Jharkhand High Court
Sanjay Kumar vs The State Of Jharkhand on 12 March, 2018
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.-818 of 2016
Sanjay Kumar
Son of Sri Laddu Ray, resident of Cart-Saray Road, Upper Bazar, P.O.- GPO,
PS- Kotwali, District- Ranchi ...Petitioner
-V e r s u s-
1. The State of Jharkhand
2. The Principal Secretary, Department of Health, Medical Education &
Family Welfare, Government of Jhakhand, PO & PS- Doranda, District-
Ranchi
3. The Deputy Commissioner-cum-Adjudicating Officer, Ranchi
4. The Additional Chief Medical Officer-1-cum-Designated Officer, Sadar
Hospital, Ranchi
5. The Food Safety Officer, Ranchi
.... Respondents
CORAM: - HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioner :- Mr. K.K. Singh, Advocate For the State :- A.C. to Sr.S.C.-I Order No.-03 Dated: 12.03.2018 The present writ petition has been filed for quashing the order dated 16.11.2015 passed by the Deputy Commissioner, Ranchi (respondent no.3) in Food Safety & Standards Case No. 23 of 2014- 15 whereby penalty of Rs.1,00,000/- has been imposed upon the petitioner on the ground that the sample taken from the shop of the petitioner does not fulfill the prescribed standard of quality laid down under the Food Safety and Standards Regulation, 2011 (in short FS&S, Regulation, 2011).
2. The factual background of the case as stated in the writ petition is that the petitioner is the proprietor of "M/s. Vijay Ghee" registered under Food Safety and Standards Act, 2006 and its registration is valid up to March, 2018. The Food Safety Officer, Ranchi (respondent no. 5) filed a complaint before the respondent no. 3 on 16.02.2015 against M/s. Vijay Dairy, Garikhana, Kishore Ganj, Ranchi and one auto driver namely Ashok Ray, son of Mangal Ray, which was registered as FSS Case No. 23 of 2014-15. A notice was issued to the petitioner by the respondent no. 3 on 27.02.2015 in the name of Sanjay, M/s. Vijay Dairy, Garikhana, Kishoreganj, Ranchi though the petitioner is not the proprietor of M/s. Vijay Dairy 2 and has no concern with the same. However, the petitioner in a bonafidely manner filed the show cause reply before the respondent no. 3 in the aforesaid case. The respondent no.3 without considering the said show cause reply of the petitioner passed the impugned order. Hence, the present writ petition.
3. The learned counsel appearing on behalf of the petitioner while referring the show cause reply filed before the respondent no. 3 submits that the petitioner had no concern with Ashok Ray, son of Mangal Ray (driver of auto-rickshaw/tampo) as he was not the employee/staff of the petitioner. It is further submitted that despite the aforesaid factual plea taken by the petitioner in his show cause reply/rejoinder filed before the respondent no.3, the impugned order dated 16.11.2015 has been passed without making any determination as to whether the said Ashok Ray was anyway connected or concerned with the petitioner. The application for adjudication filed by the Food Safety Officer, Ranchi on 16.02.2015 before the respondent no.3 would clearly indicate that the sample of "Paneer" was collected from the auto-rickshaw driver Ashok Ray. The show cause reply/rejoinder filed by the petitioner before the respondent no. 3 would also show that the respondent no. 5 visited the petitioner‟s shop namely M/s. Vijay Ghee, Cart Sarai Road, Upper Bazar, Ranchi on 22.10.2014 and after serving the notice, collected the sample of "Ghee" for analysis. No sample of "Paneer" as alleged was ever collected by the respondent no.5 from the said shop of the petitioner. It has been specifically averred in paragraph- 14 of the writ petition that the sample of "Paneer" has never been collected from his shop nor the said shop has been mentioned in Form V-A prescribed under the Food Safety and Standards Rules, 2011. However, without determining the said factual issue, the respondent no.3 reached a finding that the sample of "Paneer" collected from the petitioner‟s shop has not conformed the prescribed standards of quality laid down under the Food Safety and Standards Regulation, 2011 and thus a penalty of Rs.1,00,000/- has been imposed upon the petitioner.
4. Per contra, the learned counsel appearing on behalf of the State submits that the respondent no. 5 during inspection found that 3 one auto-rickshaw (tempo) was loaded with "Paneer" and upon interrogation, the driver Asok Ray disclosed that the said "Paneer" was going to be delivered to one Sanjay Dairy and others. The respondent no. 5 handed over the said auto-rickshaw to Sadar Police Station, Ranchi and sample of the "Paneer" was taken from the said auto-rickshaw in presence of auto driver Ashok Ray. The said sample was sent to the State Food and Drug Leboratory, Namkum, Ranchi for analysis on 22.10.2014 vide Form VI of FS&S Rules, 2011. The sample of "paneer" was analyzed by the Food Analyst of the State of Jharkhand and vide his report no. 1118/FSSA/2014 dated 03.11.2014, he opined that the sample of "paneer" did not conform the prescribed standards of quality laid down under the FS&S Regulation, 2011 by reasons of admixing of starch being used as adulterant and milk fat being below the prescribed limit of variability and hence the same was of sub- standard grade within the meaning of Section 3(i) (zx) of the Food Safety and Standards Act, 2006. It is further submitted that since the sample of "paneer" was found sub-standard, a Food Safety and Standards case was filed before the respondent no. 3 against two persons i.e. the petitioner being the proprietor of M/s. Vijay Diary, Garikhana, Kishore Ganj, Ranchi and Ashok Ray, the driver of auto- rickshaw and the same was registered as FSS Case no. 23 of 2014-15. Thereafter, a show cause notice was issued to the petitioner and on consideration of his reply and the report of State Food and Drug Laboratory, the impugned order has been passed by the respondent no. 3 which requires no interference by this Court being legal and justified.
5. Heard the learned counsel for the parties and perused the materials available on record. It appears that the sample of "Paneer" was collected by the respondent no.5 on 22.10.2014 from one Ashok Ray in the premises of "M/s. Vijay Dairy", Garikhana, Kishoreganj, Ranchi. The Food Analyst did not find said sample of "Paneer" conforming the required standards of FS&S Regulation, 2011 vide report dated 03.11.2014. The document annexed with the prosecution report filed before the respondent no. 5 indicates that the said Ashok Ray son of Mangal Ray has been described as the 4 auto-rickshaw driver. Moreover, the sample of "Ghee" was also collected from the premises of "Vijay Ghee" on the same day i.e. 22.10.2014 (Anneuxre-8 to the writ petition) and was sent to the State Food Drug Laboratory, Namkum, Ranchi (Annexure-9 to the writ petition) for analysis. It further appears that the name of the petitioner‟s business concern in the registration form (Annexure-1 to the writ petition) has been mentioned as M/s. Vijay Ghee, Cart Saray Road, Upper Bazar, Ranchi.
6. Under the aforesaid factual context, it cannot be presumed that „M/s. Vijay Dairy, Garikhana, Kishoreganj, Ranchi‟ and „M/s. Vijay Ghee, Cart Sarai Road, Upper Bazar, Ranchi‟ are the same business concern particularly in view of the fact that the sample of "Paneer" has been collected from the custody of a third person namely Ashok Ray, an auto-rickshaw (tempo) driver. Thus, it was imperative on the part of the respondent no. 3 to adjudicate the said factual dispute before reaching the conclusion that the sample of "Paneer" collected from the petitioner‟s shop did not conform the prescribed standards of quality under the FS&S, Regulation, 2011. On perusal of the impugned order dated 16.11.2015, it further transpires that the respondent no. 3 directly reached a conclusion that the sample of "Paneer" was collected from the shop of the accused/petitioner without appreciating the contrary factual plea taken by the petitioner. Thus, In my considered opinion, the said issue as to from which premises/business concern, the sample of "Paneer" was collected, was of vital importance, which could not have been ignored by the respondent no. 3 before holding the petitioner liable for not conforming the prescribed standards of quality laid down under the FS&S Regulation, 2011.
7. In view of the aforesaid discussion, the impugned order dated 16.11.2015 passed by the respondent no. 3 in Food Safety & Standards Case No. 23 of 2014-15 cannot be sustained in law and the same is, hereby, quashed/set aside.
8. The writ petition is accordingly allowed.
(Rajesh Shankar, J.) Ritesh/N. A.F.R