The Allahabad High Court while dismissing an application said that in case of sale of unsafe or sub-standard 
 milk, the date of commission of offence would be the date when the report of food analyst is received about its quality and not by the date when the sample of food is collected

A Single Bench of Justice Arun Kumar Singh Deshwal passed this order while hearing an application under section 482 filed by M/S Kewal Dairy.

The application under Section 482 CrPC has been filed for quashing the order dated 27.06.2024 passed by Metropolitan Magistrate-1st, Kanpur Nagar as well as entire proceeding of Complaint Case under Section 51 and 59(i) of Food Safety and Standard Act, 2006, Police Station- Nazirabad, District Kanpur Nagar pending in the court of Metropolitan Magistrate-1st, Kanpur Nagar.

The facts of the case are that the sample of milk was collected on 24.11.2017 by the Food Safety Officer from the premises of applicant thereafter the sample of milk was sent to the Food Analyst, Regional Food Laboratory Medical College Campus, Meerut for analysis.

Thereafter a report from a food analyst was received on 10.12.2017 showing milk was of substandard. Subsequently, notice was issued to the applicant, who filed the appeal before the designated officer against the report of the food analyst which was allowed and the sample was again sent for fresh analysis. Thereafter fresh report was received from the food analyst on 25.04.2018 again showing that the milk was sub- standard and also unsafe.

Thereafter Food Safety Officer sent an application to the Commissioner, Food Safety through designated officer on 14.05.2018 to get approval for prosecution under Section 77 of Act, 2006. The Commissioner, Food Safety vide order dated 20.06.2019 granted approval for the prosecution of applicant despite expiry of period of one year from the date of commission of offence, thereafter complaint was filed on 04.07.2019.

Contention of the counsel for the applicant is that the impugned proceeding is barred by limitation and the court below while rejecting his application failed to consider this aspect.

It is further submitted that in the case, the sample was collected on 24.11.2017 but the complaint was filed on 04.07.2019 which is after more than one year. Therefore, in view of Section 468 CrPC the court is barred from taking cognizance.

Alternatively, counsel for the applicant also submitted that even it is accepted that in view of Section 77 of Food Safety and Standard Act, 2006, the Commissioner of Food Safety can extend the period for taking cognizance from one year to three years from the date of commission of an offence but the reason must be recorded but the Commissioner while extending the period of limitation under Section 77 of the Act, 2006 has not recorded reason.

Counsel for the applicant lastly submitted that the sample was collected from the diary of the applicant which was sub-standard, therefore, proceeding can be initiated only under Section 51 and not under Section 59(i) of the Act, 2006.

It is submitted that being the time barred, the impugned complaint as well as impugned order deserves to be quashed.

Per contra, AGA has submitted that after the enforcement of Food Safety and Standard Act, 2006, a special provision regarding taking cognizance under the Act, 2006 has been provided under Section 77 of the Act, 2006 which provides that the court will not take cognizance of the offence under this Act after the expiry of the period of one year from the date of commission of offence but for reasons to be recorded by the Commissioner of Food Safety the aforesaid period can be extended up to three years. In such cases when the specific provision is there, then Section 468 CrPC will not be applicable because Section 89 of Act, 2006 specifically provides that this Act will override all other Acts.

The Court observed that,

After considering the submissions of the counsel for the parties and on a perusal of the record, the question arises, what is the date of commission of offence to decide whether cognizance on complaint is barred by limitation. In support of his contention counsel for the applicant relied upon the earlier decision of this Court in the case of Ashok Kumar Pal (supra) in which it is held that date of commission of offence in the Act, 2006 would be the date on which the sample of food was collected, though that observation was not part of the ratio of that judgement but simply an observation.

Thus applying the above Principle of Law in the case, the date of commission of offence would be 10.12.2017. Thereafter application for seeking approval was submitted by the Food Safety Officer on 14.05.2018 and approval under Section 77 of the Act, 2006 was granted on 20.06.2019. Therefore the period between 14.05.2018 to 20.06.2019 would be excluded because of Section 470(3) CrPC, as Section 470(3) CrPC provides exclusion of time taken by the Sanctioning Authority in computation of limitation. Therefore the complaint filed on 04.07.2019 was well within one year.

In view of the above facts and legal position, cognizance is not barred under Section 77 of the Act, 2006 or under Section 468 CrPC.

Even if it is accepted for the sake of argument, the complaint was filed after one year from the date of commission of offence, even then the Commissioner had granted approval for prosecution within 3 years from the date of offence in exercise of power under Section 77 of the Act, 2006.

The Court further observed that,

From the perusal of order of the Commissioner of Food Safety, it appears that reason was recorded while granting approval within the extended period of 3 years for initiating prosecution, therefore, the contention of counsel for the applicant that no reason was recorded by the Commissioner of Food Safety while granting approval for prosecution after the expiry of the period of one year under Section 77 of the Act, 2006 is incorrect.

So far as the contention of counsel for the applicant that the offence is punishable for one year and because of Section 468 CrPC, the cognizance cannot be taken after one year is concerned, is incorrect because as per Section 77 of the Act, 2006 prosecution even after one year can be approved by the Commissioner, Food Safety and the same has already been approved by the Commissioner by order dated 20.06.2019. The specific provision of extension of limitation provided under Section 77 of the Act, 2006 will prevail over Section 468 CrPC because of Section 89 of the Act, 2006.

“From the above observation in the judgement of Ram Nath’s case (supra), it is clear that the overriding effect of the FSS Act is not confined to only food-related laws but also other Laws including CrPC.

So far as the contention of counsel for the applicant that being sub-standard sample, the applicant can be prosecuted under Section 51 not under Section 59, this issue can be raised at the time of framing of charge and same cannot be a ground for quashing the proceeding,” the Court also observed while dismissing the application.

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