Delhi District Court
M/S A P Organics Ltd vs State Through Food Safety Officer on 8 January, 2024
IN THE COURT OF MR. SANJAY GARG-I
PRINCIPAL DISTRICT & SESSIONS JUDGE,
NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
FSAT No.10/2023
CNR No. DLND01-004476-2023
1. M/s. A.P. Organics Limited
Village Manwala, Saron Road,
Dhuri, District Sangrur,
Punjab-148023
Also at :
SCO No. 14, FF, Royal Street,
Sector 17, Omaxe Residency,
Pakhowal Road, Ludhiana,
Punjab-142022
Through its Authorized representitive
Sh. Vijay Kumar Goyal
2. Sh. Mukul Kumar Pandey
S/o. Sh. Jayprakash Pandey,
Mathia, Siwan, Sahpur,
Bihar-841243 .... Appellants
Versus
State of Delhi through Food Safety Officer,
Sh. Naresh Kumar Sharma
Department of Food Safety,
Government of NCT of Delhi,
8th Floor, Mayur Bhawan,
Connaught Palace, New Delhi-110001 .... Respondent
Date of Institution : 12.05.2023
Date of hearing arguments : 08.01.2024
Date of Judgment : 08.01.2024
Appearances:
Sh. Jitender Anand, Ld. counsel for the appellant.
Sh. P.N. Singh, Special, Public Prosecutor for the
State/Respondent.
FSAT No. 10/2023 M/s.A.P. Organics Ltd. & Anr. v. State through FSO Page 1 of 8
JUDGMENT
1. This judgment shall decide the present appeal preferred by the appellants under Section 70 of the Food Safety and Standards Act, 2006 (hereinafter referred as 'FSS Act') assailing order dated 12.04.2023 passed by Sh. Puneet Kumar Patel, Adjudicating Officer/Addl. District Magistrate (District East), Delhi, whereby, the appellants have been imposed penalty of Rs.2,00,000/ (Rupees Two Lacs only) and Rs.2,50,000/ (Rupees Two Lacs & Fifty Thousand only) for violation of Section 26 (1) and Section 26 (2) (ii) read with Section 3 (1) (zf) of the Food Safety and Standards Act, 2006 and violation of Regulation No.2.2.1(23) of the Food Safety and Standards (Food Products Standards and Food Additives) Regulation, 2011, punishable under Section 51 of the FSS Act.
BRIEF FACTS
2. It is stated that on 20.01.2021, Sh. Naresh Kumar Sharma, Food Safety Officer visited the premises of M/s. Vestige Marketing Pvt. Ltd. situated at E-175, Gali No.7, Pandav Nagar, East Delhi-110091 and purchased four originally sealed plastic bottles of 2 Litre each of "Rice Bran Oil" for analysis under the provisions of FSS Act/Rules/Regulations. Thereafter, one portion of this sample along with memorandum of Form VI was sent to Food Analyst, Delhi for analysis. The Food Analyst analyzed the sample and opined vide his report No.FSS/85/2021 dated 01.02.2021 that, "the sample is substandard because Acid value exceeds the prescribed maximum limit of 0.5%. Against this report, an appeal U/s.46(4) of the FSS Act was preferred by the vendor of the sampled article of food and one counterpart of the FSAT No. 10/2023 M/s.A.P. Organics Ltd. & Anr. v. State through FSO Page 2 of 8 sample was sent to Referral Food Laboratory, Ghaziabad and certificate of its Director opined that, "the sample of Rice Bran Oil does not conform to the standards laid down under regulation No. 2.2.1(23) of FSS Act as the sample shows Acid Value above the maximum prescribed limit and Oryzanol content below the minimum prescribed limit". It further opined that, "the fatty acid composition of C 22:1 above the maximum prescribed limit. The sample is thus substandard U/s.3(1)(zx) of FSS Act, 2006". It is submitted that the abovesaid report has neither fully confirmed the findings of report of the Food Analyst nor declared the sample unsafe/harmful for human consumption/adulterated.
3. Thereafter, Ld. Adjudicating Officer after going through the documents available on record and in the facts and circumstances found the appellants to have committed an offence by violating the provisions of Section 26 (1) and Section 26 (2)
(ii) read with Section 3 (1) (zx) of the Food Safety and Standards Act, 2006 and the appellants also violated regulation No.2.2.1(23) of the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011, punishable under Section 51 of the FSS Act and also additionally violated provisions of Section 27(1) of the FSS Act, 2006 and passed the impugned order dated 12.04.2023 thereby imposing a penalty of Rs.50,000/- (Rupees Fifty Thousand only) on appellant No.1, penalty of Rs.30,000/- (Rupees Thirty Thousand only) on appellant No.2, penalty of Rs.1,00,000/- (Rupees One Lac) on appellant No.3, penalty Rs.1,00,000/- (Rupees One Lac) on appellant No.4, penalty of Rs.1,50,000/- (Rupees One Lac Fifty Thousand) on appellant No.5, penalty of Rs.2,00,000/- (Rupees FSAT No. 10/2023 M/s.A.P. Organics Ltd. & Anr. v. State through FSO Page 3 of 8 Two Lacs) on appellant No.6 and penalty of Rs.2,50,000/- (Rupees Two Lacs) on appellant No.7.
GROUNDS OF APPEAL
4. The impugned order is assailed on the ground that the same is wholly misconceived, illegal, devoid of any merits and contrary to the provisions of FSS Act and Regulations. The Adjudicating Officer failed to consider that the impugned proceedings have been filed by the respondent on the basis of certificate of Director, RFL, Ghaziabad where the sample of Rice Bran Oil was tested on 47 parameters and only 03 parameters has shown marginal difference with the prescribed standards. It is further mentioned that Director, RFL, Ghaziabad took 15 days to analyze the sample i.e. from 09.03.2021 till 24.03.2021 and the report was finalized on 30.03.2021 and during such period, the product was left open/exposed to atmosphere which in turn may have material bearing/adverse effect on the chemical properties of the sample including acid value. It is further mentioned that the impugned order has been passed by the Adjudicating Officer without considering the fact that no evidence has been led by the FSO/respondent against the appellants and even the Food Safety Officer was not examined to prove the manner of taking the sample and to establish its case.
ARGUMENTS
5. Heard the arguments of Sh. Jitender Anand, Ld. counsel for the appellants and Sh. P.N. Singh, Special, Public Prosecutor for the State/Respondent. I have gone through the record of the Adjudicating Officer and record of the present appeal and documents filed therewith.
DECISION FSAT No. 10/2023 M/s.A.P. Organics Ltd. & Anr. v. State through FSO Page 4 of 8
6. Ld. Counsel for the appellant submits that instead of challenging the order of the Adjudicating Officer on merits, he is only confining his submissions to the quantum of fine imposed. The Ld. Counsel for the appellant submits that Sub Section 49 of the Act provides that, "while adjudicating the quantum of penalty, the Adjudicating Officer or the tribunal, shall have due regard to the amount of gain or advantage wherever quantifiable made as a result of the contravention". It is stated that while imposing the penalty, no reason has been given by the Adjudicating Officer for imposing so heavy penalty upon the appellants. The Ld. Counsel further submits that as per the report of the Food Analyst, the violation alleged against the appellant is that the acid value of Rice Bran Oil is 0.78 against the maximum of 0.5. As per the report of the Food Analyst, acid value is found to be 1.25% against the prescribed standard of not more than 0.5. He submits that this sample was sent to Referral Food Laboratory, Ghaziabad and as per its report, acid value of this sample was found to be .78 instead of 1.25% as given by the Food Analyst and Oryzanol content is 0.78 against the minimum prescribed limit of 1%. Ld. Counsel further submits that when the sample is tested oxidation takes place as the oil must have been exposed to the air. In support of his submission, Ld. counsel for petitioner relied upon judgment titled as Nebh Raj Vs. State (Delhi Administration) & Anr.: (1980 4 SCC 552). Ld. Counsel for appellant further relied upon the judgment titled as State Vs. Maharashtra Vs. Abdul Jabbar Haji: (2012 SCC Online Bom. 935) and Nagar Swasthya Adhikari Vs. Mohammad Wasim: (1992 SCC Online) in this regard.
FSAT No. 10/2023 M/s.A.P. Organics Ltd. & Anr. v. State through FSO Page 5 of 87. Ld. Counsel for appellant further submits that if there is a marginal difference in the reading found in the sample in comparison with the prescribed standard, the sample cannot be said to be adulterated. In support of his submission, Ld. counsel has relied upon observation made by court in Ramesh Chand Vs. State of Madhya Pradesh: (2014 SCC Online MP 3222). The relevant para 9 runs as follows:
"In this context, the order passed by the Single Bench of this Court in the case of "Babu Vs. State of MP" [2007(1) MPHT 435] may be perused in which it was found that if there was slightly difference in the various readings between the sample and the standard fixed by the P.F. Rules, then the sample cannot be said to be adulterated. Similarly, in this context, the order passed by Hon'ble the Apex Court in the case of "P.S.Sharma Vs. Madanlal Kasturichandji" [(2009)16 SCC276] may be perused in which it is also laid that if there was a marginal difference in the various readings found in the sample in comparison with the standard fixed by the PF Rules, then the sample cannot be said to be adulterated. In the light of the aforesaid order of Hon'ble the Apex Court in the case of P.S. Sharma (supra) if the present matter is considered, then it would be apparent that there was marginal difference in the various readings obtained by the Public Analyst and that difference could be caused due to improper stirring of oil before taking the sample, because without churning the oil, if the sample was taken and thickness of the oil differs from layer to layer, results would vary with marginal differences in the analysis. Hence due to such marginal difference, it cannot be said that the sample was adulterated. The learned Additional Sessions Judge as well as the Chief Judicial Magistrate has committed an error in convicting the applicant for the aforesaid FSAT No. 10/2023 M/s.A.P. Organics Ltd. & Anr. v. State through FSO Page 6 of 8 offence".
8. Sh. P.N. Singh, Ld. S.P.P. for the State/respondent submits that the food article seized is ""Rice Bran Oil" which is used by the consumer. The violation may be marginal or high is intolerable. He submits that penalty imposed by the Adjudicating Officer is totally justified.
9. In Nebh Raj Vs. State (Delhi Administration) & Anr.: (Supra), the Hon'ble Apex Court has observed that, "oxidation due to exposure to air has the effect of increasing the free fatty acid content of edible fats and oil cannot be disputed". In this case, the court has further observed that since the time gap between taking up the sample and analysis by laboratory was very high i.e. three months and five days, the free fatty acid content in the sample might have increased during storage and accordingly appeal was accepted. In the present case, the sample was taken on 20.01.2021 and sample was analyzed by Food Analyst starting from 21.01.2021 till 29.01.2021. The sample was analyzed by referral food laboratory Ghaziabad, UP on 09.03.2021 to 24.03.2021. Here, as per the facts of this case, the time gap is not that huge as pointed out by the Hon'ble Apex Court in this case. Coming to the penalty issued under Chapter IX of the Act. Section 49 provides that, "while adjudging the quantum of penalty, the amount of gain or unfair advantage, wherever quantifiable, made as a result of contravention needs to be seen". It further provides that amount of loss caused or likely to be caused to any person as a result of the contravention is also required to be looked into. The other factors which are required to be seen is if the contravention is repetitive in nature, if the FSAT No. 10/2023 M/s.A.P. Organics Ltd. & Anr. v. State through FSO Page 7 of 8 contravention is without his knowledge and any other relevant factor. It is not a repetitive contravention and is not the plea of the appellant that it was not in their knowledge. As per criminal jurisprudence, the penalty should be proportionate and reasonable to the offence committed. How the Adjudicating Officer has quantified the penalty on both the appellants, the impugned order is silent in this regard.
10. In view of the reasons mentioned above, the penalty imposed by the Adjudicating Officer appears to be a higher side. Therefore, keeping in view the totality of circumstances, Rs.50,000/- (Rupees Fifty Thousand only) each on both the appellants appears to be a reasonable penalty. It is ordered accordingly.
11. The DD No.014105 dated 23.05.2023 for Rs.2,25,000/- (Rupees Two Lacs Twenty Five Thousand only) lying filed on record by the appellants to be released with the directions to deposit the reduced penalty amount before the Adjudicating Officer within a month.
12. The record of the Adjudicating Officer/Addl. District Magistrate along-with copy of this Judgment be sent back. File of appeal be consigned to the Record Room.
SANJAY Digitally signed by SANJAY GARG - I GARG - I Date: 2024.01.08 16:33:20 +0530 Announced in the open Court (Sanjay Garg-I) th on 08 January, 2024 Principal District & Sessions Judge New Delhi District, Patiala House Courts, New Delhi(mc) FSAT No. 10/2023 M/s.A.P. Organics Ltd. & Anr. v. State through FSO Page 8 of 8