Dismissed

M/S Shri Jagdish Farsan Mart (Manufacturer v. Adjudicating Officer and Resident Additional Collector

Gujarat HC6 Aug 2018FA/2157/2018

Case brief

AI extract

What is this about?

The High Court dismissed the appeal against a penalty order for selling misbranded food. The court upheld the Food Analyst's report, ruled that missing manufacturing dates on short-shelf-life items constitute misbranding under labeling regulations, and affirmed the penalty quantum.

What did the court decide?

Impugned order dismissed; penalty of Rs.50,000 disbursed to adjudicating authority.

M/S Shri Jagdish Farsan Mart (Manufacturer… — Pension and Retirement Benefits | Gujarat HC (2018)

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C/FA/2157/2018 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/FIRST APPEAL NO. 2157 of 2018

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE J.B.PARDIWALA

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1	Whether Reporters of Local Papers may be allowed to see the judgment ?	YES
2	To be referred to the Reporter or not ?	YES
3	Whether their Lordships wish to see the fair copy of the judgment ?	NO
4	Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?	NO

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M/S SHRI JAGDISH FARSAN MART (MANUFACTURER

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Versus

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ADJUDICATING OFFICER AND RESIDENT ADDITIONAL COLLECTOR

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Appearance:

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MR AS ASTHAVADI(3698) for the PETITIONER(s) No. 1,2,3 MR RAKESH PATEL, AGP(1) for the RESPONDENT(s) No. 1,2

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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

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Date : 06/08/2018 ORAL JUDGMENT

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This First Appeal under Section-71(6) of the Food Safety And Standard Act 2006 [for short the 'Act, 2006' ] is directed against the order dated 01/05/2018 passed by the Presiding Officer, Food Safety Appellate Tribunal, State of Gujarat, Gandhinagar in Appeal No.43 of

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C/FA/2157/2018 JUDGMENT

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2017 arising from the order dated 13/02/2017 passed by the Adjudicating Officer And Resident Additional Collector, Surat under the Provisions of the Food Safety And Standards Act, 2006 and the Regulations 2011 made thereunder.

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The facts giving rise to this First Appeal under Section-71(6) of the Act 2006 may be summarized as under:-

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2.1 “It is submitted that appellants are manufacturers of farsans in the name of M/s. Jagdish Farsan Mart at Bharuch.

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2.2 It is submitted that Complaint officer took sample on 29.03.2016 from the Kharodiya Super Store, a Seller of the appeal's farsan, of “Super Jagdish Chavana 500 gms Co. Pack Batch No.3, Packing Date 3/16 under the Food Safety and Standard Act 2006 (Herein after referred as “Food Act”).

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2.3 It is submitted that the sample was sent for analysis to Food Analyst, Bhuj and the said analyst by his report dated 19.04.2016 declared the sample as “Mis-branded” on the ground that

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“The sample of Jagdish chavana (500 gms) pack is misbranded food as defined u/s.3(1)(zf) of the Food Act, as it contravenes the provisions made under regulation No.2.2.2(9) of the Food Safety and Standards (Packaging and Labeling) Regulations, 2011 (herein after referred as “Food Regulations”).

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2.4 Therefore, a complaint was registered u/s.52 for contravention of the Section 23(1), 26(1), 26(2)(ii), 27(1) of the food act. The said complaint was registered as Adjudication Case No.31/16 before Ld. Adjudication Officer and Resident Addl. Collector, Surat.

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C/FA/2157/2018 JUDGMENT

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2.5 After the inquiry, the said Ld. Adjudication Officer was pleased to pass an order dated 13.02.2017 declaring the appellants guilty and imposed penalty of Rs.50,000/- each to all appellants.

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2.6 The said order was challenged by the appellants by filing Appeal No.43 of 2017 before Food Safety Tribunal. The said appeal has been partly allowed by tribunal by order dated 01.05.18 whereby the penalty imposed on appellants are modified to the extent that instead of penalty of Rs.50,000/- each to the appellants, it is modified to joint penalty of Rs.50,000/- to appellants. The appellants challenges the said impugned orders dated 01.05.18 before this Hon'ble Court, by way of present appeal.”

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It appears from the materials on record that the Adjudicating Officer imposed a fine of Rs.50,000/- to be paid not only by the Partnership Firm, but all upon the two partners of the Firm for the alleged contravention of the Regulations 2011. The case on hand is one of misbranded food. It is not in dispute that on the package of the food collected by the authority concerned as a sample, the date of manufacture is not stated. It is also not in dispute that on the package, it has been stated that the food should be consumed within a period of three months.

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The report of the Food Analyst dated 19/04/2016 is extracted hereunder:-

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Report No.Q-2/0144/2016

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FORM B

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Report of the Food Analyst (Refer Regulation (ii) of 2.3.1)

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C/FA/2157/2018 JUDGMENT

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To,	No.RFL/AR/2304/2016
Designated Officer,	Regional Food Laboratory, Bhuj
Food And Drugs Control Admn.,	Reg. Entry No.0742
Surat Circle	Date: 19 APR 2016

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Certified that I Mr.P.H. Bhagora duly appointed as Food Analyst under the provision of the Food Safety & Standards Act 2006 (34 of 2006) For Gujarat State received from Mr. C.N.Parmar Food Safety Officer, F & DCA, Surat Circle a sample of Super Jagdish Chavana (500 Gms Pack) bearing Code No. and serial No.5/FDA/SRT/HQ/3/32/2016 of Designated Officer, of Surat area on 07^th April – 2016 for analysis.

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The condition of seals on the container and the outer covering on receipt was as follows:-

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There was one seal on the outer cover, four seals on wrapper and one seal on the container and the seals were intact. The seals tallied with the specimen impression of the seal separately sent by the Food Safety Officer in sealed cover by Regd. Post, received on 07^th April-2016.

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I found the sample to be Proprietary Food falling under Regulation No.2.12 of Chapter-2 of Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011. The sample was in a condition fit for analysis and has been analyzed on 11.04.2016 to 13.04.2016 and the results of its analysis are given below:-

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Analysis Report:-

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(i) Sample description:- A sealed and intact Co.pack printed plastic bag.

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(ii) Physical Appearance:- Yellow coloured farsan.

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(iii) Label:- A company pack narrow mouth printed plastic bag has the following label details in English language and bearing the vegetarian symbol. Name of Food: Super JagdishChavana. Ingredients:- Mentioned.

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Net Quantity:- 500 gms Packing Date:- 03/2016 Batch No.: 3 Best before:- 2 Months from the Date of Packing .

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(The date, month and year in which the commodity is manufactured or prepared shall be mentioned on the label in case the package contains commodity which has a short shelf life of less than three months as per regulation No.2.2.2(9) of the FSS (Packaging and labeling) Regulations, 2011)

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Manufactured by: Jagdish Farsan Mart, 98, Narmada Market, Opp: Railway Godi, Bharuch-392001.

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C/FA/2157/2018 JUDGMENT

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Sl. No.	Quality Characteristic	Name of Method of test used.	Results	Prescribed std. As per regulations no.2.12 & as per provision of the Act, Rules and Regulations
1	Added coluring matter	DGHS Lab manual-8 (Food Additives) Method 4.0 to 4.3	Absent	Absent
2	Test for ßOAA	DGHS Lab manual-3 (Cereals and Cereal Products) Method 11	Negative	Negative
3	Test of Turmeric	ICMR, P-23 & 56, 1990	Positive	---

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Opinion:- The sample of Jagdish Chavana (500Gms Pack) is Misbranded Food as denied under section 3(1)(zf) of the Food Safety and Standards Act-2006, as it contravenes the provisions made under Regulation No.No.2.2.2(9) of the Food Safety and Standards (Packaging and Labeling) Regulations, 2011.

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Signed this 19 APR days of 2016. Food Analyst

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Address: Regional Food Laboratory, New Lotus Ring Road, Nr. Mahakali Temple, Bhuj-Kachchh-370001.

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The appellants herein being dissatisfied with the order passed by the Adjudicating Officer preferred an appeal before the Tribunal. The Tribunal thought fit to modify the order passed by the Adjudicating Officer to a certain extent. Although the tribunal accepted that the case is one of misbranding, yet thought fit to impose penalty of Rs.50,000/only upon the Partnership Firm. The firm as well as the two partners were jointly held liable to pay the penalty of Rs.50,000/-.

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Being dissatisfied with the order passed by the Tribunal, the appellants are here before this Court with this First Appeal under Section-71(6) of the Food Safety And Standard Act 2006.

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Mr. Asthavadi, the learned counsel appearing for the appellants submitted that the authority concerned should not have admitted the report of the Food Analyst straightway. To put it in other words, according to the learned counsel, merely by admitting the report of the Food Analyst in evidence, the contents of the report could not be said to have been automatically proved. The second submission of the learned counsel is that what has been alleged and proved against the appellants would not fall within the ambit of the definition of the term “misbranded food” as defined under Section-3(1)(zf) of the Act 2006. The third submission of the learned counsel is that it is not the case of the authority that the package, which came to be collected from the shop or the premises of the appellants contained any artificial flavouring, colouring or chemical preservative or that the package was without a declaratory label stating that particular fact. The submission is that in the absence of the same, the case would not fall within the ambit of Section 3(1)(zf)(C) of the Act 2006. The last submission of the learned counsel is with regard to the Section-49 of the Act 2006. Section-49 is a general provision relating to a penalty. According to the learned counsel, the case put up against the appellants do not fall within any of the categories as stipulated in Section-49 of the Act 2006 and therefore, the order of penalty should be quashed. In such circumstances referred to above, the learned counsel appearing for the appellants prays that there being merit in this Appeal, the same is allowed and the impugned order be quashed.

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On the other hand, this Appeal has been vehemently opposed by Mr. Rakesh Patel, the learned AGP appearing for the respondents. Mr. Patel would submit that no error not to speak of any error of law could be said to have been committed by the Tribunal in passing the impugned order. Mr. Patel would submit that there is no merit in any of the

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submissions canvassed on behalf of the appellants. In such circumstances referred to above, Mr. Patel, the learned AGP prays that there being no merit in this First Appeal, the same be dismissed.

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Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Tribunal committed any error in passing the impugned order.

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On 26/06/2018, the following order was passed in the Civil Application No.1 of 2018.

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FIRST APPEAL NO. 2157 of 2018

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1. This appeal is under section 71(6) of the Food Safety and Standard Act, 2006 against an order passed by the Food safety Appellate tribunal, State of Gujarat, Gandhinagar in Appeal No.43/2017 arising from an order of penalty passed by the Adjudicating Officer and Resident Deputy Collector, Surat dated 13.02.2017 in Food safety case No. 31/2016. The appeal is ordered to be admitted. Direct service is permitted. 2. Notify this appeal for final hearing on 31.07.2018, on the top of the board.

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CIVIL APPLICATION NO. 1 of 2018

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1. Rule returnable on 31.07.2018.

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2. By this Civil Application, the applicants have prayed for relief in terms of para 5(A). Para 5(A) reads as under:

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“(A) During pendency and final hearing of the appeal, Your Lordship may be pleased to stay the implementation, execution and operation of impugned orders dated 01.05.2018 passed by Food safety Appellate tribunal in Appeal No.43 of 2017 and order dated 13.02.2017 passed by ld. Adjudicating authority and Resident Addl. Collector in Adjudication case No.31/2016.”

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3. Having heard the learned counsel appearing for the applicants – original appellants and having gone through the materials on record and also considering the fact that the main appeal has been admitted today, the impugned order passed by the Food safety Appellate

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tribunal in Appeal No.43/2017 dated 01.05.2018 shall remain stayed from its operation, implementation and execution till the final disposal of the appeal on the condition that the applicants herein shall deposit the entire amount of penalty i.e. Rs. 50,000/- as imposed by the Tribunal with the Registry of this Court within a period of 2 weeks from today.

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4. If the amount of penalty is not deposited within two weeks from today, the interim order shall stand vacated automatically. Direct service is permitted.

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Before adverting to the rival submission canvassed on either side, it is necessary for me to look into few relevant provisions of the Act as well as the Regulations.

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Section-3(1)(zf) defines the term “misbranded food”. What is relevant for our purpose is Section-3(1)(zf)(C)(i), which reads as under:-

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Section-3(1)(zf)(C)(i) – contains any artificial flavouring, colouring or chemical preservative and the package is without a declaratory label stating that fact or is not labelled in accordance with the requirements of this Act or regulations made thereunder or is in contravention thereof; or

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Section-46 stipulates the function of the Food Analyst. Section-46 is extracted hereunder:-

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Functions of Food Analyst.

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(1) On receipt of a package containing a sample for analysis from a Food Safety Officer or any other person, the Food Analyst shall compare the seal on the container and the outer cover with specimen impression received separately and shall note the conditions of the seal thereon:

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Provided that in case a sample container received by the Food Analyst is found to be in broken condition or unfit for analysis, he shall within a period of seven days from the date of receipt of such sample inform the Designated Officer about the same and send requisition to him for sending second part of the sample.

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(2) The Food Analyst shall cause to be analysed such samples of article of food as may be sent to him by Food Safety Officer or by any other person authorised under this Act.

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(3) The Food Analyst shall, within a period of fourteen days from the date of receipt of any sample for analysis, send-

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(i) where such sample is received under section 38 or section 47, to the Designated Officer, four copies of the report indicating the method of sampling and analysis; and

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(ii) where such sample is received under section 40, a copy of the report indicating the method of sampling and analysis to the person who had purchased such article of food with a copy to the Designated Officer:

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Provided that in case the sample cannot be analysed within fourteen days of its receipt, the Food Analyst shall inform the Designated Officer and the Commissioner of Food Safety giving reasons and specifying the time to be taken for analysis.

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(4) An appeal against the report of Food Analyst shall lie before the Designated Officer who shall, if he so decides, refer the matter to the referral food laboratory as notified by the Food Authority for opinion.

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Section-49 is a General provisions relating to penalty. Section-49 reads as under:-

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49. General provisions relating to penalty. - While adjudging the quantum of penalty under this Chapter, the Adjudicating Officer or the Tribunal, as the case may be, shall have due regard to the following:-

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(a) The amount of gain or unfair advantage, wherever quantifiable, made as a result of the contravention,

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(b) The Amount of loss caused or likely to cause to any person as a result of the contravention,

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(c) The repetitive nature of the contravention,

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(d) Whether the contravention is without his knowledge, and

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(e) Any other relevant factor,

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15. Section-52 prescribes penalty for the misbranded food. Section-52 is extracted hereunder:-

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52. Penalty for misbranded food. - (1) Any person who whether by himself or by any other person on his behalf manufactures for sale or

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stores or sells or distributes or imports any article of food for human consumption which is misbranded, shall be liable to a penalty which may extend to three lakh rupees.

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(2) The Adjudicating Officer may issue a direction to the person found guilty of an offence under this section, for taking corrective action to rectify the mistake or such article of food shall be destroyed.

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16. Section-68 which falls within Chapter-X is with regard to the adjudication. Section-68 is extracted hereunder:-

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68. Adjudication. - (1) For the purposes of adjudication under this Chapter, an officer not below the rank of Additional District Magistrate of the district where the alleged offence is committed, shall be notified by the State Government as the Adjudicating Officer for adjudication in the manner as may be prescribed by the Central Government.

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(2) The Adjudicating Officer shall, after giving the person a reasonable opportunity for making representation in the matter, and if, on such inquiry, he is satisfied that the person has committed the contravention of provisions of this Act or the rules or the regulations made thereunder, impose such penalty as he thinks fit in accordance with the provisions relating to that offence.

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(3) The Adjudicating Officer shall have the powers of a civil court and-

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(a) all proceedings before him shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code (45 of 1860);

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(b) shall be deemed to be a court for the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973 (2 of 1974).

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(4) While adjudicating the quantum of penalty under this Chapter, the Adjudicating Officer shall have due regard to the guidelines specified in section 49.

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Section-71 prescribes the Procedure and Powers of the Tribunal. Section-71 is extracted hereunder:-

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Procedure and powers of the Tribunal. - (1) The Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and the rules made thereunder, the Tribunal shall have powers to regulate its

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own procedure including the place at which it shall have its sittings.

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(2) The Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:-

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(a) summoning and enforcing the attendance of any person and

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examining him on oath;

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(b) requiring the discovery and production of documents or other electronic records;

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(c) receiving evidence on affidavits;

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(d) issuing commissions for the examination of witnesses or documents;

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(e) reviewing its decisions;

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(f) dismissing an application for default or deciding it ex parte;

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(g) any other matter which may be prescribed by the Central Government.

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(3) Every proceeding before the Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196 of the Indian Penal Code (45 of 1860), it shall be deemed to be a civil court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).

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(4) The appellant may either appear in person or authorise one or more legal practitioners or any of its officers to represent his case before the Tribunal.

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(5) The provisions of the Limitation Act, 1963 (36 of 1963),shall, except as otherwise provided in this Act, apply to an appeal made to the Tribunal.

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(6) Any person aggrieved by any decision or order of the Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Tribunal to him on any question of fact or law arising out of such order:

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Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days.

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Let me now look into the Regulations. Regulation-2.2 is with regard to the labelling. Regulation 2.2.1 provides for the general

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requirements. Regulation – 2.2.1 is extracted hereunder:-

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2.2.1: General Requirements

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1. Every prepackaged food shall carry a label containing information as required here under unless otherwise provided, namely,—

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2. The particulars of declaration required under these Regulations to be specified on the label shall be in English or Hindi in Devnagri script: Provided that nothing herein contained shall prevent the use of any other language in addition to the language required under this regulation

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3. Pre-packaged food shall not be described or presented on any label or in any labelling manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character in any respect;

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4. Label in pre-packaged foods shall be applied in such a manner that they will not become separated from the container;

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5. Contents on the label shall be clear, prominent, indelible and readily legible by the consumer under normal conditions of purchase and use;

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6. Where the container is covered by a wrapper, the wrapper shall carry the necessary information or the label on the container shall be readily legible through the outer wrapper and not obscured by it;

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Regulation-2.2.2 is with regard to the labelling of Pre-packaged Foods. We are concerned with the Regulation-2.2.2(9) which talks about the date of manufacture or packing. The same is extracted hereunder:-

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2.2.2(9) – Date of manufacture or packing.—

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The date, month and year in which the commodity is manufactured, packed or pre-packed, shall be given on the label:

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Provided that the month and the year of manufacture, packing or prepacking shall be given if the “Best Before Date” of the products is more than three months:

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Provided further that in case any package contains commodity which has a short shelf life of less than three months, the date, month and year in which the commodity is manufactured or prepared or prepacked shall be mentioned on the label.

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Let me now deal with the submissions of the learned counsel appearing for the appellants. The first submission as regards the admissibility of the report of the Food Analyst is without any merit. The report of the Food Analyst is a public document. A public document need not to be proved or rather the contents of a public document need not to be proved like any other document. Besides the same at no point of time, the report of the Food Analyst came to be challenged by the appellants herein. If the appellants had anything to say with regard to the legality and validity of the report of the Food Analyst, then it was open for them to prefer an appeal under Section-46(4) of the Act. Section-46(4) of the Act provides for an appeal against the report of the Food Analyst before the Designated Officer. If any such appeal would have been filed then the Designated Officer could have referred to the referral food laboratory as notified by the Food Authority for opinion. In the absence of any challenge to the report of the Food Analyst by filing an appropriate appeal it is too late in the day for the appellants now to contend anything as regards the legality and validity of the report.

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I am also not impressed by the submission as regards Section-3(1) (zf)(C) of the Act 2006. According to the learned counsel, the case of misbranding could have been said to have been established or proved only if the article in the package contained any artificial flavouring, colouring or chemical preservative and the package is without a declaratory label stating that fact. The case against the appellants is not that the article contained any artificial flavouring, colouring or chemical preservative. The case against the appellants is that the article contained in the package was not labelled in accordance with the requirements of the Act or regulations made thereunder. What is alleged against the appellants herein is that on the package no date has been prescribed as regards the manufacture of the article. Section-3(1)(zf)(C)(i) of the Act

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should be read disjunctively and not conjunctively. The prefix 'or' makes all the difference.

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Regulation– 2.2.2(9) more particularly the second proviso therein makes it very clear that in case any package contains commodity, which has a short shelf life of less than three months, the date, month and year in which the commodity is manufactured or prepared or pre-packed should be mentioned on the label. It is this lapse on the part of the appellants which led to the adjudication for the alleged contravention of the regulations. At the cost of the repetition, it is not in dispute that the package in question contained commodity, which had a short shelf life of less than three months. This is not only admitted by the appellants, but the label on the package itself makes it clear.

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The last submission of the learned counsel is with regard to the penalty. According to the learned counsel, while adjudging the quantum of penalty, the Adjudicating Officer or the Tribunal is obliged to keep in mind what has been stipulated in Section-49 of the Act. Section-49 of the Act has been quoted above. The submission is that the contravention alleged does not entail or attract a penalty of Rs.50,000/-. To put it in other words, the argument proceeds on the footing that the appellants did not gain anything or did not derive any unfair advantage or the same did not cause any loss of amount to any person as a result of the contravention and the appellants are not habitual offenders. I am afraid, it would be too much for this Court to accept such a submission and quash the order of penalty.

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Section-52 of the Act 2006 makes it abundantly clear that any person who whether by himself or by any other person on his behalf manufactures for sale or stores or sells or distributes or imports any

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article of food for human consumption, which is misbranded, shall be liable to a penalty which may extend to three lakh rupees. The Adjudicating Officer not only imposed a penalty of Rs.50,000/- on the Firm, but also imposed penalty of Rs.50,000/- jointly against the two partners. In appeal, the Tribunal modified the order of penalty and thought fit to impose Rs.50,000/- as a whole i.e. jointly. In my view, no interference is warranted on any of the grounds urged in this First Appeal. The findings recorded by the Tribunal, in my view, cannot be termed as perverse or erroneous in law.

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The appellants have deposited an amount of Rs.50,000/- with the Registry of this Court. As the First Appeal has been ordered to be dismissed, the amount of Rs.50,000/- shall be now disbursed by the Registry of this Court in favour of the Adjudicating Officer (RAC) at Surat by an account payee cheque.

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In the result, this First Appeal fails and is hereby dismissed.

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aruna

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M/S Shri Jagdish Farsan Mart (Manufacturer v. Adjudicating Officer and Resident Additional Collector

Case brief

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M/S Shri Jagdish Farsan Mart (Manufacturer v. Adjudicating Officer and Resident Additional Collector

Case brief

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What did the court decide?

What the court decided

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