Allowed

R.Chandramohan, v. the Food Safety Officer

Madras HC1 Oct 2019WP(MD)/1288/2019

Case brief

AI extract

What is this about?

The Madurai Bench allowed a writ petition challenging an order imposing penalties for selling substandard gingelly oil. The Court set aside the order primarily due to the Food Analyst's violation of the statutory fourteen-day timeline for submitting the analysis report.

What did the court decide?

The impugned order dated 12.11.2018 imposed on the petitioner under Section 68 of the Food Safety and Standards Act, 2006 is set aside. No costs.

R.Chandramohan, Vs the Food Safety… — Constitutional and Fundamental Rights | Madras HC (2019)

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W.P(MD)No.1288 of 2019

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01.10.2019 CORAM:

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THE HONOURABLE MR.JUSTICE M.SUNDAR W.P(MD)No.1288 of 2019 and W.M.P(MD)No.1099 of 2019

R.Chandramohan

... Petitioner

vs.

1.The Food Safety Officer, Melpuram, Kanyakumari District.

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2.The Adjudicating Authority, The District Revenue Officer, Kanyakumari District. ... Respondents

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PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari, to call for the records relating to the impugned order passed by the second respondent in Na.Ka.No.U1/20377/2018 dated 12.11..2018.

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For Petitioner : Mr.R.Parthiban

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For Respondents : Mr.Aayiram K.Selvakumar, Additional Government Pleader.

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ORDER

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Mr.R.Parthiban, learned counsel on record for writ petitioner and Mr.Aayiram K.Selvakumar, learned Additional Government Pleader on behalf of both respondents are before this Court.

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2.A counter-affidavit dated 06.02.2019 has been filed by first respondent and in paragraph 1, first respondent has averred that the counter-affidavit is being filed on behalf of second respondent also. Therefore, both respondents have filed counter-affidavit and pleadings are complete.

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3.M ain writ petition is now taken up, heard out and is being disposed of.

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4.Writ petitioner is manufacturing gingelly oil and is marketing the same under the brand 'CM Gold Palmolein Oil' (hereinafter referred to as 'said oil' for brevity).

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https://hcservices.ecourts.gov.in/hcservices/

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5.The first respondent had taken samples of said oil on 23.08.2017 from a store in Melpuram and proceedings under 'The Food Safety and Standards Act, 2006' (hereinafter referred to as 'said Act' for brevity) were commenced. These proceedings under said Act culminated in an order dated 12.11.2018 bearing Reference Na.Ka.No.1/20377/2018 made by the second respondent which has been called in question in the instant Writ Petition. This order made by the second respondent which has been called in question in the instant Writ Petition shall hereinafter be referred to as 'impugned order' for the sake of brevity, clarity and convenience. Though the impugned order does not mention the provision of law under which the same has been made, there is no disputation or disagreement before this Court that the impugned order has been passed by the second respondent under Section 68 of said Act. Vide impugned order, second respondent has imposed penalties of Rs.10,000/- (Rupees Ten Thousand Only) each on the seller and shop owner besides a penalty of Rs.50,000/- (Rupees Fifty Thousand Only) on the manufacturer. The seller and shop owner are not before this Court, but the manufacturer on whom a penalty of Rs.50,000/- (Rupees Fifty Thousand Only) has been imposed vide impugned order is before this Court.

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6.Before proceeding further with this matter, it is to be noted that there is an appeal provision under said Act for assailing the impugned order. The appeal provision is Section 70 of said Act which reads as follows:

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' 70. Establishment of Food Safety Appellate Tribunal.–The Central Government or as the case may be, the State Government may, by notification, establish one or more tribunals to be known as the Food Safety Appellate Tribunal to hear appeals from the decisions of the Adjudicating Officer under section 68.

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(2) The Central Government or the State Government, as the case may be, shall prescribe, the matters and areas in relation to which the Tribunal may exercise jurisdiction.

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(3) The Tribunal shall consist of one person only (hereinafter referred to as the Presiding Officer of the Tribunal) to be appointed, by notification, by the Central Government or the State Government, as the case may be:

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Provided that no person shall be qualified for appointment as a Presiding Officer to the Tribunal unless he is or has been a District Judge.

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(4) The qualifications, appointment, term of office, salary and allowances, resignation and removal of the Presiding Officer shall be such as may https://hcservices.ecourts.gov.in/hcservices/ be prescribed by the Central Government. (5) The

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procedure of appeal and powers of the Tribunal shall be such as may be prescribed by the Central Government.'

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7.There is no disputation or disagreement before this Court that on the date of filing the instant Writ Petition ie., 22.01.2019, the Appellate Tribunal had not been constituted. Further, even as of today, though a Presiding Officer has been appointed to the Appellate Tribunal, the Appellate Tribunal has not commenced sitting. Therefore, though there is a provision for statutory appeal against the impugned order vide Section 70 of said Act to the Appellate Tribunal, as there is no disputation or disagreement that the Appellate Tribunal had not been constituted on the date of filing of the Writ Petition and is not sitting even as of today, it can be safely inferred that an efficacious or effective alternate remedy is not available to the writ petitioner. In other words, alternate remedy provided under Section 70 of said Act is in ineffective as of today.

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8.Now, reverting to the challenge to the impugned order, learned counsel for writ petitioner assailed the impugned order on three grounds. In other words, challenge to the impugned order is three fold, the same can be summarised and set out as follows:

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a) The sample was drawn on 23.08.2017 and it was sent to the Food Analyst on the same day by courier, but the Food Analyst ultimately sent the analysis report to the Designated Officer only on 14.12.2017. Under Section 42(2) of said Act, the report should have been so sent within fourteen days from the date on which the Food Analyst received the sample from the Food Safety Officer. Therefore, there is a violation of Section 42(2) of said Act which is a mandatory requirement.

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b) The complaint being predicated on the report of the Referral Lab dated 07.03.2018 only talks about samples being Substandard and it is nobody's case that it was Misbranded whereas impugned order proceeds on the basis that it is Misbranded.

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c) Section 49 of said Act provides for parameters for quantification of penalty, but the impugned order is silent about said quantification and there is nothing to show the basis on which, Rs.50,000/- (Rupees Fifty Thousand only) has been imposed as penalty on the writ petitioner.

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9.In response to the aforesaid three fold attack, learned State counsel made submissions which are as follows:

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a) With regard to report not being sent to Designated Officer within fourteen days by the Food Analyst, drawing the attention of this Court to Rule

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https://hcservices.ecourts.gov.in/hcservices/

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2.4.2 of the 'Food Safety and Standards Rules, 2011' (hereinafter 'said Rules' for brevity) and paragraph No.6 therein of Rule 2.4.2 of said Rules, it was submitted that fourteen days is not non-negotiable and there is a provision for delayed submission of the report.

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b) With regard to penalty being imposed on the ground of Misbranding (while complaint is 'Substandard') adverting to the impugned order, it is submitted by the learned state counsel that the impugned order proceeds on the basis that said sample is Substandard, whereas in the concluding paragraph portion alone word 'Misbranded' has been typed which is clearly a typographical error. It is learned State counsel's submission that writ petitioner is trying to make a mountain out of a mole hill.

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c) With regard to Section 49 of said Act and quantification of penalty amount, drawing the attention of this Court to paragraph No.3 of the impugned order, it was submitted that the parameters quantifying penalty at Rs.50,000/- (Rupees Fifty Thousand Only) have been set out thereunder.

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10.This Court now proceeds to deal with aforesaid three fold submissions.

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11.This Court first takes up the last ground with regard to quantification of penalty plea predicated on Section 49 of said Act. Section 49 of said Act reads as follows:

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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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12.Paragraph No.3 of the impugned order reads as follows: '3) vjpjp 3 jug ; g [ tHf ; ffwpqh ; jdJ fl ; rpf ; fhuuhy ; jahhpf ; fg ; gl ; l mBj Oil tpUJefhpy ; khjphp vLj ; jjpy ; Substandard vd bjhptpf ; ftpy ; iy.

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epakd mYtyh ; gjpy ; : tpUJefhpy ; vLj ; j khjphp Substandard

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; ; : ; ; https://hcservices.ecourts.gov.in/hcservices/

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ny ; iy vd bjhptpj ; jJ rl ; g{h ; tkhdJ my ; y. btt ; BtW jpdA ; fspy ; jahhhpj ; J btt ; BtW Lot Number-y ; ghf ; bfl ; Bghlg ; gLtjhy ; nt ; tHf ; fpy Substandard vd bjhptpf ; fg ; gl ; l Palmolein Oil cld ; xg ; gpl KoahJ. czt [ ghJfhg ; g [ mYtyh ; mwpf ; if vjphp 1, 2 MfpBahh ; tpsf ; fk kw ; Wk ; vjphp 3 jug ; g [ tpthjk ; , gFg ; gha ; t [ Tl gFg ; gha ; t [ mwpf ; if Mfpait ftdkhf ghprPypf ; fg ; gl ; ; lJ. jq ; rht{h ; czt [ gFg ; gha ; t [ Tl mwpf ; ifapd ; go 'The above said sample is Substandard under Section 3(1)z(x) of FSS Act 2006. Since the Acid value is higher than the maximum prescribed standard for refined palmolein Oil 2.2.1 (20) and 2.2.1 (16) of FSSR (FPs & FA) 2011 and also Misbranded under Section 3(1)(zf) of FSS Act 2006. Since the lot / Batch No is not clear with respect to 2.2.2.8.8 FSSR (P & L) 2011 vd mwpf ; if bra ; ag ; gl ; Ls ; sJ. Refferal Food Laboratory Mysore mwpf ; ifapd ; go The same is Substandard as defined under Section 3(1) z(x) of Food Safety and Standards Act 2006 as it does not conform to the standards laid down for Refined palmolein Oil under the provisions of Food Safety and Standard (Food product, standard and food Additives) Regulation 2011 there of in that a) Acid value exceed, the maximum standard limit and

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b) Test for rancidity is positive'

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vd mwpf ; if bra ; ag ; gl ; Ls ; sJ. vdBt Bkw ; go mwpf ; ifapd ; go CM Brand Refined Pleached Deodourised Palmolien Oil Misbranded vd ; gJ re ; Bjfj ; jpw ; F nlkpd ; wp Ch ; $pjkhfpwJ. vdBt bghJkf ; fspd Rfhjhuj ; jpw ; F CWtpistpf ; fhky ; ey ; y jukhd czt [ g ; bghUs ; fis tpw ; gid bra ; a Btz ; Lk ; . ndp tUk ; fhyA ; fspy ; nJBghd ; w jtWfs eilbgwhky ; nUf ; f Btz ; Lk ; vd ; w ey ; yz ; zj ; jpd ; mog ; gilapYk ; czt ghJfhg ; g [ rl ; lk ; Fwpj ; J ntUf ; F jf ; f tpHpg ; g [ zh ; t [ Vw ; gLj ; jpl Btz ; Lk vd ; w mog ; gilapYk ; vjphpfSf ; F jf ; f mguhjk ; tpjpg ; gJ mtrpakhfpwJ. vdBt vjphp 1 ePyfz ; lgps ; is, j/bg. uhkehjgps ; is (tpw ; gidahsh ; ) vd ; gtUf ; F &.10,000/- k ; vjphp 2. N .mHfg ; ghgps ; is j/bg. https://hcservices.ecourts.gov.in/hcservices/ ePyfz ; lgps ; is (fil chpikahsh ; ) vd ; gtUf ; F &.10,000/- k ; vjphp 3

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R. re ; jpuBkhfd ; , j/bg. uh$huhk ; (jahhpg ; ghsh ; ) vd ; gtUf ; F &.50,000/mguhjk ; tpjpj ; Jk ; Mizaplg ; gLfpwJ.

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Bkw ; go mguhj bjhifapid muR fUt{y brYj ; Jr ; rPl ; L %yk fPHfz ; l fzf ; Fj ; jiyg ; gpy ; ghuj ! ; Bll ; ta ; fpapy ; VjhtJ xU fpisapy brYj ; jg ; gl Btz ; Lk ; .

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0210 – Medical & Public Health– 04 Public Health – Other

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receipt – I Non Plan AN Food safety wing penaltion

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(DPC: 0210 – 04 – 800 - AN – 0000)

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Bkw ; go mguhj bjhifpaid brYj ; jj ; jtWk ; gl ; rj ; jpy ; czt [ g

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ghJfhg ; g [ kw ; Wk ; ju eph ; zar ; rl ; lk ; 2006 gphpt [ 96-d ; fPH ; chpkA ; fs

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uj ; J bra ; a eltof ; iffs ; Bkw ; bfhs ; sg ; gLk ; vd njd ; %yk

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bjhptpf ; fg ; g ; LfpwJ. '

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13.In the light of Section 49 of said Act and paragraph No.3 of the impugned order, this Court has no hesitation in coming to the conclusion that the impugned order does not suffer from the vice of being in contravention of Section 49 of said Act. The reasons for penalty and quantum of penalty have been set out in paragraph No.3 of impugned order (extracted and reproduced supra) and in any event, Section 49 of said Act only adumbrates five different parameters and sub-Section (e) of Section 49 of said Act talks about 'any other relevant factor'. In the instant case, relevant factors considered by the second respondent vide impugned order have been adumbrated and articulated in paragraph No.3 and there is nothing before this Court to demonstrate that these factors are untenable. Therefore, last ground of attack, which is taken up first for discussion fails.

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14.This Court now takes up the second ground of attack which is predicated on the plea that the impugned order has mulcted the writ petitioner with penalty of Rs.50,000/- (Rupees Fifty Thousand Only) on the ground of sample being 'Misbranded' whereas the complaint itself is one of said oil being Substandard.

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15.Paragraph No.3 of the impugned order has already been extracted, set out supra and alluded to while dealing with Section 49 of said Act.

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16.A perusal of paragraph No.3 of the impugned order reveals that the order clearly proceeds on the basis of the complaint that the product is Substandard. All discussions proceed on the basis of Substandard complaint. Only in the operative portion, the term Misbranded has been used. Therefore, having read the impugned order in its entirety, this Court has no difficulty in accepting the submission of the State counsel that it is only a typographical error and writ petitioner is trying to make a mountain out of a mole https://hcservices.ecourts.gov.in/hcservices/

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hill. Therefore, the second ground also fails and this Court has no difficulty in accepting the submission of learned State counsel that the impugned order has been passed on the ground that the product was Substandard and 'Misbranded' being used in one paragraph is a mere inadvertent typographical error.

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17.This Court now takes up the last ground of attack which has been alluded as first ground in the adumbration supra. This ground turns on Section 42(2) of said Act. This Court deems it appropriate to extract 42(2) of said Act and the same reads as follows:

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' 42. Procedure for launching prosecution.–

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(2) The Food Analyst after receiving the sample

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from the Food Safety Officer shall analyse the sample and send the analysis report mentioning method of sampling and analysis within fourteen days to Designated Officer with a copy to Commissioner of Food Safety.'

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18.The rival submissions extracted supra would reveal that Rule 2.4.2 of said Rules and paragraph 6 are relevant, therefore they are extracted / reproduced and the same read as follows:

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'2.4.2. Analysis of food samples by Food Analyst

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1.On receipt of the package containing a sample of food for analysis, the Food Analyst or an officer authorized by him shall compare the seals on the container and the outer cover with specimen impression of seal received separately and shall note the condition of the seal thereon.

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2.Food laboratories including a mobile food laboratories wherever required, may be established or notified by the Central / State Government for the purpose of testing food samples received from the Food Safety Officer / purchaser.

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3.If the 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 request him to send the second part of the sample for analysis.

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4.On receipt of requisition from the Food Analyst pursuant to Rule 2.4.2 93) the Designated Officer, shall by the succeeding working day, dispatch to the Food Analyst for analysis one part of the samples sent to him by the Food Safety Officer.

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5.On receipt of the sample, the Food Analyst shall anaylse or cause to be analysed the sample and send the analysis report mentioning the method of analysis. The analysis report shall be as per Form VII A and four copies of the same shall be sent to the Designated

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Officer under whose jurisdiction the Food Safety Officer functions or the purchaser of article of food. The analysis report shall be signed by the Food Analyst and such report shall be sent within fourteen days of the receipt of the sample by the Food Analyst.

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6.The Designated Officer shall keep two copies of analysis report for further action, one copy shall be sent to Food Safety Officer for record and one copy to Food Business Operator from whom the sample was taken:

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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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7.The manuals of the method of analysis, as amended / adopted by the Authority from time-to-time including AOAC / ISO / Pearson's / Jacob / IUPAC / Food Chemicals CODEX / BIS / Woodmen / Winton – Winton / Joslyn, shall be used for analyzing the samples of food articles. However, in case the method for analyzing any parameter is not available in these manuals, a validated method of analysis prescribed by internationally recognized / analytical / regulatory agencies, shall be adopted.'

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19.Equally important is sub-paragraph (iii) of paragraph No.5 of the counter affidavit of the respondents which reads as follows: '5(iii). The petitioner stated that the second respondent failed to consider that the Food Analyst had not sent report within 14 days as contemplated under Section 42. The Section quoted by him is not relevant and is Section 46(3). The Food Analyst intimated the reasons for delay in his letter No.0221/2016A4 dated 14.12.2016 addressed the Commissioner for Food Safety under a copy to the Designated Officer, Kanniyakumari District. This Section also does not prescribe any time limit for informing the reasons for the delay. Hence the statement of the petitioner cannot be accepted.'

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20.In the aforesaid backdrop, learned counsel for writ petitioner, adverting to the statement of writ petitioner before the second respondent who made the impugned order, pointed out that a plea has been raised before the second respondent regarding violation of Section 42(2) of said Act qua time frame or in other words, plea that the Food Analyst has not sent the report to the Designated Officer within fourteen days from the date of receipt of sample has in fact been raised before the second respondent. This is articulated in the statement of writ petitioner before the second https://hcservices.ecourts.gov.in/hcservices/ respondent and the relevant portion reads as follows:

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'It is further submitted that the Food Analyst said to have given a report dated 20.12.2017 that the same was Misbranded and Substandard and did not comply with the provisions of the Food Safety and Standards Act, 2006. As per Section 42 of the Food Safety and Standards Act, 2006, the report of the Food Analyst shall be sent within 14 days.'

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21.Though this point has been raised before the second respondent by writ petitioner with clarity and specificity, the same has not been dealt with by the second respondent in the impugned order. A perusal of the impugned order reveals that this point has not been dealt with by the second respondent.

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22.Besides the plea predicated on paragraph No.6 of Rule 2.4.2 of said Rules, State counsel also submitted that writ petitioner has challenged the report of the Food Analyst dated 14.12.2017 by way of an appeal under Section 46(4) of said Act and the Appellate Authority has on 08.01.2018 made a reference to the Referral Lab which has sent a report dated 07.03.2018 and therefore, writ petitioner cannot now be heard to contend that the Food Analyst has sent the report beyond fourteen days. In other words, it is the case of State counsel that writ petitioner is estopped from raising this issue after having filed an appeal against the report of the Food Analyst, dated 14.12.2017.

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23.This Court has given its careful consideration to the rival submissions on this aspect of the matter. With regard to paragraph No.6 of Rule 2.4.2 of the said Rules, the Law is now well settled that an impugned order cannot be improved by way of a counteraffidavit or by way of articulation in the hearing. In the instant case, the impugned order is completely silent about fourteen days plea predicated on Section 42(2) of said Act, though it has been raised by writ petitioner in his statement with clarity and specificity before the second respondent and therefore sub-paragraph (iii) of paragraph No.5 of the counter-affidavit does not help the respondents in advancing this argument. With regard to estoppel, though it is not disputed that writ petitioner has filed an appeal against the report of the Food Analyst, the process did not culminate there as the appeal resulted in the matter being referred to the Referral Lab which sent its report on 07.03.2018 on the basis of which impugned order was passed and therefore it is a continuous process culminating in the impugned order. In this view of the matter, this Court accepts the submission of learned counsel for writ petitioner that writ petitioner is entitled to raise the plea predicated on Section 42(2) of said Act, in the instant Writ Petition now. This is more so, owing to the peculiar facts and circumstances of this case where the impugned order is silent about the plea though the same has been raised with clarity and https://hcservices.ecourts.gov.in/hcservices/

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specificity by writ petitioner in his statement before the second respondent in the course of impugned order being passed.

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24.One factor which has weighed in the mind of this Court is that time lines prescribed qua said Act appear to be time lines which are intended to ensure that the product which is tested does not become stale. In the instant case, the date of manufacture of the product is August, 2017. This Court is conscious of the fact that six months period expired only in February 2018, but what is of relevance is the mandatory requirement under Section 42(2) of said Act so designed to ensure expediency in testing and deciding. Though time line qua Section 42(2) of said Act is not nonnegotiable in the light of paragraph 6 of Rule 2.4.2 of said Rules, though there is some material in the counter-affidavit and though delay has been explained, it has not been articulated in the impugned order. In the light of the settled position that an impugned order cannot be improved by way of a counter-affidavit and in the light of peculiar facts and circumstances of this case, this Court is inclined to sustain this submission of writ petitioner predicated on time line qua Section 42(2) of said Act.

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25.In the result, it follows as an inevitable sequitur that the impugned order deserves to be set aside and the impugned order is set aside. Instant Writ Petition is allowed. No costs. Consequently, connected Miscellaneous Petition is closed.

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// True Copy //

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Sub Assistant Registrar(CS )

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1.The Food Safety Officer, Melpuram, Kanyakumari District.

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2.The Adjudicating Authority, The District Revenue Officer, Kanyakumari District.

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+1 CC to Mr.M. RAJARAMAN, Advocate ( SR-90955[F] dated 03/10/2019 )

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+1 CC to SPL GP ( SR-91180[F] dated 03/10/2019 )

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W.P(MD)No.1288 of 2019 01.10.2019

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VB(04.11.2019) 10P 5C https://hcservices.ecourts.gov.in/hcservices/

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R.Chandramohan, v. the Food Safety Officer

Case brief

What is this about?

What did the court decide?

R.Chandramohan, v. the Food Safety Officer

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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