BRITANNIA DAIRY PRIVATE LIMITEDversusTHE STATE OF MAHARASHTRA AND ANR

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                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                             CRIMINAL APPELLATE JURISDICTION
                                           CRIMINAL APPLICATION NO. 842 OF 2017

                      1. Britannia Dairy Private Limited
SUPRIYA
PRAMOD                   a company incorporated under
JAWARE
Digitally signed by
                         the Companies Act, 1956, having
SUPRIYA
PRAMOD JAWARE
Date: 2026.09.11
                         its registered office at 5/1A, Hungerford
19:15:27 +0530

                         Street, Kolkata 700 017 and also
                         having their address at Reay Road, Mazgaon,
                         Mumbai 400 010
                         (Through Amit Yelkar)                                  … Applicant

                                V/s.

                      1. The State of Maharashtra
                         Through the Public Prosecutor
                         having his office at P.W.D.
                         Building, M. G. road,
                         Mumbai -400 001

                      2. P. S. Pawar
                         Food Safety Officer, Greater Mumbai
                         Office of the Joint Commissioner,
                         (Greater Mumbai),
                         Food and Drugs Administration,
                         M. S., 341, FDA Building, Bandra-Kurla
                         Complex, Bandra (East),
                         Mumbai 400 051                                         … Respondents
                                                 ______________________

                      Mr. Aabad Ponda, Senior Advocate a/w Mr. Jay Zavei, Mr. Suraj Agarwal i/by
                      Crowford Bayley & Co. for the Applicant.
                      Mr. Yogesh Dabke, A.P.P. for Respondent-State.
                                                  ______________________

                                                 CORAM : RANJITSINHA RAJA BHONSALE, J.
                                           RESERVED ON : 20th JULY 2026
                                         PRONOUNCED ON : 11th SEPTEMBER 2026.



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JUDGMENT :-

1)          By the present Application, under Section 482 of the Code of

Criminal Procedure, 1973 (For short “CrPC”) (now Section 528 of the

Bharatiya Nagarik Suraksha Sanhita, 2023), the Applicant seeks to quash and

set aside the complaint being Criminal Case No. 5349/SS/2014 pending

before the Additional Chief Metropolitan Magistrate, 46 th Court, Mazgaon,

Mumbai, and the impugned Order of Issuance of Process dated 28 th July 2014

and all further proceedings in connection with the said criminal case.

1.1)        By Order dated 12th January 2018, this Court was pleased to

grant Rule and interim relief in terms of prayer clause (b) inasmuch as the

proceedings of Criminal Case No. 5349/SS/2014 pending before the

Additional Chief Metropolitan Magistrate, 46 th Court, Mazgaon, Mumbai were

stayed.

2)          Heard Mr. Aabad Ponda, learned Senior Counsel appearing for

the Applicant and Mr. Yogesh Dabke, APP for the Respondent/State.

3)          Some of the relevant facts are as under :-

3.1)        The Applicant, Britannia Dairy Private Limited, is a wholly owned

subsidiary of Britannia Industries Limited and is, inter alia, engaged in the

marketing and distribution of various dairy products, including ghee, butter,

cheese and other allied products under the Britannia Brand. The Applicant has

a valid license under the FSS Act issued by the Food Safety and Standards

Authority of India and is categorised as a wholesaler.


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3.2)        The Applicant also markets Britannia Cheese Cubes (Sour Cream

and Onion) (for short “subject product”). The subject product is a food

product falling within the definition of “food” under Section 3(1)(j) of the

Food Safety and Standard Act, 2006 (for short “FSS Act”).

3.3)        The Applicant executed a product supply agreement with

Dynamix Dairy Industries Limited (“for short Dynamix”), under which

Dynamix agreed to manufacture, pack and sell to the Applicant, amongst

other products, processed Cheese. The Applicant was to market the said

products.

3.4)        On 30th July 2013 at 05.00 p.m., Respondent No.2, along with an

independent panch witness, visited premises of Big Bazaar at R City Mall,

Runwal Town Centre, Wyeth Lab, LBS Marg, Ghatkopar (West), Mumbai and

purchased four packets of Britannia Cheese Cubes (Sour Cream and Onion),

the subject product for test and analysis.

3.5)        On 30th July 2013, notice was issued under Form V-A and under

Rule 2.4.1(3) and 2.4.1(4) of the Food Safety and Standards Rules, 2011 (for

short “FSS Rules”) to the food business operator, one Mr. Rupesh Marolie of

the Big Bazaar Store. Notice under Form V-A would clearly mention the

Applicant as the Marketer of the subject product. The subject product was

packed on 12th February 2013 and that the shelf life of the subject product is

“best before 9 months from the packing” i.e. 12th November 2013.

3.6)        On 31st July 2013, Respondent No.2 delivered one sealed packet


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containing the sample of the subject product to the Food Analyst for testing.

Respondent No.2 had delivered and deposited the sealed sample of the subject

product with the Designated Officer. On 17 th September 2013, Respondent

No.2 received the report of the Food Analyst bearing No. 734 of 2013 dated

14th August 2013 (Food Analyst Report) wherein it is stated that, the sample

of the subject product is infested with fungus and therefore, the subject

product is unsafe under Section 3(1)(zz)(iii) and (x) of the FSS Act.

3.7)        On 17th May 2014, Respondent No.2 issued notice to the

Applicant under Rule 2.4.1(4) and Rule 2.4.5 of the FSS Rules calling for

information as stated in the said notice. On 16 th June 2014, the Applicant,

while replying to the notice sought clarification in respect of the Laboratory

Report and was informed of the fact that, the Laboratory Reports were not

forwarded to the Applicant. That, the statutory rights of the Applicant to apply

for a re-test was adversely affected. The Applicant neither replied to the said

letter nor provided the Lab Report/information as requested.

3.8)        On 19th June 2014, Respondent No.2 submitted a proposal to the

Designated Officer seeking a consent order from the Food Safety

Commissioner for filing the Complaint. On 24 th July 2014, the Designated

Officer, while returning the proposal, directed Respondent No.2 to obtain a

copy of the license of Big Bazaar Store under the FSS Act. Upon the proposal

being resubmitted to the Designated Officer on 25 th July 2014, seeking

consent order from the Food Safety Commissioner, Respondent No.2 received


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the consent order from the Designated Officer.

3.9)         On 28th July 2014, Respondent No.2 filed the present complaint

being Criminal Case No. 5349/SS/2014 against the Applicant and other co-

accused. On 28th July 2014, the Additional Chief Metropolitan Magistrate, 46 th

Court, Mazgaon, Mumbai issued process against the accused including the

Applicant. The said complaint and order have been challenged by the present

Applicant.

4)           Mr. Aabad Ponda, learned senior Counsel appearing for Applicant

submits that:-

4.1)         The subject product was purchased on 30 th July 2013 from the

Big Bazaar Store and sent for test/analysis on 31 st July 2013. The report was

prepared on 14th August 2013 and the complaint was filed on 28 th July 2014.

That, the shelf life of the product was for 9 months from the date of packaging

which was 12th February 2013. The shelf life got over on 12 th November 2013.

The complaint has been filed after the expiry of the shelf life of the subject

product.

4.2)         That, the Order of issuance of Process is a rubber stamp order

which has been passed on the very same date of which the complaint was

filed. That, the Order of Issuance of Process is without any reason or

justification. Perusal of the said order would clearly indicate a non-application

of mind.

4.3)         The Order of issuance of process has been passed without


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conducting any inquiry whatsoever or causing an investigation as would be

required under Section 202 of the Code of Criminal Procedure, as original

Accused Nos. 12 and 13 reside beyond the jurisdiction of the Additional Chief

Metropolitan Magistrate, Mazgaon, Mumbai. It was mandatory to conduct an

inquiry and or cause investigation before issuing the Order of Process.

4.4)         The Applicant could not avail of the option provided under Rule

2.4.5(1) of the FSS Rules. Such notice under Rule 2.4.1(4) of the FSS Rules

was issued to the Applicant after a long delay of 6 months. That, under Rule

2.4.5(1) of the FSS Rules, the Applicant being a person whose name, address

and other particulars have been disclosed under Rule 2.5 of the FSS Rules has

the option of getting the 4 th part of the sample analysis by an NABL

accredited/ FSSAI notified laboratory by making an application in writing to

the Food Safety Officer under intimation to the designated officer. That, the

Applicant could not avail of the said recourse.

4.5)         Section 46(4) of the FSS Act (Food Safety and Standards Act,

2006) read with Rule 2.4.6 of the FSS Rules provides for an Appeal against

the report of the Food Analyst. Due to the delay on the part of the

Respondents, the Applicant could not prefer an Appeal under the relevant

provisions as the Food Analyst Report was never provided/forwarded to the

Applicant.

5)           Mr. Yogesh Dabke, learned Counsel appearing for Respondents

submits that:-


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5.1)        The present Application filed under 482 of the CrPC, is an

attempt made to in some or other manner bypass the statutory mandate and

escape criminal liability for distributing unsafe food and violating license

conditions under the FSS Act.

5.2)        Under section 31(1) of the FSS Act, it is mandatory for every food

business operator to obtain a license for each specific premises where the food

business is conducted. The Applicants product label explicitly declared the

marketing address as ‘Reay Road, Mazgaon, Mumbai 400 010’. Upon

verification it was found that, the Applicant holds a valid license only for the

address at ‘Ballard Estate, Mumbai’. Therefore, the marketing and distribution

business of the Applicant was from a unlicensed premises which is direct

violation of Section 31(1) and 63 of the FSS Act.

5.3)        Respondent No.2 had issued proper notice as required under the

law. Verification of the label conclusively proves that, the Applicant was

conducting the food business from a location which did not hold the statutory

license.

5.4)        The Food Analyst Report (No. 734/2013) confirms that, the

sample was ‘infested with fungus’. Under Section 3(1)(zz)(iii) of the FSS Act,

the food was unsafe. The Applicant as marketer cannot shift their

responsibility to the manufacturer. Under Section 27 of the FSS Act, a seller or

marketer is liable for the food article if there is a violation of the act or the

Rules. The prosecution was not launched in a mechanical manner.


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5.5)         The Joint Commissioner (Food) after perusing the Food Analyst

Report,    investigation    papers     and     licensee   discrepancies     issued

sanction/consent orders, after an independent application of mind. The Order

is issued in accordance with Section 42(3) of the FSS Act. The Respondents

have followed every mandatory procedure. The procedure under Section 47 of

the FSS Act for drawing, sealing and labelling samples in presence of

witnesses was followed. The samples were dispatched to the Food Analyst

within the statutory time frame as per Rule 2.4.2. There was no requirement

of sending the Food Analyst Report to the Applicant. The Food Analyst Report

was sent to the Food Business Operator. The mandatory statutory procedure

was followed at the point of sample sent to the Food Business Operator and

there is no violation of the rights of the Applicant.

5.6)         The law does not require the initial report to be served on the

marketer if the sample is not physically drawn from the marketer. The

Applicant being a marketer remains liable for the safety of the product

regardless of the issue of sampling. There is a direct violation in respect of the

marketing address. The marketing address is given from unlicensed premise at

‘Reay Road’ which is a violation of Section 31(1) of the FSS Act and

punishable offence under Section 63 of the FSS Act.

5.7)         The company is unlawfully trying to shield its directors from

prosecution by claiming that, they had appointed a nominee responsible for

food safety. This defence is invalid. Under Section 66(1) of the FSS Act, when


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an offence is committed by a company, every person in charge of the company

is deemed to be guilty.

5.8)        Section 66(2) read with Rule 2.5.1 allows a licensed company to

file a nomination in form IX to designate a specific manager or officer as a

responsible person for a particular premises. In the present case as the

activities was carried out from an unlicensed premises, the question of filing

of nomination would not arise. As the legal protection of nominee is

unavailable to the Applicant company hence, all its directors remained directly

and personally liable. The Courts have consistently ruled the strict compliance

with the FSS Act is required to protect public health.

6)          Perused the entire record. Perusal of the notice dated 30 th July

2013 issued to the Food Business Operator indicates that, the subject product

was Britannia Cheese Cubes (Sour Cream and Onion) which was packed on

12th February 2013 and the shelf life of the said cubes is mentioned as ‘best

before 9 months from packaging when stored, refrigerated at 4 0 Celsius under

hygienic conditions. The shelf life was therefore till 12 th November 2013. The

notice refers to the Applicant as the marketer and the address is shown as

‘Reay Road (East), Mazgaon, Mumbai 400 010. The subject product has been

manufactured by Schreiber Dynamix Dairies Limited. The said notice is issued

under Rule 2.4.1(4) of the FSS Rules. Perusal of the report of the Food Analyst

dated 14th August 2013 reaffirms the date of manufacturing and packaging as

12th February 2013 and the shelf life as 9 months from the date of packaging.


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The microscopical examination has indicated that, the sample was infested

with fungus and unsafe under Section 3(1)(zz)(iii) and (x) of the FSS Act.

6.1)        The notice to the manufacturer was issued on 10 th February 2014

under Rule 2.4.1(4) and Rule 2.4.5. Similar notice was issued to the Applicant

on 17th May 2014. The Applicant is the marketer of the product in question.

6.2)        Section 47 of the Food Safety and Standards Act, 2006, provides

for sample and analysis. Section 47(1)(a) of the FSS Act provides that, when a

Food Safety Officer takes a sample of food for analysis, he shall give a notice

in writing of his intention to have the sample so analysed to the person from

whom he has taken the sample and to the person, if any, whose name, address

and other particulars have been disclosed.

6.3)        Under Section 47(1)(b), when a Food Safety Officer takes sample

of food for analysis, he shall except in special cases as may be provided by

Rules made under Act, divide the sample into four parts and mark and seal or

fasten up each part in such a manner as its method permits and take

signatures or thumb impression of the person from whom the sample has been

taken. In case the person refuses to sign or put his thumb impression, Food

Safety officer shall call upon one or more witnesses and take his signature or

thumb impression, in lieu of the signature or thumb impression of such

person. Section 47(1)(c)(i) of FSS Act provides that one of the said part is

sent for analysis to the Food Analyst under intimation to the designated

officer. Section 47(1)(c)(ii) provides that two parts be sent to the designated


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officer for keeping in safe custody and, Section 47(1)(c)(iii) provides that the

remaining part be sent for analysis to an accredited laboratory, if so requested

by the Food Business Operator, under intimation to the designated officer.

6.4)        Rule 2.4 of the Food Safety and Standard Rules, 2011 provides

for sampling and analysis. Rule 2.4.1(4) provides that, in case the Food

Business Operator discloses that the product has been obtained from a

manufacturer, the distributor or supplier, a notice shall also be given to such

manufacturer, distributor or supplier. Rule 2.4.5 provides for the Business

Operators right to have the food analysed. Rule 2.4.5(1) provides that, in case

the Food Business Operator from whom the sample has been taken or the

person whose name and address and other particulars have been disclosed

under Rule 2.5 of the Rules desirous to have a 4 th part of the sample analysed

he shall request the Food Safety Officer in writing to send the sample to any

NABL accredited/FSSAI notified laboratory for analysis under intimation to

the designated officer. Under the proviso, the cost of the testing by the

accredited lab shall be born by the Food Business Operator or the person

identified under Rule 2.5.

6.5)        Rule 2.4.6 provides for an appeal to the designated officer. Sub

rule 1 of 2.4.6 provides that, when an appeal as provided under Sub section 4

of Section 46 is preferred to a designated officer by the Food Business

Operator against the report of the Food Analyst, the designated officer, shall if

so decides within 30 days from the receipt of such appeal after considering the


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material placed before him and after giving an opportunity to the Food

Business Operator to be heard shall forward one part of the sample to the

referral lab. Such appeal shall be in form VIII and be filed within 30 days from

the date of the receipt of the copy of the Analysis Report from the designated

officer. It is further provided that, the report of the referral laboratory shall be

final.

6.6)           Section 46 of the FSS Act provides for functions of a Food

Analyst. Section 46(4) provides that an appeal against report of the Food

Analyst shall lie before the designated officer who shall, if he so decides,

refers a matter to the referral food laboratory as notified by the food authority

for opinion.

7)             Perusal of the aforesaid Sections and the Rules clearly indicates

that the Applicant as the Marketer and a person whose name is available on

the label of the subject product has a right under Rule 2.4.1(4) of the FSS

Rules to receive a notice when a sample has been taken and proposed to be

sent for analysis. Under Rule 2.4.5, the Applicant would also had the option of

analysing the 4th part of the sample and on a request being made to the Food

Safety Officer in writing to send the sample to any NABL accredited/FSSAI

notified laboratory for analysis under intimation to the designated officer.

Further the Applicant is also clearly entitled to file an Appeal under Section

46(4) of the FSS Act against a report of the Food Analyst before the

designated officer who shall, if he so decides, refer the matter to the referral


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food laboratory for opinion.

8)            In the present matter, after taking the sample, the Applicant was

given notice only on 17 th May 2014 and certain information was sought from

the Applicant under the FSS Act, rules and regulations. I have noted that, the

notice is itself issued after expiry of the shelf life of the subject product. The

record indicates that, the product was packed on 12 th February 2013 and the

shelf life was 9 months from the date of packaging which would expire on 12 th

November 2013. In the present case, the notice under Rule 2.4.1(4) and Rule

2.4.5 is issued only on 17th May 2014 i.e. nearly 6 months after the expiry of

the shelf life.

9)            By issuing a notice after the expiry of the shelf life, the Applicant

has clearly lost its right to exercise the option available under 2.4.5(1) and

2.4.6 of the FSS Rules. Further along with the said notice, the report of the

Food Analyst was not provided to the Applicant despite a request being made.

In that view of the matter, the Applicant has also been denied its right of

preferring an Appeal under Section 46(4) of the FSS Act and Rule 2.4.6 of the

FSS Rules as the Food Analyst Report was never forwarded to the Applicant.

In view thereof, the rights available to the Applicant under the FSS Act have

been denied. I have noted that, the issuance of notice under Rule 2.4.1(4) and

Rule 2.4.5 of the FSS Rules is mandatory as the words used is “shall”.

10)           Perusal of the complaint would also indicate that, as regards the

present Applicant, who is Original Accused No.11 in the complaint, the


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offences alleged are under Section 26(2)(i), 3(zz)(iii) read with Regulation

2.1.6.3 of the Food Safety and Standards (Food Products Standards and Food

Additive) Regulations, 2011 and Section 59 of the FSS Act, 2006. Perusal of

the reply filed by Respondent No.2 indicates that, Respondent No.2 has now

sought to argue and make out a case for violation of Section 31(1) of the FSS

Act and a corresponding offence punishable under Section 63 of the FSS Act.

The case of Respondent No.2 in the complaint is not for violation of Section

31(1) or Section 63 of the FSS Act. Paragraph 6 of the complaint clearly

indicates that, Respondent No.2 had divided the sample into four equal parts.

Though the sampling was done, the notice issued to the Applicant was only

after the expiry of the shelf life and without forwarding or providing the

Applicant the Food Analyst Report. It is pertinent to note that, even in the

complaint, Respondent No.2 does not refer to the notice issued on 17 th May

2014 to the Applicant. Respondent No.2 has relied upon the Food Testing Lab

Report without providing the same to the Applicant. Further even the process

is issued against the Applicant under Section 26(2)(c), 3(zz)(iii) read with

regulation 2.1.6.3 of Food Safety & Standards (Food Products and Food

Additive) Regulations, 2011, Section 59 of FSS Act.

11)         Perusal of the Order of Issuance of Process indicates that, the said

Order is clearly a rubber stamp order and does not indicate or reflect any

application of mind. I have also noted that, original Accused Nos. 12 and 13

are situated at Baramati, District Pune and, therefore, beyond the territorial


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jurisdiction of the learned Additional Chief Metropolitan Magistrate, 46 th

Court at Mazgaon, Mumbai. Considering that some of the accused were

beyond the territorial jurisdiction, it was necessary that an enquiry under

Section 202 of the CrPC ought to have been conducted before issuance of

process. The said provision is clearly mandatory. There is no discretion

available or left to the Magistrate where the accused persons reside beyond

the territorial jurisdiction.

12)          Considering the aforesaid facts, in my opinion, the Respondent

No.2 has clearly failed to comply with the statutory provisions of the FSS Act.

It cannot be that the mandatory provisions and safeguards as provided under

the FSS Act which is a Special Act are not complied with in their proper letter

and spirit. It cannot be that, the noticee/proposed accused is denied the

opportunity which is available under the statute to prove its innocence or have

a probable defence. The main object of the FSS Act is to consolidate the laws

relating to food and establish the food safety and standards authority of India

for laying down science based standards for articles of food and to regulate

their manufacture, storage, distribution, sell or import to ensure availability of

safe and wholesome food for human consumption or matter connected their

with or incidental thereto. At the same time, it is also necessary to ensure that,

the procedural safeguards as provided under the said Act are complied in

letter and spirit. It is necessary that, the provisions of the FSS Act have to be

strictly complied with.


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13)           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. The peculiar circumstances of the present

case specifically the delay in issuing notice, the non-supply of the laboratory

testing report, and the consequent deprivation of the Applicant’s statutory

right to have the food sample tested by a referral laboratory and to file an

appeal render the continuation of the proceedings entirely untenable.

Allowing the criminal proceedings to continue in their present form would

amount to a clear abuse of the process of the Court. Therefore, to prevent

such abuse and to secure the ends of justice, it is imperative to invoke the

inherent powers of this Court under Section 482 of the Code of Criminal

Procedure (now Section 528 of the BNSS) to quash and set aside the present

proceedings.

14)           In view thereof, the Application is allowed in terms of prayer

clause (a).


                                      (RANJITSINHA RAJA BHONSALE, J.)




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