IN THE COURT OF SH. AMAR NATH, DISTRICT & SESSIONS JUDGE, NEW DELHI
FSAT Appeal No. 27/13
Somnath S/o Sh. Ishwar Dass R/o G10/6, Malviya Nagar New Delhi. ……. Appellant
1.) State, through Commissioner Department of Food Safety Govt. of NCT of Delhi A20, Lawrence Road, Delhi 110035.
2.) Sh. S.K. Nagpal Designated Officer Department of Food Safety Govt. of NCT of Delhi A20, Lawrence Road, Delhi 110035.
3.) Sh. S.K. Sharma Food Safety Officer Department of Food Safety Govt. of NCT of Delhi A20, Lawrence Road, Delhi 110035 ……Respondents
Date of Institution of Appeal : 14.02.2013 Judgment reserved on : 18.11.2016 Judgment announced on : 02.12.2016 J U D G E M E N T
This appeal is directed against the order dated 14.01.2013 (hereinafter referred to as “Impugned Order”) passed by Sh. Bansh Raj, Ld. Adjudicating Officer/ADM (Central), Govt. of NCT of Delhi whereby penalty of Rs. 1,00,000/(Rs.One Lac) was imposed upon the appellant praying therein ; to set aside the impugned order.
2. The appeal was admitted. The notice of the appeal was given to the respondents . The record of the Ld. Adjudicating Officer was requisitioned.
3. I have heard the rival contentions advanced on behalf of both the parties and have carefully perused the trial court record.
4. Feeling aggrieved, the appellant has challenged the impugned order mainly on the following grounds;
a) The Ld. Adjudicating Officer passed the impugned order in a mechanical manner by non application of mind and thus, prosecuting the accused(appellant herein) is vitiated and as such he committed an error by imposing the exorbitant amount of fine which is liable to be set aside.
b) The order dated 14.01.2013 is against the law and facts on the record and the same is unsustainable on the face of record which resulted into miscarriage of justice.
c) The Ld. Adjudicating Officer did not conduct the fair enquiry in a legal manner. No departmental witness nor any independent witness was examined by the Ld. Adjudicating Officer and he gave the findings on the basis of the contents of the application and un exhibited documents as well.
5. The case of the prosecution in brief is that on 30.09.2011 at about 1.30 PM Food Safety Officer Sh. Surender Kumar Sharma went to the shop of Sh. Somnath, FBO M/s Ishwar Dass & Sons, Shop no. 626, Double Storey, New Rajender Nagar, New Delhi and purchased the sample of “Sandha Namak (Lahori Namak)” where the said food article was found stored for the sale for human consumption. Price of sample was also given to FBO vide its receipt dated 30.09.2011.The sample consisted of 8 x 200 grams of “Sandha Namak (Lahori Namak)” (ready to sale) taken in originally sealed packets in original condition having identical label declaration. The sample was taken under the direction, selection and supervision of Sh. Sanjeev Kumar Gupta, Food Safety Officer. The FSO divided the sample of the article of food into four equal parts then and there by putting two packets in each counterpart. Each counterpart containing the sample was separately packed, fastened, sealed and the signatures of FBO were obtained on the D.O. slip and wrapper of the bottles containing the sample as per the prescribed procedure. The panchnama in Form VA was prepared and the signature of the Food Business Operator (FBO) was obtained as a token of its acknowledgment. One counterpart of the sample bearing D.O code number 01/DO3/458 along with the copy of memo in Form VI and another copy of memo in Form VI under the seal cover were sent separately to the Food Analyst, Delhi on 03.10.2011. The other two counterparts of the sample alongwith two copies of memos in Form VI were deposited with the D.O. As the FBO did not request to send the fourth counterpart for analysis from an NABL Accredited Laboratory under Rule 2.4.5 of Food Safety and Standard Rule, 2011, as such the fourth counterpart alongwith copy of memo in form VI was also deposited with the D.O. Food Analyst vide his report no. PFA/Enf./492/2011 dated 12.10.2011 reported that the sample is unsafe because it is coloured with synthetic colouring matter viz carmoisine. The sample is also in contravention of Regulations 18.104.22.168 and 22.214.171.124 of the Food Safety and Standard (Packaging and Labeling) Regulation, 2011 (hereinafter to be referred ‘FSSRs (Packaging and Labeling).
6. Thereafter, the Designated Officer concerned sent the copies of the Food Analyst report to the FBO and others on 08.10.2011 for giving them an opportunity to file an appeal against the report of the Food Analyst under section 46(4) for sending one counterpart of the sample to the Referral Laboratory. The FBO preferred an appeal against the report of Food Analyst and one counterpart of the aforesaid sample bearing code no. 01/DO3/458 of “Sandha Namak (Lahori Namak)” was sent to the Referral Food Laboratory, Mysore for analysis. The Director, Referral Food Laboratory reported that the sample conform to the standards laid down for common salt under the provision of Food Safety and Standards(Food Products Standards and Food Additives) Regulations, 2011 but does not conforms to the standards laid down for Common Salt under the provisions of Food Safety and Standard (Packaging and Labelling) Regulation, 2011 as manufacturer address, Batch no/ Lot no., Date of manufacture/production date, expiry date/ Best before are not mentioned on the label as required under Rule 126.96.36.199, 188.8.131.52, 184.108.40.206, 220.127.116.11 of Food Safety and Standard (Packaging and Labelling) Regulation, 2011. Ld. Adjudicating officer imposed penalty of Rs. 1,00,000/ in terms of Rule 3.1.2(1) of Food Safety and Standards Rules, 2011.
7. First and foremost point raised by the Ld. Counsel for the appellant is that he is protected under the rule 2.6 of the FSSRs (Packaging and Labelling) which provides exemption from labeling requirements under Rule 2.6.1 in sub clause (2). He further argued that the sample taken by the FSO was that of “Sandha Namak” but Food Analyst, Food Laboratory, Govt. of Delhi and Director Referral Food Laboratory Mysore received sample of “Kala Namak”.
8. Per contra, Ld. Addl. PP has refuted the entire line of arguments while making submissions that the Food Inspector was within its power to lift the sample of “Sandha Namak (Lahori Namak)”. The FBO was found storing misbranded food which did not contain any nutritional information being a food item meant for human consumption. They cannot claim any defence to the effect that only supplier and manufacturer are liable as they too carry out such mandatory checks of the food concerned being used for human consumption in any preparatory form. It needs to be noticed that the sampled article was kept for human consumption which is opined to be misbranded by the Food Analyst because of violation of Regulation No.18.104.22.168. of the FSSRs and as such, it comes within the mischief of Section 26 (2)(ii) of the FSS Act read with Section 3(1)(zf)( C)(i) of FSS Act which is punishable u/s 52 of the FSS Act. He further stated that the date of manufacture or best before date or expiry date was required to be mentioned on the packets having surface area of even less than 30 sq. centimeter and as such, it comes within the mischief of Section 16(1)(a) of Prevention of Food Adulteration Act (herein after referred to as “the Act”).
9. From perusal of Food Analyst report, Form B as well as report of Referral Food Laboratory, Mysore, Form A, it appears that at the top it is mentioned that “sample of Kala Namak was received” whereas Food Analyst Report does find mention (ii) Physical Appearance:Light pink coloured sample of sandha namak without any smell and report of Referral Food Laboratory, Mysore also finds mention
(ii) Physical Appearance: White crystalline powder & (iii) Label:Lahori Namak Shiv Brand meaning thereby the sample was alleged to be lifted was that of “Sandha Namak(Lahori Namak)” & not “Kala Namak” and due to inadvertance in the top portion of the reports, sample commodity was mentioned as “Kala Namak” instead of “Sandha Namak”. Now, as per the opinion of Referral Food Laboratory, Mysore the sample conforms to the standards laid down for Common Salt under the provisions of Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 thereof and does not conforms to the standards laid down for Common Salt under the provisions of Food Safety and Standards (Packaging and Labelling) Regulation, 2011and hence, sampled commodity was found to be misbranded.
10. Rule 2.6.1 (2) of the FSSRs (Packaging and Labelling) stipulates that the ‘date of manufacture’ or ‘best before date’ or ‘expiry date’ are required to be mentioned on the package having surface area of less than 30 sq. centimeters but these information shall be given on the wholesale packages or multipiece packages, as the case may be. Now the question arises as to whether the sampled pouch of Sandha Namak was having surface area of less than 30 sq. centimeters or more. There is no whisper from the record with regard to the total surface area of the pouch of Sandha Namak. There is no iota of evidence on record either from the Prosecution or from the accused side so as to show the surface area of the pouch of Sandha Namak. Best course for the Ld. Adjudicating Officer was to direct the Prosecution to produce the pouch of Sandha Namak in order to physically ascertain the surface area before arriving at the conclusion but he has failed to do so thus, there is a violation of principle of natural justice “Audi Alteram partem” i.e. no one should be condemned unheard.
11. Under these circumstance, I am of the considered view that instead of ordering the appellant to pay the full amount of fine as imposed by the Ld. Adjudicating Officer, it would be just and proper to reduce the same by modification of the impugned order.
12. In view of the aforesaid discussions, I partly allow the appeal while maintaining the impugned order however, the amount of fine is reduced from Rs.1,00,000/ to Rs. 60,000/ by modifying the quantum of fine. The appellant shall deposit the amount of Rs. 60,000/ (Rs. Sixty Thousand) instead of Rs 1,00,000/ (Rs. One Lac) within 10 days from today as fine before the Trial Court. Copy of this judgment be placed in the Trial court record for compliance and thereafter, TCR be sent back. Appeal file be consigned to the record room.
Announced in the open court on this (AMAR NATH) 02nd Day of December, 2016. District & Sessions Judge New Delhi
IN THE COURT OF SHRI AMAR NATH DISTRICT & SESSIONS JUDGE, NEW DELHI FSAT Appeal No.27/13 Somnath vs State, Department of Food Safety & Ors. 02.12.2016 Present: Sh. R. D. Goel, Ld. Counsel for the appellant.
Sh. A. K. Mishra, Ld. Addl. PP for the respondent.
Vide separate judgment of even date, the appeal stands partly allowed while maintaining the impugned order however, the amount of fine is reduced from Rs.1,00,000/ to Rs. 60,000/ by modifying the quantum of fine. The appellant shall deposit the amount of Rs. 60,000/ (Rs. Sixty Thousand) instead of Rs 1,00,000/ (Rs. One Lac) within 10 days from today as fine before the Trial Court.
Copy of this judgment be placed in the Trial court record for compliance and thereafter, TCR be sent back. Appeal file be consigned to the record room.