Delhi District Court
Sh. Navin Tayal S/O Gyan Chand Tayal vs Sh. Saurabh Sharma on 17 December, 2018
IN THE COURT OF MS.POONAM A. BAMBA
DISTRICT & SESSIONS JUDGE, NEW DELHI
FSAT No. 05/18
Sh. Navin Tayal S/o Gyan Chand Tayal
Prop. M/s Annapurna Traders
T197, Gautam Puri
Brahampuri, Delhi110053.
....Appellant
VERSUS
Sh. Saurabh Sharma
Food Safety Officer
Department of Food Safety
Govt. of Delhi
8th Floor, Mayur Bhawan
Connaught Place
New Delhi - 110001. ....Respondent
APPEAL UNDER SECTION 70 CODE OF
THE FOOD SAFETY & STANDARDS ACT,
2006 AGAINST ORDER DATED 20.02.2018
OF LD. ADJUDICATING OFFICER / ADDL.
DISTRICT MAGISTRATE, NORTH EAST,
DELHI.
Date of Institution of Appeal : 14.03.2018
Arguments concluded on : 30.11.2018
Judgment announced on : 17.12.2018
J U D G M E N T
1.0 Vide this judgment, I shall dispose of the appeal against
FSAT No.05/2018
Navin Tayal Vs. FSO Page No.1 of 9
the order dated 20.02.2018 ("the impugned order" in short) passed
by the Ld. Adjudicating Officer/Addl. District Magistrate, (NE)
District, Delhi ("ADM" in short), directing the appellant to pay a
penalty of Rs.50,000/, under section 52 of the Food Safety and
Standard Act, 2006 ("FSS Act" in short) for sale of misbranded
food article/Pan Masala, which violated Regulation 2.2.1.7 of Food
Safety and Standard (Packaging and Labelling) Regulations, 2011
["FSS (P&L) Regulations" in short].
2.0 The facts which are not in dispute are that :
i) on 19.10.2016 at about 3:30pm, the FSO purchased a
sample of "Pan Masala" for analysis from the appellant's
premises i.e. M/s Annapurna Traders, T197, Gautampuri,
Brahmpuri, Delhi - 110053, where the said food article
was found stored for sale. One part of the sample was sent
for analysis to the Food Analyst. Other two counter parts
of the sample were deposited with the Designated Officer.
As the FBO did not make any request for sending the
fourth counter part of the sample for analysis from an
NABL accredited laboratory, the fourth counter part was
also deposited with the Designated Officer;
ii) the Food Analyst vide his report dated 24.10.2016
declared the sample as misbranded as the same did not
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Navin Tayal Vs. FSO Page No.2 of 9
declare FSSAI logo and license number;
iii) in view of the above, a complaint/application was filed
by FSO before the Ld. ADM. Notice under Rule 3.1.1(3)
of Food Safety and Standards Rules, 2011 ('FSSR' in
short), along with copy of the report of the Food Analyst,
was served upon the appellant. Copy of the report was also
supplied to the appellant as well as to M/s Vishnu Pouches
(mentioned as manufacturer on the sample), giving them
an opportunity to file appeal against the report of Food
Analyst. None of them preferred appeal;
iv) Ld. ADM after hearing both the sides and finding that
the sample food article 'Pan Masala' was being sold
without declaration of FSSAI logo and Licence Number in
contravention of Regulation 2.2.1.7 of FSS (P&L)
Regulations r/w Sections 26(2)(ii), 27 r/w 3(1)(zf)(C)(i) of
FSS Act, imposed a penalty under Section 52 FSS Act of
Rs.50,000/ on the appellant vide impugned order dated
20.02.2018 Aggrieved by the said order, the appellant has
preferred the present appeal.
FSAT No.05/2018
Navin Tayal Vs. FSO Page No.3 of 9
3.0 The appellant has challenged the impugned order inter
alia on the grounds that :
i) Ld. ADM did not appreciate that the appellant is a
retailer and the sample article was manufactured and
supplied to the appellant by M/s Vishnu Pouches, Sonepat,
Haryana, on payment of cash. No invoice/bill was issued
by the manufacturercumsupplier company;
ii) Ld. ADM failed to appreciate that the FSO did not
conduct proper investigation with respect to the
manufacturing company, which resulted in giving of
benefit of doubt to the manufacturer, the main culprit;
iii) Ld. ADM failed to appreciate that the the Food
Analyst's report is not admissible as the Delhi Food
Laboratory which issued the analysis report is not a
competent lab to analyze the samples of food as per
Section 43 FSS Act being not NABL Accredited or
notified in Official Gazette as per Section 3(1)(p) FSS Act.
3.1 On the other hand, Ld. Chief Public Prosecutor sought
dismissal of this appeal submitting that it is undisputed that the
sample food article/Pan Masala pouch did not bear FSSAI logo and
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Navin Tayal Vs. FSO Page No.4 of 9
license number. Thus, the violation is not disputed. Ld.ADM has
imposed only a meager penalty of Rs.50,000/ as against the
maximum prescribed penalty of Rs. Three Lakhs.
4.0 I have heard Sh. R.K. Ahuja, Ld. Counsel for the appellant
and Sh. Anil, Ld.Chief Public Prosecutor for the State and have
carefully perused the record.
5.0 In view of the admitted facts as detailed in para 2.0(supra),
it is not in dispute that sample of Pan Masala purchased by FSO on
19.10.2016 from the appellant herein did not declare FSSAI logo
and the license number.
5.1 It may be mentioned that Regulation 2.2.1.7 of FSS
(P&L) Regulations lays down that:
"2.2 : Labelling
2.2.1: General requirements
1.Every prepackaged food shall carry a label containing
information as required here under unless otherwise provided,
namely,
.....
[(7) License number shall be displayed on the principal display panel in the following format, namely: FSAT No.05/2018 Navin Tayal Vs. FSO Page No.5 of 9 FSSL 10000000000000 *Provided that the existing products of a unit shall comply with the requirements of this clause on and after the six months of commencement of the Food Safety and Standards(Packaging and Labelling) Amendment Regulations,2013.] 5.2 As the sample food article did not bear the FSSAI logo and the licence number, it contravened the above Regulation.
6.0 The above admitted contravention rendered the food article as misbranded in terms of section 3(1)(zf)(C)(i) of the FSS Act. Further, Section 26 FSS Act makes it obligatory on the Food Business Operator to ensure compliance of the provisions of FSS Act and rules and regulations framed thereunder. Clause (ii) sub section (2) of Section 26 FSS Act specifies that no food business operation shall store/sell etc. any food article which is mis branded.Nondischarge of the said obligation/ sale etc. of the misbranded food is made punishable under Section 52 FSS Act,which prescribes a maximum penalty of Rs.Three Lacs.
6.1 The appellant has contended that the Ld. ADM did not appreciate that the appellant is a retailer and the sample article was manufactured and supplied to the appellant by M/s Vishnu Pouches, FSAT No.05/2018 Navin Tayal Vs. FSO Page No.6 of 9 Sonepat, Haryana, on payment of cash; and that no invoice/bill was issued by the manufacturercumsupplier company. Perusal of the record shows that no such submission was made by the appellant before the Ld.ADM. Rather, the appellant made a statement before the Ld.ADM on 22.11.2017 that he purchased the sample food article/Pan Masala from a private hawker. The appellant did not even disclose the name of the private hawker or of the manufacturer as now stated much less about nonissuance of any invoice/bill. On the other hand, the manufacturer named on the sample food article i.e. M/s Vishnu Pouches disowned the sample food article being their product. Ld.ADM has noted in the impugned order that M/s Vishnu Pouches placed on record, copies of FIRs lodged by them about sale of duplicate Pan Masala pouches with their name as manufacturer by the unscrupulous persons. Thus, the appellant's above contention is evidently an after thought.
7.0 It is not the case of the appellant that he is not liable for penalty under Section 52 FSS Act. His grievance is that the Ld.ADM gave benefit of doubt to the manufacturer but punished the appellant. As already noted above, the appellant could not give the name of the manufacturer/company from which he purchased the sample food article. The appellant has also raised other contentions. However, during the course of arguments, Ld.Counsel for the appellant submitted that the appellant does not press other grounds FSAT No.05/2018 Navin Tayal Vs. FSO Page No.7 of 9 of appeal and only prays for reduction in penalty. In view of the same, I need not go any further into the other contentions.
8.0 As far as the appellant's plea for reduction in penalty is concerned, it is seen that the Ld.ADM has observed in the impugned order that to discourage the malpractice being adopted by FBO/manufacturer and taking into account the provisions of Section 49 FSS Act, he considered it appropriate to impose a penalty of Rs.50,000/ taking into account the maximum prescribed penalty u/S 52 FSS Act. Perusal of the trial court record shows that the appellant had filed documents pertaining to his income etc. including Income Tax Returns for the years 20152016 and 2016 2017. Considering the appellant's income as reflected in those Income Tax Returns, other attending facts and circumstances and taking into account the nature of violation, I am of the considered opinion that penalty of Rs.50,000/ imposed by Ld.ADM as against the maximum prescribed penalty of Rs.Three Lacs is not on the higher side. Same does not call for any interference.
9.0 Appeal is therefore, dismissed.
9.1 Trial court record be returned along with copy of this judgment.
FSAT No.05/2018 Navin Tayal Vs. FSO Page No.8 of 910.0 File be consigned to Record Room.
Digitally signed by POONAM POONAM A BAMBA
A BAMBA Date: 2018.12.17
16:51:40 +0530
Dictated and Announced in the (POONAM A.BAMBA)
open court on this 17th day District & Sessions Judge
of December, 2018. New Delhi
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