Devendra Bhawsar vs Indore Municipal Corporation

The petitioner has filed the present petition u/s. 482 of Cr.P.C. seeking quashment of proceedings in Cr. Case No.16648/2014 and order dated

29.5.2014 whereby charges u/s. 26(1), 26(2)(i), 26(2)(v) and 27(1) read with Section 58 of the Food Safety and Standards Act, 2006 (hereinafter

referred to as “the Act of 2006â€​ for short) have been framed.

The petitioner is engaged in the business of sale of dry fruits. On 23.10.2013 near about at 5 pm., Food Safety Officer conducted the inspection in

the shop and store of the petitioner and found plastic bags containing peanuts, ‘Pishta’ and Almond. At that time, the petitioner was making the

packets of 500 gms. of the said dry fruits. The Food Safety Officer took a sample from each bag and paid Rs.1,400/- to the applicant and obtained the

receipt. He sent the sample to the Food Analyst and obtained the report dated 7.11.2013. Said report was communicated to the petitioner and he

availed the remedy of appeal. In the appeal, the sample was sent to the Laboratory at Mysore and reported dated 14.3.2014 was received. Thereafter,

Food Safety Officer sent the entire case to the Commissioner, Food Safety for obtaining permission u/s. 30 of the Act of 2006 for lodging prosecution.

The Commissioner vide order dated 14.8.2013 has granted the permission of prosecution by the Court and accordingly, the Food Safety Officer filed

the complaint before the Special Judicial Magistrate, Indore along with 32 documents. Learned Special Magistrate took the cognizance and sent

summons to the present petitioner. After appearance of the petitioner, learned Special Magistrate framed the aforesaid charges against him.

The complaint case is pending since 2014 and now the petitioner has filed the present petition u/s. 482 of Cr.P.C. before this Court seeking

quashment of the proceedings and validity of the order taking cognizance, on the ground that u/s.68 of the Act of 2006, the adjudicating authority is the

Additional District Magistrate of the District to adjudicate the dispute in the manner as may be prescribed by the Central Government.

Learned counsel for the petitioner submits that the Special Magistrate has no authority to take cognizance in the case of violation of Section 58 of

Act of 2006 and for which the adjudicating authority i.e. Addl. District Magistrate is competent. In support of his contention, he has placed reliance

over the judgment of this Court in the case of Jayantilal Jain V/s. State of M.P. : 2019 (III) MPWN 51.

Per contra, learned counsel appearing for the respondent submits that the proceedings before the Special Magistrate are maintainable by virtue of

Section 42 of the Act of 2006 and while deciding the aforesaid case, the provisions of Section 42 of the Act have duly been considered by the Court.

In the case of Devendra V/s. Nagar Palika Nigam (M.Cr.C. No.2841/2020) similar issue came up for consideration and vide order dated 4.2.2020,

this Court has dismissed the petition filed u/s. 482 of Cr.P.C., hence the present petition is liable to be dismissed.

The Food Safety Officer is defined u/s. 37 of the Act and his power has been defined in Section 38 of the Act of 2006. The power of search,

seizure, investigation, prosecution has been given to the Food Safety Officer u/s. 41. U/s. 42, the Food Safety Officer shall be responsible for

inspection of food business, drawing samples and for filing the complaint before the Magistrate. As per sub-section (4) of Section 42, the

Commissioner of Food Safety shall, if so deems fit, decide as per the gravity of offence, whether the matter be referred to a court of ordinary

jurisdiction in case of offences punishable with imprisonment for a term up to three years; or a Special Court in case of offences punishable with

imprisonment for a term exceeding three years. The Commissioner of Food Safety shall communicate his decision to the Designated Officer and the

concerned Food Safety Officer who shall launch prosecution before courts of ordinary jurisdiction or Special Court, as the case may be.

Chapter X of the Act of 2006 deals with adjudication and establishment of Food Safety Appellate Tribunal. U/s. 68, for the purposes of adjudication

under this Chapter, an officer not below the rank of Additional District Magistrate of the district shall be notified by the State Government as the

adjudicating officer for adjudication in the manner as may be prescribed by the Central Government. Section 70 provides for establishment of Food

Safety Appellate Tribunal. The power to prosecute an offender under the Act of 2006 has been given u/s.42 as well as u/s. 68 both, but the discretion

has been given to the Commissioner of Food Safety u/s. 42(4) to decide as per gravity of the offence for reference of a dispute to a Court of ordinary

jurisdiction or to a Special Court.

In the present case, the Commissioner has taken the decision u/s. 30(2)(e) and granted sanction for prosecution of the petitioner for offences

punishable with imprisonment under this Act. Therefore, once the decision has been taken and the complaint has been filed before the competent

Court, it cannot be said that the Magistrate is not competent to try the offence/s. Hence, the grounds taken by the petitioner are not tenable.

Accordingly, this M.Cr.C. fails and is hereby dismissed.