Calcutta High Court (Appellete Side)
Sailesh Venkatesan vs The State Of West Bengal & Anr on 8 July, 2026
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:-
HON'BLE JUSTICE CHAITALI CHATTERJEE DAS.
CRR 558 OF 2022
SAILESH VENKATESAN
VS.
THE STATE OF WEST BENGAL & ANR.
For the Petitioner : Mr. Sudipto Sarkar, Sr.Adv.
Mr. R. Jawhar Lal, Adv.
Mr. S. Prasad, Adv.
Mr. Daipayan Dan, Adv.
Ms. Meghna Kumar, Adv.
For the State : Mr. Debasish Roy, Learned Public Prosecutor.
Mr. Saryati Dutta, Adv.
Ms. K. Roy, Adv.
Reserved On : 07.04.2026
Judgement on : 08.07.2026
Uploaded on : 08.07.2026
CHAITALI CHATTERJEE DAS, J.:-
1.
This is an application filed under Section 482 of Code of Criminal Procedure
1973 for quashing of the proceeding in Charu Market P.S. case no. 333 of
2015 and charge sheet no. 190 of 2021 dated 06.09.2021 under Section
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269/270/272/273 and 114 of the Indian Penal Code ,1860 read with Section
51 and 59 (ii) of the Food Safety and Standards Act,2006, pending in the Court
of Learned Chief Judicial Magistrate, Alipore and quashing of order dated
07.10.2021 taking cognizance of the charge sheet and issuing summons to the
petitioner.
Fact of the case
2. Draped in brevity the fact of the case is that, Mead Johnson Group has its
presence in over fifty countries and has over 70 products focussed on infant
and Child Nutrition with a global turnover of USD 4 billion approx. Rupees
33.350 crore. One of Mead Johnson product is Enfamil A+ Stage 3 follow up
formula for children ( Enfamil A+3) meant supplement for infant (12 to 24
months) was imported and distributed by Mead Johnson India . The petitioner
was appointed as an Additional Director of MJN India in the month of March
2009, and subsequently appointed as a Director in the month of December
2009. On 15.06.2009 the petitioner was appointed as a Managing Director of
MJN India. A private complaint was filed by one Ms. Ayesha Ali with the
Opposite Party no. 2 Police Station alleging that she was feeding Enfamil A+
Stage 3 to her baby and black dust particles were found (mould) .Further on
8.11.2015 she bought Enfamil A+ Stage 3 and had claimed that on opening
the container, she found the live insect and she apprehend that due to the
inferior quality of food her baby suffered earlier.. The complaint was lodged on
10.11.2015 and it was registered on the same day under the aforesaid Section
against manufacturing Company of Enfamil A+ Stage 3 (1) Manufacturing
Company of Enfamil A+ Stage 3 and (2) Med plus that is the shop from where
complainant alleged to have purchased the product. Nearly 4 years after
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registration of FIR a notice was sent to MJN India from the Investigation
Officer under Section 91 of Cr.P.C. and a detailed reply was given on
05.06.2019 and after 2 years from such reply a notice was issued under
Section 161 of Cr.P.c to the Director of MJN India and MJN approached this
High Court under Section 482 of Cr.P.C for quashing of the said complaint and
further proceeding was stayed for 8 weeks. After that on 07.09.2021 the
charge sheet was submitted against three persons as accused and name of
MJN is dropped and the present petitioner is included as accused no.3. Other
accused are the distributor and the owner of the medicine shop. The Learned
Trial Court took cognizance on 07.10.2021 and also issued summons against
which the present revisional application has been filed by the petitioner.
Submissions
3. The Learned Senior Counsel appearing on behalf of the petitioner Mr. Sudipta
Sarkar made arguments raising the following points ;
The sections invoked in the charge sheet are not maintainable since it was
alleged violation of FSS Act as the specific allegation in the FIR was that
Enfamil A+ Stage 3 is the sub-standard and unsafe and hence there is no
basis to invoke the provision of the Indian Penal Code as the FSS Act overrides
the Indian Penal Code.
Section 89 of FSS Act overrides other enactment and in this regard placed
reliance on the judgement of the Hon’ble Supreme Court in Ramnath versus
State of UP1 Paragraph 25 to 27.It is further submitted in the decision of
Ramnath (Supra) the judgement of the Hon’ble Allahabad High Court in
Pepsico India Holding Private Limited and Another vs. State of UP and
1
2024 SCC Online SC 177
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Ors.2 was considered where quashed the prosecution under Section 272 and
273 of Indian Penal Code on the ground that with effect from 29.07.2010 when
Section 97 of FSS Act came into force ,action with respect to quality of food
only had to be taken by statutory authorities created under the FSS Act and
Police do not have the power to invoke Indian Penal Code.
4. The other point raised by the Learned Senior Counsel is that the cognizance
taken by the Trial Court is barred by the period of limitation prescribed under
Section 77 FSS Act. In terms of the Section 77 no court shall take cognizance
of an offence under the Act after the expiry of the period of 1 year from the
date of commission of an offence. Therefore even if it is assumed without
admitting that Opposite Party no. 2 has jurisdiction to file a complaint in
respect of offences under FSS Act and it came to be filed after obtaining
extension from the Commissioner of Food Safety under proviso to Section 77 of
FSS Act the Learned Trial Court took cognizance beyond the period of
limitation prescribed under Section 77 of FSS Act. The complainant was
supposed to have purchased the product on 08.11.15 and FIR was registered
on 10.11.25 and the charge sheet was filed more than 6 years on 07.09.21 and
the cognizance was taken after 6 years from the date of alleged crime of offence
hence it is hit by the limitation prescribed in Section 77 of FSS Act.
5. It is further argued that police authorities do not have the jurisdiction to
register FIR under the FSS Act since there is specific provision under the 51,
penalty for sub-standard food and Section 59 which provides for punishment
for sale of unsafe food and also that violation or contravention results in non-
grievance for a term which may extent to 1 year and with fine which may
2
(2010) SCC Online ALL 1708
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extent to 3 Lakhs Rupees. Therefore the FIR and the charge sheet is without
jurisdiction in term of Section 29(1) of FSS Act and food authorities and State
food authorities alone are responsible enforcement of FSS Act. Since exclusive
jurisdiction is vested on food authorities, opposite party no. 2 has no
jurisdiction. In addition under Section 42 of the FSS Act only the designated
Officer / Food Safety Officer to initiate prosecution that is opposite Party no. 2
not being the designated authority under the said act has not and could not
have sought for or obtained sanction from Commissioner of Food Safety and in
fact indisputable has not obtained any such sanction hence Opposite Party no.
2 cannot invoke Section 51 and 59 of the FSS Act in the FIR and the charge
sheet. The last argument as advanced on behalf of Mr. Sarkar the Learned
Senior Advocate that vicarious liability cannot be cast against the petitioner,
as there is nothing on record in the FIR or in the charge sheet with respect to
the role of the petitioner in the alleged commission of the offence .Merely
Enfamil A+ Stage 3 being sub-standard or un safe food and merely because
the petitioner was the managing Director of MJN India at the relevant time he
has been made an accused in the charge sheet even without including the
company as an accused. Reliance is placed on Sunil Bharti Mittal vs Central
Bureau of Investigation3 (relevant para 42 to 44). In addition the Hon’ble
Supreme Court in Thermax Limited and Others vs K.M. Jony and Ors.4
and GHCL Employees stock option trust vs. Kranti Sinha5 where it was
held that there is no concept of vicarious liability under Indian Penal Code and
specific allegation must be made against every accused. The learned Senior
3
(2015) 4 SCC 609
4
(2011) 13 SCC 412
5
(2013) 4 SCC 505
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Advocate has further placed reliance on the judgement of Hon’ble Supreme
Court in Girish Bhai , Daya Bhai Sha vs. C.C. Jani and Ors.6 relevant
para 7, 8, 9 and 10 in the context of prevention of Food Adulteration Act which
was repealed and replaced by FSS Act where it was held that the right of
retesting is a valuable statutory right and in case, the manufacturer is not
given the right of retesting or the manufacturer could not avail such right due
to the reason that the best before period had expired, such valuable statutory
right stands negated/extinguished and in such circumstances no prosecution
could be launched by the statutory authorities. Further reliance was placed
on two decisions under FSS Act 2006 ITC Limited State of Madhya Pradesh
and Ors.(Manu/MP/4341/2024) and Marico Limited and Ors. Vs. State of
Delhi and another7 in this regard. Accordingly prayed for quashing of the
entire proceeding.
6. The Learned Public Prosecutor on the other hand submits that the FIR was
lodged on 10.11.2015 and within 6 months the proceeding was started, notice
was sent and the investigation continued. Initially the name of the present
petitioner was not mentioned in the FIR and hence took time to find out his
involvement and subsequently the charge sheet was submitted where the
name of the petitioner was incorporated as sufficient materials was found
against him who was the Managing Director of the said Company. Further
submitted that the relevant provisions in the Indian Penal Code are still there
in the BNS and so the intention of the legislature was to keep those provision
and therefore if any proceeding has been initiated under those provision and
6
(2009) 15 SCC 64
7
2015 (1) 149 DRJ 695
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the charge sheet has been submitted with the serious allegation dealing with
baby food product that should not be quashed on the technical ground.
Accordingly prayed for dismissal of this revisional application.
Analysis
7. Heard the submission of both the Learned Advocate .The prosecution case was
launched on the basis of the FIR being 333 of 2015 dated November 10, 2015
registered before the Charu Market Police Station alleging that she found some
black dust particles for a long time in the baby food and considering the same
as not harmful she continue with using Enfamil A+ Stage 3 baby food but after
consumption of such baby food her daughter often suffered from dehydration.
Lastly two days before lodging such FIR on 08.11.2015 she purchased from
Med plus unit of optival health solution private limited the baby food Enfamil
A+ Stage 3 and when she opened the seal of the food, found live insect and
therefore she believed that on previous occasion also her daughter suffered
due to inferior quality and accordingly ask for taking appropriate steps.
8. The complaint was received on the same date and the P.S. case started on the
very same date. It appears from the record that the charge sheet was
submitted on 06.09.2021 that is long after 6 years from the date of lodging of
such complaint. On careful perusal of the charge sheet it transpires that till
such time the food analysis public health laboratory , Department of Health
that the sample in Enfamil A+ Stage 3 bearing label mark “A” does not
confirm to the standard of follow up formulas as laid down in regulation and
the sample was sub-standard and unsafe. The baby food was seized during
investigation and sent for such opinion and thereafter submitted the charge
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sheet. The question involved in this case is that whether any report in terms of
Section 462 Of the Food Safety and Standard Act 2006 was called for and in
terms of the observation made by the Hon’ble Supreme Court after FSS Act
came into force the present complaint lodged under the provision of IPC can
continue against the petitioner or not.
9. Prior to delving deep into the bottom the case it is to be ascertained at the
outset as argued by the Learned Senior counsel about the role attributed as
an accused in the entire case or the maintainability of the proceeding against
the petitioner being the Managing Director without arraying the Company as
an accused . It is evident from the charge sheet that the Mead Johnson Private
Limited is not made as an accused and no specific allegation was made against
the present petitioner who was the Managing Director of the said company. In
the case of Sunil Bharti Mittal (supra) it was held that ” if the person or group
of persons who control the affairs of the company commit an offence with a
criminal intent, their criminality can be imputed to the Company as well as they
are “alter ego” of the company.” The legal proposition that is laid down in the
aforesaid judgement in Iridiunm India Telecom Ltd. Vs Motorola Inc.8 is
that if the person or group of persons who controls the affair of the of the
company commits an offence with a criminal intent their criminality can be
imputed to the company as well as they are ‘alter ego’ of the company. In the
said case the principle as applied was exactly was reverse scenario .There the
company was the accused person and the Learned Special magistrate observed
that since the appellant represent the directing mind and will of each
company, their state of mind is the state of mind of the company and
8
(2011) 1 SCC 74
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therefore, on that premise, acts of the Company are attributed and imputed to
the appellant. The Hon’ble Supreme Court found it difficult to accept as a
correct principle of law as the proposition would run contrary to the principle
of vicarious liability dealing the circumstances under which are Director of a
Company can be held liable. It was therefore held that when the company is
the offender, vicarious liability of the Directors cannot be imputed
automatically in the absence of any statutory provision to this effect. Therefore
an individual who has perpetrated the commission of an offence on behalf of a
company can be made accused along with the company if there is sufficient
evidence of his active role coupled with the criminal intent.
10. In the case of Managing Director, Castrol India Limited (Supra) no
specific act of the appellant accused was mentioned in the complaint in
commission of alleged offence and he was made vicariously liable and he was
the Managing Director at the relevant point of time. There was no statement
whatsoever that the accused was responsible or in charge of conduct of the
business of the company and no averment in the complaint that he was
connected or responsible for commission of any act. For fastening of vicarious
liability or offence committed by company a clear and categorical statement in
complaint is required as observed by the High Court. It was further held that
Company was not even made accused in the proceeding and accordingly in
considering the absence of any specific averment in the complaint petition the
Hon’ble Supreme Court was of the view that proceeding against the appellant
accused are liable to be quashed.
11. In the present case it is evident from the charge sheet that the present
petitioner has been named in the charge sheet as an accused being the
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Managing Director of MJN Company but the company has not been arrayed as
an accused while submitting the charge sheet.The Learned CJM -In-charge
based on the challan /charge sheet took cognizance despite being aware of the
order of stay of the High court passed in C.R.R no. 176/2011 on 7.10.21 and
later on the Learned CJM observed in his order dated 29.12.2021 that the
learned Magistrate ought not to have taken cognizance after the order passed
by the Hon’ble High court staying all further proceeding of this case however in
absence of any statutory provision to recall such order no such order could be
passed and the order issuing W/A was nullified . In the case of Ravinder
Kumar Agarwal vs State of M.P (supra) it was held that in Special statute
which provides for prosecution of company for offences committed by it ,the
Directors of the company itself is made an accused ,prosecution of the
applicant who was one of the Directors of the Company is impermissible in law
and the proceeding against him was quashed .In that case the matter pertains
to Food Safety and Standard Act where in terms of Section 66, where a
person in charge of an Establishment or unit nominated by the company as
responsible for Food Safety shall be the person who will be liable for
contraventions in respect of such Establishment, Branch or unit ,only such
Nominee and not the Directors shall be responsible for the contravention in
respect of Establishment.
12. In the present case neither in the complaint the petitioner was made an
accused and in the charge sheet no such involvement can be found against
him. Therefore in view of the above factual matrix coupled with the law laid
down in this regard this court do not find any materials to allow a proceeding
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against the petitioner against whom the proceeding is not maintainable in the
eye of law.
13. Additionally the question arises whether the proceeding lodged under the
provisions of Indian Penal Code is maintainable where the allegation
unequivocally speaks of commission of offence under FSSA Act. In the decision
of Ramanath (Supra) a revisional application was filed for quashing of the
prosecution for the offences punishable under Section 272 and 273 of the IPC
on the strength of an order issued by the State of UP granting power to the
authorities to initiate prosecution under those Sections as well as under the
prevention of Food Adulteration Act 1954. The decision of the Allahabad High
Court passed in September 2010 in the case of PepsiCo India Holding
Private Limited Vs. State of UP was relied upon and after that it was
challenged before the Hon’ble Apex Court where it was held in the said
decision that after coming into force of FSSA Act with effect from 29th
July,2010 it would have an overriding effect on the other food related laws
including the PFA and therefore the High Court held that invocation of Section
272 and 273 of IPC concerning Food adulteration pursuant to a Government
order dated 11th may ,2010 was bad in law.
14. It was further held that the Section indicates that the intention is to give an
overriding effect to the provision of FSSA over all food related laws. The settled
law is that if the main section is unambiguous the aid of the title of section or
its marginal note cannot be taken to interpret the same. Only if it is
ambiguous, the aid of the title of the Section or the marginal note cannot be
taken to interpret the same. Therefore, the main Section clearly gives over
riding effect to the provision of FSSA over any other law in so far as the law
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applies to the aspects of food in the field covered by FSSA. Therefore when the
offences under Section 272 and 273 of the IPC are made out, even the offence
under Section 59 of the FSSA will be attracted. In fact, the offence under
Section 59 of the FSSA is more stringent.
15. The instant proceeding was started under Section 272, 273 along with 269
and 270 and 114 of the Indian Penal Code read with section 51 and 59(ii) of
FSS Act and in the light of the above discussion the case ought to have been
initiated not under the Penal Code but under the Food Safety and Standard
Act 2006, as there will not be any question of simultaneous prosecution under
both the statute. Section 51 of FSSA Act deals with penalty for substandard
food where section 59(ii) is punishment for unsafe food .The other two Sections
that is Section 269 and 270 which relates to negligent act likely to spread
infection dangerous to life and malignant act likely to spread infection
dangerous to life and 114 abettor present when of offence is committed. The
argument advanced on behalf of the Learned Senior Counsel that there is no
basis for invocation of Section 269, 270, 283 of Indian Penal Code invocation
of Section 114 of Indian Penal Code in absence of any allegation in that regard
against the present petitioner .
16. This court after giving a careful consideration is of the view the petitioner
being the Managing Director was not a person against whom any specific
allegation was levelled or in course of investigation anything was found against
him and as discussed above the proceeding should not have been proceeded
against him hence there is no need for further threadbare discussion regarding
applicability of provision of Indian Penal Code or section FSSA Act against him.
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17. In the light of the above discussion and the law laid down by the Hon’ble
Supreme Court regarding the vicarious liability when there is no concept of
vicarious liability under IPC and there must be specific allegation to be made
every accused in the present case nothing can be found from the complaint
itself regarding any action or role played by the present petitioner who was the
Managing Director of the Company which has not been arrayed as an accused.
18. Additionally there was prolong delay in the process of investigation as nearly
4 years after the registration of F.I.R ,MJN India received a notice from the I.O
under section 91 of CrPC and gave a definite reply questioning the jurisdiction
of the investigating authority as only Central Food Authority and the State
Food Authorities have jurisdiction to enforce FSS Act .Hence section 51 & 59
of the FSS Act cannot be invoked by him .It was further replied that MJN has a
right of retesting under FSSA Act as the notice was issued 4 years after
registration of the F.I.R when the Enfamil A +Stage 3 has a Best before period
maximum 24 months. Two years after such reply the notice was issued under
Section 160 Cr.P.C to the Director of MJN and after MJN approached this High
Court and obtained an order of stay the investigating authority hastily filed the
Charge sheet where the name of MJN was dropped and name of the petitioner
along with other two persons arrayed as accused.
Conclusion
19. It is therefore clear that the Learned Magistrate without application of mind
took cognizance against the petitioner when is a sine qua non that the
application of the mind of the Learned Magistrate should be reflected to his
satisfaction that the allegations if proved would constitute an offence which is
admittedly missing in this case . Therefore merely because the petitioner was
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the Managing Director of MJN India at the relevant time without including the
company as an accused the petitioner cannot be made an accused and if the
proceeding is allowed to be continued against the present petitioner it would
be an abuse of the process of law and hence it should be quashed.
20. Hence this C.R.R is hereby allowed. The proceeding pending before the
Learned Court of Chief Judicial Magistrate, Alipore being Charu Market P.S
Case no 333 of 2015 and the Charge sheet no 190 of 2021 dated 10.11.2015 is
hereby quashed qua the petitioner.
21. All connected applications are hereby disposed of.
22. Urgent certified copy Urgent of the order if applied for be provided to the
parties upon observance of all necessary requirements.
[CHAITALI CHATTERJEE (DAS), J.]
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