RUPESH RAJGOPAL ZAWAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The applicant is a Food Business Operator and owner of M/s Ganesh Agencies and M/s Ganesh Foods. His plants are at M.I.D.C., Ahmednagar.

(2.) The Food Safety Officer, Mr. Kute, and others visited the Ganesh Agency of the applicant on 13,07.2021. They drew samples of whey powder (DMO40 Milky Ocean) for analysis. After collecting the sample, the procedure of dividing the samples into four parts and sealing each as per the Food Safety and Standards Act, 2006 was done. The Safety Officer and his team seized the whey powder as per the procedure and delivered the remaining 48 bags into the custody of the applicant. After taking the samples, one of the samples was sent to the Food Analysis, Food and Drug, Mumbai, on 14/7/2021 for analysis. The Officers received the analysis report on 6/9/2021 with an expressed opinion that "the sample of whey powder conforms to the Standards of Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 with respect to the above parameters". Later on, the Officer was changed. He has sent the sample to the Referral Food Laboratory at Mysore for test/analysis of the said powder by a letter dtd. 6/10/2021. The Referral Food Laboratory, Mysore by its opinion dtd. 6/12/2021 has opined that, "the sample was 'substandard' as defined under Sec. 3(1)(zx) of Food Safety and Standards Act 2006, as it does not conform to the standards laid down for whey powder under the provisions of Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 thereof, in that : (a) Milk Fat content exceeds the maximum permissible limit. (b) Lactose content falls below the minimum standard limit. After that, the Assistant Commissioner-cum-Food and Drug Administration, Ahmednagar, wrote a letter dtd. 23/12/2021 to the Food Safety Commissioner declaring that the Food Products wad unsafe as per Sec. 3(1)(zz)(v), and made the recommendation for filing the criminal case against the applicant. A copy of this report of Referral Food Laboratory, Mysore was sent to the applicant by letter dtd. 23/12/2021. On 27/10/2021 by letter, the applicant was called upon to submit the accounts of purchase bills, stock transfer notes, bill of selling whey powder etc., within eight (8) days. The applicant has complied with the said letter belatedly contending that the Officer has no right to call for the record so demanded and still has supplied. On 19/1/2012, the designated Officer again wrote a letter to the Director of Referral Lab, Mysore, as regards its report dtd. 6/10/2021, raising three questions with his own opinion. He has expressed the opinion that "there might be the addition of such substance in the said whey powder due to which there is a false increase in protein value, and lastly, he requested to analyze the product. Is has also been contended in the said letter that, "if the Director come to the conclusion that in fact there is any addition of substance then report with the name of that substance (Adulterant) so that it will be possible for him to take the correct action under the Act". In response to the said letter, the Director of Referral of Food Laboratory, Mysore, has sent one more analysis report dtd. 8/2/2022 and opined that the sample is 'unsafe' as defined under Sec. 3(1)(zz) (xii) of Food Safety and Standards Act, 2006 and does not conform to the standards laid down for whey powder under the provisions of Food Safety to the Standards (Food Products Standards and Food Additives) Regulations, 2011 and Food Safety and Standards (Contaminants, Toxins and Residues) Regulations, 2011 thereof, in that : (a) Milk Fat content exceeds in the maximum permissible limit (b) Lactose content falls below the minimum standard limit and (c) melamine content exceeds the maximum tolerance limit.

(3.) Having three analytical reports, the prosecution has come up with the case that the melamine contents were added by the applicant to the milk product. Melamine is harmful to human life. Therefore, the applicant has committed a serious offence. On the basis of the material collected by the Designated Officer, a crime has been registered against the applicant with M.I.D.C. Police Station, Ahmednagar, for the offences punishable under Sec. 328, 420, 273 of the IPC, under Sec. 26, 26(2)(ii) of the Food Safety and Standards Act, 2006 read with Sec. 27(2)(c) and Sec. 59 of the said Act.