Delhi District Court
Sh. Dharambir Jain ... vs Sh. B.P. Saroha on 20 May, 2019
IN THE COURT OF MS. POONAM A. BAMBA
DISTRICT & SESSIONS JUDGE, NEW DELHI
In the matters of :
FSAT No. 09/2019
1. Sh. Dharambir Jain (F.B.OcumCoordintor)
S/o Sh. Niranjan Das
M/s Vardhman Overseas
3383 Gali Lallu Mishra
Qutab Road, Sadar Bazar,
Delhi110006.
2. Sh. Tapeshwar Singh (Partner of the Supplier
S/o Sh. Trilochan Singh cumImporter Co.)
M/s Packman International
7822B, Moulla Bux Building
Rohsanara Road, Delhi110007.
R/o 85, Paschim Enclave,
Delhi110087.
3. M/s Packman International (SuppliercumImporter Co)
7822B, Moulla Bux Building
Rohsanara Road, Delhi110007
R/o 85, Paschim Enclave,
Delhi110087. .....Appellants
Versus
1. Sh. B.P. Saroha
Food Safety Officer
FSAT No. 09/19 Page No. 1 of 14
Dharambir Jain Ors. vs Food Safety Officer Anr.
8.0 Record of the Ld. ADM be returned along with copy of
Department of Food Safety
Govt. of NCT of Delhi
8th Floor, Mayur Bhawan, Connaught Place
New Delhi.
2. Designated Officer
Department of Food Safety
Govt. of NCT of Delhi
8th Floor, Mayur Bhawan, Connaught Place
New Delhi. ..... Respondents
APPEAL AGAINST THE ORDER
DATED 13.03.2019 OF
LD.ADJUDICATING OFFICER /
ADDITIONAL DISTRICT
MAGISTRATE (CENTRAL), NEW
DELHI.
Date of filing of appeal : 27.03.2019
Arguments concluded on : 20.05.2019
Date of judgment : 20.05.2019
J U D G M E N T : 1.0 Vide this appeal, the appellants have challenged the order dated 13.03.2019 ("the impugned order" in short) passed by Ld. Adjudicating Officer/Additional District Magistrate (Central) ("ADM" in short), directing Food Business Operator("FBO" in short), appellant no.1/ Sh. Dharambir Jain to pay penalty of Rs.10,000/ and the partners of the supplier cum importer company FSAT No. 09/19 Page No. 2 of 14 Dharambir Jain Ors. vs Food Safety Officer Anr.
8.0 Record of the Ld. ADM be returned along with copy of i.e. Sh. Tapeshwar Singh/ appellant no. 2 & Sh. Mandeep Singh and suppliercumimporter company/ M/s Packman International/appellant no.3, to pay a penalty of Rs. 80,000/, under Section 52 of the Food Safety and Standard Act, 2006 ("FSS Act"
in short) for violation of Regulation 2.2.2.10 of The Food Safety & Standards (Packaging & Labeling) Regulations, 2011 ("FSS (P&L) Regulations" in short).
2.0 Briefly stating the admitted facts relevant for disposal are that:
(i) on 09.06.2015, Food Safety Officer ("FSO" in short), purchased a sample of "Penne Pasta" from the appellant no.1/Sh. Dharambir Jain, S/o Sh. Niranjan Das, M/s Vardhman Overseas, 3383, Gali Lallu Mishra, Qutab Road, Sadar Bazar, Delhi110006 (Food Business Operator), where the said food article was found stored for sale for human consumption. The sample under sealed cover were sent to Food Analyst as well as to the Designated Officer;
(ii) the Food Analyst vide his report dated 23.06.2015 opined " The sample is misbranded because there is FSAT No. 09/19 Page No. 3 of 14 Dharambir Jain Ors. vs Food Safety Officer Anr.
8.0 Record of the Ld. ADM be returned along with copy of violation of Regulation 2.2.2.10 of FSS (P&L) Regulations";
(iii) in view of the above report,the Food Safety Officer, filed a complaint/application under Rule 3.1.1(3) FSS Rule, 2011 before Ld. ADM alleging violation of Section 26 2(ii) FSS Act for violation of Regulation 2.2.2.10 of FSS(P&L) Regulations, punishable u/S 52 of FSS Act. Notices of the same were issued to all the appellants and hearing was given;
(iv) after hearing the appellants and considering the matter, Ld. ADM found the appellants guilty of violation of Regulation 2.2.2.10 punishable u/S 52 FSS Act and accordingly imposed penalty upon them.
3.0 The appellants have challenged the impugned order on the following grounds:
(i) Ld. ADM failed to appreciate that mentioning of the "Expiry Date" on the sample article was sufficient compliance of Regulation 2.2.2.10 of FSS (P&L) Regulations as it duly conveyed the Best Before Date;FSAT No. 09/19 Page No. 4 of 14
Dharambir Jain Ors. vs Food Safety Officer Anr.
8.0 Record of the Ld. ADM be returned along with copy of
(ii) the Ld. ADM failed to appreciate that proper procedure of sampling and analysis as per rules was not followed. Specimen impression of the seal used to seal the packet, is required to be sent to the Food Analyst; and the Food Analyst is required to prove that he received the seal impression separately, which tallied with the seal put on the sealed food article. But the same was not observed. In support, reliance is placed upon judgments of State Vs. Banwari Lal, 2011 (1) FC 149 of Hon'ble Delhi High Court and State of Punjab Vs. Jaspal Singh, 1998 (2) 262 of Hon'ble Punjab & Haryana High Court;
(iii) Ld.ADM did not conduct the enquiry in fair and legal way as no departmental or other witness was examined;
(iv)the sanction given by the Designated Officer is bad in law as there was no proper application of mind and consideration of facts by the Ld.ADM.
4.0 On the other hand, Ld. Chief Public Prosecutor for the State submitted that the appellants have no case on merits as the FSAT No. 09/19 Page No. 5 of 14 Dharambir Jain Ors. vs Food Safety Officer Anr.
8.0 Record of the Ld. ADM be returned along with copy of label did not meet the requirements of Regulation 2.2.2.10 of FSS (P&L) Regulations. The Ld.ADM has rightly imposed the penalty.
5.0 I have heard Sh. R.D.Goel, Ld.Advocate for the appellants and Sh. Anil, Ld. Chief PP for the State and have perused the record carefully.
6.0 Admittedly, the label on the sample package of "Penne Pasta" purchased from the appellant no.1/Sh. Dharambir Jain, S/o Sh. Niranjan Das, M/s Vardhman Overseas, 3383, Gali Lallu Mishra, Qutab Road, Sadar Bazar, Delhi110006 on 09.06.2015 mentioned only expiry date as 06.06.2017".
6.1 Perusal of the FormVA reveals that the required declaration on the label reads as under:
".....Exp. date : 06/06/2017"
6.2 Food Analyst vide his report dated 23.06.2015 reported the sample to be "misbranded" in view of violation of Regulation 2.2.2.10 of FSS (P&L) Regulation. Food Analyst's report reads as under: FSAT No. 09/19 Page No. 6 of 14 Dharambir Jain Ors. vs Food Safety Officer Anr.
8.0 Record of the Ld. ADM be returned along with copy of ".....
Analysis Report:
(i) Sample Description: OTTIMA penne pasta sample in original sealed packet.
(ii).....
(iii) Label: Expiry date given in place of Best Before declaration. .....
Opinion:The sample is misbranded because there is violation of Regulation 2.2.2.10 of The Food Safety & Standards(Packaging & Labelling) Regulation, 2011. "
6.3 The appellants have contended that mention of the "expiry date" is sufficient compliance of Regulation 2.2.2.10 of FSS(P&L) Regulations and denotes that food article is not consumable after the expiry date.
7.0 At the outset, let me refer to the Regulation 2.2.2.10 of FSS (P&L) Regulations, which specifies the manner in which the label shall display the 'Best Before' date. The said regulation reads as under :
"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: FSAT No. 09/19 Page No. 7 of 14 Dharambir Jain Ors. vs Food Safety Officer Anr.
8.0 Record of the Ld. ADM be returned along with copy of "BEST BEFORE ........ MONTHS AND YEAR"
OR BEST BEFORE ....MONTHS FROM PACKAGING"
OR "BEST BEFORE ....MONTHS FROM MANUFACTURE"
7.1 In view of the above, it is evident that the declaration on the label "EXP. Date 06.06.2017" did not conform to Regulation 2.2.2.10 of FSS (P&L) Regulations. Suffice it to state that non compliance of any of the provisions of the FSS Act and Rule/Regulations framed thereunder renders the sample food misbranded in terms of Section 3(1)(zf)(C)(i) FSS Act, which reads as under.
"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) 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; or"
7.1.1 In view of the same, the Food Analyst rightly opined vide his report dated 23.06.2015 that the sample food article FSAT No. 09/19 Page No. 8 of 14 Dharambir Jain Ors. vs Food Safety Officer Anr.
8.0 Record of the Ld. ADM be returned along with copy of violated Regulation 2.2.2.10 and hence, is misbranded.
7.2 It may also be mentioned that Section 26 FSS Act which lays down the responsibilities of the FBO, inter alia enjoins upon every FBO to ensure that food article, whether produced, sold, distributed, stored etc. under his control shall satisfy the requirements of the FSS Act and the Rules and Regulations framed thereunder. Section 26 FSS Act reads as under:
"26.Responsibilities of the food business operator.(1) Every food business operator shall ensure that the articles of food satisfy the requirements of this Act and the rules and regulations made thereunder at all stages of production, processing, import, distribution and sale within the businesses under his control. (2)No food business operator shall himself or by any person on his behalf manufacture, store, sell or distribute any article of food
(i) which is unsafe; or
(ii) which is misbranded or substandard or contains extraneous matter....."
7.2.1 From the plain reading of the above provision, it is evident that the appellants violated Section 26(2)(ii) FSS Act by storing/ selling misbranded Penne Pasta/ sample food article which was meant for human consumption. Such violation is punishable FSAT No. 09/19 Page No. 9 of 14 Dharambir Jain Ors. vs Food Safety Officer Anr.
8.0 Record of the Ld. ADM be returned along with copy of under Section 52 FSS Act which provides for a maximum penalty of Rs.Three Lakhs.
7.3 Considering the same and after hearing both the parties, Ld. ADM passed the impugned order imposing penalty of Rs.10,000/ upon appellant no.1/Sh. Dharambir Jain and imposing a penalty of Rs.80,000/ on the partners of the supplier cum importer company i.e. Sh.Tapeshwar Singh/appellant no.2 & Sh.Mandeep Singh as well as supplier cum importer company/ M/s Packman International/appellant no.3, under Section 52 FSS Act.
8.0 The appellants have challenged the impugned order vide this appeal raising various pleas including noncompliance of rules in obtaining of sample and its analysis and that the sanction was granted without application of mind. But, the same were not pressed during arguments. The appellants only pressed their contention that mentioning of "expiry date" is sufficient compliance of Regulation 2.2.2.10 FSS(P&L) Regulations.
8.1 In this regard, let me mention here that Regulation 1.2.1 of FSS (P&L) Regulations defines the terms 'best before' and 'expiry date'. Regulation 1.2.1 reads as under :
FSAT No. 09/19 Page No. 10 of 14Dharambir Jain Ors. vs Food Safety Officer Anr.
8.0 Record of the Ld. ADM be returned along with copy of "1.2.1 : In these regulations unless the context otherwise requires:
1. "Best before" means the date which signifies the end of the period under any stated storage conditions during which the food shall remain fully marketable and shall retain any specific qualities for which tacit or express claims have been made and beyond that date, the food may still be perfectly safe to consume, though its quality may have diminished. However the food shall not be sold if at any stage the product becomes unsafe.
2. "Date of manufacture" means the date on which the food becomes the product as described;
.....
10. "Use - by date" or "Recommended last consumption date" or "Expiry date" means the date which signifies the end of the estimated period under any stated storage conditions, after which the food probably will not have the quality and safety attributes normally expected by the consumers and the food shall not be sold; ....."
8.2 From the plain reading of both the expressions, it is evident that they have a different connotation. The product may be safe for consumption even beyond 'Best Before' date. But the same may not be so after 'Expiry Date" and the law prescribes that the food article shall not be sold after expiry date. Thus, mentioning only of expiry date on the packet of sample food article did not FSAT No. 09/19 Page No. 11 of 14 Dharambir Jain Ors. vs Food Safety Officer Anr.
8.0 Record of the Ld. ADM be returned along with copy of inform the consumer about the date till when the product was 'best' for consumption. One may not like to consume the food article after "Best Before" date, though it may be legal to sell and remains consumable even thereafter, till its expiry date.
8.2.1 The distinction between these two phrases was explained by Nagpur Bench of the Hon'ble High Court of Bombay in Adhiraj Amar Kannhaiyalal Sarin Director of M/s Bunge India Priave Limited & Others Vs. State of Maharashtra in 2010 SCC OnLine Bom 1039. Observations of the Hon'ble Court in this regard reads as under :
"...
10. On bare perusal of the provisions contained in Rule 32(m) and the meaning attached to phraseology "best before" is that; the period during which the product shall remain full marketable and shall retain in specific qualities for which tacit or express claims have been made. It is further clarified that beyond the prescribed date also the food article may still be perfectly satisfactory. Whereas; the meaning attached to the "expiry date" signifies the end of estimated period under any stated storage conditions, after which product probably will not have the quality attributes normally expected by the consumers and further that the food shall not be marketable. A distinction has to be drawn in respect of phraseology "best before" and "expiry date" noted on the FSAT No. 09/19 Page No. 12 of 14 Dharambir Jain Ors. vs Food Safety Officer Anr.
8.0 Record of the Ld. ADM be returned along with copy of container of the food product. In the instant matter, the food item which is edible oil, is best for use before the specified date, however, it does not mean that the product cannot be perfectly satisfactory beyond the prescribed date where no expiry date has been shown on the label of the food article."
8.3 In view of the above, the appellant's contention that the word "expiry date" sufficiently complied with Regulation 2.2.2.10 of FSS (P&L) Regulations, is untenable. When the law requires the label to mention "Best Before" date and has even prescribed the form in which the label should declare the same, it needs to be complied with.
9.0 It may be mentioned that although vide present appeal, the appellant has not made any submission about the quantum of penalty, during the course of arguments, Ld. Counsel for the appellants prayed for reduction in penalty. It may be mentioned that Section 52 FSS Act prescribes a penalty of upto Rs.3 lacs for manufacture/sale etc. of misbranded food. In the instant case, the Ld. ADM has imposed only a penalty of Rs.10,000/ on appellant no.1/FBO and a total penalty of Rs.80,000/ on the partners of the supplier cum importer company i.e. Sh. Tapeshwar Singh/appellant no.2 & Sh.Mandeep Singh and supplier cum importer company/ FSAT No. 09/19 Page No. 13 of 14 Dharambir Jain Ors. vs Food Safety Officer Anr.
8.0 Record of the Ld. ADM be returned along with copy of M/s Packman International/appellant no.3. The appellant has failed to demonstrate that the said penalty is excessive. Hence, the quantum of penalty also does not call for any interference.
10.0 The impugned order therefore, does not call for any interference. The appeal is dismissed, accordingly.
10.1 Record of the Ld. ADM be returned along with copy of this judgment.
11.0 Appeal file be consigned to record room.
Digitally signed by POONAM POONAM A BAMBA
A BAMBA Date: 2019.05.20
16:53:38 +0530
Announced in the open Court (Poonam A. Bamba)
on 20.05.2019. District & Sessions Judge New Delhi FSAT No. 09/19 Page No. 14 of 14 Dharambir Jain Ors. vs Food Safety Officer Anr.
8.0 Record of the Ld. ADM be returned along with copy of