The Calcutta High Court has quashed criminal proceedings against the manager of a dairy manufacturing company in a case concerning lassi allegedly found to be contaminated with E. coli and coliform bacteria, holding that the manager could not be proceeded against vicariously when the manufacturing company itself had not been arraigned as an accused.

Justice Uday Kumar held that under Section 66 of the Food Safety and Standards Act, 2006 (FSS Act), the company's prosecution is foundational to fastening vicarious criminal liability on its manager or other persons in charge of its affairs.

“Vicarious criminal liability is a legal fiction created by statute; it cannot exist in a vacuum or operate independently,” the Court observed.

The case arose after a Food Safety Officer inspected a food stall at Bandel Railway Station and purchased eight packs of Britannia Winkin Cow Thick Lassi manufactured by M/s Schreiber Dynamix Dairies Private Limited. The sample was subsequently declared “unsafe food” on account of alleged E. coli and elevated coliform counts.

However, when the criminal complaint was filed, the manufacturing company was not made an accused. Instead, Partha Sarathi Tripathy was prosecuted in his individual capacity as the company's Manager.

The prosecution originated from an inspection conducted on March 11, 2021, at a retail food stall named “La-Fasta”, situated between Platforms 3 and 4 of Bandel Railway Station, Hooghly.

The Food Safety Officer, Eastern Railway, purchased eight 200 ml tetra packs of Britannia Winkin Cow Thick Lassi, bearing Lot No. 351044FA5 and packaged on February 13, 2021.

The products were manufactured by Schreiber Dynamix Dairies Private Limited and the eight packs were purchased for Rs.160.

One part of the sample was sent to the West Bengal Public Health Laboratory on March 12, 2021 for chemical and microbiological analysis. The eventual report declared the product “unsafe food”, citing the presence of E. coli and elevated coliform counts.

Following the report and administrative sanction, a complaint was filed against the stall handler, stall owner, marketer and Tripathy.

But the manufacturer itself was absent from the array of accused. The High Court held that this omission went to the root of the prosecution.

The Court explained that Section 66(1) of the FSS Act provides for liability of persons who were in charge of and responsible for the conduct of a company's business where an offence has been committed by the company.

“The commission of an offense by the company is the foundational sine qua non for attracting vicarious liability against its officers or employees,” the Court held.

It further observed: “Unless the primary offender, the corporate body, is formally arraigned as an accused and its penal liability is brought into the lis, no derivative or vicarious criminal liability can be fastened upon its individual directors, managers, or employees.”

Relying on the Supreme Court's decisions in Aneeta Hada v. Godfather Travels and Tours Private Limited and Sharad Kumar Sanghi v. Sangita Rane, the Court held that the same principle applies to prosecution under the FSS Act.

The Court rejected the contention that describing Tripathy as “The Manager, M/s. Schreiber Dynamix Dairies Pvt. Ltd.” was enough to satisfy Section 66.

“Arraigning an officer by their official designation does not equate in law to impleading the corporate entity itself as a distinct juristic person,” the Court said.

The failure to arraign the company constituted a “fatal, incurable jurisdictional defect that strikes at the root of the prosecution.”

The Court additionally considered the delay in the Food Analyst's report.

Although Section 46(3) of the FSS Act requires the report to be delivered within 14 days of receipt of the sample, the lassi sample received by the laboratory on March 12, 2021 was followed by a report generated only on May 20, 2021.

The authorities attributed the delay to COVID-19-related backlogs and staffing constraints.

The Court noted that the delay was particularly significant because lassi is a perishable product.

“Food products, particularly fermented dairy products like lassi, are perishable commodities subject to rapid natural biological degradation and microbial evolution,” the Court observed.

The 59-day gap, it held, created a “substantial grey area regarding sample integrity” and raised concerns about the accused's statutory right to seek re-analysis under Section 46(4).

The Court also found deficiencies in the statutory procedure under Sections 37 and 42 of the FSS Act, including concerns regarding the authorization of the Food Safety Officer and the manner in which the statutory chain leading to prosecution had been followed.

Ultimately, the Court held that the prosecution against Tripathy suffered from “incurable jurisdictional illegality, serious procedural non-compliance, and fatal prejudice caused by statutory delay.”

“Permitting such a proceeding to continue against the petitioner amounts to a flagrant abuse of the process of Court,” it observed.

The Court accordingly allowed the revision petition and quashed the proceedings in C.R. Case No. 384 of 2021 against Tripathy, along with the December 15, 2021 order taking cognizance against him.

The Court clarified that the order would not prevent continuation of proceedings, in accordance with law, against the remaining co-accused.

Case: PARTHA SARATHI TRIPATHY -VS- STATE OF WEST BENGAL & ORS.

Case No: CRR 4350 OF 2022

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