Delhi District Court
Shyam Behari Lal Gupta And Anr vs State And Anr on 14 July, 2025
IN THE COURT OF SH. VIRENDER KUMAR BANSAL
PRINCIPAL DISTRICT & SESSIONS JUDGE,
NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
FSAT No. 04/2022
CNR No. DLND01-005115-2022
1. Sh. Shyam Behari Lal Gupta
S/o. Lt. Sh. Brij Behari Lal Gupta
M/s. Brij Behari Lal Gupta
Shop No.10, Block-80, Ram Dwara Road,
Anaj Mandi, Paharganj,
Delhi-110055
R/o.1302, Vakilpura,
Delhi-110006
2. Sh. Satish Kumar Babbar (Prop.)
M/s. Shri. Bhagwan Satish Kumar Oil & General Mills,
49, Madan Pur, Dabas,
Delhi-110081
R/o.50, FF, Avtar Enclave,
Paschim Vihar,
Delhi-110063 ....... Appellants
Versus
1. State, Through Food Safety Officer
Department of Food Safety,
Govt. of NCT of Delhi, 8th Floor, Mayur Bhawan,
Connaught Place, New Delhi-110001
2. Ms. Suvidha
Food Safety Officer,
Department of Food Safety,
Govt. of NCT of Delhi, 8th Floor, Mayur Bhawan,
Connaught Place, New Delhi-110001 ....... Respondents
Digitally signed
VIRENDER by VIRENDER
KUMAR KUMAR BANSAL
Date: 2025.07.14
BANSAL 15:36:10 +0530
FSAT No.04/2022 Sh. Shyam Behari Lal Gupta & Ors. Vs. State through FSO & Ors. Page 1 of 13
Date of institution : 07.06.2022
Arguments heard on : 11.07.2025
Date of Judgment : 14.07.2025
Appearances:
Sh. Kapil Sharma and Sh. Jishnu Bakshi, Ld. Counsels for the appellants.
Sh. Birender Singh Dagar, Ld. Chief Public Prosecutor for the State/FSO.
JUDGMENT
1. The present appeal has been preferred challenging the order dated 22.04.2022 passed by the Ld. Additional District Magistrate (Central), whereby he has held Sh. Shyam Bihari Lal Gupta and Sh. Satish Kumar Babbar, proprietor of M/s. Shri. Bhagwan Satish Kumar Oil & General Mills guilty of selling misbranded food article i.e. "Mustard Oil" in violation of Section 23(1), 26(1), 26(2)(ii), 27 (1) and 27(2)(c) read with Section 3(1)(zf) of the Food Safety and Standards Act, 2006 (in short "FSS Act") for violating Regulation No. 2.2.1.3 read with 2.3.1.5 of the Food Safety and Standards (Packaging and labelling) Regulations, 2011 and imposed penalty of Rs.50,000/- on Sh. Shyam Bihari Lal Gupta and Rs.2,50,000/- on Sh. Satish Kumar Babber, proprietor of M/s. Shri. Bhagwan Satish Kumar Oil & General Mills. Aggrieved by the order, the present appeal has been preferred by Sh. Shyam Bihari Lal Gupta (hereinafter referred as respondent No.1/appellant No.1) and Sh. Satish Kumar Babbar (hereinafter referred as respondent No.2/appellant No.2).
2. Notice of the appeal was given to the State as well as the Food Safety Officer. The record from the Office of Ld. ADM was also called.
3. The brief facts giving rise to the present appeal are that on Digitally signed VIRENDER by VIRENDER KUMAR KUMAR BANSAL Date: 2025.07.14 BANSAL 15:36:24 +0530 FSAT No.04/2022 Sh. Shyam Behari Lal Gupta & Ors. Vs. State through FSO & Ors. Page 2 of 13 27.05.2019, the Food Safety Officer along with Field Assistant visited the premises of appellant No.1/respondent No.1 i.e. Shop No. 10, Block No.80, Ram Dwara Road, Anaj Mandi, Paharganj, Delhi-110055 for inspection. The appellant No.1/respondent No.1 was present on the shop. The Food Safety Officer after disclosing her identity inspected the premises. During inspection, the Food Safety Officer had shown her intention to take the sample of Mustard Oil which was kept for sale. The respondent No.1/appellant No.1 agreed to the same. The Food Safety Officer purchased the bottles of Mustard Oil of 1000 ml. each on payment of the value as sample for analysis. The samples were divided into four equal parts and sealed. All the relevant documents were prepared and also obtained the signatures of appellant No.1/respondent No. 1. The samples were fastened and sealed in accordance with the rules and regulations.
4. Out of the four samples, one sample was forwarded to the Food Analyst for analysis on 28.05.2019.
5. Food Analyst vide its report No. FSS/744/2019 dated 10.06.2019 found that the sample is misbranded and there is violation of Regulation 2.2.1.3. read with 2.3.1.5. of the Food Safety and Standards (Packaging and Labeling) Regulation, 2011. Rest of the sample was found to be conforming to the other aspects/parameters as laid down under FSS Act and the Rules and Regulations. The Food Safety Officer accordingly filed an application before the competent authority against all the appellants. Appellant No.2/respondent No.2 is prosecuted being manufacturing company of the sampled commodity. Both the appellants/respondents submitted their written replies. The rejoinder was filed by the department. After hearing the Digitally signed VIRENDER by VIRENDER KUMAR KUMAR BANSAL Date: 2025.07.14 BANSAL 15:36:32 +0530 FSAT No.04/2022 Sh. Shyam Behari Lal Gupta & Ors. Vs. State through FSO & Ors. Page 3 of 13 arguments, the Ld. ADM passed the impugned order dated 22.04.2022 which is under challenge in the present appeal.
6. I have heard the Ld. Counsels appearing for the appellants, Ld. Counsel for the department and perused the record.
7. Ld. Counsel for the appellants submitted that in this case, the Ld. ADM had not appreciated the facts in the right perspective. No public witness was joined at the time of taking the samples. There are no documents on record that appellant No.1 purchased the sampled commodity i.e. the Mustard Oil from appellant No.2 against the valid bill having a declaration cum warrantee with respect to the quality of the product and also compliance of the Rules and Regulations. Ld. Counsel submitted that under the circumstances, appellant No.1 is protected U/s.80(B) (2) (d) (i) FSS Act, 2006 and Section 26(4) of the Food Safety and Standards Act, which provides that a bill, cash memo or invoice in respect of sale of any article of food given by a Food Business Operator to the vendor shall be deemed to be a guarantee under this Section even if the guarantee in the specified form is not included in the bill, cash memo or invoices. Ld. Counsel submitted that under the circumstances, the appellant No.1 is liable to be acquitted.
8. Ld. Counsel in support of his arguments relied upon the following judgments cited as :
(i) M/s. Apsara Biscuit Company Vs. Dr. P.M. Kothekar (FSO), FSAT Appeal No.16/2013 and 17/2013;
(ii) Anees Ahmed Vs. State and Others, FSAT Appeal No.36/2013;
(iii) Ghanshyam Mulchand Keshwani & Anr.Vs. State Of Maharashtra
& Anr., (2008) ALL MR (Crl.), 701, wherein it has been observed by the VIRENDER Digitally signed by
VIRENDER KUMAR
KUMAR BANSAL
Date: 2025.07.14
BANSAL 15:36:51 +0530
FSAT No.04/2022 Sh. Shyam Behari Lal Gupta & Ors. Vs. State through FSO & Ors. Page 4 of 13
Hon'ble High Court, Nagpur Bench as follows :
"11. The principle set out by the learned APP is quite correct. However, in the present case it is the version of the complainant (Food Inspector) himself that the petitioners are retailers and they disclosed him that they had purchased the packets of chilly powder from respondent no.2 (the manufacturer). Not only this the petitioners also produced Bill No.C-460 dated 21.6.1995 containing warranty about the quality of the chilly powder on the back of the bill. It may further be noted that the manufacturer has also been impleaded as accused no.3. In view of these circumstances there is no force in the submission made by the learned APP that the petitioners have not discharged the burden of proof lying on them. Had the manufacturer not been joined as co- accused, then perhaps it was necessary for the petitioners to lead evidence in support of their defence. But as pointed out above in the present case it is not necessary and the prosecution against the petitioners cannot be proceeded with.
12. Thus the material on record does not disclose any offence against the petitioners and it would be an abuse of the process of law to continue the prosecution against the petitioners. I, therefore, pass the following order :- The petition is allowed. Criminal Case No.86/1998 pending before the Judicial Magistrate, First Class, Warora is quashed so far as the petitioners (accused nos.1 and 2) are concerned. It is needless to say that the prosecution would proceed against respondent no.2 (accused no.3)".
iv) State of Gujarat Vs. Manish Bhai Narandas Karia, wherein it was held by the Hon'ble High Court of Gujarat as under:
11. Thus the burden if at all fastened upon the accused was considered to have been discharged the moment it was demonstrated that the sample food article was in a sealed packed condition.
VIRENDER Digitally VIRENDER signed by KUMAR KUMAR BANSAL Date: 2025.07.14 BANSAL 15:36:59 +0530 FSAT No.04/2022 Sh. Shyam Behari Lal Gupta & Ors. Vs. State through FSO & Ors. Page 5 of 13
(v) P. Unnikrishnan vs Food Inspector, Palghat Municipality Kerala State, (1996) (1) EFR397 (SC), wherein the Hon'ble Apex Court has held as under :
A vendor shall not be deemed to have committed an offence pertaining to sale of any adulterated or misbranded article of food if he prove that he had purchased article of food from any manufacturer, distributor or dealer with a written warranty in the prescribed form and the article of food while in his possession was properly stored and that he has sold it in the same state as he purchased.
9. Keeping in view the law as laid down by the various Courts that once the retailer had purchased the articles from the manufacturer and distributor against valid invoice/bill and he is selling the same in the same condition then he is protected under the law but the Ld. ADM has failed to consider these facts.
10. Ld. Counsel further submitted that the allegation is that the product was sold without mentioning the serial number of Agmark. Ld. Counsel submitted that firstly it was for the manufacturer to put the same and secondly Agmark is different from the provisions of FSS Act. Agmark is an acronym for agricultural marketing, which is a certification to the agricultural products by the Directorate of Marketing and Inspection showing that the product passes the grading and the certification test. The Agmark is covered by the Agriculture Produce (Grading and Marking) Act of India, 1937, whereas the prosecution is under the Food Safety and Standard Act, 2006. For any violation of Agmark, the appellants herein cannot be prosecuted under the FSS Act. The Ld. ADM has also failed to take note of these facts. Ld. Counsel submitted that appellant No.2 is having the Agmark certification and there was no intention or mensrea not to provide the same on pouch or Digitally signed by VIRENDER VIRENDER KUMAR KUMAR BANSAL Date: 2025.07.14 BANSAL 15:37:09 +0530 FSAT No.04/2022 Sh. Shyam Behari Lal Gupta & Ors. Vs. State through FSO & Ors. Page 6 of 13 the packet. It is a case of only misbranding due to technical fault. It has not caused any prejudice to any consumer. There is no case of misbranding. Ld. ADM has failed to appreciate this fact. The complaint filed is frivolous and baseless and is not believable. The report of the Food Analyst is wrong and erroneous, there is no question of misbranding. Even the lab is not NABL Accredited nor it is notified in the official gazette, therefore, the report also cannot be looked into. Ld. Counsel submitted that all these facts clearly show that the order passed by the Ld. ADM is not maintainable. It is prayed that the appeal be allowed. The order of the Ld. ADM be set aside and they be acquitted.
11. Ld. Counsel appearing for the FSAT submitted that the Ld. ADM decided the matter in accordance with law appreciating all the facts. In fact, appellant No.2 has admitted that Agmark registration number was not mentioned and this fact is also reflected in the order passed by the Ld. ADM alleging that there was no malafied intention in not printing the Agmark registration number on the product i.e. bottle in which the Mustard Oil was being sold. Ld. Counsel submitted that once this is admitted, then nothing remains to be adjudicated.
12. Ld. Counsel further submitted that so far as this contention that appellant No.1 has purchased it from appellant No.2 against the bill has no liability as he was not knowing that Agmark registration number has not been mentioned has no merits as firstly he has to be vigilant that he is selling the product used for human consumption. Ld. Counsel relied upon the judgment cited as Jemini Anil Vs. Food Safety Officer (2025) 03 KL CK 0028, wherein it has been held as under : Digitally signed VIRENDER by VIRENDER KUMAR KUMAR BANSAL Date: 2025.07.14 BANSAL 15:37:17 +0530 FSAT No.04/2022 Sh. Shyam Behari Lal Gupta & Ors. Vs. State through FSO & Ors. Page 7 of 13 "20. It is pertinent to note that, as per Section 26 of the Act, it is the responsibility of every food business operator to ensure that the articles of food satisfied the requirements of the Act, and the Rules and Regulations made thereunder at all stages of production, processing, import, distribution and sale within the business, under his control. As per Section 59(i) of the Act, 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 article of food for human consumption, which is unsafe, is punishable even if such failure or contravention does not result in injury. Therefore, for establishing the penal liability in the above regard, the prosecution need only show that accused Nos.1 to 3 had sold an article food for human consumption, which was unsafe. The question whether the accused Nos.1 to 3, had received the above food item, without the knowledge of it being unsafe is, in fact, a matter of defence to be dealt with at the time of trial. Therefore, the argument of the learned counsel for the petitioners that the petitioners 1 to 3 (accused Nos.1 to
3) are not liable to be proceeded against for the violation alleged in this case, due to the absence of any indication in the complaint about their act of receiving the food item with the knowledge of it being unsafe, cannot be countenanced."
13. Ld. Counsel further submitted that so far as the accreditation of the Lab. is concerned, no doubt the Lab. is not accredited but the process is going on and Section 24 of the General Clauses Act covers period of transition and provides that :
"24. Continuation of orders, etc., issued under enactments repealed and re-enacted Where any Central Act or Regulation, is, after the commencement of this Act, repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided any [appointment, notification] [Inserted by Act 1 of 1903, Section 3 and Sch.II.], order, scheme, rule, form or bye-law, [made or] [Inserted by Act 1 of 1903, Section 3 and Sch.II.] issued under the repealed Act or Regulation, shall, so far as it is not inconsistent with the provisions re- enacted, continue in force, and be deemed to have been [made or] [Inserted by Act 1 of 1903, Section 3 and Sch.II.] issued under the provisions so re-enacted, unless Digitally signed by VIRENDER VIRENDER KUMAR KUMAR BANSAL Date: 2025.07.14 BANSAL 15:37:26 +0530 FSAT No.04/2022 Sh. Shyam Behari Lal Gupta & Ors. Vs. State through FSO & Ors. Page 8 of 13 and until it is superseded by any [appointment, notification] [Inserted by Act 1 of 1903, Section 3 and Sch.II.], order, scheme, rule, form or bye-law [made or] [Inserted by Act 17 of 1914, Section 2 and Sch.I.] issued under the provisions so re-enacted [and when any [Central Act] [Inserted by Act 1 of 1903, Section 3 and Sch.II.] or Regulation, which, by a notification under section 5 or 5-A of the [Scheduled Districts Act, 1874 (14 of 1874)] [Repealed by A.O.1937.] or any like law, has been extended to any local area, has, by a subsequent notification, been withdrawn from and re-extended to such area or any part thereof, the provisions of such Act or Regulation shall be deemed to have been repealed and re-enacted in such area or part within the meaning of this section.]"
14. Ld. Counsel submitted that in view of this provision even if the Lab. was not accredited, it being transition period, the report still can be looked into. Even otherwise, in this case, it is important to note that it is not the quality for which he has been prosecuted but for the misbranding as he has mentioned on the product that it is 'Agmark certified' but has not mentioned the Agmark serial number on the product and hence non accreditation of the Lab. does not affect the report. It is prayed that there is no merit in the appeal, the same be dismissed.
15. After hearing arguments and going through the record, I found that in this case the appellants are prosecuted as appellant No.1 was found selling Mustard Oil, which is prepared and packaged by appellant No.2. On the packaging it is alleged that it is Agmark certified but the certificate number is not mentioned and hence it is alleged that he has violated the Regulations 2.2.1.3 and 2.3.1.5, which reads as under :
"2.2: Labelling 2.2.1: General Requirements Digitally signed VIRENDER by VIRENDER KUMAR KUMAR BANSAL Date: 2025.07.14 BANSAL 15:37:35 +0530 FSAT No.04/2022 Sh. Shyam Behari Lal Gupta & Ors. Vs. State through FSO & Ors. Page 9 of 13
1. Every pre-packaged food shall carry a label containing information as required here under unless otherwise provided, namely,
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.
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;
4. Label in pre-packaged foods shall be applied in such a manner that they will not become separated from the container;
5. Contents on the label shall be clear, prominent, indelible and readily legible by the consumer under normal conditions of purchase and use;
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."
"2.3.1.5 2.3: Manner of declaration 2.3.1: General Conditions
1. Any information or pictorial device written, printed, or graphic matter may be displayed in the label provided that it is not in conflict with the requirements of these Regulations;
2. Every declaration which is required to be made on package under these regulations shall be:
(i) Legible and prominent, definite, plain and unambiguous,
(ii) Conspicuous as to size, number and colour,
(iii) as far as practicable, in such style or type of lettering as to be boldly, clearly and conspicuously present in distinct contrast to the other type. lettering or graphic material used on the package, and shall be printed or inscribed on the package in a colour that contrasts conspicuously with the background of the label:
Provided that-
Digitally signed by VIRENDER VIRENDER KUMAR KUMAR BANSAL Date: 2025.07.14 BANSAL 15:37:45 +0530 FSAT No.04/2022 Sh. Shyam Behari Lal Gupta & Ors. Vs. State through FSO & Ors. Page 10 of 13
(a) Where any label information is blown, formed or moulded on a glass or plastic surface or where such information is embossed or perforated on a package, that information shall not be required to be presented in contrasting colours;
(b) Where any declaration on a package is printed either in the form of a handwriting or hand script, such declaration shall be clear, unambiguous and legible;
3. No declaration shall be made so as to require it to be read through any liquid commodity contained in the package;
4. Where a package is provided with an outside container or wrapper, such container or wrapper shall also contain all the declarations which are required to appear on the package except where such container or wrapper itself is transparent and the declarations on the package are easily readable through such outside container or wrapper;
5 Labels not to contain false or misleading statements: A label shall not contain any statement, claim, design, device, fancy name or abbreviation which is false or misleading in any particular concerning the food contained in the package, or concerning the quantity or the nutritive value or in relation to the place of origin of the said food;
Provided that this regulation shall not apply in respect of established trade or fancy names of confectionery, biscuits and sweets, such as, barley, sugar, bull's eye, cream cracker or in respect of aerated waters, such as, Ginger Beer or Gold- Spot or any other name in existence in international trade practice."
16. The contention of Ld. Counsel for the appellant is that in this case they are having the Agmark registration and that it is covered by the separate Act and hence they are not liable to be prosecuted but under the provisions of the FSS Act for any violation of The Food Safety and Standards (Packaging and Labelling), 2011. I do not agree with this contention of Ld. Counsel as the Regulation i.e. 2.2.1.3 provides that pre-packaged food shall not be described or presented on any label or in any labelling manner that is false, VIRENDER Digitally signed by VIRENDER KUMAR KUMAR BANSAL Date: 2025.07.14 BANSAL 15:37:55 +0530 FSAT No.04/2022 Sh. Shyam Behari Lal Gupta & Ors. Vs. State through FSO & Ors. Page 11 of 13 misleading or deceptive or is likely to create an erroneous impression regarding its character. The Regulation 2.3.1.5 further provides that labels not to contain false or misleading statements concerning the food contained in the package or concerning the quantity or the nutritive value with respect to the claim, quantity or the nutritive value.
17. In this present case, they have mentioned on the packaged bottle of the Mustard Oil that it is Agmark certified but number has not been mentioned. It is also not put on record that they were having Agmark certification with respect to their product. It is pleaded that they have labelled their product as Agmark certified without disclosing or mentioning on it the serial number of such certification and even failed to produce it in the Court that they were having the Agmark registration in this regard. Therefore, in my opinion this argument is of no help to the appellants.
18. So far as the contention that appellant No.1 has purchased it from appellant No.2 and therefore in view of Section 80(B) (2) (d) (i) FSS Act, 2006, I found that this defence is not available to him because it is very conspicuous and clearly visible on the packaged food that though they claim that it is Agmark certified, but the serial number is not mentioned. Secondly, a person claiming defence has to be diligent that he has checked the particulars. Keeping in view all these facts in my opinion he is not entitled to any room. In having this opinion, I am fortified by the judgment cited as Ardor Restaurant v. Bal Mukund, Food Safety Officer, 2019 (197) AIC 617:
"14. According to the learned counsel for the petitioners, petitioner nos.1 to 4 had not altered the product in any manner as it was kept/dealt in the same manner as was purchased. The Tribunal rejected the aforesaid contention, as it found that the petitioners had not exercised due diligence.
Digitally signed by VIRENDER VIRENDER KUMAR KUMAR BANSAL Date: 2025.07.14 BANSAL 15:38:07 +0530 FSAT No.04/2022 Sh. Shyam Behari Lal Gupta & Ors. Vs. State through FSO & Ors. Page 12 of 13
The Tribunal reasoned that the offence was plainly visible from the label on the product in question and, therefore, petitioner nos.1 to 4 were well aware of the offence under the FSS Act. This Court does not find any infirmity with the said reasoning as well. In view of the above, this Court finds no reason to interfere with the impugned order."
19. Ld. defence counsel has also taken the plea that the lab is not NABL accredited. This fact is denied by the FSAT. Keeping in view the fact that it is transition period and the accreditation process is going on and is under the process, Section 24 deals with such situation that till the new set up comes in existence, the older one will continue and will be effective. In my opinion, this contention has no merits in view of Section 24 of the General Clauses Act. They also took the plea that there is no mensrea about not mentioning the Agmark registration number and claimed falsely but that is no defence once it is revealed that there was no misbranding and they should mention the true facts. They are required to be careful and diligent and mention all the correct facts.
20. Keeping in view all these facts, in my opinion, Ld. ADM has rightly appreciated the evidence and decided the matter in the right perspective. There is no merit in the appeal. The same is dismissed. Record of the Ld. ADM be returned along with copy of this judgment. Appeal file be consigned to Record Room.
Digitally signed by VIRENDER VIRENDER KUMAR BANSAL
KUMAR BANSAL Date: 2025.07.14 15:38:21
+0530
Announced in the open (Virender Kumar Bansal)
Court on 14th July, 2025 Principal District & Sessions Judge
New Delhi District
Patiala House Courts, New Delhi
FSAT No.04/2022 Sh. Shyam Behari Lal Gupta & Ors. Vs. State through FSO & Ors. Page 13 of 13