to the Magistrate where the accused persons reside beyond the territorial jurisdiction.
The Court noted that the offences alleged against the Applicant in the complaint were under Section 26(2)(i), 3(zz)(iii) read with Regulation 2.1.6.3 of the Food Safety and Standards (Food Products Standards and Food Additive) Regulations, 2011 and Section 59 of the FSS Act, 2006. The Court observed that the Respondent No. 2, in the reply, sought to argue and make out a case for violation of Section 31(1) of the FSS Act and a corresponding offence punishable under Section 63 of the FSS Act, but this was not the case made out in the complaint. The Court further noted that even in the complaint, Respondent No. 2 did not refer to the notice issued on 17th May 2014 to the Applicant and had relied upon the Food Testing Lab Report without providing the same to the Applicant.
Briefly, Britannia Dairy Private Limited, a wholly owned subsidiary of Britannia Industries Limited engaged in marketing and distribution of dairy products including cheese, ghee, butter and allied products under the Britannia brand, sought for quashing of criminal case pending before the Additional Chief Metropolitan Magistrate, 46th Court, Mazgaon, Mumbai, along with the impugned Order of Issuance of Process and all further proceedings. The Applicant held a valid license under the Food Safety and Standards Act, 2006 (FSS Act) issued by FSSAI and was categorised as a wholesaler. The Applicant marketed Britannia Cheese Cubes (Sour Cream and Onion), a food product falling within the definition of ‘food’ under Section 3(1)(j) of the FSS Act, manufactured and packed by Dynamix Dairy Industries Limited under a product supply agreement.
On 30th July 2013, Respondent No. 2, P.S. Pawar, the Food Safety Officer, Greater Mumbai, along with an independent panch witness, visited the premises of Big Bazaar at R City Mall, Runwal Town Centre, Wyeth Lab, LBS Marg, Ghatkopar (West), Mumbai and purchased four packets of Britannia Cheese Cubes (Sour Cream and Onion) for test and analysis. On the same day, notice was issued under Form V-A and under Rule 2.4.1(3) and 2.4.1(4) of the Food Safety and Standards Rules, 2011 (FSS Rules) to the food business operator, Mr. Rupesh Marolie of the Big Bazaar Store, with the Applicant clearly mentioned as the Marketer of the subject product. The subject product was packed on 12th February 2013 with a shelf life of ‘best before 9 months from the packing’ i.e., 12th November 2013.
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On 31st July 2013, Respondent No. 2 delivered one sealed packet containing the sample of the subject product to the Food Analyst for testing and deposited the sealed sample with the Designated Officer. On 17th September 2013, Respondent No. 2 received the Food Analyst Report dated 14th August 2013, which stated that the sample was infested with fungus and was therefore unsafe under Section 3(1)(zz)(iii) and (x) of the FSS Act.
On 17th May 2014, Respondent No. 2 issued notice to the Applicant under Rule 2.4.1(4) and Rule 2.4.5 of the FSS Rules calling for information. On 16th June 2014, while replying to the notice, the Applicant sought clarification regarding the Laboratory Report and was informed that the Laboratory Reports were not forwarded to the Applicant, adversely affecting its statutory right to apply for a re-test. On 19th June 2014, Respondent No. 2 submitted a proposal to the Designated Officer seeking a consent order from the Food Safety Commissioner for filing the Complaint. On 24th July 2014, the Designated Officer returned the proposal directing Respondent No. 2 to obtain a copy of the license of Big Bazaar Store under the FSS Act, and upon resubmission on 25th July 2014, Respondent No. 2 received the consent order from the Designated Officer.
On 28th July 2014, Respondent No. 2 filed the criminal complaint against the Applicant and other co-accused, and on the same day, the Additional Chief Metropolitan Magistrate, 46th Court, Mazgaon, Mumbai issued process against the accused including the Applicant.
