# Piyush Gupta & Anr v. State of U.P. & Anr

- **Citation:** (2025) 2 ILRA 160
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-02-10
- **Case number:** Application U/S 482 No. 25418 of 2024
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/piyush-gupta-anr-v-state-of-u-p-anr-54527
- **Pages:** 15

## Headnote

Criminal Law - Criminal Procedure Code,
1973- Section 482 - Food Safety &
Standards Act, 2006 - Sections 3(1)(n),
3(1)(o), 3(1)(y), 26, 26(2)(i), 26(4), 27,
42(4), 59(i) & 80 - Application U/s 482 -
challenging the summoning order as well as the
entire proceeding - Applicant is the employee of
applicant no. 2 who is running a restaurant -
dealing with selling different kind of prepared
food - inspection carried out by food safety
officer - sample of four sealed packets of
turmeric collected of Goldiee Masala Brand -
which were found having lead-chromate which
is harmful for human consumption - complaint
lodged - summon order issued U/s 59(1) of the
Act, 2006 - court finds that - it is not in dispute
that the applicant has purchased sealed packet
of turmeric powder from a licenced/registered
manufacturer and relied upon the information
given by the manufacturer of the turmeric
powder about the quality - if the turmeric
powder is found to be unsafe despite guarantee
of its quality - in that case, food business
operator dealing with business of selling the
2 All. Piyush Gupta & Anr. Vs. State of U.P. & Anr.
161
turmeric powder or its distributor would be
liable - held, the restaurant or its owner or any
of its employee selling the food is not liable -
consequently, the impugned proceeding against
the applicants deserve to be quashed -
accordingly, application is allowed - However,
the court below is free to proceed against the
manufacturer / distributor of the turmeric
powder who despite issuing an invoice regarding
its quality, failed to adhere to its standard.
(Para - 27, 28, 30)

Application Allowed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,765 of 45,208. This is a partial read: ask again with offset=39765 for what follows._

160 INDIAN LAW REPORTS ALLAHABAD SERIES
the Judge trying the case to record a
conviction based on the plea of guilt. If,
however, the accused does not plead guilty
or the learned Judge does not act on his
plea he must fix a date for the examination
of the witnesses i.e. the trial of the case...."

26. In view of the facts and
circumstances, which have been considered
above, the case laws considered above, the
impugned
order
dated
31.07.2024
(Annexure No.2) passed by the learned
Additional Chief Judicial Magistrate, Court
No.1/ Special Magistrate Court MP/MLA,
Gonda is hereby set aside/ quashed.

27. Since the part of the chargesheet relating to section 188 IPC has
already been set aside/ quashed by this
Court and the Public Prosecutor had
already filed an application withdrawing
the prosecution which would now be
relating to the subsequent part of the same
charge-sheet of section 341 IPC, therefore,
instead of relegating the matter to the
learned trial court to consider afresh, as I
do not find any fruitful purpose to remand
back the issue before the learned trial court,
but invoking power of this Court under
Section 528 B.N.S.S. (erstwhile under
Section 482 Cr.P.C.), I hereby hold that the
prosecution of Section 341 I.P.C., pursuant
to the Charge-Sheet No.77 of 2014, shall be
treated being withdrawn and the application
of the Public Prosecutor dated 03.11.2020
filed under Section 321 Cr.P.C., would be
treated to have been allowed.

28.
Accordingly,
the
instant
application is allowed.

29. No order as to costs.

Before parting with, I appreciate
the efforts and research made by Sri Piyush
Tripathi, Research Associate attached with
me as well as Ms. Ayushi Pandita, Law
Intern in finding out the relevant case laws
applicable in the present case.
---------
(2025) 2 ILRA 160
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 10.02.2025

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/S 482 No. 25418 of 2024

Piyush Gupta & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Kabeer Tiwari, Sr. Advocate

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973- Section 482 - Food Safety &
Standards Act, 2006 - Sections 3(1)(n),
3(1)(o), 3(1)(y), 26, 26(2)(i), 26(4), 27,
42(4), 59(i) & 80 - Application U/s 482 -
challenging the summoning order as well as the
entire proceeding - Applicant is the employee of
applicant no. 2 who is running a restaurant -
dealing with selling different kind of prepared
food - inspection carried out by food safety
officer - sample of four sealed packets of
turmeric collected of Goldiee Masala Brand -
which were found having lead-chromate which
is harmful for human consumption - complaint
lodged - summon order issued U/s 59(1) of the
Act, 2006 - court finds that - it is not in dispute
that the applicant has purchased sealed packet
of turmeric powder from a licenced/registered
manufacturer and relied upon the information
given by the manufacturer of the turmeric
powder about the quality - if the turmeric
powder is found to be unsafe despite guarantee
of its quality - in that case, food business
operator dealing with business of selling the
2 All. Piyush Gupta & Anr. Vs. State of U.P. & Anr.
161
turmeric powder or its distributor would be
liable - held, the restaurant or its owner or any
of its employee selling the food is not liable -
consequently, the impugned proceeding against
the applicants deserve to be quashed -
accordingly, application is allowed - However,
the court below is free to proceed against the
manufacturer / distributor of the turmeric
powder who despite issuing an invoice regarding
its quality, failed to adhere to its standard.
(Para - 27, 28, 30)

Application Allowed. (E-11)

List of Cases cited:

1. Food Inspector, Berhampur Municipality Vs P.
Mohan Rao (1988 Cr.LJ 1534) High court Orissa,

2. Gurumurty Patra Vs St. of Orissa (Criminal
Revision No. 24/1984 (MANU/OR/0272/1990),

3. Dinesh Kumar Vs St. of U..P & ors. (Criminal
Revision No. 55/1998 (200 Cr.:J 1879 - High
Court of HP),

4. Sri Mahaveer Agency and others Vs St.of W.B.
(Criminal Revision No. 982/2023 - AIR 2023 SC
2129 - Hon'ble Supreme Court).

5. Ran Kumar Vs St. of U.P. (2019 vol. 9 SCC
427),

6. Pyarali K. Tejani Vs Mahadev Ramchandra
Dange (1974 vol. 1 SCC 167),

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. I heard Sri Anil Tiwari, learned
Senior Counsel assisted by Sri Kabeer
Tiwari, learned counsel for the applicants,
and Sri Pankaj Saxena, learned AGA for
the State.

2. The instant application has been
filed to quash the summoning order dated
16.2.2024 passed by A.C.J.M.-I, Court
No.16, Shahjahanpur in Case No. 83 of
2024 (State vs. Piyush Gupta and others),
under Section 26(2)(i), 59(i) Food Safety
and Standards Act, 2006 (hereinafter
referred to as "Act, 2006") as well as the
entire proceeding of the aforesaid case.

Factual Matrix

3. Applicant No.1 is the employee of
applicant
No.2
which
is
the
sole
proprietorship concerned of Devendra
Singh Negi. Applicant No.2 is a restaurant,
dealing with selling different kinds of
prepared food. Initially Form-C lincence
under the Act, 2006 was issued to Rakhi
Arora on 11.2.2021. Subsequently, a FormC licence of applicant No.2 was transferred
in the name of Devendra Singh Negi on
11.2.2024. On 21.3.2023 premises of
applicant No.2 was inspected by Chief
Food Security Officer, Sahajahanpur along
with his team and on demand of the Chief
Food Security Officer, the applicant No.1
showed licence of applicant No.2 which
was valid up to 10.2.2024. Thereafter, the
Chief Food Security Officer purchased four
packets of turmeric powder out of five
packets of turmeric powder of Goldiee
Masala Brand, found in the premises of
applicant No.2. Thereafter, the sealed
packets of turmeric powder were sent for
examination
on
22.3.2023
to
the
Government Food Laboratory, Lucknow.
As per the report dated 15.5.2023 of the
food
analyst,
Government
Food
Laboratory, Lucknow, the sealed packets of
the turmeric powder were found having
lead chromate which is harmful for human
consumption,
hence
the
sample
was
declared unsafe. Thereafter, after getting
the required permission on 29.23.2023,
under Section 42(4) of the Food Safety and
Security Act, 2006 (hereinafter referred to
as "Act,2006"), from the Commissioner
Food Security, Lucknow, the complaint
was filed by the Food Security Officer,
162 INDIAN LAW REPORTS ALLAHABAD SERIES
Sahjahanpur on 9.2.2024. Thereafter, on
perusal of the complaint and other
document, learned Magistrate has taken
cognizance and issued summon under
Section 59(1) of the Act, 2006 to the
applicants by order dated 16.2.2024 which
is impugned in the present application.

Submission of learned counsel for
the applicants

4. Sri Anil Tiwari, learned Senior
Advocate assisted by Sri Kabeer Tiwari,
learned counsel for the applicants, has
submitted
that
applicant
No.2
had
purchased sealed packets of turmeric
powder of Goldiee Masala Brand from his
licenced manufacturer and properly stored
the same in the state it was purchased. If
any ingredient is found in the sealed packet
of the turmeric powder of a branded
company that made it unsafe, then there
will be no liability of the applicants and it
is the manufacturer of the turmeric powder
who will be liable for that. It is further
submitted that the applicants were not
selling the turmeric powder of Goldiee
Masala Brand, but they were using the
same while preparing the food that was
served to the customers subsequently.
Therefore, applicant No.2 will not fall
within the definition of food business
operator but it will fall within the definition
of consumer.

5. It is further submitted by learned
counsel for the applicants that even if for
the sake of argument if the applicant is
treated as food business operator then he
will be liable under Section 26(2) of the
Act, 2006 only when it stores any article of
food for the purpose of sale, but applicant
No.2 did not store the turmeric powder of
Goldiee Masala Brand for sale but it stored
the same for consumption to prepare food
in the restaurant without any knowledge
about the contents of the sealed packet of
turmeric powder of Goldiee Masala Brand.
Therefore, applicants cannot be held liable
under Section 26(2) of the Act, 2006. It is
also submitted that the liability of the food
business operator at the most could be a
strict liability and not the absolute liability
as of the manufacturer under Section 27 of
the Act, 2006.

6. It is lastly submitted by the
learned Senior Counsel that applicant No.2
is involved in the business of selling
prepared food, therefore, the sample of
sealed packet of turmeric powder of
Goldiee Masala Brand is not the sample of
food prepared by applicant No.2. In support
of his contention, learned counsel for the
applicants has relied upon the following
judgements:-

 (i) Food Inspector, Berhampur
Municipality vs. P. Mohan Rao; 1988
Cr.L.J. 1534 (High Court of Orissa)

(ii) Gurumurty Patra vs. State of
Orissa; Criminal Revision No. 24 of 1984
(MANU/OR/0272/1990)

(iii) Dinesh Kumar vs. State of
U.P. and others; Criminal Revision No. 55
of 1998 (2000 Cr.L.J. 1879) (High Court of
H.P.)

(iv) Sri Mahaveer Agency and
others vs. State of West Bengal; Criminal
Appeal No. 982 of 2023 (AIR 2023 SC
2129) (Hon'ble Supreme Court).

Submission of learned A.G.A. for the
State

7. Sri Pankaj Saxena, learned
A.G.A. has submitted that the sealed
packets of the turmeric powder of Goldiee
Masala Brand found in the premises of
applicant No.2 were declared unsafe based
2 All. Piyush Gupta & Anr. Vs. State of U.P. & Anr.
163
on the report of the food analyst, which was
being used by applicant No.2 in cooking
food which was to be subsequently sold to
the
consumers
in
the
restaurant
of
applicants. It is further submitted by
learned A.G.A. that the food business
operator has to ensure that food articles
satisfy the requirement of the Act and the
rules and regulations there under the Act
within the business under their control.
Since the sealed packets of turmeric
powder, recovered from the premises of
applicant No.2, were unsafe and were
stored by it for human consumption,
therefore, ingredients of Section 26(2)(i) of
the Act, 2006 are attracted. In support of
his contention, learned A.G.A. has relied
upon the judgement of the Apex Court in
the case of Raj Kumar vs. State of U.P.;
2019 (9) SCC 427 wherein in paragraph
No.8, the Apex Court has observed that
once all the standards are laid down by the
legislature under the Prevention of Food
Adulteration Act, then those standards have
to be followed. Learned A.G.A. further
relied upon the judgement of the Apex
Court in Pyarali K. Tejani v. Mahadev
Ramchandra Dange; (1974) 1 SCC 167 in
which the Apex Court, while considering
the provision of Sections 14 and 19 of the
Prevention of Food Adulteration Act,
observed that the question of exculpation of
accused based on a warranty will not detain
the court to reject such contention of law
specifically provides action as the food
laws should be interpreted strictly.

8. It is further submitted by learned
A.G.A. that the argument raised by the
applicants are their defence which can be
considered during trial. Therefore, no
ground
for
quashing
the
impugned
proceeding is made out and the application
deserves to be dismissed.

Analysis and Conclusion

9. From the averments as well as
facts on record, it is clear that applicant
No.2 is dealing with the business of selling
food in its premises after preparing the
same in which it uses different ingredients
of food items including different spices and
turmeric power of sealed packet of a
branded company. Now the question arises
if applicant No.2 in preparation of food
used purchased sealed packets of turmeric
power of a branded company, then whether
it would be liable if the sealed turmeric
powder is found to be unsafe even though
applicant No.2 purchased the same after
getting proper bills which is prima facie a
proof of guarantee of the quality of sealed
turmeric powder. Another question arises
whether the restaurant, which is serving
food in exchange of money, would be
deemed to be food business operator under
Section 3(1)(n) of Act, 2006 merely for
storing the sealed packet of turmeric
powder of a branded company which could
subsequently be used in preparation of
food.

10. To proceed further, it would be
appropriate to first decide the question
whether applicant No.2 (restaurant) would
fall within the definition of "food business
operator" merely on storing sealed turmeric
powder,
purchased
from
a
branded
company with warranty regarding its
quality.

11. It is no more undisputed that
turmeric
powder
comes
within
the
definition of "food" as the same is
consumed by human being by mixing it
with other food items. Therefore, the
turmeric powder will fall under the
category of food ingredients as per Section
164 INDIAN LAW REPORTS ALLAHABAD SERIES
3(1)(y) of Act, 2006. Section 3(1)(y) of the
Act, 2006 is being quoted as under:-

 "3(1)(y) "ingredient" means any
substance, including a food additive used in
the manufacture or preparation of food and
present in the final product, possibly in a
modified form"
12. "Food business" is defined in
Section
3(1)(n)
and
"food
business
operator" is defined in Section 3(1)(o) of
the Act, 2006 which are quoted as under:-

"3(1)(n) "food business" means
any undertaking, whether for profit or not
and whether public or private, carrying out
any of the activities related to any stage of
manufacture,
processing,
packaging,
storage, transportation, distribution of
food, import and includes food services,
catering services, sale of food or food
ingredients

3(1)(o) "food business operator"
in relation to food business means a person
by whom the business is carried on or
owned and is responsible for ensuring the
compliance
of
this
Act,
rules
and
regulations made thereunder."

13. As per the Food Safety and
Standards (Food Products Standard and
Food Additives) Regulations, 2011, which
prescribes the food product standard,
Turmeric Powder (Haldi) falls within the
category of food product as per Regulation
2.9.18 and as per Regulation 2.9.18(2)
Turmeric Powder (Haldi) would also fall
within the definition of a food product.
Regulation 2.9.18 is quoted as under:-

 "2.9.18: Turmeric (Haldi)

1. Turmeric (Haldi) whole means
the
primary
or
secondary
rhizomes
commercially called bulbs or fingers of
Curcuma Longa L. The rhizomes shall be
cured by soaking them in boiling water and
then drying them to avoid regeneration.
The rhizome be in natural state or machine
polished.
The
product
shall
have
characteristic odour and flavour and shall
be free from mustiness or other foreign
flavours. It shall be free from mould, living
and dead insects, insect fragments, rodent
contamination. The product shall be free
from Lead Chromate added starch and any
other extraneous colouring matter.

It shall conform to the following
standards-

(i)
Extraneous matter
Not more than 1.0 per
cent by weight
(ii)
Defective Rhizomes
Not more than 5.0 per
cent by weight
(iii)
Moisture
Not more than 12.0 per
cent by weight
(iv)
Insect
damaged
matter
Not more than 1.0 per
cent by weight
(v)
Test
for
lead
chromate
Negative

Explanation.-Defective rhizomes
consist of shrivelled fingers and or bulbs
internally damaged, hollow or porous
rhizomes scorched by boiling and other
types of damaged rhizomes.

2.
Turmeric
(Haldi)
powder
means the powder obtained by grinding
dried rhizomes or bulbous roots of
Curcuma Longa L. The powder shall have
characteristic odour and flavour and shall
be free from mustiness or other foreign
odour. It shall be free from mould, living
and dead insects, insect fragments, rodent
contamination. The powder shall be free
from any added colouring matter including
Lead
Chromate
and
morphologically
extraneous matter including foreign starch.

It shall conform to the following
standards:-
(i)
Moisture
Not more than 10.0
per cent by weight
(ii)
Total ash on dry basis
Not more than 9.0 per
cent by weight
(iii)
Ash insoluble in dil
HCl on dry basis
Not more than 1.5 per
cent by weight
2 All. Piyush Gupta & Anr. Vs. State of U.P. & Anr.
165
(iv)
Colouring
power
expressed
as
curcuminoid
content
on dry basis
Not less than 2.0 per
cent by weight
(v)
Total Starch
Not more than 60.0
per cent by weight
(vi)
Test for lead chromate
Negative

14. Therefore, it is no more in dispute
that Turmeric Powder (Haldi) is also a food
product being food ingredient.

15. From the above definition of
"food business", it is clear that a restaurant,
which carries out the activity of food
service, will come within the definition of
food business operator for the purpose of
food prepared in the restaurant. It is also
clear from the above definition of food
business that restaurant cannot be treated as
food business operator for food ingredient
unless it sells the same.

16. In the present case, licence to
the applicant No.2 was issued under
Section 31 of the Act, 2006 in Form C
which shows that the licence was given to
applicant No.2 for food services of the
restaurant for the following three products:-

 "(i) edible ices including sherbet
and sorbe

(ii) beverages including dairy
products

(iii) prepared foods"

17. As per Regulation 2.1.2(5) of
the Food Safety and Standards (Licencing
and
Registration
of
Food
Business)
Regulations, 2011, the food business
operator shall ensure that all the conditions
of the licence as provided in Annexure-3 of
Form-B in Schedule-2 and safety, sanitary,
hygiene
requirements
provided
in
Schedule-IV, contained under different
parts depending on the nature of business,
are complied with at all times. For
reference, Regulation 2.1.2(5) is being
quoted as under:-

"2.1.2
License
for
food
business.-

(5) The Food Business Operator
shall ensure that all conditions of license as
provided in Annexure 3 of Form B in
Schedule 2 and safety, sanitary and
hygienic requirements provided in the
Schedule 4 contained under different Parts
depending on nature of business are
complied with at all times:

Provided
that
the
Licensing
Authority shall ensure periodical food
safety audit and inspection of the licensed
establishments through its own or agencies
authorized for this purpose by the FSSAI:

Provided further that no person
shall manufacture, import, sell, stock,
exhibit for distribution or sale any article
of food which has been subjected to the
treatment of irradiation, except under a
license obtained from Department of
Atomic Energy under the Atomic Energy
(Control
of
Irradiation
of
Food)
Regulations, 1996."

18. The conditions which are
required to be complied with by a food
business operator as per Annexure-3 of
Form B in Schedule 2 are being quoted as
under:-

"SCHEDULE 2
Form B
Annexure 3
Conditions of License
All Food Business Operators shall ensure
that the following conditions are complied
with at all times during the course of its
food business.
Food Business Operators shall:
1. Display a true copy of the
license granted in Form C
166 INDIAN LAW REPORTS ALLAHABAD SERIES
shall at all times at a
prominent place in the
premises.
2. Give necessary access to
Licensing Authorities or
their authorised personnel
to the premises.
3. Inform Authorities about
any
change
or
modifications
in
activities/content
of
license.
4. Employ
at
least
one
technical
person
to
supervise the production
process.
The
person
supervising the production
process shall possess at
least a degree in Science
with
Chemistry/BioChemistry/Food
and
Nutrition/Microbiology or
a degree or diploma in
Food
Technology/Dairy
Technology/Dairy
Microbiology/Dairy
Chemistry/Dairy
Engineering/Oil
Technology/Veterinary
Science/Hotel
Management and Catering
Technology or any degree
or diploma in any other
discipline related to the
specific requirements of
the
business
from
a
recognized university or
institute or equivalent.
5. Furnish periodic annual
return (1st April to 31st
March), within up to 31st
May of each year. For
collection/handling/manuf
acturing of Milk and Milk
Products
half
yearly
returns
also
to
be
furnished as specified (1st
April to 31st September
before 30th November and
1st
October
to
31st
March).
6. Ensure that no product
other than the product
indicated
in
the
license/registration
is
produced in the unit.
7. Maintain
factory's
sanitary
and
hygienic
standards and worker's
Hygiene as specified in the
Schedule - 4 according to
the
category
of
food
business.
8. Maintain daily records of
production, raw materials
utilization
and
sales
separately.
9. Ensure that the source
and standards of raw
material
used
are
of
optimum quality.
1
0.
Food Business Operator
shall
not
manufacture,
store or expose for sale or
permit the sale of any
article of food in any
premises not effectively
separated
to
the
satisfaction
of
the
licensing authority from
any privy, urinal, sullage,
drain or place of storage
of foul and waste matter.
1
1.
Ensure
Clean-In-Place
systems
(wherever
necessary)
for
regular
cleaning of the machine
and equipments.
1
2.
Ensure testing of relevant
chemical
and/or
2 All. Piyush Gupta & Anr. Vs. State of U.P. & Anr.
167
microbiological
contaminants
in
food
products in accordance
with these regulations as
frequently as required on
the basis of historical data
and risk assessment to
ensure
production
and
delivery
of
safe
food
through own or NABL
accredited/FSSA notified
labs at least once in six
months.
1
3.
Ensure that as much as
possible
the
required
temperature
shall
be
maintained throughout the
supply chain from the
place of procurement or
sourcing till it reaches the
end consumer including
chilling,
transportation,
storage etc.

1
4.
The
manufacturer/importer/di
stributor shall buy and
sell food products only
from,
or
to,
licensed/registered
vendors
and
maintain
record thereof.
Other conditions
1. Proprietors
of
hotels,
restaurants and other food
stalls who sell or expose
for sale savouries, sweets
or other articles of food
shall put up a notice
board containing separate
lists of the articles which
have been cooked in ghee,
edible oil, vanaspati and
other
fats
for
the
information
of
the
intending purchasers.
2. Food Business Operator
selling
cooked
or
prepared
food
shall
display a notice board
containing the nature of
articles being exposed for
sale.
3. Every
manufacturer
[including
ghani
operator] or wholesale
dealer in butter, ghee,
vanaspati,
edible
oils,
solvent extracted oil, deoiled meal, edible flour
and any other fats shall
maintain
a
register
showing the quantity of
manufactured, received or
sold, nature of oil seed
used and quantity of deoiled meal and edible
flour
used
etc.
as
applicable
and
the
destination
of
each
consignment
of
the
substances sent out from
his factory or place of
business, and shall present
such
register
for
inspection
whenever
required to do so by the
Licensing Authority.

4. No
producer
or
manufacturer of vegetable
oil, edible oil and their
products shall be eligible
for license under this Act,
unless
he
has
own
laboratory
facility
for
analytical
testing
of
samples.

5. Every sale or movement of
stocks of solvent-extracted
oil, 'semi-refined' or 'raw
grade I', edible groundnut
168 INDIAN LAW REPORTS ALLAHABAD SERIES
flour or edible coconut
flour, or both by the
producer shall be a sale
or movement of stocks
directly to a registered
user and not to any other
person, and no such sale
or movement shall be
effected through any third
party.
6.
Every quantity of solventextracted
oil,
edible
groundnut flour or edible
coconut flour, or both
purchased by a registered
user shall be used by him
in his own factory entirely
for the purpose intended
and shall not be re-sold or
otherwise transferred to
any other person:

Provided that nothing in
this sub-clause shall apply
to the sale or movement of
the following:-

(i)
karanjia
oil;

(ii)
kusum
oil;

(iii)
mahua
oil;

(iv)
neem oil;

(v)
(vi)
tamarind
seed oil.

(vii)
edible
groundnu
t
flour
bearing
the I.S.I.
Certificat
ion
Mark.

(viii)
edible
coconut
flour
bearing
the I.S.I.
Certificat
ion
Mark.
7. No
Food
Business
Operator shall sell or
distribute or offer for sale
or dispatch or deliver to
any person for purpose of
sale any edible oil which
is not packed, marked and
labelled in the manner
specified
in
the
regulations
unless
specifically exempted from
this
condition
vide
notification in the Official
Gazette
issued
in
the
public interest by Food
Safety Commissioners in
specific circumstances and
for a specific period and
for reasons to be recorded
in writing.

19. Similarly, sanitary and hygiene
requirement are provided in Part-II of
Schedule 4 for the restaurant. The relevant
extract of Part-II of Schedule 4 is being
quoted as under:-

"SCHEDULE 2
Part II

General
Requirements
on
Hygienic and Sanitary Practices to be
followed by all Food Business Operators
applying for License
 The establishment in which food
is being handled, processed, manufactured,
packed, stored, and distributed by the food
business operator and the persons handling
them should conform to the sanitary and
hygienic requirement, food safety measures
2 All. Piyush Gupta & Anr. Vs. State of U.P. & Anr.
169
and other standards as specified below. It
shall
also
be
deemed
to
be
the
responsibility of the food business operator
to
ensure
adherence
to
necessary
requirements.

In addition to the requirements
specified below, the food business operator
shall identify steps in the activities of food
business, which are critical to ensure food
safety, and ensure that safety procedures
are identified, implemented, maintained
and reviewed periodically.

1.
LOCATION
AND
SURROUNDINGS

.........

.........

5. FOOD OPERATIONS AND
CONTROLS

5.1
Procurement
of
raw
materials-

5.1.1
No
raw
material
or
ingredient thereof shall be accepted by an
establishment if it is known to contain
parasites, undesirable micro-organisms,
pesticides, veterinary drugs or toxic items,
decomposed or extraneous substances,
which would not be reduced to an
acceptable level by normal sorting and/or
processing.

5.1.2 All raw materials, food
additives
and
ingredients,
wherever
applicable, shall conform to all the
regulations and standards laid down under
the Act.

5.1.3 Records of raw materials,
food additives and ingredients as well as
their source of procurement shall be
maintained in a register for inspection.

5.1.4 All raw materials should be
checked
and
cleaned physically
and
thoroughly.

5.1.5 Raw materials should be
purchased in quantities that correspond to
storage/preservation capacity.

5.1.6 Packaged raw material
must be checked for 'expiry date'/'best
before'/'use by' date, packaging integrity
and storage conditions.

5.1.7 Receiving temperature of
potentially high risk food should be at or
below 5°C.

5.1.8 Receiving temperature of
frozen food should be 8°C or below.

5.2 Storage of raw materials and
food-

5.2.1 Food storage facilities shall
be designed and constructed to enable food
to
be
effectively
protected
from
contamination
during
storage;
permit
adequate maintenance and cleaning, to
avoid pest access and accumulation.

5.2.2
Cold
Storage
facility,
wherever required, shall be provided to
raw, processed/packed food according to
the type and requirement.

5.2.3
Segregation
shall
be
provided for the storage of raw, processed,
rejected, recalled or returned materials or
products which will be distinguishably
marked and secured. Raw materials and
food shall be stored in separate areas from
printed packaging materials, stationery,
hardware
and
cleaning
materials/
chemicals.

5.2.4 Raw food, particularly
meat, poultry and seafood products shall be
cold stored separately from the area of
work-in-progress, processed, cooked and
packaged products. The conditions of
storage in terms of temperature and
humidity requisite for enhancing the shelf
life
of
the
respective
food
materials/products shall be maintained.

5.2.5 Storage of raw materials,
ingredients,
work-in-progress
and
processed/cooked
or
packaged
food
products shall be subject to FIFO (First in,
First Out), FEFO (First Expire First Out)
stock rotation system as applicable.
170 INDIAN LAW REPORTS ALLAHABAD SERIES

5.2.6 Containers made of nontoxic materials shall be provided for
storage of raw materials, work-in-progress
and finished/ready to serve products. The
food
materials
shall
be
stored
on
racks/pallets such that they are reasonably
well above the floor level and away from
the wall so as to facilitate effective cleaning
and prevent harbouring of any pests,
insects or rodents.

5.3
Food
Processing/Preparation, Packaging and
Distribution/Service-

5.3.1. Time and temperature
control.
 5.3.1.1 The Food Business shall
develop and maintain the systems to ensure
that time and temperature are controlled
effectively where it is critical to the safety
and suitability of food. Such control shall
include time and temperature of receiving,
processing, cooking, cooling, storage,
packaging, distribution and food service up
to the consumer, as applicable.

5.3.1.2 Whenever frozen food/raw
materials
are
being
used/handled/transported,
proper
care
should be taken so that defrosted/thawed
material are not stored back after opening
for future use.

5.3.1.3 If thawing is required then
only required portion of the food should be
thawed at a time.

5.3.1.4 Wherever cooking is done
on
open
fire,
proper
outlets
for
smoke/steam etc. like chimney, exhaust fan
etc. shall be provided.

5.4 Food Packaging-

................"

20. From the perusal of the above
mentioned conditions for food business
operator (restaurant), it is clear that as per
Condition No.14 of Annexure-3, the
manufacturer or distributor shall buy food
products only from a licenced/registered
vendor and maintain the record thereof.
Similarly, Condition No.9 of the Annexure3 provides that food business operator will
ensure that the source and standards of raw
material used are of optimum quality.
Similarly, as per the condition No. 5.1.2,
5.1.3 as well as 5.1.6, mentioned in Part-II
of Schedule 4 of the Food Safety and
Standards (Licencing and Registration of
Food Business) Regulations, 2011, all the
raw materials or ingredients shall conform
to all the standards and regulations and the
register should be maintained regarding
their source of procurement with further
direction that the raw material should be
used before the expiry date.

21. So far as the other question,
regarding the liability of applicant No.2
being food business operator merely on
storing the turmeric powder, purchased
from a branded company is concerned, for
that purpose Section 3(1)(o) of Act, 2006
itself provides that food business operator
is responsible for ensuring compliance of
this Act, rules and regulations. Therefore, a
further question arises whether a restaurant,
while storing the sealed turmeric powder,
purchased from a branded company with its
warranty regarding its quality, will be
under the compliance of the Act, rules or
regulations for ensuring proper ingredients
of turmeric powder so that it does not fall
within the definition of "unsafe food".
Responsibility
of
the
food
business
operator has been prescribed in Section 26
of the Act, 2006 which includes against
storing of unsafe food. Section 26 of the
Act, 2006 is quoted as under:-

"26. Responsibilities of the food
business
operator.-(1)
Every
food
business operator shall ensure that the
articles of food satisfy the requirements of
2 All. Piyush Gupta & Anr. Vs. State of U.P. & Anr.
171
this Act and the rules and regulations made
thereunder at all stages of production,
processing, import, distribution and sale
within the businesses under his control.

(2) No food business operator
shall himself or by any person on his behalf
manufacture, store, sell or distribute any
article of food-

(i) which is unsafe; or

(ii) which is misbranded or substandard or contains extraneous matter; or

(iii) for which a licence is
required, except in accordance with the
conditions of the licence; or

(iv) which is for the time being
prohibited by the Food Authority or the
Central
Government
or
the
State
Government in the interest of public health;
or

(v) in contravention of any other
provision of this Act or of any rule or
regulation made thereunder.

(3) No food business operator
shall employ any person who is suffering
from infectious, contagious or loathsome
disease.

(4) No food business operator
shall sell or offer for sale any article of
food to any vendor unless he also gives a
guarantee in writing in the form specified
by regulations about the nature and quality
of such article to the vendor:

Provided that a bill, cash memo,
or invoice in respect of the sale of any
article of food given by a food business
operator to the vendor shall be deemed to
be a guarantee under this section, even if a
guarantee in the specified form is not
included in the bill, cash memo or invoice.

(5) Where any food which is
unsafe is part of a batch, lot or
consignment of food of the same class or
description, it shall be presumed that all
the food in that batch, lot or consignment is
also unsafe, unless following a detailed
assessment within a specified time, it is
found that there is no evidence that the rest
of the batch, lot or consignment is unsafe:

Provided that any conformity of a
food with specific provisions applicable to
that food shall be without prejudice to the
competent authorities taking appropriate
measures to impose restrictions on that
food being placed on the market or to
require its withdrawal from the market for
the reasons to be recorded in writing where
such authorities suspect that, despite the
conformity, the food is unsafe."

22. From the perusal of Section 26
of the Act, 2006, it is clear that the
responsibility of food business operator is
to comply with the requirement of the Act,
rules and regulations made therein at all
stages of production, distribution or sale
and he will not store any article of food
which is unsafe. Section 26(4) of the Act,
2006 further provides that the food
business operator will not sell any article of
food without giving a guarantee in writing
for its nature and quality and bill, cash
memo, or invoice in respect of the sale of
any article of food shall be deemed to be
guaranteed under this Act.

23. Several cases cited by the
counsel for the applicant relates to Section
19 of Prevention of Food Adulteration Act
which has been repealed as on date by the
Act, 2006, but the defence, available under
Section 19 against the sale of adulterated
food if same was purchased from a duly
licensed manufacturer, is also available to
some extent under Section 80 of the Act,
2006. Section 80 of the Act, 2006 is quoted
as under:-

"80. Defences which may or may
not be allowed in prosecution under this
172 INDIAN LAW REPORTS ALLAHABAD SERIES
Act.-(A) Defence relating to publication of
advertisements-

(1) In any proceeding for an offence
under this Act in relation to the publication of
an advertisement, it is a defence for a person
to prove that the person carried on the
business of publishing or arranging for the
publication of advertisements and that the
person published or arranged for the
publication of the advertisement in question in
the ordinary course of that business.

(2) Clause (1) does not apply if the
person-

(a) should reasonably have known
that the publication of the advertisement was
an offence; or

(b) had previously been informed in
writing by the relevant authority that
publication of such an advertisement would
constitute an offence; or

(c) is the food business operator or
is otherwise engaged in the conduct of a food
business
for
which
the
advertisements
concerned were published.

(B) Defence of due diligence-

(1) In any proceedings for an
offence, it is a defence if it is proved that the
person took all reasonable precautions and
exercised all due diligence to prevent the
commission of the offence by such person or
by another person under the person's control.

(2) Without limiting the ways in
which
a
person
may
satisfy
the
requirements of clause (1), a person
satisfies those requirements if it is proved-

(a) that the commission of the
offence was due to-

(i) an act or default of another
person; or

(ii)
reliance
on
information
supplied by another person; and

(b)(i) the person carried out all
such checks of the food concerned as were
reasonable in all the circumstances; or

(ii) it was reasonable in all the
circumstances to rely on checks carried out
by the person who supplied such food to the
person; and

(c) that the person did not import
the food into the jurisdiction from another
country; and

(d) in the case of an offence
involving the sale of food, that-

(i) the person sold the food in the
same condition as and when the person
purchased it; or

(ii) the person sold the food in a
different condition to that in which the
person purchased it, but that the difference
did not result in any contravention of this
Act or the rules and regulations made
thereunder; and

(e) that the person did not know
and had no reason to suspect at the time of
commission of the alleged offence that the
person's act or omission would constitute
an offence under the relevant section.

(3) In sub-clause (a) of clause
(2), another person does not include a
person who was-

(a) an employee or agent of the
defendant; or

(b) in the case of a defendant
which is a company, a director, employee
or agent of that company.

(4) Without limiting the ways in
which
a
person
may
satisfy
the
requirements of clause (1) and item (i) of
sub-clause (b) of clause (2), a person may
satisfy those requirements by proving
that-

(a) in the case of an offence
relating to a food business for which a food
safety programme is required to be
prepared
in
accordance
with
the
regulations, the person complied with a
food safety programme for the food
business
that
complies
with
the
requirements of the regulations, or
2 All. Piyush Gupta & Anr. Vs. State of U.P. & Anr.
173

(b) in any other case, the person
complied with a scheme (for example, a
quality
assurance
programme
or
an
industry code of practice) that was-

(i) designated to manage food
safety hazards and based on national or
international
standards,
codes
or
guidelines designed for that purpose, and

(ii) documented in some manner.

(C) Defence of mistaken and
reasonable belief not available-

In any proceedings for an offence
under the provisions of this Act, it is no
defence that the defendant had a mistaken
but reasonable belief as to the facts that
constituted the offence.

(D)
Defence
in
respect
of
handling food-

In proceedings for an offence
under Section 56, it is a defence if it is
proved that the person caused the food to
which the offence relates to be destroyed or
otherwise disposed of immediately after the
food was handled in the manner that was
likely to render it unsafe.

(E) Defences of significance of
the nature, substance or quality of food-

It shall be no defence in a
prosecution for an offence pertaining to the
sale of any unsafe or misbranded article of
food to allege merely that the food business
operator was ignorant of the nature,
substance or quality of the food sold by him
or that the purchaser having purchased any
article for analysis was not prejudiced by
the sale."

24.