Delhi District Court
M/S Vallabhdas Kanji Limited vs Food Safety Officer on 7 June, 2019
IN THE COURT OF SH. YASHWANT KUMAR : DISTRICT &
SESSIONS JUDGE / FSAT : PHC : NEW DELHI
FSAT No. 09/16
(Old FSAT No. 44/2013)
1. M/s Vallabhdas Kanji Limited
Having its Regd. Office at :
19/119, Beach Road
Alleppey688012, Kerala State.
2. Sh. D. Prasada Rao
M/s Vallabhdas Kanji Limited
19/119, Beach Road
Alleppey688012, Kerala State. ..... Appellants
VERSUS
Food Safety Officer
Depart of Food Safety
Government of NCT of Delhi.
A20,Lawrence Road Indl.Area
New Delhi110035. ...... Respondent
APPEAL AGAINST THE ORDER DATED
07.05.2013 OF LD. ADJUDICATING
OFFICER / ADDITIONAL DISTRICT
MAGISTRATE, NEW DELHI.
Date of filing of appeal : 25.07.2013
Arguments concluded on : 07.06.2019
Judgment announced on : 07.06.2019
JUDGMENT
1.0 Vide this appeal, the appellants have challenged the order dated 07.05.2013 ("the impugned order" in short) of the Ld. ADM(New Delhi)/Adjudicating Officer ("ADM" in short) for violation of Section 26(2)(ii) read with section 3(1)(zx) of Food FSAT No. 09/16 M/s Vallabhdas Kanji Limited & Anr. vs FSO Page No. 1 of 11 Safety & Standards Act, 2006 ("FSS Act" in short) punishable under Section 51 of the FSS Act; and for violation of Section 26(2)(ii) read with section 3(1)(zf)(C)(i) FSS Act and regulation No.2.3.2.1(a) of the Food Safety and Standards (Packaging & Labeling) Regulations, 2011 ("FSS (P&L) Regulations" in short) punishable under Section 52 of FSS Act, imposing a penalty of Rs.Two Lacs under Section 51 and Rs.Three Lacs under Section 52 of FSS Act on the appellants (manufacturer/supplier).
2.0 The facts of the case in brief are that on 15.09.2011 Food Safety Officer ("FSO" in short) took a sample of 'Crushed Red Chilly' from Sh.Anil Rana, s/o Sh.Maharaj Singh of M/s Pizza Hut (A unit of M/s Devyani International Limited), M20, Connaught Place, New Delhi where the said food article was found stored for human consumption. The sample consisted of approx. 500gm x 4 of Crushed Red Chilly (ready for use) in sealed polypacks. The sample was divided into four equal parts then and there by putting one sealed polypack in one counterpart. Each counterpart containing the sample was separately packed, fastened and sealed according to FSS Act. One counterpart of the sample under sealed cover was sent to Food Analyst. Other two counterparts were deposited with the then Designated Officer. As the Food Business Operator did not make a request to send the fourth counter part for analysis from an accredited laboratory, the fourth sealed counterpart was also FSAT No. 09/16 M/s Vallabhdas Kanji Limited & Anr. vs FSO Page No. 2 of 11 deposited with the Designated Officer. The Food Analyst vide his report dated 26.09.2011 opined the sample to be sub standard because non volatile ether extract is less than the prescribed minimum limit of 12.0%. The sample is also misbranded because there is violation of Regulation No.2.3.2.1.(a) FSS(P&L) Regulations. In view of the above, a complaint / application under Rule 3.1.1(3) FSS Rule 2011 was filed by FSO before the Ld. ADM. On filing of the aforesaid application/complaint, a show cause notice dated 16.11.2012 was issued to the appellants by the Ld.ADM which was duly received by them. Pursuant thereto, the appellants had put in appearance before the Ld.ADM and filed reply. Thereafter, the Ld.ADM passed the impugned order dated 07.05.2013 after hearing both the sides.
3.0 The appellants have challenged the impugned order dated 07.05.2013, inter alia on the grounds among others that it is an admitted case of FSO that the sample was of Crushed Red Chilly and in that case, the same cannot be included in the category of Chillies and Capsicum (Lal Mirchi) as defined under the Regulation 2.9.3 of The Food Safety and Standards(Food Products Standards and Food Additives) Regulations, 2011 ("FSS (FPS and FA) Regulations" in short. The Regulation 2.9.3.2(v) which lays down the standard that nonvolatile ether extract on dry basis shall not be less than 12.0% by weight is applicable in the case of Chillies and Capsicum (Lal FSAT No. 09/16 M/s Vallabhdas Kanji Limited & Anr. vs FSO Page No. 3 of 11 Mirchi) Powder and in the present case the product is entirely different and falling under Chillies and Capsicum Annum L & Capsicum frutescens L. It is also mentioned in the grounds that it is evident that the impugned order has not analysed nor dealt with the specific contentions raised by the FBO firm as well as the appellant manufacturer herein and the Ld.ADM has passed the impugned order mechanically. The Ld.ADM erred in brushing aside the pleas of the appellants herein by qualifying the same as small micro level technicalities. The Ld.ADM erred in concluding that there is violation of the provisions of Regulation 2.3.2.1(a) of FSS(P&L) Regulations without there being any iota of evidence to substantiate the said contention, hence no offence under the Act is made out. It is also stated in the grounds of the appeal that Dry chilly flakes, the product manufactured by the appellants cannot be included in the category of Chillies and Capsicum (Lal Mirchi) Powder by any stretch of imagination as flakes and powder are two different products at different stages of the manufacturing process. Further, the chilly powder is obtained after grinding crushed chilly flakes. The chilly flakes are in fact Chillies and Capsicum (Lal Mirchi) whole and hence liable to be governed at best by the provisions of Regulation 2.9.3.1. The packing regulations for retail pack and whole sale packs are different, hence there is no violation of Regulation No. 2.3.2.1(a) of FSS(P&L) Regulations. The whole edifice of the show cause is wrong and misconceived as the product is intermediate FSAT No. 09/16 M/s Vallabhdas Kanji Limited & Anr. vs FSO Page No. 4 of 11 product and not for direct consumption and specially packed for institutional use and not for retails sale, hence the show cause notice is without any basis. The exemptions in case of whole sale packages as envisaged under Regulation 2.6.1.5 FSS(P&L) Regulations is squarely applicable to the present case and this fact was not at all dealt with anywhere in the impugned order. The Ld.ADM failed to appreciate that the regulation concerned would be applicable only in case the total area of the pack is more that 100 sq. meters and exemptions are available to independent packets in terms of Regulation 2.6.1.1.
4.0 I have heard Sh.Tom Joseph,Ld. Counsel for the appellants, Sh. Anil, Ld.Chief PP for State and have perused the brief written submissions filed on behalf of the appellants and also carefully gone through the records.
5.0 The Ld. Counsel for the appellants argued that the product manufactured by the appellants was the Chilly Flakes which does not fall in the category in the Chillies and Capsicum (Lal Mirchi) Powder as per clause 2.9.3(1) and the same may be treated under the categories of Chillies and Capsicum Annum L & Capcicum Frutescent L defined in Regulation No. 2.9.3.1 since, crushing is only the first mechanical stage for obtaining the finished product of Chilly Powder. Even, Form VA i.e. notice to the FBO FSAT No. 09/16 M/s Vallabhdas Kanji Limited & Anr. vs FSO Page No. 5 of 11 also reveals that "intermediate product, not for direct consumption, specially packed for institutional use, not for retail sale". Moreover, the pack which was collected for the sample was itself not a retail pack but, some from the wholesale packages and the same is liable to be rejected under Regulation 2.6.1.5 of the FSS Act and the same is supporting from the Form No. 8, tax invoice produced on record by the FBO and reply also shows that this item was supplied in 1kg packing in cartons.
6.0 On the other hand, Ld.Chief Public Prosecutor for the State argued that there is no major difference between the "crushed red chilly powder" and "Red Chilly Powder" since both can be used for the same purpose. Further, FSO seized only 500 grams packet of crushed chilly powder from the premises of M/s Pizza Hut which was being used for human consumption for making Pizza preparations and the said packing of 500 grams cannot be treated as wholesale pack. Therefore, the Ld. Chief PP for the State has sought dismissal of this appeal pleading that it lacks merit. The impugned order has been rightly passed by the Ld.ADM on the basis of the evidence on record.
7.0 Section 26 of the FSS Act 2006 provides responsibilities of the Food Business Operator. Sub clause (2)(ii) of Section 26 the said Act provides that no Food Business Operator FSAT No. 09/16 M/s Vallabhdas Kanji Limited & Anr. vs FSO Page No. 6 of 11 shall himself or by any person on his behalf manufacturer, store, sell or distribute any article of food which is misbranded or substandard or contains extraneous matter. Section 26 of the FSS Act, 2006, seeks to provide for the responsibilities of the food business operator to ensure that the articles of food satisfy the requirements of the Act and the rules and regulations made thereunder at all stages of production, processing, import, distribution and sale within the businesses under his control. Subclause (2) provides that no food business operator shall himself or by any person on his behalf manufacturer, store, sell or distribute any article of food which is misbranded or substandard or contains extraneous matter or which is for the time being prohibited by the Food Authority or the Central Government or the State Government in the interest of public health.
8.0 As per Section 3(1)(zf)(c)(i) FSS Act, in this Act, unless the context otherwise requires, "misbranded food", means an article of food, if the article contained in the package contains any artificial flavouring, colouring or chemical preservative and the package is without a declaratory label stating that fact or is not labelled in accordance with the requirements of this Act or regulations made thereunder or is in contravention thereof.
9.0 As per Section 3(1)(zx) FSS Act, in this Act, unless the context otherwise requires, an article of food shall be deemed to FSAT No. 09/16 M/s Vallabhdas Kanji Limited & Anr. vs FSO Page No. 7 of 11 be "substandard" if it does not meet the specified standards but not so as to render the article of food unsafe.
10.0 As per Regulation no. 2.3.2.1 (a) of the FSS (P&L), the area of principal display panel shall not be less than, in the case of a rectangular container, forty per cent of the product of height and width of the panel of such container having the largest area, provided that in the case of package having a capacity of five cubic centimeters or less, the principal display panel may be card or tape affixed firmly to the package or container and bearing the required information under these regulations.
11.0 Perusal of the record in the present case reveals that a sample of "crushed red chilly" (ready for use) was purchased by Food Safety Officer Sh. Gian Chand from Sh. Anil Rana S/o Sh. Maharaj Singh from the premises of M/s Pizza Hut (A unit of M/s Devyani International Ltd.), M20, Connaught Place, New Delhi01, 0n 15.09.2011 at about 04:00pm for analysis under the provision of Food Safety & Standard Act / Rules / Regulations. As per the FSO, the said food article was found stored for human consumption at the time of taking sample from the said restaurant. Thereafter, Food Analyst analyzed the sample and reported the sample to be sub standard vide Food Analyst report no. PFA/Enf./327/2011 dated 26.09.2011. According to the said report, the sample was sub FSAT No. 09/16 M/s Vallabhdas Kanji Limited & Anr. vs FSO Page No. 8 of 11 standard because non volatile ether extract was less than the prescribed minimum limit of 12.0%. The sample was also misbranded because there was violation of Regulation No. 2.3.2.1(a) of the Food Safety & Standards (Packaging and Labelling) Regulations, 2011. After giving opportunities to the parties during the enquiry, the Ld. Adjudicating Officer/ADM (New Delhi) Govt of NCT of Delhi, considered and found that it has been established M/s Vallabhdas Kanji Ltd., 19/449, Beach Road, PB No. 4621, Allepey 688012 (Kerala) (Accused No.5&6) is the manufacturing / packing firm and respondent nos. 1 to 4 are pertaining to FBO firms / warehouse firms found using this 'crushed red chilly powder' in their restaurant preparations being used for human consumption. Therefore, the Ld. ADM found all these firms acting as FBO firms and distributors / manufacturers / packers as integral part of this mechanism and thus, violated the Section 26(2)(ii) of the FSS Act, 2006 read with Section 3(1)(zx) which is punishable u/s 51 of FSS Act, 2006. The Ld. ADM further held that they have also violated the provisions of Section 26(2)(ii) of the FSS Act, 2006 read with Section 3(1)(zf)(c)(i) of FSS Act and Regulation no. 2.3.2.1 (a) of the FSS (P&L) Regulations, which is also punishable under Section 52 of FSS Act, 2006. The supplier firm i.e. M/s Vallabhdas Kanji Ltd. were found guilty of charge of supplying substandard and misbranded items, not conforming to the Food Safety Act and Rules. Similarly, M/s Pizza Hut (A Unit of M/s Devyani International) was FSAT No. 09/16 M/s Vallabhdas Kanji Limited & Anr. vs FSO Page No. 9 of 11 also found guilty of storing/selling substandard and misbranded red chilly powder which is nonconforming to the Food Safety Act and Rules for their ultimate customers which may cause health hazards also. The Ld. ADM finally held that manufacturer and vendor are responsible for producing and selling misbranded and substandard food items. The penalty in the form of fine of Rs.1,00,000/ under Section 51 FSS Act and also fine of Rs.2,00,000/ were imposed on M/s Pizza Hut. The penalty in the form of fine of Rs.2,00,000/ under Section 51 FSS Act and also fine of Rs.3,00,000/ were imposed on M/s Vallabhdash Kanji Ltd.
12.0 The FSO purchased the sample of crushed red chilly for analysing under the provisions of FSS Act/Rules/Regulations. Thereafter, the Food Analyst analyzed it and found the sample to be substandard and also misbranded violating regulation 2.3.2.1(a) of FSS (P&L) Regulations, 2011. The appellants were given sufficient opportunities before the Ld. ADM to prove that the sample received by FSO was neither substandard nor misbranded under the said rules. The appellants also did not establish that the sample was not a retail pack but from the wholesale packages. The appellants further failed to bring on record before the Ld. ADM that the sample cannot be included in the category Chillies and Capsicum (Lal Mirchi) Powder. The Chilly Flakes are in fact Chillies and Capsicum (Lal Mirchi) whole and liable to be governed by the provision of FSAT No. 09/16 M/s Vallabhdas Kanji Limited & Anr. vs FSO Page No. 10 of 11 Regulation 2.9.3.1 FSS (P&L) Regulations. Whereas, it has been established and proved on record before the Ld. Adjudicating Officer/ADM that the sample of Crushed Red Chilly (Ready for Use) purchased from the premises of M/s Pizza Hut was not only of sub standard but also misbranded. The Crushed Red Chilly Powder and Red Chilly Powder both can be used for the same purpose. It was also proved before the Ld. ADM that 500 grams packing of Crushed Red Chilly Powder cannot be termed as a wholesale pack. Therefore, storing a substandard and misbranded food article for human consumption is against the provisions/rules/regulations as discussed above. Nothing has been brought on record to prove against the sample purchased by the FSO and report of the Analyst by the appellants except objections or the allegations raised / made against the FSO and report of Food Analyst before the Ld. ADM and this court. Thus, I do not find any infirmity in the impugned order dated 07.05.2013 of the Ld. Adjudicating Officer/ADM. Accordingly, this appeal is dismissed. No order as to costs. Record of the Ld. ADM be returned along with copy of this judgment.
13.0 Appeal file be consigned to record room.
Digitally signed by YASHWANT YASHWANT KUMAR
KUMAR Date: 2019.06.07
17:33:26 +0530
Announced in the open court (YASHWANT KUMAR)
on 07.06.2019. District & Sessions Judge/FSAT
PHC : New Delhi
FSAT No. 09/16
M/s Vallabhdas Kanji Limited & Anr. vs FSO Page No. 11 of 11