ALI MOHAMMAD BHAT v. UT OF J&K

M/S Malhotra Brothers, Court Road, Srinagar, from whom he had purchased the food article in question. 4) Notice under Section 46(4) dated 22.11.2022 was served upon petitioner No.2 and he was given opportunity to prefer an appeal before the Designated Officer. Upon seeking information from respondent No.2 with regard to source of the food article in question, it was informed that M/S Nestle India Limited, New Delhi, has supplied the said food article. In this regard bill/invoice was submitted by petitioner No.2. 5) Notice under Section 46(6) of FSS Act dated

30.11.2022 was served upon petitioner No.3 but it did not prefer to file any appeal. 6) Vide communication

28.03.2023, Designated Officer, Food Safety, Srinagar, placed the information before the Commissioner, Food and Drug Administration, Srinagar, for grant of sanction prosecution against the petitioners herein. Vide order No.165-FDA of 2023 dated 17.10.2023, Commissioner, Food & Drugs Administration, J&K, accorded sanction for prosecution against the petitioners. 7) On the basis of aforesaid allegations, it has been claimed by CRM(M) No.310/2024 respondent/complainant petitioners have committed offences under Section 26(1)(2)(i)(ii) punishable under Section 59 read with Section 3(1)(zz), Section 51 read with Section 3(1)(zx) of FSS Act. 8) The trial court vide order dated 30.11.2023, has proceeded to take cognizance of the offences and issued process against the petitioners. 9) The petitioners have challenged the impugned complaint and the impugned order whereby cognizance of the offences has been taken and process has been issued against them, primarily, on the grounds that the complaint has been filed against them beyond the prescribed period of limitation and, as such, it was not open to the trial Magistrate to take cognizance of the offences and issue process against the petitioners.

It has been further contended that the respondents have not adhered to the mandatory provisions of Section 42 of the FSS Act, inasmuch as the Food Analyst after receiving the sample from the Food Safety Officer has not stuck to the dead line of fourteen days in sending the report of the Designated Officer and the Designated Officer has not sent his recommendations to the Commissioner, Food Safety, for sanctioning of prosecution within the dead line of fourteen days. It has also been contended that the prosecution against petitioner No.3, without impleading the company CRM(M) No.310/2024 M/S Nestle India Limited as an accused in the impugned complaint, cannot sustain. 10) I have heard learned counsel for the parties and perused record of the case. 11) The first ground that has been urged by learned Senior counsel appearing for the petitioners is that in the impugned complaint has been filed by the respondent beyond the prescribed period of one year from the date of commission of the offence.

In this regard, it is to be noted that as per Section 77 of the FSS Act, a court cannot take cognizance of the offence under the said Act after the expiry of the period of one year from the date of commission of an offence. However, Proviso to Section 77 vests power with the Commissioner, Food Safety, to approve prosecution within an extended period upto three years, subject to the condition that reasons for the same are recorded in writing. 12) Adverting to the facts of the present case, the sample of the food article in question was lifted from the premises of petitioner No.1 on 19.09.2022. The Food Analyst rendered his report on 21.10.2022 and corrigendum thereto was issued on 28.11.2022. In the complaint it has been pleaded that the corrigendum dated 28.11.2022 was received by the respondent/complainant on 07.12.2022. CRM(M) No.310/2024 The complain in the instant case has been presented before the learned trial court on 30.11.2023.

13) Learned Senior Counsel appearing for the petitioners has contended that the period of one year has to be reckoned from the date of commission of offence and an offence stands committed on the date when sample is lifted from the premises of the offender. In this regard, reliance has been placed upon the judgment of this Court in the case of Neeraj Shastri and another vs. State of J&K and another (CRMC No.291/2016 decided on 16.02.2023. 14) Learned counsel appearing for the respondent, on the other hand, has contended that the period of limitation would start running against the respondent from the date when it came to its knowledge that the sample of the food article was found to be of sub-standard quality, meaning thereby that it would start running from the date when the report of the Food Analyst is received by the complainant. The learned counsel has in this regard, relied upon the judgment of the Supreme Court in the case of State of Rajasthan vs.

Sanjay Kumar & Ors. AIR 1998 SC 1919, wherein it has been held that limitation for launching prosecution would start from the date when it comes to the knowledge of the Drugs Inspector that the drugs were of sub- CRM(M) No.310/2024 standard/adulterated quality and that would be when the report of the Government Analyst is received by him. 15) The provisions contained in Section 469 of Cr. P. C and those contained in Section 77 of FSS Act are quite distinct from each other, inasmuch as Section 469 of Cr. P. C also deals with situations where the commission of offence has not come to the notice of the aggrieved person and where the offender is unknown whereas Section 77 of the FSS Act does not deal with such situations. The Supreme Court in Sanjay Kumar’s case (supra), has interpreted the provisions of Section 469 of the Cr. P. C while holding that commission of offence comes to the knowledge of the Drugs Inspector only when he receives the report of the Government Analyst.

16) In the judgment delivered by this Court in Neerja Shastri’s case (supra), which was a case under the FSS Act, it is recorded that the offence can be said to have been committed on the date when sample was lifted from the premises of the accused. However, in the said case, the issue as to when an offence is stated to have been committed was not the subject matter of discussion before this Court, because in the said case even from the date when the report of the Food Analyst was received by the CRM(M) No.310/2024 complainant, more than one year had elapsed prior to the filing of the complaint. So, the issue which poses itself for determination in the present case was not deliberated by the Court. A stray reference to date of commission of alleged offence in the said judgment would not be a binding precedent. Thus, the issue as to when an offence can be stated to have been committed in the context of Section 77 of FSS Act needs to be deliberated upon irrespective of what has been laid down by the Supreme Court in Sanjay Kumar’s case (supra) or by this Court in Neeraj Shastri’s case (supra).

17) With the aforesaid background in mind, let us now determine as to when an offence under FSS Act can be stated to have been committed. When a sample of food is collected from a premises of an accused, no offence can be stated to have been committed as at that time it is not known whether or not the food article, of which sample has been lifted, is of a sub-standard quality and, therefore, there is no prohibition to sell said food article at the relevant time. Thus, at the time of lifting of the sample, it cannot be stated that an offence has been committed by the accused person. It is only when report of the Food Analyst is received declaring the sample as unsafe or sub-standard that commission of offence takes place and the sale of such food CRM(M) No.310/2024 article by the accused is prohibited. Therefore, an offence under FSS Act can be stated to have been committed on the date when the report of the Food Analyst indicating that the sample of the food is unsafe or sub-standard.

In my aforesaid view, I am supported by the judgment of Allahabad High Court in the case of M/S Kewal Dairy vs. State of UP and another, 2024 AHC 177238 (Neutral citation). 18) With the aforesaid position of law in mind, let us now advert to the facts of the present case. As already indicated, the corrected report of Food Analyst was received by the complainant on 07.12.2022. Therefore, the offence can be stated to have been committed on 07.12.2022. The impugned complaint has been filed on 30.11.2023. Thus, the same has been filed by the respondent/complainant within the prescribed period of one year from the date of commission of the offence, which is the date on which the complainant received the corrected report of Food Analyst. The contention raised by learned Senior counsel appearing for the petitioner is, therefore, without any merit and is liable to be rejected. 19) That takes us to the second ground urged by learned Senior counsel appearing for the petitioner. According to the petitioners, the respondent/complainant has not CRM(M) No.310/2024 adhered to the mandatory provisions of Section 42 of the FSS Act, which reads as under:

Procedure for launching prosecution.- (1)The Food Safety Officer shall be responsible for inspection of food business, drawing samples and sending them to Food Analyst for analysis. (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. (3)The Designated Officer after scrutiny of the report of Food Analyst shall decide as contravention is punishable with imprisonment or fine only and in the case of contravention punishable with imprisonment, he shall send his recommendations within fourteen days to the Commissioner of Food Safety for sanctioning prosecution. to whether (4)The Commissioner of Food Safety shall, if he so deems fit, decide, within the period prescribed by the Central Government, as per the gravity of offence, whether the matter be referred to,- (a) (b) a court of ordinary jurisdiction in case of offences punishable with imprisonment for a term up to three years; or a Special Court in case of offences punishable with imprisonment for a term exceeding three years where such Special Court is established and in case no Special Court is established, such cases shall be tried by a court of ordinary jurisdiction.

21.10.2022 and corrigendum thereto on 28.11.2022. Thus, he has rendered his report after eighteen days of receipt of the sample, which is clearly beyond the period prescribed under sub-section (2) of Section 42 of the FSS Act. The Designated Officer received the report of Food Analyst on

11.11.2022, which is clear from the averments made in the complaint. The corrigendum to the report of the Food Analyst, as already stated, was received by the Designated Officer on 07.12.2022. It was only on 28.03.2023 that the Designated Officer made a recommendation to the Commissioner Food Safety for accord of sanction for prosecution against the accused persons, which is 111 days after the receipt of corrigendum to the report of the Food Analyst. This is way beyond the stipulated fourteen days as laid down in sub-section (3) of Section 42 of the FSS Act. CRM(M) No.310/2024 Thus, the contention of the petitioners respondent/complainant has not adhered to the timelines given in sub-sections (2) and (3) of Section 42 of FSS Act, is well-founded. The question that arises for determination is as to whether on this ground, the prosecution against the petitioners can be quashed. This question has been considered by various High Courts of the Country. It would be apt to refer to some of these judgments. 22) The High Court of Madras has, in the case of S. Sakthivel and Ors. Vs. The State, 2022 (1) MWN (CR.) 632, while dealing with a similar situation, observed as under:

Considering the above, as rightly pointed out by the learned counsel for the petitioners, the respondent has the mandatory violated requirements contemplated under Section 42 of the said Act. Considering the above and also the legal decision above referred, this Court has no other option, but to hold that the very launching of the complaint itself is not proper. Considering the above violations, no purpose would be served in directing the petitioners to face the trial, as the respondent authorities have miserably failed to follow requirements mandatory contemplated in the said Act. Hence, this Court has no hesitation to hold that the case in S.T.C. No. 915 of 2018, pending on the file of the Court of Judicial Magistrate, Musiri, Trichy District as against the petitioners is liable to be quashed. 23) Relying upon the aforesaid judgment, the High Court of Telangana in the case of Kantilal vs. the State of Telangana and others, (Writ petition No.41 of 2023 CRM(M) No.310/2024 decided on 09.03.2023) has held that the provisions contained in Section 42 are mandatory in nature and any violation of the timelines given in the said provision would lead to quashment of the prosecution against the accused. 24) The High Court of Kerala in the case of Jemini Anil and others vs. Food Safety Officer Pala Circle and another, 2025 SCC OnLine Ker 1603, has, after noticing the provisions contained in Sections 42 and 46 of the FSS Act, observed as under: It appears

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 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 reasons, and of Food Safety, giving 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.

06.06.2025 04:25 CRM(M) No.310/2024