Bombay HC – Delay & Expired Shelf Life Vitiate Food Adulteration Case against Britannia

Britannia Company 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”).

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.

The report of the Food Analyst dated 14th August 2013 (Food Analyst Report) 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.

The subject product was purchased on 30th July 2013 from the Big Bazaar Store and sent for test/analysis on 31st July 2013. The report was prepared on 14th August 2013 and the complaint was filed on 28th 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 12th November 2013. The complaint has been filed after the expiry of the shelf life of the subject product.

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 4th 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.

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.

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.

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.

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.

Quashing of the criminal complaint and the Order for issuance of summons.

Judgment dated 11.9.2026 of the High Court of Bombay in Criminal Application No.842 of 2017 of Britannia Dairy Private Limited   Vs.  The State of Maharashtra and others