Delhi District Court
) Fsat No. 31/16 vs Sh. Bal Mukund on 19 July, 2018
In the Court of Ms. Poonam A. Bamba, District & Sessions
Judge New Delhi: Patiala House Courts, New Delhi.
In the matters of :
1) FSAT No. 31/16
M/s Ardor Restaurant FBO
(Unit of Bon Vivant Life Style Pvt. Ltd.)
N 5556 & N 8889, Outer Circle
Connaught Circle, New Delhi - 110 001
Through Authorised Representative Mr. Harinder Yadav
S/o Sh. Mulhu Yadav R/o C118, Rohini
Avantika, Sector1, Delhi110 085. ... Appellant
AND
2) FSAT No. 36/16
i) Sh. Kailash Jain Partner of
S/o Sh. Harish Chand Jain Supplier Company
M/s Jainsons Departmental Stores
278, INA Market, New Delhi- 110 023.
ii) Sh. Harish Chand Jain Partner of
S/o Late Sh. Ramji Lal Jain Supplier Company
M/s Jainsons Departmental Stores
278, INA Market, New Delhi- 110 023.
iii) M/s Jainsons Departmental Stores Supplier
278, INA Market Company
New Delhi- 110 023. ... Appellants
3) FSAT No. 34/16
Sh. Harmeet Singh Proprietor of
M/s Singh Trading Company Supplier Company
36, Church Road (Basement)
Bhogal, New Delhi - 110 014. ... Appellant
FSAT No 31/16 Ardor Restaurant V FSO, FSAT No. 34/16 Harmeet Singh V. FSO
FSAT No.35/16 Chong Hsin Wong Ors V. FSO, FSAT No. 36/16 Kailash Jain Ors V. FSO
and FSAT No. 37/16 Vijaya Dhawan V. FSO Page 1 of 23
AND
4) FSAT No. 37/16
Sh. Vijay Dhawan Proprietor of
S/o Late K.L. Dhawan Supplier Company
Proprietor OF M/s Vijaya Enterprises
10123, Library Road, Azad Market
Delhi110 006 ... Appellant
AND
5) FSAT No. 35/16
i) Chong Hsin Wong Director of
S/o Late Sh. How Jenn Chyan Manufacturer Company
M/s Sing Cheung Co. Pvt. Ltd.
15, Matheswartala Road (South Tangra Road)
Kolkatta - 700 046.
ii) M/s Sing Cheung Co. Pvt. Ltd. Director of
Regd. Office P12 Manufacturer Company
New CIT Road (Lu Suan Sarani)
Teritti Market
Kolkatta - 700 073. ... Appellants
VERSUS
Sh. Bal Mukund
Food Safety Officer
Department of Food Safety
Govt. of NCT of Delhi
A20, Lawrence Road Indl. Area
Delhi 110 035. ..... Respondent
APPEAL AGAINST THE ORDER
DATED 03.09.2015 OF LD.
ADJUDICATING OFFICER/ADDI
FSAT No 31/16 Ardor Restaurant V FSO, FSAT No. 34/16 Harmeet Singh V. FSO
FSAT No.35/16 Chong Hsin Wong Ors V. FSO, FSAT No. 36/16 Kailash Jain Ors V. FSO
and FSAT No. 37/16 Vijaya Dhawan V. FSO Page 2 of 23
TIONAL DISTRICT MAGISTRATE,
NEW DELHI
Date of filing of appeals : 30.09.2015
Arguments concluded on : 19.07.2018
Date of judgment : 19.07.2018
J U D G M E N T :
1.0 Vide this common judgment, I shall dispose of the
aforesaid five appeals against the order dated 03.09.2015 ("the
impugned order" in short) passed by the Ld. Adjudicating
Officer/Addl. District Magistrate (New Delhi) ("ADM" in short),
directing the appellants to pay a penalty of Rs.1,00,000/ each,
under section 52 of the Food Safety and Standard Act, 2006 ("FSS
Act" in short), within 30 days from the date of order.
2.0 Facts in brief which are not in dispute, are that :
i) on 14.06.2012, Food Safety Officer ("FSO" in short),
lifted the sample of "Chilli Sauce", from the possession
of Sh. Sunil Manchanda, Director, M/s Ardor
Restaurant (a unit of M/s Bon Vivant Lifestyle Pvt.
Ltd), Connaught Place, New Delhi, where the said food
article was found stored for use in the Noodles and other
FSAT No 31/16 Ardor Restaurant V FSO, FSAT No. 34/16 Harmeet Singh V. FSO
FSAT No.35/16 Chong Hsin Wong Ors V. FSO, FSAT No. 36/16 Kailash Jain Ors V. FSO
and FSAT No. 37/16 Vijaya Dhawan V. FSO Page 3 of 23
foods to be served in the Restaurant for human
consumption. One counterpart of the sample under
sealed cover was sent to Food Analyst. The Food
Analyst vide his report dated 25.06.2012 opined the
sample as misbranded because of violation of
Regulations 2.2.2.3 and 2.2.2.10 of Food Safety &
Standards (Packaging & Labeling) Regulations, 2011
("FSS (P&L) Regulations" in short) as the label was
without declaration of nutritional information and that it
declared the best before "within 12 months from the
date of manufacturing";
ii) the sample article was supplied to the appellant M/s
Ardor Restaurant by M/s Jainsons Departmental Stores
(appellant in PPA No. 36/16), who in turn had
purchased the sample article from M/s Singh Trading
Company (appellant in PPA No. 34/16) and the same
was supplied to it by M/s Vijaya Enterprises (appellant
in PPA No.37/16). M/s Vijaya Enterprises purchased
the sample article from the manufacturer namely M/s
Sing Cheung Co. Pvt. Ltd (appellant in PPA No.35/16);
FSAT No 31/16 Ardor Restaurant V FSO, FSAT No. 34/16 Harmeet Singh V. FSO
FSAT No.35/16 Chong Hsin Wong Ors V. FSO, FSAT No. 36/16 Kailash Jain Ors V. FSO
and FSAT No. 37/16 Vijaya Dhawan V. FSO Page 4 of 23
iii) on the basis of the findings of the Food Analyst, an
application/complaint against the appellants was filed
before the Ld. ADM for violation of Sections 26(2)(ii),
23(1) and 27(3)(c) read with Section 3(1)(zf)(c)(i) of the
FSS Act and Regulations 2.2.2.3 and 2.2.2.10 of FSS
(P&L) Regulations, which is punishable under Section
52 FSS Act, 2006;
iv) on that complaint/application, notices were issued to
all the appellants and hearing was given. The Ld. ADM
after observing that the sample 'Chilli Sauce' was not a
single ingredient; a number of ingredients are used in
making chilli sauce and therefore, it cannot be
considered as chilli but a product having altogether
different character and ingredients. Regulation
2.2.2.3(v)(i) of FSS (P&L) Regulations gives exemption
only to raw condiments i.e. raw agriculture products and
not sauce which is a processed product and having a
number of ingredients. He also noted that the sample
article was not chilli powder or chilli paste but a product
having a number of ingredients including chilli and for
that reason also, it cannot be covered under regulation
FSAT No 31/16 Ardor Restaurant V FSO, FSAT No. 34/16 Harmeet Singh V. FSO
FSAT No.35/16 Chong Hsin Wong Ors V. FSO, FSAT No. 36/16 Kailash Jain Ors V. FSO
and FSAT No. 37/16 Vijaya Dhawan V. FSO Page 5 of 23
2.2.2.3(v)(i) of FSS (P&L) Regulations. The sample
was opined to be misbranded because there was
violation of Regulation No. 2.2.2.3 and 2.2.2.10 of FSS
(P&L) Regulations. He found that the appellants
violated Sections 26(2)(ii), 23(1) and 27(3)(c) r/w
Section 3(1)(zf)(C)(i) of the FSS Act. He accordingly
imposed a penalty of Rs.1,00,000/ each upon the
appellants.
3.0 The appellants have challenged the impugned order
pleading that it has been passed without considering the facts and
the evidence on record and without appreciating the law as
applicable. It is submitted that the Ld. ADM failed to appreciate
that the sample of "Chilli Sauce" was taken from the store of the
appellant M/s Ardor Restaurant in sealed condition as purchased
from M/s Jainsons Department Stores; it stores it for use in the
preparation of noodles and other foods to be served in the
Restaurant for human consumption and not for sale to the
consumers, as such. It is further submitted that the Ld. ADM
further failed to consider that at the time of giving the sample, the
Director namely Sh. Sunil Manchanda of the appellant M/s Ardor
Restaurant had intimated to the FSO that the packets of "Chilli
FSAT No 31/16 Ardor Restaurant V FSO, FSAT No. 34/16 Harmeet Singh V. FSO
FSAT No.35/16 Chong Hsin Wong Ors V. FSO, FSAT No. 36/16 Kailash Jain Ors V. FSO
and FSAT No. 37/16 Vijaya Dhawan V. FSO Page 6 of 23
Sauce" had been purchased from M/s Jainsons Departmental Stores
in the same sealed condition vide Retail Invoice No. RI222 dated
21.04.2012. Further, M/s Jainsons Departmental Stores Ltd.
admitted that they had sold the said packets to the appellant (FSAT
No. 36/16). Similar plea has been taken by the other appellants (at
no.2,3&4). Therefore, the appellants were entitled to the defence of
due diligence under section 80(B)(2)(d) of FSS Act, 2006 read with
Section 26(4) of the FSS Act, 2006. It is further submitted that the
Ld. ADM did not also consider the evidence that the Chilli Sauce is
not only a condiment but also a processed and packed vegetable
product and was therefore, exempted from declaring Nutritional
information under proviso to Regulation 2.2.2.3 of FSS (P & L)
Regulations.
3.1 The appellants have also pleaded that the Ld. ADM
failed to appreciate that the insertion of the word "Within" in the
declaration BEST BEFORE is more consumer friendly and it did
not amount to any offence under the law as per the judgment of the
Hon'ble High Court of Delhi in Ram Babu Rastogi V. State
2012(1) FAC.
4.0 On the other hand, Ld. Chief Public Prosecutor for the
FSAT No 31/16 Ardor Restaurant V FSO, FSAT No. 34/16 Harmeet Singh V. FSO
FSAT No.35/16 Chong Hsin Wong Ors V. FSO, FSAT No. 36/16 Kailash Jain Ors V. FSO
and FSAT No. 37/16 Vijaya Dhawan V. FSO Page 7 of 23
State submitted that the facts are not in dispute. The appellants
have not disputed that label on packaged food item "chilli sauce"
did not mention nutritional information; same is violative of 2.2.2.3
of FSS (P & L) Regulations. Further, even best before was not
mentioned as per regulation 2.2.2.10 of FSS (P & L) Regulations.
Violation thereof rendered the food misbranded in terms of Section
3(1)(zf)(c) read with Section 27(2)(C) which is punishable under
Section 52 FSSA. He further submitted that Section 52 FSSA
provides for a maximum penalty of Rs.3 lakhs. Whereas, the Ld.
AO has imposed a penalty of only Rs.1 lakh each on the appellants.
Ld. Prosecutor also submitted that defence of due diligence under
Section 80 (B)(2) FSS Act is not available to the appellants.
Therefore, there is no infirmity in the impugned order and the
appeals deserve to be dismissed.
5.0 I have heard Sh.Kapil Sharma and Sh.R.K. Ahuja,
Advocates for appellants and Sh. Anil, Ld. Chief PP for the State
and have perused the record carefully.
6.0 It may be mentioned at the outset that Section 23 lays
down that packed food product shall not be manufactured,
distributed, sold, exposed and despatched unless it is properly
FSAT No 31/16 Ardor Restaurant V FSO, FSAT No. 34/16 Harmeet Singh V. FSO
FSAT No.35/16 Chong Hsin Wong Ors V. FSO, FSAT No. 36/16 Kailash Jain Ors V. FSO
and FSAT No. 37/16 Vijaya Dhawan V. FSO Page 8 of 23
marked and labelled in the manner as may be specified by the
Regulations.
7.0 As already detailed in para 2 above, it is not in dispute
that the label of sample/plastic bottle of "Chilli Sauce" purchased
from Sh. Sunil Manchanda FBO/Director, of appellant at no.1
(FSAT No. 31/16), did not declare the nutritional information; and
the expiry date was described as "BEST BEFORE within 12
MONTHS FROM THE DATE OF MANUFACTURING".
7.1 It is also not in dispute that the Food Analyst vide his
report while noting that the label was "Without Declaration of the
nutritional information and the expiry date was described as "BEST
BEFORE within 12 MONTHS FROM THE DATE OF
MANUFACTURING" opined that the sample was misbranded in
view of violation of Regulations 2.2.2.3 and 2.2.2.10 of FSS (P &
L) Regulations
7.2 In the appeals, although, the appellants (except in appeal
no. 35/16) contended that Ld. ADM failed to appreciate that the
Chilli Sauce is not only a condiment but also a processed and
packed vegetable product and was therefore, exempt from declaring
FSAT No 31/16 Ardor Restaurant V FSO, FSAT No. 34/16 Harmeet Singh V. FSO
FSAT No.35/16 Chong Hsin Wong Ors V. FSO, FSAT No. 36/16 Kailash Jain Ors V. FSO
and FSAT No. 37/16 Vijaya Dhawan V. FSO Page 9 of 23
Nutritional Information under proviso (i) to Regulation No. 2.2.2.3
of FSS (P & L) Regulations. However, during the course of the
arguments, Ld. Counsel for the appellants submitted that he is not
pressing his contention that the Chilli Sauce is a Condiment.
7.2.1 As far as the appellants' plea of exemption under
proviso (i) to Regulation 2.2.2.3 is concerned, Ld. Chief PP
submitted that the proviso covers only those packaged "vegetables
and products" which comprise of single ingredient. Whereas, the
Chilli Sauce comprises of various ingredients. Thus, it cannot be
termed as processed and packaged "vegetable and products" and
does not fall under proviso (i).
7.3 Let me refer here to Regulation 2.2.2.3 FSS (P&L)
Regulations, which requires mentioning of "nutritional information"
on the label of prepackaged food. The said Regulation reads as
under :
"2.2.2: Labelling of Prepackaged Foods
In addition to the General Labelling requirements specified in
2.2.1 above, every package of food shall carry the following
information on the label, namely,
.....
3. Nutritional information FSAT No 31/16 Ardor Restaurant V FSO, FSAT No. 34/16 Harmeet Singh V. FSO FSAT No.35/16 Chong Hsin Wong Ors V. FSO, FSAT No. 36/16 Kailash Jain Ors V. FSO and FSAT No. 37/16 Vijaya Dhawan V. FSO Page 10 of 23 Nutritional Information or nutritional facts per 100 gm or 100ml or per serving of the product shall be given on the label containing the following :
(i) energy value in kcal;
(ii) the amounts of protein, carbohydrate (specify quantity of sugar) and fat in gram (g) or ml;
(iii) the amount of any other nutrient for which a nutrition or health claim is made:
Provided that where a claim is made regarding the amount or type of fatty acids or the amount of cholesterol, the amount of saturated fatty acids, monounsaturated fatty acids and polyunsaturated fatty acids in gram (g) and cholesterol in milligram (mg) shall be declared, and the amount of trans fatty acid in gram (g) shall be declared in addition to the other requirement stipulated above;
(iv) Wherever, numerical information on vitamins and minerals is declared, it shall be expressed in metric units;
(v) Where the nutrition declaration is made per serving, the amount in gram (g) or milliliter (ml) shall be included for reference beside the serving measure;
Provided that the food claimed to be enriched with nutrients, such as, minerals, proteins, vitamins, metals or their compounds, amino acids or enzymes shall give the quantities of such added nutrients on the label.
Provided that --
(i) the nutritional information may not be necessary, in case of foods such as raw agricultural commodities, like, wheat, rice, cereals, spices, spice mixes, herbs, condiments, table salt, sugar, jaggery, or FSAT No 31/16 Ardor Restaurant V FSO, FSAT No. 34/16 Harmeet Singh V. FSO FSAT No.35/16 Chong Hsin Wong Ors V. FSO, FSAT No. 36/16 Kailash Jain Ors V. FSO and FSAT No. 37/16 Vijaya Dhawan V. FSO Page 11 of 23 non -nutritive products, like, soluble tea, coffee, soluble coffee, coffeechicory mixture, packaged drinking water, packaged mineral water, alcoholic beverages or fruit and vegetables, processed and prepackaged assorted vegetables, fruits, vegetables and products that comprise of single ingredient, pickles, papad, or foods served for immediate consumption such as served in hospitals, hotels or by food services vendors or halwais, or food shipped in bulk which is not for sale in that form to consumers.
......"
7.4 Let me now examine the appellants contention that 'Chilli Sauce' is exempted under proviso (i). From the plain reading of the proviso (i), it is evident that it exempts only those processed & prepackaged products which comprise of single ingredient. It is not in dispute that the ingredients of the Chilli Sauce (as detailed in Form VA) described on the label are as under :
"Water, Chilli (32%), Potato, Edible common salt, spice, Acidifying agent"
7.5 From the above, it is evident that the Chilli Sauce contained more than one ingredient i.e. Chilli (32%) and Potato besides water, salt etc. 7.6 It would also be pertinent to refer here to the FSAT No 31/16 Ardor Restaurant V FSO, FSAT No. 34/16 Harmeet Singh V. FSO FSAT No.35/16 Chong Hsin Wong Ors V. FSO, FSAT No. 36/16 Kailash Jain Ors V. FSO and FSAT No. 37/16 Vijaya Dhawan V. FSO Page 12 of 23 Regulation 2.3.28(2) of the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 ("FSS (FPS and FA) Regulations" in short) which provides for the following requirements :
"2.3.28 Culinary Pastes/Fruits and Vegetable Sauces Other than Tomato Sauce and Soya Sauce
1.....
2. The product may contain food additives permitted in these regulations including Appendix A. It may contain caramel but shall not contain any other added colour whether natural or synthetic. The product shall conform to the microbiological requirement given in Appendix B. It shall meet the following requirements: Name of the Product Total Soluble Solids Acidity % (Salt free basis) (m/m) (as acetic acid) (1) Chili Sauce Not less then 8.0 per cent Not less than 1.0 per cent 7.6.1 Regulation 2.3.28(2) FSS (FPS and FA) Regulations lays down that content of "total soluble solids (plural) in Chilli Sauce should not be less than 8.0%. In view of the same, I am inclined to accept the argument of the Ld. Chief PP that use of word FSAT No 31/16 Ardor Restaurant V FSO, FSAT No. 34/16 Harmeet Singh V. FSO FSAT No.35/16 Chong Hsin Wong Ors V. FSO, FSAT No. 36/16 Kailash Jain Ors V. FSO and FSAT No. 37/16 Vijaya Dhawan V. FSO Page 13 of 23 "Solids" (for Chilli Sauce) itself reflects that the Chilli Sauce consists of more than one ingredient.
7.7 Ld. Counsel for the appellants also argued that nutritional information is not required to be mentioned on the label of Chilli Sauce as actually it has no nutritional value. In support, he placed on record, downloaded copies of the label details of Chili Sauce of companies Heinz and Ching's Secret. Perusal of the said label details shows that they contain details of the nutritional information as under:
Ching's Secret Green Chilli Sauce Nutrition value Servings: 0 15gm Packet Energy(kcal) 2 Protein(g) 0.1 Total Fat(g) 0 Saturated Fat 0 Trans Fat 0 Carbohydrate(g) 0.5 Sugar(g) 0.1 Sodium(mg) 140 FSAT No 31/16 Ardor Restaurant V FSO, FSAT No. 34/16 Harmeet Singh V. FSO FSAT No.35/16 Chong Hsin Wong Ors V. FSO, FSAT No. 36/16 Kailash Jain Ors V. FSO and FSAT No. 37/16 Vijaya Dhawan V. FSO Page 14 of 23 Heinz Chili Sauce Nutritional Facts Servings:1.0 Calories 20 Sodium 230mg Total Fat 0g Potassium 0mg Saturated 0g Total Carbs 5g Polyunsaturated 0g Dietary Fiber 0g Monounsaturated 0g Sugars 3g Trans 0g Protein 0g Cholestrol 0mg Vitamin A 4% Calcium 0% Vitamin C 0% Iron 0% 7.7.1 The above document shows that Chilli Sauce labels of the above companies gave details of nutritional information.
Presence of protein, carbohydrate, vitamins A&C etc. in Chilli Sauce also belies the appellants' contentions that the nutritional value of the Chill Sauce is 'Nil' and hence, there was no need of giving nutritional information on the label.
7.8 In view of the above facts and circumstances and the provisions of law, Chilli Sauce cannot be stated to be exempted from disclosing Nutritional Information under proviso (i) of Regulation 2.2.3. Sample food article/chilli sauce was required to FSAT No 31/16 Ardor Restaurant V FSO, FSAT No. 34/16 Harmeet Singh V. FSO FSAT No.35/16 Chong Hsin Wong Ors V. FSO, FSAT No. 36/16 Kailash Jain Ors V. FSO and FSAT No. 37/16 Vijaya Dhawan V. FSO Page 15 of 23 declare the nutritional information 8.0 It may be mentioned that as per Section 3(1)(zf)(C)(i) FSS Act, if a packaged article is not labelled in accordance with the Act/Rules and Regulations framed thereunder, it shall fall in the category of misbranded food. Section 3(1)(zf)(C)(i) of FSS Act reads as under:
Section 3 Definitions (1) In this Act, unless the context otherwise requires (zf) "misbranded food" means an article of food (C) if the article contained in the package
(i) ...............or is not labelled in accordance with the requirements of this Act or regulations made thereunder or is in contravention thereof:or"
8.1 Thus, nondisclosure of 'nutritional information' on the label of 'Chilli Sauce' in contravention of Regulation 2.2.2.3, rendered it misbranded.
8.2 Misbranding attracts penalty under Section 52 FSS Act, which may extend up to Rs.3 Lakhs. Further, Section 27(3)(C) FSS Act fastens liability for such a violation on all i.e. manufacturers, FSAT No 31/16 Ardor Restaurant V FSO, FSAT No. 34/16 Harmeet Singh V. FSO FSAT No.35/16 Chong Hsin Wong Ors V. FSO, FSAT No. 36/16 Kailash Jain Ors V. FSO and FSAT No. 37/16 Vijaya Dhawan V. FSO Page 16 of 23 packers, wholesalers, distributors and sellers. It reads as under :
"27. Liablity of Manufacturers, packers, wholesalers, distributors and sellers (1) The manufacturer or packer of an article of food shall be liable for such article of food if it does not meet the requirements of this Act and the rules and regulations made thereunder.
(2) The wholesaler or distributor shall be liable under this Act for any article of food which is
(a) supplied after the date of its expiry; or
(b) stored or supplied in violation of the safety instructions of the manufacturer; or
(c) unsafe or misbranded, or
(d) unidentifiable of manufacturer from whom the article of food have been received; or
(e) stored or handled or kept in violation of the provisions of this Act, the rules and regulations made thereunder; or
(f) received by him with knowledge of being unsafe. (3) The seller shall be liable under this Act, for any article of food which is
(a) sold after the date of its expiry; or
(b) handled or kept in unhygienic conditions; or (c ) misbranded ; or
(d) unidentifiable of the manufacturer or the distributors from whom such articles of food were received; or FSAT No 31/16 Ardor Restaurant V FSO, FSAT No. 34/16 Harmeet Singh V. FSO FSAT No.35/16 Chong Hsin Wong Ors V. FSO, FSAT No. 36/16 Kailash Jain Ors V. FSO and FSAT No. 37/16 Vijaya Dhawan V. FSO Page 17 of 23
(e) received by him with knowledge of being unsafe."
8.3 In view of the above provision, all the appellants are liable for contravention of Regulation 2.2.2.3 FSS (P&L) Regulations.
9.0 It is contended by the appellants (except appellant at Sl. no.5) that they had sold the Chill Sauce in the same condition as purchased by them from appellants 2,3,&4 respectively. Therefore, they are entitled to defence under Section 80(B)(2)(d) of FSS Act. Ld. Chief PP disputed the same and submitted that the appellants are not entitled to the said defence as they have failed to demonstrate the steps taken by them for checking compliance of the provisions of the Act/Rules and Regulations for the food article Chilli Sauce.
9.1 Let me refer to Section 80(B)(2) of FSS Act, under which the benefit of defence is sought. Same reads as under :
"80. Defences which may or may not be allowed in prosecution under this Act.
(A)...
(B) Defence of due diligence FSAT No 31/16 Ardor Restaurant V FSO, FSAT No. 34/16 Harmeet Singh V. FSO FSAT No.35/16 Chong Hsin Wong Ors V. FSO, FSAT No. 36/16 Kailash Jain Ors V. FSO and FSAT No. 37/16 Vijaya Dhawan V. FSO Page 18 of 23 (1)...
(2) Without limiting the ways in which a person may satisfy the requirements of clause (1), a person satisfies those requirements if it is proved:
(a) that the commission of the offence was due to --
(i) an act or default of another person; or
(ii) reliance on information supplied by another person; and
(b) (i) the person carried out all such checks of the food concerned as were reasonable in all the circumstances; or
(ii) it was reasonable in all the circumstances to rely on checks carried out by the person who supplied such food to the person; and
(c) that the person did not import the food into the jurisdiction from another country; and
(d) in the case of an offence involving the sale of food, that--
(i) the person sold the food in the same condition as and when the person purchased it, or
(ii) the person sold the food in a different condition to that in which the person purchased it, but that the difference did not result in any contravention of this Act or the rules and regulations made thereunder, and
(e) that the person did not know and had no reason to suspect at the time of commission of the alleged offence that the person's act or omission would constitute an offence under the relevant section.
FSAT No 31/16 Ardor Restaurant V FSO, FSAT No. 34/16 Harmeet Singh V. FSO FSAT No.35/16 Chong Hsin Wong Ors V. FSO, FSAT No. 36/16 Kailash Jain Ors V. FSO and FSAT No. 37/16 Vijaya Dhawan V. FSO Page 19 of 23 9.2 From the plain reading of Section 80 (B)(2) of FSS Act, it is evident that besides sale of the food in the same condition, in which it was purchased, the person claiming benefit has also to prove that the person carried out checks of the food concerned as were reasonable in all the circumstances. In the instant case, the label on the bottle of Chilli Sauce did not mention nutritional information. The appellants failed to check the said compliance/exercise due diligence. Rather, the appellants pleaded that the nutritional information was not required to be mentioned on the label and even filed in support, copies of labels/details of contents of other brands of Chilli Sauce. In view of these facts and circumstances, the appellants have failed to demonstrate that they are entitled to the benefit of Section 80 (B)(2) FSS Act.
10.0 Now coming to the last contention of the appellants that description of 'Best Before' on the label was sufficient compliance of Regulation 2.2.2.10 FSS (P&L) Regulations.
10.1 Let me refer to the regulation 2.2.2.10 FSS (P&L) Regulations, which requires the label to display the 'Best Before' and 'Use By' date. The said regulation reads as under :
FSAT No 31/16 Ardor Restaurant V FSO, FSAT No. 34/16 Harmeet Singh V. FSO FSAT No.35/16 Chong Hsin Wong Ors V. FSO, FSAT No. 36/16 Kailash Jain Ors V. FSO and FSAT No. 37/16 Vijaya Dhawan V. FSO Page 20 of 23 "2.2.2 Labelling of Prepackaged Foods 10 Best Before and Use by Date
(i) the month and year in capital letters upto which the product is best for consumption, in the following manner, namely: "BEST BEFORE ........ MONTHS AND YEAR"
OR "BEST BEFORE ....MONTHS FROM PACKAGING"
OR "BEST BEFORE ....MONTHS FROM MANUFACTURE"
10.2 As per record/the Food Analyst report, the label on the sample commodity/Chilly Sauce mentioned as under :
"BEST BEFORE WITHIN 12 MONTHS FROM DATE OF MANUFACTURING "
10.3 From the above description on the label, it is seen that the label otherwise met the requirement of the above Regulation except that it used an extra word 'within' after "Best Before", though not required under Regulation 2.2.2.10 FSS (P&L) Regulations. The Hon'ble Delhi High Court in Ram Babu Rastogi's case (supra), as relied upon by the appellants, in para no. 14 observed as under :
FSAT No 31/16 Ardor Restaurant V FSO, FSAT No. 34/16 Harmeet Singh V. FSO FSAT No.35/16 Chong Hsin Wong Ors V. FSO, FSAT No. 36/16 Kailash Jain Ors V. FSO and FSAT No. 37/16 Vijaya Dhawan V. FSO Page 21 of 23 "14. The actual label found at the sample article i.e. "Best before within 6 months from date of packaging" conveyed much more than which was required to be conveyed to the purchasers about the genuineness of the product. Mere use of word "within" as a surplusage would not bring the petitioners under the penal provisions of the Act. By any means, the purchasers could not be said to have been deceived or misled as regards the character, quantity, quality or date of manufacture and the limit of use of the product."
10.4 Similar is the situation in the present case. Thus, it is squarely covered by the above dictum of the Hon'ble High Court.
In view of the same, the label on the sample commodity/Chilli Sauce sufficiently complied with the Regulation 2.2.2.10 FSS (P&L) Regulations.
11.0 Now let me consider the appellants' plea that the Ld. ADM has imposed excessive penalty. It may be mentioned that Section 52 FSS Act prescribes penalty of upto Rs.3 lakhs for manufacturing for sale, selling, storing etc. of misbranded food. Whereas, the Ld. ADM has imposed a penalty of only Rs.1 lakh each on M/s Ardor Restaurant (FSAT No. 31/16), M/s Jainsons Departmental Stores and the partners (FSAT No. 36/16), M/s Singh FSAT No 31/16 Ardor Restaurant V FSO, FSAT No. 34/16 Harmeet Singh V. FSO FSAT No.35/16 Chong Hsin Wong Ors V. FSO, FSAT No. 36/16 Kailash Jain Ors V. FSO and FSAT No. 37/16 Vijaya Dhawan V. FSO Page 22 of 23 Trading Company/its Proprietor (FSAT No. 34/16), M/s Vijaya Enterprises/its Proprietor (FSAT No. 37/16) and M/s Sing Cheung Co. Pvt. Ltd./its Directors (FSAT No. 35/16). In view of the facts and circumstances of the case and findings recorded in preceding paras, I find no reason to interfere with the impugned order.
12.0 All the appeals are disposed of accordingly.
12.1 Original judgment be retained in the case bearing FSAT No. 31/16 titled as M/s Ardor Restaurant V. FSO, and copies thereof be filed in remaining appeals bearing FSAT No. 34/16, 35/16, 36/16 & 37/16.
13.0 Record of the Ld. ADM be returned along with copy of this judgment.
14.0 Digitally signed Appeal file be consigned to record room. POONAM by POONAM A BAMBA A BAMBA Date: 2018.07.19 Announced in the open Court 16:33:27 +0530 on this 19 day of July, 2018 (Poonam A. Bamba) th District & Sessions Judge New Delhi District: PHC New Delhi (s)
FSAT No 31/16 Ardor Restaurant V FSO, FSAT No. 34/16 Harmeet Singh V. FSO FSAT No.35/16 Chong Hsin Wong Ors V. FSO, FSAT No. 36/16 Kailash Jain Ors V. FSO and FSAT No. 37/16 Vijaya Dhawan V. FSO Page 23 of 23