Dharampal Satyapal Limited v. State of Kerala and Commissioner of Food Safety, Government of Kerala

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 15[TH] DAY OF JULY 2022 / 24TH ASHADHA, 1944 CRL.MC NO. 4277 OF 2022 [AGAINST THE ORDER DATED 11.01.2016 IN ST/0500622/2015 OF CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD] ## PETITIONER/ACCUSED: DHARAMPAL SATYAPAL LIMITED, 98, OKHALA INDUSTRIAL ESTATE, PHASE III, NEW DELHI THROUGH ITS AUTHORIZED REPRESENTATIVE, MR. SIVAKUMAR.V.R, SENIOR MANAGER. BY ADVS. SRI.DEEPAK DHINGRA, ANIL D. NAIR TELMA RAJU EDATHARA VINEETA KRISHNAN P.K.BIJU ## RESPONDENTS/COMPLAINANTS: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 THE COMMISSIONER OF FOOD SAFETY GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN - 695014 ## OTHER PRESENT: BY ADGP- SR.ADV. GRACIOUS KURIAKOSE THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15.07.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC No.4277 /2022 2 ## O R D E R The petitioner is a Public Limited Company incorporated under the Companies Act and has approached this Court challenging the criminal prosecution launched against them as per Annexure-A14 complaint submitted by the 2[nd] respondent alleging offences punishable under Sections 3(zz)(v), 26(2)(i), 27(2)(c), Regulation 3.1.7(1) of Food Safety and Standards (Food Products Standards and Activities) Regulations 2011 r/w. Section 59 of the Food Safety and Standards Act, 2006 (hereinafter referred to as ‘FSS Act’). 2. The facts which led to the filing of this Crl.M.C. are as follows: On 28.4.2013, the officials under the 2[nd] respondent seized a consignment of the petitioner containing Pan Masala under the brand name “Rajnigandha”. According to the petitioner, the aforesaid CRL.MC No.4277 /2022 3 consignment was seized by the officers under the misconception thatthe abovementioned product contains tobacco/nicotine, the sale of which is prohibited in the State of Kerala. Consequently, based on the same, Annexure-A6 F.I.R. was registered on 28.4.2013 as Crime No.524/2013 by Walayar Police Station. The petitioner challenged the said seizure and further proceedings thereon in WP(C)No.14199/2013 before this Court, resulting in Annexure-A8 order. As per the judgment passed in the said Writ Petition which is produced as Annexure-A8, a direction was issued to the Sub Inspector of Police to produce the food product seized from the petitioner in the court of Judicial First Class Magistrate and further directed the said officer to file an application in the court within one month from the date of the order. Consequent to the same, the articles were produced before the Magistrate concerned and CRL.MC No.4277 /2022 4 thereupon, an application was submitted by the 2[nd] respondent for permitting him to draw samples from the consignment and the said application was allowed by the learned Magistrate as per Annexure-A10 order. In compliance with the same, as per Annexure-11, the samples were drawn on 7.9.2013. Thereafter, samples were sent for chemical analysis, and as per Annexure-A12, a report was submitted by the Analyst wherein the presence of the nicotine were negated as per column No.6. However, it was observed in the said report that, the sample contained ‘Magnesium Carbonate’ to the extent of 12787.0 ppm which is not permissible for the product Pan Masala. 3. Even though Annexure-A12 is dated 20.9.2013, no further steps were immediately taken by the respondents. Later, on 11.8.2015 Annexure-A13 order of sanction was accorded by the Commissioner of Food Safety authorizing the CRL.MC No.4277 /2022 5 Food Safety Officer, Palakkad Circle, to initiate prosecution under the provisions of the Food Safety and Standards Act, 2006. Even though the statutory period for submitting a complaint for prosecuting the accused as contemplated under Section 77 of the FSS Act is one year, the Commissioner for Food Safety, while issuing the Annexure-A13 order, accorded an extension of the period by invoking his powers under the proviso to Section 77 of the FSS Act. The reason stated by the Commissioner of Food Safety in AnnexureA13 for condoning the delay is procedural and administrational reasons. Consequently, Annexure-A14 complaint was submitted by the Food Safety Officer, Palakkad Circle before the Chief Judicial Magistrate Court, Palakkad. Thereupon, cognizance was taken by the learned Magistrate as evidenced by Annexure-A15. Annexure-A15 order which reads as follows: CRL.MC No.4277 /2022 6 _“11.01.2016 Complainant is absent. Issue summons to accused to 2-3-2016”_ The case was accordingly numbered as S.T. No 0500622/2015 and the summons were issued to the petitioner accordingly. This Crl.M.C. is filed challenging Annexure-A15 order and all further proceedings pursuant to Annexure-A14 complaint. 4. Heard Sri. Deepak Dhingra and Sri. Anil D. Nair, the learned counsels for the petitioner, Sri.Gracious Kuriakose, the learned Senior Counsel and Additional Director General of Prosecution for the respondents. 5. The learned counsel for the petitioner contends that, the prosecution initiated based on Annexure-A14 is not legally sustainable for various reasons. First of all, the proceedings were initiated on the assumption that the product contained tobacco/nicotine and later, in the scientific examination, it was found CRL.MC No.4277 /2022 7 otherwise. Therefore, it was pointed out that the proceeding should not have been continued based on the said report. Thus, the present complaint is on an entirely different allegation that the sample contained magnesium carbonate and therefore it is unsustainable. It was further contended that, the magnesium carbonate is not something which is added by the Company, but on the other hand, it got generated in the product due to chemical reactions of certain contents used for the manufacturing of Pan Masala product. According to him, the petitioner has used only the ingredients mentioned in the definition of Pan Masala as contained in Regulation No. 2.11.5 of Chapter 2 of Food Safety and Standards (Food Product Standards & Food Activities) Regulations, 2011. Another contention of the learned counsel for the petitioner is that, as per Section 77 of the FFS Act, the time limit ## CRL.MC No.4277 /2022 8 for submitting a complaint is one year. In this case, the complaint was submitted beyond the prescribed period. It is pointed out that, the articles were seized on 28.4.2013 and the sample was collected on 7.9.2013 whereas the complaint was submitted on 22.9.2015, which is much after the expiry of the period stipulated under Section 77 of the FSS Act. Even though, according to the proviso to Section 77 of the FSS Act, the Commissioner of Food Safety may, for reasons to be recorded in writing, can approve prosecution within an extended period of up to three years, in this case, the delay in filing the appeal is condoned in a mechanical manner as evidenced by AnnexureA13. It was also contended by the learned counsel for the petitioner that the learned Magistrate has taken cognizance in a mechanical manner without going into the materials produced before him and without CRL.MC No.4277 /2022 9 application of mind. The learned Magistrate was under a legal obligation to go through the contents of the complaint and to satisfy himself as to the sufficiency of materials to proceed with the prosecution. Such satisfaction should be reflected in the order of taking cognizance, contends the learned counsel for the petitioner. In this case, such an application of mind is not seen recorded in Annexure-A15 order and hence, the proceedings initiated pursuant to the same are liable to be quashed. 6. On the other hand, the learned Additional Director General of Prosecution opposed the aforesaid contentions. It is contended that under no circumstances can it be argued that the prosecution is bad in law. Since magnesium carbonate is an ingredient prohibited from being included in a product like Pan Masala, the presence of the same CRL.MC No.4277 /2022 10 would attract the offence under the provisions of the Act and the Regulations made thereunder. With regard to the contention of the petitioner that the magnesium carbonate is not an ingredient which they have added to it, the learned A.D.G.P responds that the aforesaid contention is irrelevant and according to him, once it is detected the presence of a prohibited article in the product, that would enable the 2[nd] respondent to initiate prosecution. In response to the averment regarding the delay and the condonation thereof, it was pointed out that the reason stated by the Commissioner of Food Safety in Annexure-A13 is sufficient. The sustainability of the said contention can be considered only during the course of the trial and hence the same cannot be a subject matter of the dispute to be considered at this stage. It is also contended by him that, while taking CRL.MC No.4277 /2022 11 cognizance, it is not necessary for the learned Magistrate to pass a detailed order adverting to the contents of the complaint and the fact that, the learned Magistrate has decided to issue summons to the parties by itself indicate that there was proper application of mind. He already found that there are sufficient materials to proceed with the case. Therefore, the dismissal of the Crl.M.C. was sought by the learned ADGP. 7. After hearing both sides and perusing the records, I am of the view that, the first contention to be considered is a question of limitation and its consequences thereof. As rightly pointed out by the learned counsel for the petitioner, section 77 of the Act acts as a prohibition in entertaining a complaint for prosecuting the accused for the offences punishable under the provisions of the FSS Act CRL.MC No.4277 /2022 12 and Rules/Regulations made thereunder. The ## aforesaid provision reads as follows: _“77. Time limit for prosecutions.Notwithstanding anything contained in this Act, no court shall take cognizance of an offence under this Act after the expiry of the period of one year from the date of commission of an offence:_ _Provided that the Commissioner of Food Safety may, for reasons to be recorded in writing, approve prosecution within an extended period of up to three years.”_ It is true that, the proviso to Section 77 enables the Commissioner of Food Safety to extend the period up to three years by recording the reasons for the same in writing. In this case, the articles were seized on 28.4.2013 and the complaint was submitted on 22.9.2015, which is after two years. Therefore, it is within the limitation period, which the Food Safety Commissioner can condone . However, the question that arises here is whether proper reasons are cited by the Food Safety Commissioner at the time of condoning the delay. In this case, the only CRL.MC No.4277 /2022 13 reason stated is that the delay is condoned as it was caused due to procedural and administrative reasons. The learned counsel for the petitioner relies on the judgments rendered by the High Court of Madras in Crl.O.P.No. 17767/2018 [Mondelez India Foods Pvt. Ltd.&Ors v. A.Elangovan] and Crl.OP No.18881 and 18882 of 2016 [P. Panneer Selvam &Ors. v. Thiru P. Jaganathan]. In both the aforesaid decisions, the question of condoning the delay is specifically considered and it was observed that, the mere mentioning of the procedural or administrational delay cannot not be treated as a valid ground for the purpose of the proviso to Section 77 of the Act and in the said case, the orders passed by the Commissioner of Food Safety were set aside. On the strength of the said decision, it is contended that, in this case also, the reasons stated are lame excuses and hence the CRL.MC No.4277 /2022 14 order condoning the delay is liable to be set aside. However, at this juncture, the learned ADGP points out that the aforesaid question is to be considered by the learned Magistrate first and hence it is not proper for this Court to go into the said question at this stage. It is further contended by him that, since one of the contentions put forward by the learned counsel for the petitioner is to the effect that while taking cognizance of the offences, the learned Magistrate did not properly apply his mind, it is only proper that, the matter be sent back to the learned Magistrate for proper appreciation. In response to the same, the learned counsel appearing for the petitioner would point out that, since the matter is in a pre-cognizance stage, it may not be possible for him to appear before the learned Magistrate and point out these technicalities. However, the learned CRL.MC No.4277 /2022 15 ADGP at this juncture points out that, even though the provisions of Cr.PC does not contemplate an opportunity for the accused to be heard at the time of taking cognizance, he is prepared to agree to grant such an opportunity to the petitioner. It is also pointed out that there is no express prohibition in the Cr.P.C in granting such an opportunity. The learned ADGP also places reliance upon the decision rendered by State of Maharashtra v. Sharadchandra Vinayak Dongre and Others [AIR 1995 SC 231] wherein certain observations were made by the Honourable Supreme Court, while considering the question relating to the procedure to be adopted by the learned Magistrate while condoning the delay under Section 468 Cr.PC. It was held in the said decision that the condonation of delay under Section 468 Cr.PC without notice to the accused is improper and the directions were CRL.MC No.4277 /2022 16 issued to the learned Magistrate to re- consider the application for condoning the delay after hearing the accused. Therefore, it was contended by the ADGP that since the Criminal Procedure Code does not contain any specific prohibition in granting an opportunity to the accused at the time of taking cognizance, they have no objection in giving an opportunity to the petitioner in this regard. 8. As pointed out by the learned counsel for the petitioner, it is evident that the cognizance was taken by the learned Magistrate without going through the contents of the complaint. I am constrained to arrive at such a conclusion because the satisfaction arrived at by the learned Magistrate is not seen reflected in the Annexure-A15 order. In Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors.[(1988)5 SCC 749] , it was CRL.MC No.4277 /2022 17 observed that, the summoning of an accused in a criminal case is a serious matter and the relevant observations made by the Hon’ble Supreme Court in this regard are as follows: _“Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any_ CRL.MC No.4277 /2022 18 _offence is prima facie committed by all or any of the accused.”_ It is true that, the order need not contain an elaborate discussion on the materials placed on record. But as per the principles laid down by the Hon’ble Supreme Court in various decisions in this regard, there must be something in the order which indicates the application of mind and satisfaction arrived at by the learned Magistrate as to the necessity to proceed with the prosecution. In this case, while applying the principles mentioned above, I do not find that Annexure-A15 order is passed by taking into account the contents of the complaint and the materials placed along with the same. In this case, the prosecution is sought to be launched by submitting a complaint after the period of limitation stipulated under Section 77 of the FSS Act. Therefore, the question of delay and the sustainability of the reasons for condoning ## CRL.MC No.4277 /2022 19 the delay are also matters to be considered while taking cognizance. Therefore, in my view, the order of taking cognizance by the learned Magistrate is liable to be set aside. Accordingly, the Annexure-A15 order passed by the Chief Judicial Magistrate, Palakkad in ST/0500622/2015 dated 11.01.2016 is hereby set aside and the Chief Judicial Magistrate Court, Palakkad is directed to consider the matter afresh. As mentioned above, since the respondents expressed their no objection in granting an opportunity to the petitioner herein to be heard, while considering the aforesaid question, it is ordered that, the learned Magistrate shall take such decision after hearing the learned Public Prosecutor as well as the petitioner. In such circumstances, the petitioner is directed to appear before the Chief Judicial Magistrate Court concerned on 16.08.2022. Thereupon, the learned Magistrate CRL.MC No.4277 /2022 20 shall consider all the relevant aspects and pass fresh orders on the question of taking cognizance. The Crl.M.C. is disposed of as above. Sd/ZIYAD RAHMAN A.A. JUDGE Pkk CRL.MC No.4277 /2022 21 ## APPENDIX OF CRL.MC 4277/2022 ## PETITIONER’S ANNEXURES: |Annexure A-1|TRUE COPY OF THE ORDER DATED 22.5.2012| |---|---| ||ISSSUED BY RESPONDENT NO. 2 PROHIBITING THE| ||MANUFACTURE,<br>STORAGE,<br>SALE<br>OR<br>THE| ||DISTRIBUTION OF GUTKHA AND PAN MASALA| ||CONTAINING<br>TOBACCO<br>OR<br>NICOTINE<br>AS| ||INGREDIENTS| |Annexure A2-(a)|TRUE COPY OF CIRCULAR DATED 25.5.2012| ||ISSUED BY RESPONDENT NO. 2| |Annexure A2-(b)|TRUE COPY OF CIRCULAR DATED 29.05.2012| ||ISSUED BY RESPONDENT NO. 2| |Annexure A-3|TRUE<br>COPY<br>OF<br>THE<br>WRIT<br>PETITION| ||NO.12932/2012 FILED BEFORE THIS HON'BLE| ||COURT| |Annexure A-4|TRUE COPY OF THE ORDER DATED 2ND AUGUST| ||2012 IN W.P. (C) NO.12932/2012| |Annexure A-5|TRUE COPY OF THE JUDGMENT DATED 3RD| ||OCTOBER, 2012 IN W.A. NO. 1685/2012 PASSED| ||BY HON'BLE DIVISION BENCH OF THIS COURT| |Annexure A-6|TRUE COPY OF THE FIR DATED 28TH APRIL, 2013| ||NO. 524/2013| |Annexure A-7|TRUE COPY OF THE WRIT PETITION NO.| ||14199/2013 FILED BEFORE THIS HON'BLE COURT| |Annexure A-8|TRUE COPY OF THE JUDGMENT DATED 8TH JULY,| ||2013 IN WRIT PETITION NO. 14199/13 OF THIS| ||HON'BLE COURT| |Annexure A-9|TRUE COPY OF THE JUDGMENT DATED 29TH| ||OCTOBER, 2013 IN W.A NO. 1186/ 2013| |Annexure A-10|TRUE COPY OF THE ORDER DATED 7TH AUGUST,| ||2013 PASSED BY THE COURT OF JUDICIAL| ||MAGISTRATE, 1ST CLASS, PALAKKAD| |Annexure A-11|TRUE COPY OF FORM - VA DATED 7TH SEPTEMBER,| ||2013 WHICH SHOWS COLLECTION OF SAMPLES FROM| ||THE COURT| |CRL.MC No.4277 /2022|22| |---|---| |Annexure A-12|TRUE COPY OF REPORT SIGNED BY ANALYST ON| ||20TH SEPTEMBER, 2013| |Annexure A-13|TRUE COPY OF THE ORDER DATED 11TH AUGUST,| ||2015 BEARING NO. DE 1448/2015/CFS| |Annexure A-14|TRUE COPY OF THE COMPLAINT FILED BY THE| ||RESPONDENT NO. 2 DATED 22ND SEPTEMBER, 2015| ||IN THE COURT OF CHIEF JUDICIAL MAGISTRATE,| ||PALAKKAD| |Annexure A-15|TRUE COPY OF THE IMPUGNED ORDER DATED| ||11/01/2016 OF COURT OF CHIEF JUDICIAL| ||MAGISTRATE, PALAKKAD| |Annexure A-16|THE COMPLETE ORDER SHEET FROM 18/11/2015| ||TILL 17/2/2022 OF THE COURT OF CHIEF| ||JUDICIAL MAGISTRATE, PALAKKAD| |Annexure A-17|TRUE COPY OF THE NOTIFICATION DATED 5TH| ||SEPTEMBER 2016| |Annexure A-18|A CHART SHOWING THE PERMITTED USE OF MGCO3| ||IN ITEMS OF FOOD| |Annexure A-19(a)|TRUE COPY OF THE ORDER DATED 11TH OCTOBER,| ||2021 PASSED BY HON'BLE HIGH COURT OF| ||GAUHATI AT ASSAM| |Annexure A-19(b)|TRUE COPY OF THE ORDER DATED 21ST| ||SEPTEMBER, 2016 PASSED BY HON'BLE HIGH| ||COURT OF UTTRAKHAND AT NAINITAL|