[Food Safety Act] Timeline For Recommending Grant Of Sanction For Prosecution Mandatory, Non-Compliance Makes It Unsustainable: J&K High Court

The Jammu and Kashmir High Court held that non-compliance of the provision requiring designated officer to make recommendation to the Commissioner Food Safety for accord of sanction for prosecution against the accused persons within time limit renders prosecution unsustainable.

The petitioner had challenged the taking of the cognizance by the court after the period of one year after commission of the offence and failure to comply the procedural safeguards provided under the law.

A bench of Justice Sanjay Dhar held that the provision requiring the designated officer to recommend to the commissioner food security to accord sanction for prosecution within the period of 14 days is mandatory, after recieving the report from food analyst declaring food to be unsafe.

The court also said that without impleading the manufacturing company, the petitioner who is claimed to be the incharge of the company's operations cannot be proceeded against as an accused person.

The court said that in the present case the manufacturing company was not impleaded in the case and prosecution was initiated against the person alleged to be incharge of the company's operation was not sustainable in law.

The court relied on the ratio of Supreme Court judgment in which it was held that without impleading the partneship firm, the criminal prosecution cannot be proceeded against the individual partners.

The court also said that under Food Safety Act the offence can be started to have been committed on the date when report of the food analyst suggested that the sample so lifted was found unsafe or substandard and not on the date when such sample was picked up.

The court while talking note of the contention other petitioner quashed the criminal proceedings under under Food Safety Act against the accused person.

BACKGROUND

The petitioners have approached the court challenging a complaint filed by the Food Safety Officer, which is pending before the Chief Judicial Magistrate, Srinagar.

The complaint alleges that the petitioners committed offences under section 26(1)(2)(i)(ii) punishable under Section 59 read with Sections 3(1)(zz), 51, and 3(1)(zx) of the Food Safety and Standards Act, 2006.

It is alleged that a team led by the respondent inspected the premises of petitioner and collected a sample of Nestle Milkmaid. The sample was analyzed by the National Food Laboratory, Ghaziabad, and the report revealed that the sample was sub-standard and unsafe.

The Petitioner No.1 disclosed that the product was purchased from M/S Malhotra Brothers, while Petitioner No.2 submitted an invoice showing Nestle India Ltd., New Delhi as the supplier. Petitioner No.3 also received a notice under Section 46(6) but did not appeal.

The sanction for prosecution was granted by the Commissioner, Food & Drugs Administration, J&K, following a recommendation by the Designated Officer, Food Safety.

Based on this, the trial court took cognizance and issued process against the petitioners.

APPEARANCE

Jahangir Iqbal Ganai, Sr Advocate, Mehnaz Rather, Advocate For Petitioner

Hakeem Aman Ali, Dy. AG., Advocate For Respondents

Case-Title:ALI MOHAMMAD BHAT & ORS. Vs UT OF J&K 

Citation: 2025 LiveLaw (JKL) 228

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