Bombay High Court: In the present case, the applicants challenged the complaint lodged on 04-04-2016 by the Food Safety Officer, wherein the applicants were charged for violation of Sections 26(2)(i), 27(2)(c) read with Section 3(1)(zz) of the Food Safety and Standards Act, 2006 (‘FSS Act’), 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 present application was filed under Section 4821 of the Criminal Procedure Code, 1973 (‘CrPC’) for quashing of a summary criminal case pending before the Additional Chief Judicial Magistrate, Nagpur.
A Single Judge Bench of Urmila Joshi-Phalke, J., opined that the report of the Food Analyst dated 31-12-2015 lost its significance as the samples were not analyzed by the Accredited Laboratory under Section 43 of the FSS Act and, therefore, the report which was the foundation for launching the prosecution against the applicants could not be relied upon. The Court thus quashed the summary criminal case.
Background
The complainant-Food Inspector alleged that on 30-04-2015, 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, and a sample was drawn. Thereafter, notice was served to Applicant 5, Nestle India Limited and a criminal complaint was filed in respect to its product, “Maggi Noodles”.
The Food Analyst prepared a report stating that the said sample was in a fit condition and the product confirmed to the standards “Macarony Products” as per the Food Safety Standards (Food Product Standards and Additives) Regulations, 2011. Thereafter, the Designated Officer sent a sample of the product to the Referral Food Laboratory, Ghaziabad.
The said product was manufactured in March 2015, and it was in an optimal condition for only 9 months. Thus, the sample had outlived its shelf life when it was analyzed by the Laboratory between 01-12-2015 to 23-12-2015. The Laboratory analyzed the sample 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 Nitrogen content was 1.56%, which was below the prescribed limit of 1.7%, and the product was sub-standard. The report was forwarded to the Designated Officer and thereafter, a complaint was filed.
Analysis, Law, and Decision
The Court stated that in view of Section 200(a)2 of CrPC, when the complaint was 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. The Court further stated that Section 2043 of CrPC did not mandate the Magistrate to explicitly state the reason for issuance of summons, but there must be an order of issuance of summons or issuance of process after cognizance was taken.
The Court opined that as the Referral Food Laboratory was not one of Laboratories which was accredited by the National Accreditation Board for Testing and Calibration Laboratories (‘NABL’), it could not therefore be said to be the Laboratory recognized by the Food Authority under Section 43(1) of the FSS Act. The Court noted that the said Laboratory was granted NABL Accreditation on 15-12-2016, thus, at the time of analyzing the samples on 31-12-2015, the said Laboratory was not an accredited Laboratory.
The Court thus opined that the report of the Food Analyst dated 31-12-2015 lost its significance as the samples were not analyzed by the Accredited Laboratory under Section 43 of the FSS Act and, therefore, the report which was the foundation for launching the prosecution against the applicants could not be relied upon.
The Court relied on Nestle India Limited v. FSSAI, 2015 SCC OnLine Bom 4713, wherein the Division Bench of this Court by referring to Section 43 of the FSS Act and the definition the Food Laboratory given under Section 3(p), held that upon conjoint reading of these sections, it was clear that the laboratory must pass twin test before it could be said to be a recognized laboratory viz (i) it must be accredited by NABL and (ii) it had also to be recognized by the Food Authority under Section 43 of the FSS Act. The Court thus opined that if there was non-compliance of the said provisions and if the food was tested in a laboratory which did not fall within the definition of Section 3(p) and was not recognized by the Food Authority, the analysis made in such laboratory could not be relied upon. The Court also relied on PepsiCo India Holdings Pvt. Ltd. v. Food Inspector, (2011) 1 SCC 176, wherein the Supreme Court held that the said provisions were mandatory.
The Court referred to Section 43 and 47 of the FSS Act and stated that the notified laboratories referred to in Section 47(5) for analyzing imported food were laboratories which were separately notified for testing imported food articles. Therefore, the Court opined that it was not disputed that the Laboratories in which the said food samples were tested were either not accredited by the NABL or were not recognized by the Food Authority under Section 43(1) of the FSS Act or even if they were accredited or notified, they were not accredited to make analysis in respect of analysis of the samples.
The Court stated that in the present case, the report of the Food Analyst prepared by the Food Analyst, State Public Health Laboratory, Pune showed the product was in conformity with the prescribed standards, but the food inspector had not assigned any reason as to his dissatisfaction about the said analysis and forwarded the said samples to the Referral Food Laboratory and had relied upon the report which was not accredited and recognized laboratory as provided under the FSS Act and, thus, no reliance could be placed on the said results.
The Court allowed the application and quashed the summary criminal case which was the foundation for filing of the present case against the applicants.
[Shyamkumar Tulsilal Warnawal v. State of Maharashtra, Criminal Application (APL) No. 503 of 2024, decided on 07-01-2025]
Advocates who appeared in this case :
For the Applicants: S.V. Manohar, Senior Counsel assisted by Shri Rohan Deo, Advocate for Applicants
For the Non-Applicant: Swati Kolhe, Additional Public Prosecutor for the Non-applicant/State
Buy Code of Criminal Procedure, 1973 HERE
1. Corresponding Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS, 2023’)
2. Section 223(1) of BNSS, 2023
3. Section 227 of BNSS, 2023
