Bombay High Court Quashes Criminal Case Against Britannia Dairy Over Sale Of Unsafe Cheese Cubes

The Bombay High Court on Friday quashed criminal proceedings against Britannia Dairy Pvt Ltd over allegations of unsafe cheese cubes, finding that the company was denied key statutory safeguards.

Britannia was notified nearly six months after the product's shelf life had expired, while the Food Analyst's report was never furnished to it.

“Considering the aforenoted facts, submissions, and settled position of law, I am of the considered opinion that the Applicant has made out a fit case for this Court to exercise its inherent powers under section 482 of the Code of Criminal Procedure,” Justice Ranjitsinha Raja Bhonsale ruled.

The court held that the delay, non-supply of the laboratory report and consequent deprivation of Britannia's statutory rights made continuation of the proceedings untenable.

The case concerned Britannia Cheese Cubes (Sour Cream and Onion).

On July 30, 2013, a Food Safety Officer purchased four packets from a Big Bazaar store at R City Mall, Ghatkopar, Mumbai, for testing. The product had been packed on February 12, 2013, and had a shelf life of nine months, expiring on November 12, 2013.

A Food Analyst's report dated August 14, 2013 found the sample infested with fungus and unsafe under the Food Safety and Standards Act, 2006. Britannia was issued notice only on May 17, 2014, nearly six months after the product's shelf life had expired.

The delay affected Britannia's statutory opportunity to have the fourth part of the sample analysed. Rule 2.4.5(1) of the Food Safety and Standards Rules, 2011 allows a food business operator whose name and other details have been disclosed to request the Food Safety Officer to send the fourth part of the sample to an NABL-accredited or FSSAI-notified laboratory for analysis.

In this case, the court found that Britannia had lost that opportunity because the notice was issued only after the product's shelf life had expired.

The company also sought clarification about the laboratory report after receiving the notice. The report was not furnished to Britannia despite its request, according to the court.

Section 46(4) of the FSS Act provides another safeguard by allowing an appeal against a Food Analyst's report before the Designated Officer. Rule 2.4.6 sets out the procedure and provides for the matter to be referred to a referral food laboratory if the Designated Officer so decides.

The court held that Britannia was denied this opportunity as well because the Food Analyst's report was never forwarded to it. It specifically ruled that issuance of notice under Rules 2.4.1(4) and 2.4.5 was mandatory because the Rules use the word “shall”.

The complaint itself did not refer to the May 17, 2014 notice issued to Britannia. Yet the prosecution relied on the Food Testing Lab report without providing the company with a copy.

There was also a separate defect in the order-issuing process. The court described it as a “rubber stamp order” that did not indicate or reflect application of mind. Original Accused Nos. 12 and 13 were situated at Baramati, District Pune, beyond the territorial jurisdiction of the Additional Chief Metropolitan Magistrate, 46th Court, Mazgaon, Mumbai.

The court held that Section 202 of the CrPC required an inquiry before process could be issued because some of the accused were beyond the Magistrate's territorial jurisdiction. It found the requirement mandatory in those circumstances.

The complaint invoked, among other provisions, Section 59 of the FSS Act in relation to the allegation that the food was unsafe. It also cited Section 26(2)(i), Section 3(zz)(iii) and Regulation 2.1.6.3 of the Food Safety and Standards (Food Products Standards and Food Additive) Regulations, 2011.

The food safety authority also sought to rely on an alleged licensing violation under Sections 31(1) and 63 of the FSS Act. The court noted, however, that the complaint against Britannia was not based on those provisions.

The court stressed that the FSS Act is a special statute and that its procedural safeguards must be followed in letter and spirit. A noticee or proposed accused cannot be denied the statutory opportunity to prove its innocence or raise a probable defence.

Finding that the delay, non-supply of the laboratory report, and denial of Britannia's statutory opportunities made continuation of the prosecution untenable, the court quashed proceedings against the Dairy company.

The application was accordingly allowed in terms of the relevant prayer, bringing the criminal proceedings against Britannia Dairy to an end.

For Applicant: Aabad Ponda, Senior Advocate a/w Advocates Jay Zaveri, Suraj Agarwal i/by Crawford Bayley & Co.

For Respondent: Yogesh Dabke, A.P.P.