Whether accused can be convicted on the basis of microscopic examination of food article in food adulteration case?

Equivalent Citation: 2015ALLMR(Cri)1873, 2015(2)BomCR(Cri)325, 2015CriLJ3558,2015(4)crimes 343 Bom

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Revision Application No. 209 of 2002

Decided On: 09.02.2015

Appellants: Shantilal
Vs.
Respondent: The State of Maharashtra

Hon'ble Judges/Coram:V.M. Deshpande, J.

Criminal - Acquittal - Lack of evidence - Sections 2(i-a), (a), 2(i-a)(m), 7(v) of Prevention of Food Adulteration Act, 1954 - Present appeal filed against order whereby Appellant was convicted for offence punishable u/s. 7(i) read with 2(i-a), (a), 2(i-a)(m) and Section 7(v) read with Rule 50 punishable u/s. 16(1)(a)(ii) and 16(1)(a)(I) of Act - Whether - Held, clear from report of Public Analyst that chemical tests were performed and sample was found fit as per prescribed standard - Therefore, only on basis of microscopic examination, it could not be said that Foreign starch was found - No quarrel that Public Analyst, who adopted microscopic test, was not provided by Legislature - When Legislature had not approved such test, therefore, conviction could not be based on such microscopic examination, especially when on chemical test, 'Besan' was found to be in conformity with standard - Therefore, impugned order of conviction was set aside - Appeal allowed.

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When order prohibiting manufacture, storage, sale, and distribution of food articles under food safety Act can be set aside?

It appears that the Commissioner has acted invoking power

under Section 34 of the FSS Act. This power can be invoked if there exist

health risk condition. The Commissioner of Food Safety has power under

Section 30(2)(a) to prohibit manufacture, storage, distribution or sale of any

article of food in the interest of public health. The pre-requisite of exercise

of this power is satisfaction, in respect of article of food that it is unsafe for

human consumption. Existence of this jurisdictional fact is sine qua non for

exercise of this power. In the absence of any finding relating to the unsafe

nature of food, this power cannot be exercised. Section 26 of the FSS Act

places responsibility on the food business operator. This responsibility

includes not to manufacture or sell sub-standard food [see Section 26(2)

(ii)]. But it is to be noted that violation would entail only in penalty under

Section 51 of the FSS Act. Withdrawal of a food under Section 26 or recall

under Section 28 would arise only if the food is 'unsafe' for human

consumption. There is no finding in Ext.P1 that the banned foods are

unsafe for human consumption. The statutory provision under the FSS Act

clearly delineate proportionate measures in case of 'food' which is found

unsafe for human and food of sub-standard which is fit for human

consumption. This proportionality stems from different provisions related to

prohibition and penalty for sub-standard food. The power prohibition can

be invoked either with reference to Prohibition Regulation 2011 or on being

satisfied that food is unsafe for human consumption.

       i.j.    In the absence of any finding that banned food are unsafe or

can be banned invoking power of Prohibition Regulation 2011, prohibition

now effected is unwarranted and is done in excess of the jurisdiction vested

with the Commissioner of Food Safety. It is also to be noted that the

adjudication and challenge regarding report from referal labs are pending.

It is also seen from the impunged order that the petitioner was not heard in

the matter. Therefore, the irresistible conclusion is that Ext.P1 order is

unsustainable in as much as there is no finding that extraneous substance

would cause threat to human life and health or it is unsafe.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                              PRESENT:

                MR. JUSTICE A.MUHAMED MUSTAQUE

            TUESDAY, THE 13TH DAY OF OCTOBER 2015

                                 WP(C).No. 30005 of 2015 

                                 

           K.K.R FOOD PRODUCTS, Vs   M/S. T.V.ANUPAMA,

            

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