Delhi District Court
Mr.Nikhil Asrani vs Sh.S.P.Singh on 16 October, 2020
1
IN THE COURT OF SH.DINESH KUMAR SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE
NEW DELHI
In the matter of :
FSAT No. 22/2019
1. Mr.Nikhil Asrani
S/o Sh.Suresh Asrani
M/s Suresh Kumar & Co.(Impex) Pvt. Ltd.
A17, Sonu Tower, IInd Floor
Dr.Mukherjee Nagar Commercial Complex
Delhi110009.
R/o B3/303, 19, Rajpur Road
Civil Lines, Delhi110054.
2. M/s Suresh Kumar & Co.(Impex) Pvt. Ltd.
A17, Sonu Tower, IInd Floor
Dr.Mukherjee Nagar Commercial Complex
Delhi110009.
3. Mr.Manmohit Singh
S/o Sh.Jagjit Singh Anand
M/s Fusion Basket
D14A/1, Model Town
Delhi110009.
R/o D14A/1, Model Town
Delhi110009.
4. Mr.Hemant Chabra
S/o Sh.Jairam Chabra
M/s Fusion Basket
D14A/1, Model Town
Delhi110009.
R/o AD111,Shalimar Bagh
Delhi110088.
5. M/s Fusion Basket
D14A/1, Model Town
Delhi110009. .....Appellants
2
Versus
Sh.S.P.Singh,Food Safety Officer
Department of Food Safety
Govt. of Delhi
8th Floor, Mayur Bhawan
Connaught Place,
New Delhi110001. .....Respondent
Date of filing of appeal : 21.09.2019
Date of arguments : 06.10.2020
Date of judgment : 16.10.2020
JUDGMENT
1. Vide this judgment, I propose to dispose off the appeal filed by the appellants against the impugned order dated 07.08.2019 whereby the Adjudicating Officer/Additional District Magistrate (New Delhi)("A.O." in short), interalia held that the respondents violated Regulation No.2.2.2.2 (f)(i), 2.2.2.6(i) and 2.2.2.10 of The Food Safety and Standards (Packaging and Labelling) Regulations, 2011 ( "FSS (P&L) Regulations" in short) and they have also violated Section 23(1), 26(1), 26(2)(ii), 27(3)(c) of The Food Safety and Standard Act, 2006( "FSS Act" in short) and therefore, liable to be punished u/S 52 of FSS Act. The Ld.A.O. imposed a consolidated penalty of Rs. 10,000/ upon respondent no.1 and Rs.40,000/ on respondent no.2 to 4 and consolidated penalty of Rs.50,000/ on respondent no.5 3 and 6 for selling/storing/manufacturing the misbranded product. It is pertinent to mention here that respondent no.1 Ms.Kamla Gupta, Proprietor of M/s Farm Square (FBO) has not challenged the impugned order. Impugned order has been challenged by M/s Fusion Basket(Supplier) and M/s Suresh Kumar & Co.(Impex) Pvt. Ltd.(Importer).
2. In backdrop on 18.05.2017, Sh.S.P.Singh, Food Safety Officer lifted a sample of Skippy Peanut Butter from M/s Farm Square, Shop No.72B, Khan Market, New Delhi 110003. The sample consisted of four sealed jars of Skippy Peanut Butter having identical label declaration and divided into four counterparts each consisting of one sealed jar. The sample was separately marked, packed, fastened and sealed according to the provision of FSS Act. Form VA was prepared at the spot and copy of the same was given to Ms.Kamla Gupta, FBO. Another notice in Form VA was also prepared in the name of M/s Fusion Basket, supplier. On 19.05.2017, one counter part of the sample in intact condition was sent to Food Analyst, Delhi and other two counterparts of the sample were deposited with Designated Officer. The FBO did not request to send the fourth counterpart of the sample for analysis from NABL Accredited Laboratory under Rule 2.4.5 of The Food Safety and Standards Rules, 2011 ("FSS Rules" in short) and as such the fourth counterpart was also 4 deposited with the Designated Officer. The Food Analyst vide his report No.FSS/550/2017 dated 01.06.2017 opined the sample as misbranded because there is violation of Regulation No.2.2.2.2(f)(i), 2.2.2.6(i) and 2.2.2.10 of FSS (P&L) Regulations. Food Analyst also reported that percentage of ingredients used not declared although it is emphasized as present on the label through pictures. Further the complete address of the manufacturer is not declared and best before declaration is given on "Best if used by". A copy of Food Analyst report was sent to FBO, supplier and importer for giving them an opportunity to file appeal against the report of the Food Analyst. However, no such appeal was preferred. The FSO filed a complaint before the Ld.A.O. The Ld.A.O. on the complaint being filed issued notice to FBO, supplier and the importer and they appeared through authorized representative. The Ld.A.O. vide impugned order interalia held that respondents have violated the provisions of FSS Act as seller of the sample article were liable for the offence of misbranding as there is no exemption under FSS Regulations for any company whether well known or not from declaring on label the complete address of the company including its Plot No./street/colony/area etc. as required under Regulation 2.2.2.6 of FSS (P&L) Regulations. The Ld.A.O. distinguished the judgments (I) M.D.Anand Aqua Vs The State of Bihar, 5 2011 1 FAC 265 Cr.Misc. No.14365 of Hon'ble High Court of Patna Bihar and A. Edwin Alex & Ors. Vs Food Inspector & Ors., in Cr.O.P.(MD) No.8031 of 2009 of Hon'ble Madras High Court cited by the appellants on the ground that same were of PFA cases and has no relevance in the present matter.
3. Aggrieved by the impugned order, the appellants have challenged the impugned order primarily on the following grounds:
(i) Regulation No.2.2.2.2(f)(i) of FSS (P&L) Regulations does not apply in the present matter as Skippy Peanut Butter is a single ingredient food, the standards of which are prescribed in Regulation No.2.2.4.11 of The Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 ( "FSS(FPS & FA) Regulations" in short). Peanut Butter is a kind of edible fat, the standards of which are prescribed alongwith other kinds of edible fats in group of edible fats like animal fats, lard, cocoa butter, salseed fat, kokum fat, mango kernel fat, dhupa fat, phulwara fat etc. and therefore, the percentage of ingredient peanut emphasized on the label of peanut butter is not required to be given in the list of ingredient. However, on the label the list of ingredients has been given in descending order of their composition by weight or volume as the case may be at the time of its manufacture.6
(ii ) Peanut butter is basically a single ingredient food product and other ingredients like food additives are required to be added as per technological requirement/necessity as per Good Manufacturing Practices to enhance the taste, texture and to prevent separation to keep it homogenized. Peanut butter cannot be separated into mixture by any means nor percentage can be ascertained by any accredited food laboratory. Skippy peanut butter was neither a mixture nor a combination and it is a single ingredient food product. Peanut butter is a food paste or fat spread made from ground dry roasted peanuts and therefore, it is a single ingredient food product and does not qualify for the category of mixture or combination. This fact is known to the consumer and therefore, omission of the quantitative ingredient will not mislead or deceive the consumer and therefore, the percentage of ingredient peanut in peanut butter is not required.
(iii) The name and complete address of the manufacturer i.e. MFD:Harmel Foods Sales, LLC 1, Harmel Place, Austin, Pin Code 55912 was duly given on the label in full compliance of Regulation No. 2.2.2.6(i) of FSS (P&L) Regulations.
(iv) The label of impugned sample of Skippy peanut butter had the "best before" declaration. As per Food Analyst report "best before" declaration is given as the "Best if used by". The declaration on the label was very clear, unambiguous and 7 easily understandable by the consumers.
(v) The sample in this case was not sent to the food laboratory accredited by NABL or any other agency notified by the Food Authority as required u/S 43 of FSS Act. The sample was sent to Food Analyst, Govt. Food Laboratory, Delhi which is neither accredited by the NABL or by any other accreditation agency nor recognized and notified by the Food Safety and Standards Authority of India as required u/S 3(1)(p) and 43 of FSS Act. The appellant has placed reliance upon Nestle India Pvt. Ltd. vs FSSAI and Others, Writ Petition No.1688/2015.
(vi) The sample of peanut butter was also compliant with the provisions of The Food Safety and Standards(Import) Regulations 2017 which takes care of quality, safety and labeling requirements of all imported foods imported into India for human consumption. Imported food is not cleared by the Food Authority for human consumption in India if the same is not complying with the above said regulations.
(vii) The Food Authority has issued directions to all Commissioners of Food Safety that u/S 32 FSS Act for improvement/rectification of minor labeling defects which is binding u/S 16(5) FSS Act asking to follow such existing provisions of rectification instead of instituting cases for minor labeling defects.
4. Notice of the appeal was issued to the 8 respondent department. However the department did not file any reply. Ld.Chief PP for respondent offered to argue the matter. During the course of proceedings, the FSO was also directed to produce the sample. The appellants filed the written submissions reiterating the averments made in the appeal.
5. Ld.Counsel for the appellants submitted that the order passed by the Ld.A.O. has been passed mechanically without any application of mind. It has been submitted that as per FSS(FPS & FA) Regulations, there was no requirement of giving of percentage of peanut in the label as it is not a case of combination or mixture product. It has been submitted that complete address of the manufacturer was given on the label and there was no ambiguity on the best before requirement. Ld.Counsel has further submitted that the sample in the present case has also not been sent to the accredited laboratory and therefore, the very basis of the prosecution is bad in law.
6. Per contra, Ld.Chief PP for respondent has submitted that in view of Section 98 of FSS Act, the Laboratory Food Analyst report is in accordance with law. Ld.Chief PP has also relied upon Circular No.12015/10/2017 QA dated 06th September, 2018 whereby further period of 2 years has been given for obtaining NABL accreditation. It has 9 further been submitted that the appellants have violated Regulation No.2.2.2.2 (f)(i) of FSS (P&L) Regulations as according to Regulation No.2.2.2.2 (f)(i) of FSS (P&L) Regulations, the percentage of peanut was required to be given. It has further been submitted that the appellants are wrongly relying upon Regulation No.2.2.2.2 (f)(ii) of FSS (P&L) Regulations. Ld.Chief PP has further submitted that the appellants are trying to confuse the matter by taking the plea of single ingredient product. Ld.Chief PP has further submitted that apparently the address of the manufacturer is not complete on the label and similarly, the appellants have violated the provisions of Regulation No. 2.2.2.10 of FSS (P&L) Regulations and has not given the declaration of best before as per provisions.
7. I have heard Ld.Counsel for the parties and perused the record carefully.
8. Report of Food Analyst Section 3 (p) FSS Act defines food laboratory as under:
"3.(p) "food laboratory" means any food laboratory or institute established by the Central or a State Government or any other agency and accredited by National Accreditation Board for Testing and Calibration Laboratories or an equivalent accreditation agency and recognised by the Food Authority under section 43;"
Section 43 FSS Act provides as under:
10"43.Recognition and accreditation of laboratories, research institutions and referral food laboratory. (1) The Food Authority may notify food laboratories and research institutions accredited by National Accreditation Board for Testing and Calibration Laboratories or any other accreditation agency for the purposes of carrying out analysis of samples by the Food Analysts under this Act. (2) The Food Authority shall, establish or recognise by notification, one or more referral food laboratory or laboratories to carry out the functions entrusted to the referral food laboratory by this Act or any rules and regulations made thereunder.
(3) The Food Authority may frame regulations specifying
(a) the functions of food laboratory and referral food laboratory and the local area or areas within which such functions may be carried out;
(b) the procedure for submission to the said laboratory of samples of articles of food for analysis or tests, the forms of the laboratory's reports thereon and the fees payable in respect of such reports;
(c) such other matters as may be necessary or expedient to enable the said laboratory to carry out its functions effectively.
The conjoint reading of Section 3 (p) and 43 FSS Act makes it clear that the appropriate authority shall notify food laboratories and research institutions accredited by NABL for testing for the purpose of carrying out analysis of sample by Food Analyst under this Act. Such food laboratory or institute has to be accredited by Central or State Govt. or any other agency. The department has taken a plea that by virtue of 11 Section 98 FSS Act, the food laboratory from which the present sample has been analysed is correct. Section 98 FSS Act reads as under:
"98. Transitory provisions for food standards. Notwithstanding the repeal of the enactment and Orders specified in the Second Schedule, the standards, safety requirements and other provisions of the Act and the rules and regulations made thereunder and Orders listed in that Schedule shall continue to be in force and operate till new standards are specified under this Act or rules and regulations made thereunder:
Provided that anything done or any action taken under the enactment and Orders under repeal shall be deemed to have been done or taken under the corresponding provisions of this Act and shall continue in force accordingly unless and until superseded by anything done or by any action taken under this Act."
Thus by implication, the department has conceded to the fact that the laboratory from which the present sample was analysed is not accredited by the NABL. It is also pertinent to mention here that inspite of Circular No.12015/10/2017QA dated 06th September, 2018, there is nothing on the record to suggest that any process has been initiated for obtaining NABL accreditation of the food laboratory in question.
9. Ld.Counsel for the appellant has relied upon M/s Nestle India Ltd. Vs The Food Safety and Standards Authority of India, 2015 SSC Online Bombay 4713. In M/s Nestle India Ltd.'s case(Supra), the case of the petitioner was 12 that analysis of food by Food Analyst was not in accordance with rules and regulations and the tests were carried out by a laboratory which was not accredited by NABL and therefore, the result declared by Food Analyst cannot be relied upon. The court besides other issues framed an issue that whether the analyses of the product manufactured by the petitioner could have been made in the laboratory in which the said product was tested by the Food Authority and whether these laboratories were accredited by the NABL and whether the reports submitted by these laboratories can be relied upon. The court also framed an issue that whether the Food Analyst was entitled to test the sample in any laboratory even if it is not accredited or recognized by the Food Authority. In this case, Ld.Counsel appearing for The Food Safety and Standards Authority of India had taken a plea that since the necessary infrastructure was not available, a notification dated 05.07.2011 was issued and in the said notification, it was clearly stated that as long as laboratories were not recognized by Food Authority, the existing laboratories which were in existence under the law would continue on account of transitory powers u/S 98 FSS Act. Hon'ble Bombay High Court taken into account the facts interalia held as under :
"93.It will be relevant to take into consideration the provisions of section 3(p) which defines the "food laboratory" and section 43 which gives power to the Food 13 Authority to give recognition to laboratory and notify it. Section 3(p) and 43 of the Act reads as under: "3(p) "food laboratory" means any food laboratory or institute established by the Central or a State Government or any other agency and accredited by National Accreditation Board for Testing and Calibration Laboratories or any equivalent accreditation agency and recognised by the Food Authority under section 43."
"43. Recognition and accreditation of laboratories, research institutions and referral food laboratory. (1) The Food Authority may notify food laboratories and research institutions accredited by National Accreditation Board for Testing and Calibration Laboratories or any other accreditation agency for the purposes of carrying out analysis of samples by the Food Analysts under this Act.
(2) The Food Authority shall, establish or recognise by notification, one or more referral food laboratory or laboratories to carry out the functions entrusted to the referral food laboratory by this Act or any rules and regulations made thereunder.
(3) The Food Authority may frame regulations specifying WPL/1688/2015
(a) the functions of food laboratory and referral food laboratory and the local area or areas within which such functions may be carried out;
(b) the procedure for submission to the said laboratory of samples of articles of food for 14 analysis or tests, the forms of the laboratory's reports thereon and the fees payable in respect of such reports; and
(c) such other matters as may be necessary or expedient to enable the said laboratory to carry out its functions effectively.
Upon conjoint reading of both these sections quoted hereinabove, it is clear that under section 3(p), "food laboratory" is a laboratory which is either State or Central laboratory or any other allied laboratory which is accredited and recognized by NABL and by the Food Authority under section 43 of the Act. The laboratory, therefore, has to pass twin test before it can be said to be a recognized laboratory viz (i) it has to be accredited by NABL and over and above that (ii) it has also to be recognized by the Food Authority under section 43 of the Act. Subsection (1) of section 43 makes it abundantly clear that only in that laboratory which is recognized by the Food Authority by Notification, food can be sent for analysis by the Food Analyst. Upon conjoint reading of the said two provisions, it is clear that the submission made by Mr. Khambata, the learned Senior Counsel for Respondent Nos. 3 and 4 is without any substance. Section 43(1) mandates that the Food Analyst WPL/1688/2015 has to analyse the food in a laboratory accredited by NABL and also recognized by the Food Authority and notified by it. It is apparent that therefore if there is noncompliance of the said provisions and if the food is tested in a laboratory which does not fall within the definition of section 3(p) and not recognized by the Food Authority, the analysis made in such laboratory cannot be relied upon. The Apex Court in Pepsico India Holdings Private Limited vs. Food Inspector and Another1 has observed that the provisions are under section 15 mandatory. The Apex Court in this case held that provisions 23(1A)(ee) of the Prevention of Food Adulteration Act, 1954 for testing the food samples/adulteration are mandatory and not directory. Though the said observation is made in respect of provisions of the Prevention of Food Adulteration Act, 1954 (which has now been repealed by FSS Act, 2006), even under the new Act, the provisions of section 43(1) will have to be held mandatory and not directory. This is more so when Section 43(1) is read with the definition of the words "food laboratory" in Section 3(p) of the FSS Act, 2006."
10. Section 47(5) FSS Act reads as under:
"47(5) In case of imported articles of food, the authorised officer of the Food Authority shall take its sample and send to the Food Analyst of notified laboratory for analysis who shall send the report within a period of five days to the authorised officer."
Thus in view of the above provision, it is necessary that the food sample in the present case should have been sent to the notified laboratory for analysis. The department also failed to state anywhere that the Food Analyst in the present case was having the qualification as prescribed u/S 45 of the Act. The department has also taken a plea that in the present case, there is no relevance of the laboratory being accredited by NABL as the Food Analyst has given his report on misbranding on the basis of label and therefore, no analysis is required. I consider that the department cannot be let off to violate the provisions of law on such filmsy grounds. Nobody can be 16 allowed to violate the mandate of law. FSS Act in its various provisions including Section 3(p) and 43 FSS Act laid down the eligibility conditions of food laboratory for analysis of food sample. FSS Act was enacted in 2006 and now we are in 2020. The executive cannot be allowed to use the transitory powers for unlimited time. The conduct of the department indicates total inaction and non seriousness towards their responsibility. I consider that since the laboratory where the food sample was sent for analysis does not confirm to Section 3(p) and 43 FSS Act, the same cannot be read with for any purpose.
11. Violation of Regulation No.2.2.2.2 (f)(i) of FSS (P&L) RegulationsRegulation No.2.2.2.2 (f)(i) of FSS (P&L) Regulations reads as under:
"(f) Every package of food sold as a mixture or combination shall disclose the percentage of the ingredient used at the time of the manufacture of the food (including compound ingredients or categories of ingredients),if such ingredient-
(i) is emphasised as present on the label through words or pictures or graphics; or
(ii) is not within the name of the food but, is essential to characterise the food and is expected to be present in the food by consumers, and if the omission of the quantitative ingredient declaration will mislead or deceive the consumer:"
The bare perusal of this provision makes it clear that if the 17 food article is sold as a mixture or combination, it must disclose the percentage of ingredient used at the time of manufacture of the food. Thus, the question is whether the peanut butter in the present case is sold as a mixture or combination. In this regard, reference has also been made to Regulation No.2.2.4.11 of FSS(FPS & FA) Regulations. Regulation No.2.2.4.11 of FSS(FPS & FA) Regulations provides that peanut butter means cohesive, comminuted food product prepared from clean, sound, shelled peanuts or groundnuts (Arachis hypogaea L.) by grinding roasted mature kernels from which the seed coats have been removed. The regulation also provides the food standards for the peanut butter. The department has simply based its case on the premises that the peanut butter has been sold as mixture or combination. However, the appellants have rightly pointed out that nothing of this sort was mentioned in the raid report or Form VA. I consider that there is substance in the plea of the Ld.Counsel for the appellants that it is a single product and being no mixture or combination Regulation No.2.2.2.2
(f)(i) of FSS (P&L) Regulations is not applicable.
12. Violation of Regulation No.2.2.2.6(i) of FSS (P&L) RegulationsRegulation No.2.2.2.6(i) of FSS (P&L) Regulations reader as under:
"6.Name and complete address of the manufacturer 18
(i) The name and complete address of the manufacturer and the manufacturing unit if these are located at different places and in case the manufacturer is not the packer or bottler, the name and complete address of the packing or bottling unit as the case may be shall be declared on every package of food;"
It is a matter of common knowledge that in USA the address can easily be located by the PIN number. The practice of giving plot or street number is not prevalent there. Ld.Counsel for the appellant has also relied upon Nirma Ltd. Vs State of Punjab, 2015(1)FAC 526. In this case, it was interalia held that the requirement of complete address would be satisfied if the implementing authority or a consumer or for that matter any other interested person is in a position to locate the place of manufacture, as well as the registered office of the manufacturer on the basis of the address displayed on the label of the packaging . It was further interalia held that the address would be deemed to be complete if there would be no ambiguity in locating the place of the manufacturer or the registered office of the manufacturer. I consider that on this point also, the department has mechanically launched the prosecution. The address given on the label is sufficient to reach the manufacturer.
13. Violation of Regulation No.2.2.2.10 of FSS (P&L) RegulationsRegulation No.2.2.2.10 of FSS (P&L) 19 Regulations stipulates the month and year in capital letters upto which the product is best for consumption. The Act provides that the same has to be provided in the following manner:
"BEST BEFORE ....... MONTHS AND YEAR OR "BEST BEFORE .......... MONTHS FROM PACKAGING OR "BEST BEFORE ............MONTHS FROM MANUFACTURE"
It is an admitted case that on the sample peanut butter Best if used by is given. The plea of the appellant is that the declaration as required by the Act has been given in the label in most unambiguous manner and therefore, there is sufficient compliance of Regulation No.2.2.2.10 of FSS (P&L) Regulations. Ld.Counsel has also relied upon MD Anand Aqua, M/s S.B.Industries, Patna Vs State of Bihar, 2011 (10) FAC 265, Promod Kumar Kediya Vs the State of Bihar & Another, 2012(1) FAC 479, Oscar Joseph & Another Vs The State of Jharkhand & Another, 2012(2) FAC 74. I consider that on this point also, the appeal is liable to be dismissed.
14. The perusal of the impugned order passed by the Ld.Adjudicating Officer would indicate that the Ld.A.O. merely after recording the submissions of both the parties simply concluded that the appellants have violated the Regulations. The Ld.A.O. did not give any iota of reason for 20 reaching to the conclusion. The judgments cited by the appellants were also ignored by saying that they were on the provisions of PFA Act. I consider that the Ld.Adjudicating Officer is expected to give their view/observations on the basis of the material placed before them and the submissions made by the parties. The Appellate Court should have the advantage of having the opinion of the Ld.A.O. The judicial orders passed by the authority must contain the reasons for reaching to the conclusion. Unfortunately, the impugned order is totally devoid of any reason. I consider that the impugned order dated 07.08.2019 cannot sustain in the eyes of law and is therefore, set aside.
15. In view of the discussion made, the appeal is allowed accordingly.
16. TCR be sent back alongwith copy of judgment.
17. Appeal file be consigned to Record Room.
DINESH Digitally signed by DINESH
KUMAR SHARMA
KUMAR Date: 2020.10.16 12:23:12
SHARMA +0530
Announced through (DINESH KUMAR SHARMA) electronic mode on Principal District & Sessions Judge/ 16.10.2020. Food Safety Appellate Tribunal New Delhi