SREEHARI Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners are accused Nos.1 and 2 in S.T.No.4937 of 2023 pending on the files of the Judicial First Class Magistrate -I, Kottayam. The case originated from a complaint filed by the 2nd respondent, initiating prosecution under Sec. 37(1) of the Food Safety and Standards Act, 2006 (the Act for short). The allegations in the complaint are to the following effect; On 11/1/2023, the Food Safety Officer inspected the shop premises, wherein the petitioners are functioning a food outlet named 'M/s.Al-Keyaan', and collected the sample of chicken shawarma for analysis. On analysis, the sample was found to contain added synthetic food colour, Sunset Yellow FCF (CI-15985), the use of which is not permitted for the heat treated processes for meat and poultry products as per Table 8 of Appendix A Food Category System 8.2.2 of Food Safety and Standards (Food Products Standards and Food Additives) Regulations 2011. Being thus unsafe as per Sec. 3(1)(zz)(v) and 3(1)(zz)(vii) of Food Safety and Standards Act, 2006, its use amounts to a contravention punishable with imprisonment under Sec. 59 of the Act. The petitioners are seeking to get the prosecution against them quashed on the premise that the mandatory requirement under Sec. 42(3) stands violated, the Designated Officer having sent the recommendation for prosecution to the Commissioner for Food Safety after fourteen days of receipt of the report from the Food Analyst.

(2.) Learned counsel for the petitioners submitted that Annexure-3 report of the Food Analyst is dtd. 19/1/2023, but the Designated Officer had forwarded his recommendation to the Commissioner only on 15/7/2023. According to the counsel the expression used in Sec. 42(3) being 'shall', the time limit has to be followed mandatorily and violation would render the prosecution illegal.

(3.) Learned Additional Director General of Prosecution submitted that no prejudice is caused to the petitioners by reason of the delay in submitting the recommendation under Sec. 42(3). It is pointed out that, although Sec. 46(4) provides for appeal against the report of the Food Analyst and the Designated Officer had sent a notice under Sec. 46(4) to the petitioners, enquiring whether they intended to file an appeal and the second sample analysed, the petitioners did not avail the opportunity. It is contended that the expression 'shall' in Sec. 42(3) has to be understood as 'may', since the consequence of non-compliance is not provided in the Act. In support of this contention reliance is placed on the decision in Subramanian v. State of Kerala [2024 (6) KHC 375].