Delhi District Court
M/S Mc Donald'S Family Restaurant vs State Of Nct Of Delhi on 27 April, 2019
IN THE COURT OF MS.POONAM A. BAMBA
DISTRICT & SESSIONS JUDGE, NEW DELHI
FSAT No. 03/2016
M/s Mc Donald's Family Restaurant
(A Unit of M/s Connaught Plaza Restaurants Pvt. Ltd.)
F14/15, Model TownII
New Delhi110009.
Delhi Head Office:
13A, Jor Bagh Market
New Delhi.
Through Sh.Devinder Jain,
AR of the company. .....Appellant
VERSUS
1. State of NCT of Delhi
Through Secretary
Department of Prevention of Food Adulteration
Delhi.
2. Food Safety Officer
Department of Food Safety
Govt. of NCT of Delhi
A20,Lowernce Road Industrial Area
Delhi 110035. .....Respondents
APPEAL AGAINST THE ORDER DATED
28.10.2014 OF LD.ADJUDICATING
OFFICER/ADDITIONAL DISTRICT
MAGISTRATE, (NORTH), DELHI.
FSAT No.03/2016
M/s Mc Donald's Family Restaurant vs State, NCT of Delhi & Anr. Page No. 1 of 18
Date of Institution of Appeal : 02.12.2014
Arguments concluded on : 27.04.2019
Judgment announced on : 27.04.2019
JUDGMENT
1.0 Vide this appeal, the appellant has challenged the order dated 28.10.2014 of Ld. Adjudicating Officer/Additional District Magistrate (North), Delhi ("ADM" in short) directing the appellant to pay a penalty of Rs.Two Lacs, under Section 51 of The Food Safety and Standard Act, 2006 ("FSS Act" in short) for violation of Section 26(2)(ii) read with Section 3(1)(zx) of FSS Act and Regulation 2.2.1.20 of The Food Safety and Standards(Food Products Standards and Food Additives) Regulations, 2011 ("FSS(FPS&FA) Regulations" in short) for selling sub standard food.
2.0 The brief facts which are not in dispute are that :
(i) on 26.02.2013, Food Safety Officer("FSO" in short) visited McDonalds Family Restaurant (a unit of M/s Connaught Plaza Restaurants Private Limited) F14/15, Model Town II, New Delhi110009 where Sh.Anmol Wadhwa, Food Business Operator("FBO" in short)/Store Incharge was found storing RBD Imported Refined FSAT No.03/2016 M/s Mc Donald's Family Restaurant vs State, NCT of Delhi & Anr. Page No. 2 of 18 Palmolein Oil ("Palmolein oil" in short) for use in preparation of raw products/patties for sale of human consumption. The Palmolein Oil(which was ready for use) was kept in an open container inside the restaurant bearing no label declaration ;
(ii) the sample of Palmolein Oil/sample food article was purchased by FSO on 26.02.2013 from Sh.Anmol Wadhwa,FBO and an amount of Rs.123/was offered to him as cost of the sample but the same was not accepted by him;
(iii) the sample was taken after proper mixing with the help of a clean and dry spoon in all possible directions. So purchased food article was divided equally in four parts by putting in four clean and dry glass bottles. One counter part of the sample was sent to the Food Analyst for examination. The Food Business Operator(FBO) did not request to send the fourth part of the sample for analysis from any accredited laboratory under Section 47(1)(c)(iii) of FSS Act r/w Rule 2.4.5 of The Food Safety and Standards Rules, 2011("FSSR" in short). In view of the same, the two counterparts of the sample in sealed packet FSAT No.03/2016 M/s Mc Donald's Family Restaurant vs State, NCT of Delhi & Anr. Page No. 3 of 18 as well as the fourth counterpart in a sealed packet were deposited with the Designated Officer;
(iv) The Food Analyst vide his report dated 11.03.2013 found that "The sample is substandard because acid value exceeds the prescribed maximum limit of 0.5";
(v) on the basis of the above report, a complaint/application under Rule 3.1.1(3) FSSR against the appellant was filed before the Ld.ADM. Notice of the same was issued to the appellant and hearing was given.
The Ld. ADM after hearing both the sides passed the impugned order.
2.1 The appellant has challenged the impugned order inter alia on the grounds that:
(i) the FSO admitted in the complaint that the sample food article was not for public sale and was lying in the kitchen; in these circumstances, the appellant itself is a consumer and could not be subjected to the penalty;
(ii) the sample food article conformed to all the FSAT No.03/2016 M/s Mc Donald's Family Restaurant vs State, NCT of Delhi & Anr. Page No. 4 of 18 parameters laid down under the FSS Act and Regulations framed thereunder; only acid value increased by 0.12% which is a natural phenomenon and beyond the control of human agency. The acid value indicated the age of the sample food article and did not suggest adulteration;
(iii) the Ld.ADM did not appreciate that the possibility of marginal increase in acid value being due to error in judgment of the Food Analyst, cannot be ruled out;
(iv) the appellant company purchased the sample food article from Cargill India Private Ltd. vide Bill No. dated .....(left blank in appeal) which was shown to the FSO but he refused to accept the said bill on the ground that the sample commodity was in loose form and protection of warranty cannot be used. This is despite the fact that sealed tins of Palmolein oil were lying and the FBO requested the FSO to take the sample from the sealed tin(seal of which had not been tempered) as both the samples were identical, but to no avail. The appellant company thereby suffered non protection of warranty/guaranty for default of FSO;FSAT No.03/2016
M/s Mc Donald's Family Restaurant vs State, NCT of Delhi & Anr. Page No. 5 of 18
(v) this case is not covered under the definition of misbranded or substandard; nor does it contain extraneous matter;
(vi) none of the submissions of the appellant made vide its reply dated 30.07.2014 were considered by the Ld.ADM while passing the impugned order;
(vii) the Ld.ADM even erred in imposing a heavy penalty of Rs.Two Lacs for a minor offence that was not committed by the appellant. No reason for assessing the said quantum has been recorded.
3.0 On the other hand, Ld. Chief Public Prosecutor sought dismissal of the appeal with heavy costs. It is submitted that as per FBO Sh.Anmol Wadhwa himself, the sample food article was meant for use in the preparation of raw products/patties for sale. Thus, it was meant for preparation of food articles for sale for human consumption. The sample food article has been found to be sub standard, as it exceeded the prescribed acid limit. Appellant is therefore, guilty of storing/sale of substandard food.
FSAT No.03/2016M/s Mc Donald's Family Restaurant vs State, NCT of Delhi & Anr. Page No. 6 of 18 4.0 I have heard Sh.M.L.Narang, Ld. Counsel for the appellant and Sh. Anil, Ld. Chief PP for State and have carefully perused the record.
5.0 Let me at the outset refer to Regulation 2.2 FSS (FPS & FA) Regulations, which lays down the standard of the Palmolein oil. Regulation 2.2.1.20 FSS (FPS & FA) Regulations, reads as under:
"2.2.FATS, OILS AND FAT EMULSIONS
20. Palmolein means the liquid fraction obtained by fractionation of palm oil obtained from the fleshy mesocarp of fruits of oil palm (Elaeis Guineensis) tree by the method of expression or solvent extraction. It shall be clear, free from rancidity, suspended or other foreign matter separated water, added colouring and flavouring substances or mineral oils. It shall conform to the following standards, namely:--
Butyrorefractometer reading at 40C 43.7 52.5 OR Refractive Index at 40C 1.4550 1.4610 Iodine value (Wij's method) 5462 Saponification value 195205 Cloud Point Not more than 18 C Unsaponifiable matter Not more than 1.2 per cent Acid value Not more than 6.0 Further, if the palmolein is obtained from solvent extracted palm oil, it shall be refined before it is supplied for human consumption and it shall conform to the standards laid down under regulation 2.2.1 (16). Additionally, it shall have Flash Point (Pensky Marten closed method) not less than 250C.
Test for argemone oil shall be negative. However, it may contain food additives permitted in these Regulations and Appendices. The oil so refined shall not contain Hexane more than 5.00 ppm."FSAT No.03/2016
M/s Mc Donald's Family Restaurant vs State, NCT of Delhi & Anr. Page No. 7 of 18 5.1 From the above, it is apparent that before the Palmolein oil is supplied/used for human consumption, it shall conform to the standards laid down in 2.2.1.16 FSS (FPS & FA) Regulations. The said regulation reads as under:
"16. Refined vegetable oil means any vegetable oil which is obtained by expression or solvent extraction of vegetable oil bearing materials, deacidified with alkali and/or physical refining and/or by miscella refining using permitted foodgrade solvents followed by bleaching with absorbent earth and/or carbon and deodourised with steam. No other chemical agent shall be used. The name of the vegetable oil from which the refined oil has been manufactured shall be clearly specified on the label of the container. In addition to the under mentioned standards to which refined vegetable oils shall conform to the standards prescribed in these regulations for the specified edible oils shall also apply except for acid value which shall be not more than 0.5. Moisture shall not exceed 0.10 per cent by weight. Test for argemone oil shall be negative.
1. The refined vegetable oil shall be obtained from the following vegetable oils:
(i) Coconut Oil .....
(xviii) Palmolein .....
2.The refined vegetable oil shall comply with the following requirements:
The oils shall be clear and free from rancidity, adulterants, sediments, suspended and other foreign matter, separated water, added colouring and flavouring substances and mineral oil
3. However, it may contain food additives permitted in these Regulations and Appendices."
FSAT No.03/2016M/s Mc Donald's Family Restaurant vs State, NCT of Delhi & Anr. Page No. 8 of 18 5.1.1 In view of the above, the Palmolein oil should not have had the acid value more that 0.5.
5.2 Admittedly, the sample food article/Palmolein oil had acid value of 0.62 i.e. above the prescribed standard of 0.5. Thus, it did not conform to the standard of acid value as prescribed in Regulation 2.2.1.20 r/w 2.2.1.16 of FSS (FPS & FA) Regulations.
5.3 Non conforming to the specified standard rendered the sample food article/ Palmolein oil substandard in terms of Section 3(1)(zx) of FSS Act which reads as under:
"3.Definitions (1).....
(zx)substandard an article of food shall be deemed to be substandard if it does not meet the specified standards but not so as to render the article of food unsafe;"
6.0 It may be mentioned that Sections 26 FSS Act which lays down the responsibilities of the FBO, inter Alia enjoins upon every FBO to ensure that food article, whether produced, sold, distributed, stored etc. under his control shall satisfy the requirements of the FSS Act and the Rules and Regulations framed thereunder. Section 26 FSS Act reads as under:
FSAT No.03/2016M/s Mc Donald's Family Restaurant vs State, NCT of Delhi & Anr. Page No. 9 of 18 "26.Responsibilities of the food business operator.(1) Every food business operator shall ensure that the articles of food satisfy the requirements of this Act and the rules and regulations made thereunder at all stages of production, processing, import, distribution and sale within the businesses under his control.
(2)No food business operator shall himself or by any person on his behalf manufacture, store, sell or distribute any article of food
(i) which is unsafe; or
(ii) which is misbranded or substandard or contains extraneous matter....."
6.1 From the plain reading of the above provision, it is evident that the appellant violated Section 26(2)(ii) FSS Act by storing sub standard Palmolein oil/ sample food article which was meant for use for preparation of raw products/patties for human consumption. Such violation is punishable under Section 51 FSS Act which provides for a maximum penalty of Rs.Five Lakhs.
7.0 The appellant has not disputed that acid value of Palmolein oil/sample food article exceeded the prescribed limit of 0.5. But the impugned order has been challenged raising many contentions in the present appeal. Ld. Counsel for the appellant however mainly impressed upon the appellant's challenge to the impugned order on the ground that there was only a marginal variation in the acid value from the specified standard; and therefore, such a heavy penalty could not FSAT No.03/2016 M/s Mc Donald's Family Restaurant vs State, NCT of Delhi & Anr. Page No. 10 of 18 have been imposed by the Ld.ADM. In support, reliance was placed upon judgments of Hon'ble Supreme Court in Noratan Mal vs State of Rajasthan, Prevention of Food Adulteration Cases 1995(1) Page 126 & Mahabir Prasad vs State of Haryana, 2004(1) EFR 415 and judgment of Hon'ble Delhi High Court in Shailender Kumar vs The State, 1999(1) FAC 15.
7.1 On the other hand, Ld.Chief Public Prosecutor argued that any noncompliance of the specified standards attracts the penalty as prescribed under Section 51 FSS Act; extent of variation does not in any manner exonerate the appellant. In support, he placed reliance upon the judgment of Hon'ble Supreme Court dated 24.12.2018 in Criminal Appeal No.625 of 2018 titled as Delhi Administration vs Vidya Gupta. Ld. Chief Public Prosecutor also argued that the Ld. ADM vide the impugned order has imposed a penalty of only Rs.Two Lacs as against the maximum prescribed penalty of Rs.Five Lakhs. Therefore, same does not call for any interference. It was further submitted that the judgments relied upon by the appellant are not applicable as the facts in those cases were very different.
7.2 As already noted above, the acid value (0.62) of the sample food article exceeded the prescribed limit (of 0.5). In Vidya FSAT No.03/2016 M/s Mc Donald's Family Restaurant vs State, NCT of Delhi & Anr. Page No. 11 of 18 Gupta's case(Supra) facts were quite similar. In that case, a sample of ghee was taken from an open tin,where it was kept stored for preparation of sweets. On analysis, the Public Analyst opined that the sample exceeded the maximum Butyro Refractometer ("BR" in short) reading limit besides Reichert value etc. Somewhat similar contentions were raised in that case also, as raised by the appellant in present appeal. The Hon'ble Supreme Court while dealing with the said contentions and the provisions of Section 7 of of the old Act which prohibited manufacture,sale etc. of adulterated food etc. observed that:
"(v) .....This section must be construed according to the rule of interpretation enunciated in Municipal Corporation of Delhi v.
Kacheroo Mal8, which also arose under this Act. This Court enunciated the Rule as follows:
"5. The Act has been enacted to curb and remedy the widespread evil of food adulteration, and to ensure the sale of wholesome food to the people. It is well settled that wherever possible, without unreasonable stretching or straining, the language of such a statute should be construed in a manner which would suppress the mischief, advance the remedy, promote its object, prevent its subtle evasion and foil its artful circumvention......."
7.2.1 In view of the above, FSS Act has to be construed so as to sub serve its objective as detailed by the Hon'ble court. As per the Act, any deviation from the specified standard amounts to contravention of the relevant regulation; which by itself is made punishable. The FSS Act does not make a distinction between the minor or major variation. Therefore, there is hardly any merit in the FSAT No.03/2016 M/s Mc Donald's Family Restaurant vs State, NCT of Delhi & Anr. Page No. 12 of 18 appellant's contention that the Ld.ADM erred in imposing the penalty in utter disregard of the minor variation in acid value in the sample food article.
7.3 Let me now refer to the case law relied upon by the appellant. All the judgments relied upon by the appellant were under the old Act of 1954. In Nortan Mal's case(Supra) what weighed in the mind of the Hon'ble Supreme Court was that it was a case more than two decades old, where the inspection was carried out in 1976. Considering the same and taking into account the minimal variation in ash in chilly powder sample, the appeal was allowed. As far as Mahabir Prasad's case(Supra) and Shailender Kumar's case(Supra), are concerned, the facts in both the cases are distinguishable. In Shailender Kumar's case(Supra), report of Director CFL was also obtained; there was variation in the report of Public Analyst and that of Director CFL. In view of the difference of opinion between the Public Analyst and Director CFL, the Hon'ble High Court had noted that the error in human agency regarding the finding cannot be ruled out and allowed the petition.
7.3.1 In Mahabir Prasad's case(Supra), the sample of ghee contained 1.06% moisture as per the opinion of Public Analyst against the maximum of 0.5% prescribed under the Prevention of Food FSAT No.03/2016 M/s Mc Donald's Family Restaurant vs State, NCT of Delhi & Anr. Page No. 13 of 18 Adulteration Rules. But the opinion of Central Food Laboratory could not be had because, the seal of the sample sent for examination was found broken. In view of these facts i.e. the nonavailability of the second expert opinion and taking note of marginal difference, the appeal was allowed by the Hon'ble Supreme Court.
7.3.2 Facts in the instant case are very different. Here the appellant did not request for sending the food article to Central Food Laboratory. In view of the same and the observation made in preceding paras, these judgments are of no help to the appellant.
8.0 Ld. Counsel for the appellant meekly contended that the sample food article was not for sale but for use in preparation of patties etc. Suffice it to state that the sample food article was admittedly used in the preparation of raw products/patties which were meant for sale for human consumption. Thus, there is hardly any merit in the appellant's contention. Even otherwise, Section 26(2) directs that no FBO shall store/sell etc. any food article which is sub standard; thus, storage of sub standard food itself is prohibited. Further, I am supported in my view by judgment of Hon'ble Supreme Court in Vidya Gupta's case(Supra) which dealt with the similar contention. Hon'ble Supreme Court noted that:
"5. This case turns on the above explanation to the section. According to the accused, since the Ghee which was found to be adulterated FSAT No.03/2016 M/s Mc Donald's Family Restaurant vs State, NCT of Delhi & Anr. Page No. 14 of 18 was not itself meant for sale, but was meant to be used as an ingredient in the sweets that were in turn meant for sale, no offence is made out. The contention in other words is that it was legal to store adulterated Ghee, if the Ghee itself was not meant for sale.
6. The explanation to the section does not support this contention. It clearly lays down that if a person stores any adulterated food for the purpose of manufacturing from it any article of food for sale, he shall be deemed to store adulterated food. The purpose of this provision is clear, it prohibits the storing of adulterated food notwithstanding the fact that such adulterated food is itself not offered for sale, but is used in making some food which is offered for sale. It is clearly to prevent the adulteration of food and its sale to the public even when it is meant to be used for preparing some other food which is offered for sale. Thus, either way, whether the adulterated food is stored for sale, or if such food is stored for making some other food which is sold, such storing is an offence. Parliament has rightly assumed that no one, who offers food for sale, would store food which is not meant to be used in some food meant for sale."
8.1 The appellant has also contended that it itself is a consumer and therefore, could not be subjected to any penalty. There is hardly any merit even in this contention in view of of the appellant's own averment that the the Palmoline oil/ the sample food article was stored for use in preparation of raw product/ patties meant for sale for human consumption.
9.0 The appellant has also contended that the Ld.ADM failed to take into account any of its submission made vide its reply. It is seen that vide its reply the appellant after referring to various provisions of the Act and the Rules w.r.t. procedure for taking sample and the manner of sending it for analysis etc.submitted that the sample FSAT No.03/2016 M/s Mc Donald's Family Restaurant vs State, NCT of Delhi & Anr. Page No. 15 of 18 food article / Palmolein oil was taken from an open container;the oil from which the sample was taken was not meant for use in the restaurant; the said oil had been used earlier and was kept for discarding and that is why, it was left in an open and unlabelled container. Interestingly, no such plea has been taken by the appellant in its present appeal before this court. Rather, the facts have not been disputed and the impugned order has been mainly contested on the ground of improportionate penalty in the light of minor variation in acid value. The other submission which is made in the reply before Ld.ADM, is that Cargill India Pvt.Ltd. had supplied the oil to their company's restaurant. Similar submission has been made in the appeal but the appellant has left blank the bill number by which it claims to have purchased the sample food article from the said company .Even otherwise, the appellant has failed to demonstrate as to how is it entitled to the defence under Section 80 FSS Act. Other contentions as made in the reply viz, the entire process of sampling, method of conducting analysis, preparation of report by Food Analyst, were neither specifically raised nor pressed before this court.
10.0 The appellant has further contended that the Ld.ADM even erred in imposing a heavy penalty of Rs.Two Lacs for a minor offence without giving any reason for assessment of the said amount.
FSAT No.03/2016M/s Mc Donald's Family Restaurant vs State, NCT of Delhi & Anr. Page No. 16 of 18 10.1 As already mentioned above that Section 51 FSS Act prescribes a maximum penalty of Rs. Five Lakh. It is seen that the Ld.ADM after mentioning the criteria under Section 49 FSS Act which need to be taken into consideration while assessing the quantum of penalty, has recorded that considering the same and other facts and circumstances, he thought it fit to impose a penalty of Rs. Two Lacs. Ld.ADM may not have recorded the detailed reasons for such evaluation. But no purpose would be served by remanding the matter back to the Ld. ADM for this purpose alone in the light of the facts and circumstances of the case. Keeping in mind the objective/provisions of the Act, considering the nature of violtion and and taking into account the fact that only a penalty of Rs.Two Lacs has been imposed against the maximum penalty of Rs.Five Lakhs as prescribed under Section 51 FSS Act, I am of the considered opinion that the penalty of Rs. Two Lacs imposed by the Ld. ADM does not call for any interference.
11.0 Appeal is dismissed, accordingly.
12.0 Trial court record be returned alongwith copy of this judgment.
FSAT No.03/2016M/s Mc Donald's Family Restaurant vs State, NCT of Delhi & Anr. Page No. 17 of 18 13.0 Appeal file be consigned to record room.
POONAM Digitally signed by
POONAM A BAMBA
A BAMBA Date: 2019.04.27
19:40:13 +0530
Announced in the open (POONAM A.BAMBA)
court on 27.04.2019. District & Sessions Judge New Delhi FSAT No.03/2016 M/s Mc Donald's Family Restaurant vs State, NCT of Delhi & Anr. Page No. 18 of 18