Allowed

Linil Kumar.C.R v. Food Safety Officer

Kerala HC23 Nov 2016Crl.MC/1735/2016

Case brief

AI extract

What is this about?

A criminal miscellaneous petition seeking quashing of proceedings under Section 482 CrPC. The High Court held that the prosecution sanction was obtained by suppressing facts regarding the service of notices and the petitioner's expired license, deeming it an abuse of process.

What did the court decide?

Annexure-1 complaint and all further proceedings against the petitioner in C.C. No. 3605 of 2015 are quashed.

Linil Kumar.C.R Vs Food Safety Officer — Kerala HC (2016) — LawSathi Research

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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WEDNESDAY, THE 23RD DAY OF NOVEMBER 2016/2ND AGRAHAYANA, 1938

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Crl.MC.No. 1735 of 2016

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CC 3605/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, THRIPUNITHURA

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PETITIONER(S)/ACCUSED NO.2:

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LINIL KUMAR.C.R, RED CHILLIES, XVI/617, 622, NEAR LAKESHOARE HOSPITAL, NETTOOR, MARADU, ERNAKULAM(LICENSEE) (ADDRESS AS SHOWN IN THE COMPLAINT).

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BY ADV. SRI.N.A.MURALEEDHARAN

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RESPONDENT(S)/COMPLAINT/STATE:

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1. FOOD SAFETY OFFICER, THRIPUNITHURA CIRCLE-682 301.

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2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.

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BY PUBLIC PROSECUTOR SRI.M.R.DHANIL

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 1735 of 2016

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APPENDIX

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PETITIONER(S)' ANNEXURES

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ANNEXURE-1 CERTIFIED COPY OF THE COMPLAINT BEFORE THE HONOURABLE COURT OF JFCM, THRIPUNITHURA ALONG WITH A TYPED COPY OF THE COMPLAINT. ANNEXURE-2 TRUE PHOTOSTAT COPY OF THE LICENSE ISSUED UNDER THE FOOD SAFETY STANDARDS ACT ON 07-09-2012 IN FORM 'C' SEE REGULATION 2-1-4(6) ANNEXURE-3 TRUE PHOTOSTAT COPY OF THE LETTER DATED 01-03-2016 FROM THE PUBLIC INFORMATION OFFICER, ASSISTANT COMMISSIONER OF FOOD AND SAFETY OFFICE, ERNAKULAM UNDER THE RIGHT TO INFORMATION ACT. ANNEXURE-4 TRUE PHOTOSTAT COPY OF THE LETTER SENT TO HOTEL RED CHILLIES BY THE DESIGNATED OFFICER.

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ANNEXURE-5 TRUE PHOTOSTAT COPY OF THE A/D. CARD SIGNED BY THE 1ST ACCUSED FOR AND ON BEHALF OF THE HOTEL.

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RESPONDENT(S)' ANNEXURES

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NIL. / TRUE COPY /

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P.S. TO JUDGE

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RAJA VIJAYARAGHAVAN.V, J

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Crl.M.C. No.1735 of 2016

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Dated this the 23^rd day of November, 2016

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O R D E R

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The petitioner is the 2^nd accused in C.C.No.3605 of 2015 on the file of the Judicial Magistrate of First Class, Thripunithura.

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2.The aforesaid case arose out of a complaint filed by the Food Safety Officer alleging infringement of Section 3(1) (zz)(v) & (vii), Section 26(2)(i) , Section 27(1), Section 38(1) and Section 59(iii) of the Food Safety and Standards Act, 2006 (hereinafter referred to as 'the FSS Act, 2006'), read with Regulation 2.12 of the Food Safety and Standards (Food Product Standards and Food Additives) Regulations, 2011 (hereinafter referred to as “the Regulations, 2011”) .

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3.The allegation in the complaint is that the sample of ‘Fish

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Fry’ purchased for analysis on 19.11.2014 by the 1^st

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Crl.M.C.1735/2016

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respondent from the restaurant “Red Chilies”, of which the

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1^st accused is the food business operator, was reported to be unsafe on analysis by the public analyst as it contained sunset yellow, a synthetic colour, contravening the provisions of the FSS Act, 2006 and the Regulations framed therefrom.

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4.The aforesaid proceedings are sought to be quashed invoking the powers of this Court under Section 482 of the Code of Criminal procedure.

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5.I have heard the learned counsel appearing for the petitioner as well as the learned Public Prosecutor.

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6.It is submitted by the learned counsel appearing for the petitioner that the petitioner has been arrayed on the sole ground that he was the licencee of the restaurant. Referring to Annexure-I, it is contended that though on 07/09/2012, license under the FSS Act, 2006 was taken in the name of the petitioner it was valid only till

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Crl.M.C.1735/2016

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31/03/2013. To bring home this point, reliance is placed on Annexure-III communication issued by the Assistant Commissioner of Food Safety, Ernakulam which reveals that the validity of the license issued in the name of the petitioner was from 01/04/2012 to 31/03/2013. Elaborating further, it is urged by the learned Counsel that

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the 1^st respondent has also not issued any notice to the petitioner calling upon him to exercise his option to prefer an appeal against the report of the food analyst before the designated officer. The learned counsel drew the attention of this Court to Annexure-V copy of acknowledgment, which reveals that the statutory notice was accepted by

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the 1^st accused for and on behalf of “Red Chillies”. Finally, it is submitted that the sanction was accorded by the Commissioner of Food Safety to prosecute the petitioner by impressing upon the said authority that the statutory notice was served on the petitioner and that he

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had failed to prefer an appeal under Section 46(4) of the FSS Act, 2006.

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7.The learned Public Prosecutor on the other hand refuted the submissions and contended that the petitioner is none other than the brother-in-law of the 1^st accused. Though the petitioner was not in station at the relevant point of time, the licence was initially obtained in his name. No prejudice has been caused to the petitioner and the grounds raised by the petitioner is not sufficient to quash the proceedings, is the submission.

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8.I have considered the rival submissions and have gone through the materials on record.

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9.Annexure-I is the complaint filed by the Food Safety Officer, Thripunithura Circle which speaks about the inspection which was conducted on 19.11.2014 in the “Red Chillies” restraurant. The specific contention of the petitioner is that though the license was initially taken in

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his name, the same was valid only till 31.3.2013. Annexure-III communication issued by the Assistant Commissioner of Food Safety, Ernakulam emphatically supports the above assertion of the petitioner. Therefore it cannot be said that as on the date of inspection, the petitioner was the licensee of the restaurant.

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10.It is in section 46 (4) of the FSS Act , that the functions of the Food Analyst is enumerated . The analyst , within a period of 14 days from the date of receipt of the same for analysis is bound to send the report of analysis to the designated officer. There is a statutory right of appeal against the report of the Food Analyst before the Designated officer, who is empowered, to refer the matter to the referral food laboratory as notified by the Food Authority for opinion. In the case on hand, it is stated in the complaint that the notice calling upon the accused Nos. 1 and 2 to exercise their right under section 46 (4) of

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the Food Safety Act was issued to the petitioner as well. However, Annexure-V acknowledgment would reveal that the said notice was accepted by the 1^st accused for and on behalf of “Red Chillies”. The assertion of the learned Counsel that the sanction was obtained from the appropriate authority for prosecuting the petitioner by making it appear that the notice was served on the petitioner and that he had not cared to prefer the appeal as mandated under law cannot be ignored as such. In other words the sanction to prosecute the petitioner was secured by suppressing the above fact. I have no doubt in my mind that the prosecution of the petitioner, in the facts and circumstances is not justified.

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11.In that view of the matter, I am of the considered view that this is an eminently fit case for invocation of the inherent power under Section 482 of the Code in the interest of justice, as the prosecution of the petitioner is

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only an abuse of process.

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In the result, this petition is allowed. Annexure-1 complaint and all further proceedings against the petitioner, who is the 2^nd accused, in C.C. No. 3605 of 2015 on the files of the Judicial First Class Magistrate, Thripunithura are quashed.

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Sd/-

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RAJA VIJAYARAGHAVAN.V. JUDGE

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vps

Linil Kumar.C.R v. Food Safety Officer

Case brief

What is this about?

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Linil Kumar.C.R v. Food Safety Officer

Case brief

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What did the court decide?

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