J&K High Court Quashes Food Safety Prosecution | Mandatory Procedure Violated And Nestlé Not Made Party
Sanchayita Lahkar
The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Sanjay Dhar quashed the criminal complaint and all proceedings arising therefrom against three individuals who were accused under various provisions of the Food Safety and Standards Act, 2006. The Court held that the prosecution was vitiated by non-compliance with mandatory procedural timelines laid down in Section 42 of the Act. The impugned complaint and the trial court’s cognizance order were found to be unsustainable and were accordingly set aside. A direction was issued for transmission of the judgment to the trial court for necessary compliance.
The dispute originated from a complaint filed against the petitioners under Section 26(1)(2)(i)(ii) punishable under Section 59 read with Section 3(1)(zz), and Section 51 read with Section 3(1)(zx) of the Food Safety and Standards Act, 2006. The complaint was lodged before the Chief Judicial Magistrate, Srinagar, alleging that a food sample collected from the premises of petitioner No.1 on 19 September 2022 was found to be sub-standard and unsafe upon laboratory analysis.
The sample in question pertained to Nestle Milkmaid, a sweetened condensed milk product. Following established procedures, the sample was collected and sent to the National Food Laboratory at Ghaziabad. A report dated 21 October 2022 indicated that the total plate count exceeded the maximum permissible limit, and that the milk protein content was below the prescribed threshold. A corrigendum to this report was issued on 28 November 2022 to rectify batch number details.
Notice under Section 46(4) of the Act was subsequently served on petitioner No.1, who failed to file an appeal before the Designated Officer. Further inquiries revealed the supply chain traced to M/S Malhotra Brothers and then to M/S Nestle India Limited. Notices were issued under Section 46(4) to petitioner No.2 and under Section 46(6) to petitioner No.3. None of the petitioners filed appeals.
The Designated Officer placed the matter before the Commissioner, Food and Drugs Administration, J&K, on 28 March 2023. Sanction for prosecution was granted on 17 October 2023, and the trial court took cognizance on 30 November 2023.
The petitioners challenged both the complaint and the cognizance order, arguing that the complaint had been filed beyond the limitation period, that the mandatory procedural requirements of Section 42 had not been complied with, and that petitioner No.3 was wrongly arraigned without impleading the company he represented.
The prosecution responded that the complaint was timely, relying on the date the corrected laboratory report was received. It also contended that the chain of events and sanctions conformed to statutory requirements.
The Court considered the first argument relating to limitation under Section 77 of the FSS Act, which prohibits courts from taking cognizance of offences under the Act beyond one year from the date of commission unless extended by the Commissioner for recorded reasons, up to three years.
“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.” It further recorded: “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.”
The Court rejected the petitioners’ contention that limitation should be counted from the date the sample was lifted. It held: “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 is of a sub-standard quality.” It observed that the offence is deemed committed only upon receipt of the Food Analyst’s report.
On the issue of delay in procedural steps under Section 42, the Court found clear statutory breaches. It stated: “The sample was received by the Food Analyst on 03.10.2022. He rendered his report on 21.10.2022 and corrigendum thereto on 28.11.2022... This is clearly beyond the period prescribed under sub-section (2) of Section 42 of the FSS Act.”
The Designated Officer received the Food Analyst’s report on 11.11.2022 and the corrigendum on 07.12.2022. The recommendation for prosecution was made only on 28.03.2023. The Court stated: “This is 111 days after the receipt of corrigendum... This is way beyond the stipulated fourteen days as laid down in sub-section (3) of Section 42.”
Citing multiple judgments, including S. Sakthivel and Ors. v. The State, Kantilal v. The State of Telangana, and Jemini Anil v. Food Safety Officer Pala Circle, the Court recorded: “The provisions contained in Section 42 of the FSS Act, which provide for timelines... are mandatory in nature.” It concluded: “In the present case... the respondent has violated these timelines without explaining the reasons for delay... Therefore, the prosecution against the petitioners cannot be sustained.”
Addressing the specific challenge by petitioner No.3, who was stated to be the in-charge of operations for M/S Nestle India Ltd., the Court referred to Section 66 of the FSS Act. It noted: “Without impleading M/S Nestle India Pvt. Ltd., of which petitioner No.3 is claimed to be the person incharge of operations, the said petitioner could not have been impleaded as an accused and proceeded against.”
It cited the precedent in Aneeta Hada v. Godfather Travels and Tours Pvt. Ltd. and stated: “Without impleading the partnership firm as accused, the criminal prosecution against the partners cannot proceed.”
The Court held that, without impleading M/S Nestle India Pvt. Ltd., of which petitioner No.3 was claimed to be the person in charge of operations, the said petitioner could not have been made an accused and proceeded against.
It found that the prosecution against petitioner No.3 was not sustainable in law. In light of the findings recorded, the Court allowed the petition and quashed the impugned complaint along with all proceedings arising therefrom as against the petitioners.
It further directed that a copy of the order be sent to the learned trial court for its information.
Advocates Representing the Parties
For the Petitioners: Mr. Jahangir Iqbal Ganai, Senior Advocate, with Ms. Mehnaz Rather, Advocate
For the Respondents: Mr. Hakeem Aman Ali, Deputy Advocate General
Case Title: Ali Mohammad Bhat & Ors. v. Union Territory of Jammu & Kashmir
Case Number: CRM(M) No.310/2024
Bench: Justice Sanjay Dhar
[Read/Download order]
