Bombay High Court
State Of Maharashtra Food And Drug Admn. ... vs M/S Ruchi Soya Industries Ltd. Through ... on 8 December, 2020
Equivalent citations: AIRONLINE 2020 BOM 3040
Author: N. B. Suryawanshi
Bench: A. S. Chandurkar, N. B. Suryawanshi
1 jg.fa 158.16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
First Appeal No. 158 of 2016
(1) State of Maharashtra
Food and Drug Administration (M.S.),
Amravati, Tah. & Distt. Amravati,
Through Adjudicating Officer
(Amravati Division)
Shri Shivaji Satupa Desai.
(2) Food Safety Officer,
Shri Vishwajeet Vithalrao
Shinde, Food and Drug
Administration (M.S.),
Yavatmal, Tah. & Distt.
Yavatmal.
(3) Designated Officer,
Shri Milind Sharadrao Deshpande
Food and Drug Administration (M.S.),
Yavatmal, Tah. & Distt. Yavatmal. ..... Appellants
// Versus //
(1) M/s. Ruchi Soya Industries Ltd.
At post Isambe, Sabroli-
Khanphala Road, Tq. Khalapur,
Distt. Raigarh, through its
Authorised Representative,
Mr. Mukesh S/o Sureshji Gaidhane,
aged about 33 years, At.
Butibori, Umrer Road,
Tah. Distt. Nagpur.
(2) Shri Vedprakash S/o Purushottam
Das Arora, Aged about 54 years,
Occupation : Service,
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Nominee, M/s. Ruchi Soya Industries Ltd.
Patalganga, Isambe, Tq. Khalapur,
District Raigarh.
(3) Shri Satvir S/o Hukumchand Goyal,
Proprietor, M.s. Basant Trading Company,
608, Market Yard, Pune-37.
(4) Shri Vijay s/o Ramchandra Kabra,
Aged about Major years,
Director, M/s. Vijayant Agencies
Pvt. Ltd., Gat No. 98,
N.H. Palhadi, Tq. Dharangaon,
Distt. Jalgaon.
(5) Shri Manoj S/o Premraj Kabra,
Aged about Major years,
Director, M/s. Vijayant Agencies
Pvt. Ltd., Gat No. 98, N.H.
Palhadi, Tq. Dharangaon,
Distt. Jalgaon.
(6) Shri Jayant S/o Premraj Kabra,
Aged about Major years,
Director, M/s. Vijayant Agencies
Pvt. Ltd., Gat No. 98,
N.H. Palhadi, Tq. Dharangaon,
Distt. Jalgaon.
(7) M/s. Vijayant Agencies Pvt. Ltd.,
Gat No. 98, N.H. Palhadi,
Tq. Dharangaon, Distt. Jalgaon.
(8) Learned Food Safety Appellate
Tribunal, Yavatmal. .... Respondents
----------------------------------------------------------------------------------------------------
Shri K. L. Dharmadhikari, AGP for the State/petitioners
Shri M. R. Joharapurkar, Advocate for respondent nos. 1 to 7
-------------------------------------------------------------------------------------------------------------
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CORAM : A. S. CHANDURKAR AND
N. B. SURYAWANSHI, JJ.
DATE : 08/12/2020
JUDGMENT (Per :N. B. SURYAWANSHI, J.)
This appeal filed under Section 71(6) of the Food Safety and Standards Act, 2006 (for short 'the Act of 2006') takes exception to the judgment and order dated 25-8-2013 passed in Appeal No. 2/2013 by the Food Safety Appellate Tribunal.
2. The facts of the case in short are that, on 10-1-2012, Food Safety Officer, Shri G. V. Mahore visited Central Godown of Maharashtra State Co-operative Tribal Development Corporation, Pandharkawada and took sample of Vanaspati (Nutrela) by issuing notice in Form VA in terms of the provisions of the Food Safety and Standards Rules, 2011 (for short 'the Rules of 2011'). The Food Safety Officer issued notice to Shri Laxman Mahadev Kumre, Store Keeper of the godown asking him to disclose the name and address of the supplier of the said food article and also asking him, if he desires, to get the fourth part sample analyzed from an accredited laboratory. The sample drawn was sent for analysis to the Food Analyst, Food Testing Laboratory, Amravati on 11-1-2012. The Food Testing Laboratory, on analysis, issued Report No. 10 on 27-1-2012 ::: Uploaded on - 14/12/2020 ::: Downloaded on - 09/02/2021 19:58:47 ::: 4 jg.fa 158.16.odt thereby opining that the sample of Vanaspati did not confirm to Regulation No. 2.2.6 of Chapter 2 of the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 (for short 'the Regulations of 2011'). Since at the time of drawing of sample, according to the Food Safety Officer, the name of manufacturer and supplier was not disclosed, he was unable to send them notice as contemplated in Rule 2.4.1.4 of the Rules of 2011. After completion of the investigation, sanction was sought for launching proceedings against the manufacturer and supplier whose names were disclosed during the investigation (respondent nos. 1 to 7 in the present appeal). On receipt of sanction, complaint was lodged before the Adjudicating Officer and Joint Commissioner (Food), Food and Drug Administration (M.S.), Amravati Division which was registered as Adjudication Application No. 18/2012. After examining the case, the Adjudicating officer vide order dated 26-2-2013 held respondent nos. 1 to 7 in the present appeal (non- applicant nos. 6 to 12 in Adjudication Application No. 18/2012) guilty of manufacturing/distributing/supplying sub-standard food articles.
3. The respondents being aggrieved by order dated 26-2-2013 preferred Criminal Application No. 203/2013 before this Court, which was permitted to be withdrawn with a direction to file appeal before the ::: Uploaded on - 14/12/2020 ::: Downloaded on - 09/02/2021 19:58:47 ::: 5 jg.fa 158.16.odt Food Safety Appellate Tribunal. Accordingly, Appeal No. 2/2013 was filed by the respondents under Section 70 of the Act of 2006. The Appellate Tribunal, in absence of the appellants, allowed the appeal vide order dated 25-8-2014, hence, the present first appeal.
4. The learned Assistant Government Pleader appearing for the appellants submitted that the impugned order passed by the Appellate Tribunal is liable to be set aside on the sole ground of not giving an opportunity of hearing to the appellants. On merits, the learned Assistant Government Pleader submitted that the reasoning adopted by the Appellate Tribunal is erroneous. The learned Appellate Tribunal has recorded incorrect findings contrary to the material on record. Tribunal has erroneously observed that the sample was not in condition fit for analysis and the Food Analyst had not followed Rule 3 of Rule 2.4.2. The learned Tribunal has ignored the material on record which suggests that procedure contemplated by the Rules of 2011 was followed by the Food Safety Officer as well as by the Food Analyst. The Tribunal has ignored the fact that under Section 47(1)(a), the Food Safety Officer, at the time of drawing sample, had given notice to the vendor from whom sample was drawn. The report of the Food Analyst clearly states that the Food Analyst was duly appointed under the provisions of the Act of 2006, for ::: Uploaded on - 14/12/2020 ::: Downloaded on - 09/02/2021 19:58:47 ::: 6 jg.fa 158.16.odt Yavatmal. The report further states that the seals were intact, properly fastened and tallied with the specimen of seal separately received from Food Safety Officer and since the report revealed that the sample did not confirm to Regulation No. 2.2.6, as per Chapter 2 of the Regulations of 2011, the same was ignored by the Tribunal. He further submitted that since particulars of the supplier, manufacturer were neither available nor disclosed at the time of drawing sample, the Food Safety Officer was unable to send notice to the manufacturer, distributor or supplier in terms of Rule 2.4.1.4 of the Rules of 2011. Therefore, it cannot be said that there is violation of Rule 2.4.1.4 on the part of Food Safety Officer. He therefore submits that the Adjudicating Officer has rightly held the respondents guilty and the Tribunal has erred in allowing the appeal filed by the respondents, particularly without hearing the appellants. He therefore prayed that with a view to give reasonable opportunity of being heard to the appellants, the impugned decision of the tribunal be quashed and the matter be remanded back to the Tribunal for consideration on merit.
5. Per contra, the learned Advocate for the respondents supported the decision of the Tribunal. He relied upon the information supplied under the Right to Information Act to the respondents vide ::: Uploaded on - 14/12/2020 ::: Downloaded on - 09/02/2021 19:58:47 ::: 7 jg.fa 158.16.odt Exhibit 18 by which it was informed that the District Health Laboratory, Amravati was not a food laboratory as defined under Section 3(1)(p) of the Act of 2006. The said laboratory was not accredited by the National Accreditation Board or any other accreditation agency and it was not recognized by the Food Authority under Section 43(1) of the Act of 2006. He therefore states that the very report which is the basis for launching prosecution against the respondents is illegal and the same could not have been relied upon by the adjudicating authority. He further pointed out that the Food Safety Officer, at the time of drawing sample from 15 Kg container of Vanaspati Oil, prepared Form VA under Rule 2.4.1(3) of the Rules of 2011. It is noted in the said form that on the label affixed to the container, the name of manufacturer was mentioned. The Food Safety Officer, therefore, should have issued notice to respondent no. 1 being manufacturer in terms of Rule 2.4.4, which is not done, hence, the proceeding is vitiated on this ground also. He further points out that even Rule 2.4.5 is not complied with. Notice to the appellant no. 1 under the Rules of 2011 was for the first time issued on 13-3-2012. He submitted that respondent no. 1 did not have opportunity to get the sample analysed from the Central Laboratory as the report of Food Analyst was not forwarded to the manufacturer - respondent no. 1. He further submitted that procedure prescribed under Rule 2.4.1 was not ::: Uploaded on - 14/12/2020 ::: Downloaded on - 09/02/2021 19:58:47 ::: 8 jg.fa 158.16.odt followed by the Food Safety Officer as no immediate notice was given to the manufacturer/distributor or supplier. Even the sample is required to be packed and sealed as per Rule 9, the said procedure is also not followed. The adjudicating authority had not given opportunity to cross- examine the witnesses of Food Safety Officer while holding the respondents guilty. There is violation of Section 47 on the part of Food Safety Officer. He therefore submitted that order passed by the Tribunal is justified on the basis of reasons and material on record and the same is not liable to be interfered with. In support of submissions, he relied upon decision in M/s. Nestle India Limited Vs. The Food Safety and Standards Authority of India and ors. 2016(3) ALL MR 497.
6. Heard learned Advocates for the parties. Perused the original record, the grounds raised in the appeal memo and the impugned decision. Following point arises for our consideration.
Whether the tribunal was justified in allowing the appeal filed by the respondents ?
7. At the outset the arguments of learned Assistant Government Pleader that since the tribunal allowed the appeal without hearing the appellants and on this ground alone, the appeal deserves to be allowed and the matter needs to be remanded back to the tribunal, seems to be ::: Uploaded on - 14/12/2020 ::: Downloaded on - 09/02/2021 19:58:47 ::: 9 jg.fa 158.16.odt attractive submission, however, we called upon the learned Assistant Government Pleader as well as the learned Advocate for the respondents to address on merits, so as to ascertain as to whether there was any possibility of Tribunal dismissing the appeal, if the appellants were heard.
8. Exhibit 18 on record reveals that the District Health Laboratory, Amravati is not a food laboratory as defined under Section 3(1)(p) of the Act of 2006. It is not accredited by National Accreditation Board. The said laboratory is not recognized by Food Authority under Section 43(1) of the Act of 2006. The said laboratory is not a food laboratory established or notified by Central or State Government with respect to Rule 2.4.2(2) of the Rules of 2011. In that view of the matter, the report of food analysis dated 27-1-2012 loses its significance as the sample is not analysed by the recognized and accredited laboratory under Section 43 of the Act of 2006. Therefore, the report which is foundation for launching prosecution against the respondents cannot be relied upon and hence prosecution launched was unsustainable.
9. In terms of Rule 2.4.3, the Designated Officer after receipt of report of food analysis should have forwarded sample to the referral laboratory for analysis. If the referral laboratory reported that the sample of food is unsafe or sub-standard or mis-branded or containing ::: Uploaded on - 14/12/2020 ::: Downloaded on - 09/02/2021 19:58:47 ::: 10 jg.fa 158.16.odt extraneous matter, then the matter ought to have been referred to the Adjudicating Officer. In absence of report from referral laboratory that the sample was sub-standard, the reference by the Designated Officer to the Adjudicating Officer being contrary to Rule 2.4.3, the reference itself was unwarranted.
10. Under Rule 2.4.5, the Food Business Operator has a right to have the food analysed. This procedure was also not followed even the report of Food Analyst was not sent to respondent no. 1 - manufacturer due to which the respondent no. 1 could not exercise its right to get the sample sent to any NABL accredited/FSSAI notified laboratory for analysis under the intimation to Designated Officer. Even the right of appeal under Rule 2.4.6 could not be exercised by the manufacturer. Record also reveals that no opportunity of cross-examination of prosecution witnesses or to lead evidence was given to the respondents which has also vitiated the order of the Adjudicating Officer.
11. In terms of Section 68 of the Act of 2006, an officer not below the rank of Additional District Magistrate of the district where the alleged offence is committed, is to be notified by the State Government as the Adjudicating Officer. In the present case, work of adjudication was assigned to Joint Commissioner(Food), Food and Drugs Administration, ::: Uploaded on - 14/12/2020 ::: Downloaded on - 09/02/2021 19:58:47 ::: 11 jg.fa 158.16.odt Amravati Division. Section 68 contemplates that the Adjudicating Officer notified by State should be from the same district where the alleged offence is committed. In this case, the sample was taken from Yavatmal District, however, Adjudication is done in Amravati District. Since the appointment of Adjudicating Officer was contrary to the provisions of Section 68 of the Act of 2006, the proceedings conducted before him and his adjudication is vitiated.
12. The learned Advocate for the respondents was right in placing reliance in M/s. Nestle India Limited (supra), wherein this Court has held that food manufactured in India has to be tested in notified laboratory, in view of definition of Section 3(p) of 'food laboratory' and more particularly, as per the mandate given in Section 43(1) of the Act of 2006.
13. In view of Exhibit 18, it is an admitted fact that the District Food Laboratory, Amravati where the sample was forwarded for analysis was not accredited/recognized as per Section 43. This itself is sufficient to discard the prosecution lodged against the respondents.
14. Even if hearing had been given to the appellants, the decision of the Tribunal would not have been different or in favour of the ::: Uploaded on - 14/12/2020 ::: Downloaded on - 09/02/2021 19:58:47 ::: 12 jg.fa 158.16.odt appellants in view of the above mentioned reasons. For the aforestated reasons, only one conclusion is possible that the prosecution lodged against the respondents was unsustainable, so also the order passed by the Adjudicating Officer. In that view of the matter even if, the appellants were heard by the Tribunal, the decision of the Tribunal would have been the same as is given by the Tribunal. The Appellate Tribunal has applied its mind and has considered the material on record and passed order on merits which cannot be faulted. We therefore answer the point by holding that the Tribunal was justified in allowing the appeal filed by the respondents. Hence, the following order.
(i) First Appeal No. 158/2016 is dismissed.
(ii) The parties to bear their own costs.
JUDGE JUDGE
wasnik
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