CRIMINAL REVISIONAL JURISDICTION v. STATE OF WEST BENGAL & Ors.

Aggrieved by the initiation and continuation of the criminal proceeding, the petitioner has invoked the inherent jurisdiction of this Court under Section 401 read with Section 482 of the Code of Criminal Procedure,

1973. III. QUESTIONS FOR DETERMINATION

7. The canvas of the controversy at the threshold of this revisional application crystallizes into the following three pivotal legal questions: First: Whether a criminal prosecution under Section 59 read with Section 66 of the FSS Act can be legally maintained against a corporate manager or officer in his individual capacity when the principal corporate offender, the manufacturing entity itself, has not been arraigned as an accused? CRR 4350 OF 2022 5 Second: Whether an unexplained, inordinate delay of fifty-nine in delivering the Food Analyst's report, in patent contravention of the mandatory fourteen-day timeline under Section 46(3) of the FSS Act, destroys the evidentiary reliability of the analysis report of a short-shelf-life perishable dairy product, thereby fatally infringing the statutory defence rights guaranteed to the accused under Section 46(4) of the Act? Third: Whether the complaint and investigation suffered from an incurable breakdown of the statutory chain due to non- compliance with the jurisdictional authorization mandated under Section 37 and the structured procedural workflow under Section 42 of the FSS Act? IV. SUBMISSIONS FOR THE PETITIONER

8. Mr. Debdatta Saha, learned counsel appearing for the petitioner, forcefully contends that the prosecution launched against the petitioner is an egregious abuse of the process of Court and legally non- maintainable. He submits that under Section 66 of the FSS Act, vicarious liability cannot be fastened upon a corporate officer unless the company itself is arraigned as a principal offender. The omission to implead M/s. Schreiber Dynamix Dairies Private Limited strikes at the root of the jurisdiction, rendering the prosecution void ab initio, as settled by the Apex Court in Aneeta Hada v. Godfather Travels and Tours Private Limited [(2012) 5 SCC 661] and Sharad Kumar Sanghi v. CRR 4350 OF 2022 6 Sangita Rane [(2015) 12 SCC 781], alongside the Madras High Court decision in A.T. Kannan v. State (2021 SCC OnLine Mad 14094).

9. Amplifying his submissions, Mr. Saha further submits notwithstanding the department's administrative explanation regarding pandemic-related backlogs, an inordinate delay of fifty-nine days in issuing the Food Analyst's report severely prejudices the accused. In respect of a short-shelf-life perishable dairy product like lassi, holding the sample for nearly two months impairs its integrity and frustrates the statutory right of the petitioner under Section 46(4) to seek re- analysis through a Referral Laboratory, as articulated in Municipal Corporation of Delhi v. Ghisa Ram (AIR 1967 SC 970) and G. Irudhayanathan v. B. Ramakrishnan (2020 SCC OnLine Mad 12748).

10. Finally, he assails the foundational competence and jurisdictional authorization of the Food Safety Officer under Section 37 and the mechanical invocation of procedure under Section 42 of the Act (Sailen Ganguly v. State of West Bengal & Anr., 2016 SCC OnLine Cal 153). Therefore, he prays for quashing of the impugned order against the petitioner. V. SUBMISSIONS FOR THE OPPOSITE PARTY NO. 2

11. Conversely, Mr. Pramod Kumar Drolia, learned counsel appearing for Opposite Party No. 2, supports the impugned order by submitting that the petitioner was directly in charge of and responsible for the operational affairs of the manufacturing unit, thus fulfilling the requirements of Section 66(2) of the FSS Act. CRR 4350 OF 2022 7

12. He argues that arraigning the Manager in his official designation satisfies initial procedural requirements and that any plea regarding lack of direct oversight or transit-temperature variations are disputed questions of fact to be tested during trial rather than evaluated at the threshold under Section 482 of the Cr.P.C.

13. Addressing the delay in issuing the food analysis report, Mr. Drolia relies upon the official communication dated April 7, 2021, wherein the Food Analyst specifically explained that heavy backlogs and operational constraints caused by the COVID-19 pandemic delayed the issuance of the report, although the scientific evaluation of the sample itself was duly handled. He contends that the detection of pathogenic organisms renders the food unsafe, and therefore, the revisional application is devoid of merit and ought to be dismissed. VI. DISCUSSIONS AND LEGAL ANALYSIS

14. I have given anxious and circumspect consideration to the rival submissions advanced by the parties, examined the statutory architecture of the FSS Act, and perused the materials on record.

15. The first question strikes at the structural foundation of the prosecution. The law governing corporate criminal liability under modern welfare and regulatory statutes is well settled. Section 66(1) of the FSS Act codifies the statutory doctrine of vicarious liability in corporate crimes, stipulating that where an offense under the Act has been committed by a company, every person who at the time the offense was committed was in charge of, and was responsible to, the company CRR 4350 OF 2022 8 for the conduct of its business, as well as the company, shall be deemed to be guilty of the offense and shall be liable to be proceeded against and punished accordingly.

16. The explicit phraseology of Section 66(1) establishes that the commission of an offense by the company is the foundational sine qua non for attracting vicarious liability against its officers or employees. Vicarious criminal liability is a legal fiction created by statute; it cannot exist in a vacuum or operate independently. Unless the primary offender, the corporate body, is formally arraigned as an accused and its penal liability is brought into the lis, no derivative or vicarious criminal liability can be fastened upon its individual directors, managers, or employees.

17. This legal position is no longer res integra. A three-Judge Bench of the Supreme Court in Aneeta Hada (supra), while interpreting analogous provisions under Section 141 of the Negotiable Instruments Act, 1881, authoritatively held as follows: "59. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself."

18. The aforesaid legal principle was reaffirmed with equal vigor in Sharad Kumar Sanghi (supra), wherein the Apex Court underscored that where the company has not been made a party to the criminal complaint, an order taking cognizance against an individual officer alone is legally CRR 4350 OF 2022 9 unsustainable. Applying these binding principles to the FSS Act, the Madras High Court in A.T. Kannan (supra) has correctly held that a prosecution under Section 66 of the FSS Act cannot be sustained against a manager or officer in the absence of the manufacturing company as an accused.

19. The contention of the prosecution that citing the petitioner as "The Manager, M/s. Schreiber Dynamix Dairies Pvt. Ltd." satisfies the mandate of Section 66 of the FSS Act is fundamentally flawed. Arraigning an officer by their official designation does not equate in law to impleading the corporate entity itself as a distinct juristic person. A bare scrutiny of the cause title of C.R. Case No. 384 of 2021 reveals the total omission of M/s. Schreiber Dynamix Dairies Private Limited from the array of accused. Citing the petitioner merely as Manager in his individual capacity does not cure this jurisdictional infirmity. This omission constitutes a fatal, incurable jurisdictional defect that strikes at the root of the prosecution.

20. Turning to the second question, Section 46(3) of the FSS Act mandates that the Food Analyst shall, within a period of fourteen days from the date of receipt of any sample for analysis, deliver to the Designated Officer a report of the result of such analysis.

21. The prosecution has earnestly relied upon the written communication dated April 7, 2021, wherein the Food Analyst explained that the sample was processed within the functional window, but the formal release of the report was delayed due to heavy backlogs and staffing constraints precipitated by the COVID-19 pandemic. While CRR 4350 OF 2022 10 administrative exigencies and pandemic hardships are understandable, I find that they must be weighed against the stringent statutory timelines designed to protect the rights of the accused, particularly in handling short-shelf-life perishable commodities.

22. The legislative intent behind imposing a strict fourteen-day timeline is self-evident. Food products, particularly fermented dairy products like lassi, are perishable commodities subject to rapid natural biological degradation and microbial evolution. In the instant case, the sample was received by the laboratory on March 12, 2021, but the test report was generated only on May 20, 2021, representing an unexcused, inordinate delay of fifty-nine days.

23. As propounded by the Apex Court in Ghisa Ram (supra), where a perishable food sample undergoes natural decomposition or where unexplained procedural gaps occur, the evidentiary value of the analysis report is severely tested. Although the department has offered an explanation that the analysis was conducted within time and that the delay was confined to the administrative dispatch of the report due to pandemic constraints, the fifty-nine-day hiatus between sample receipt (March 12, 2021) and report generation (May 20, 2021) creates a substantial grey area regarding sample integrity.

24. I am of the view that whether the sample remained free from environmental or natural microbial self-generation during this extended interim period, notwithstanding the reported presence of Escherichia coli (E. coli) and coliform counts, raises serious triable concerns CRR 4350 OF 2022 11 regarding prejudice to the accused's statutory right of re-analysis under Section 46(4) of the FSS Act (G. Irudhayanathan, supra).

25. Finally, the statutory scheme under Sections 37 and 42 of the FSS Act establishes an integrated, time-bound workflow governing inspection, reporting, evaluation, and sanction. Section 37 deals with the appointment of Food Safety Officers and vests them with specific, territorially defined powers. Sub-section (2) of Section 37 read with relevant rules mandates that a Food Safety Officer must be duly notified for a specific local area by the Commissioner of Food Safety before exercising statutory powers of entry, inspection, and seizure.

26. Section 42 prescribes a structured sequence requiring the receipt of the analysis report, followed by an independent application of mind by the Designated Officer, leading to a recommendation or sanction by the competent authority, and culminating in the filing of a complaint. An examination of the record discloses that this statutory chain was broken at multiple junctures. The fifty-nine-day delay in analysis fractured the workflow under Section 42(1), and the record demonstrates a mechanical transmission of files rather than a reasoned, independent application of mind. Compliance with the procedural mechanics of Section 42 is a mandatory prerequisite for taking valid cognizance.

27. Where the foundational steps, initial analysis to formal authorization and sanction, are marked by procedural lapses and non- compliance with Sections 37 and 42 of the FSS Act, the entire edifice of the prosecution collapses (Sailen Ganguly, supra). The failure to adhere CRR 4350 OF 2022 12 to the mandatory procedural workflow vitiates the prosecution and renders the order taking cognizance legally unsupportable.

28. In the present case, the record reflects a significant jurisdictional gap regarding the formal authorization of the Food Safety Officer, Eastern Railway, to exercise statutory powers over a retail stall located within the railway station premises without seamless integration into the statutory scheme envisaged for the local administrative jurisdiction of Hooghly district.

29. In view of the exhaustive legal analysis and the binding precedents cited herein, this Court arrives at the irresistible conclusion that the prosecution initiated against the petitioner suffers from incurable jurisdictional illegality, serious procedural non-compliance, and fatal prejudice caused by statutory delay. Permitting such a proceeding to continue against the petitioner amounts to a flagrant abuse of the process of Court. VII OPERATIVE PART & DIRECTIONS

30. Accordingly, the revisional application being CRR 4350 of 2022 succeeds and is allowed.

31. The criminal proceeding in C.R. Case No. 384 of 2021 pending before the Learned Chief Judicial Magistrate, Hooghly at Chinsurah, together with the impugned order dated December 15, 2021 taking cognizance of the offense against the petitioner, Sri Partha Sarathi Tripathy, is hereby quashed and set aside. CRR 4350 OF 2022 13

32. It is made clear that this order shall not preclude or affect the continuation of proceedings, if any, against the remaining co-accused persons in accordance with law.

33. All connected applications stand disposed of.

34. Interim orders stand vacated.

35. There shall be no order as to costs.

36. The Trial Court Record (TCR), if any, shall be sent down to the Trial Court at once.

37. Case diary, if any, be returned forthwith.

38. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities. (Uday Kumar, J.)