Delhi District Court
Daksh Jain vs State Through Food Safety Officer on 8 January, 2024
IN THE COURT OF MR. SANJAY GARG-I
PRINCIPAL DISTRICT & SESSIONS JUDGE,
NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
FSAT No.09/2023
CNR No. DLND1-004475-2023
1. Sh. Daksh Jain S/o. Sh. Jyoti Jain
R/o. E-173, Gali No.7, Pandav Nagar,
East Delhi-110091
2. Smt. Meru Jain W/o. Sh. Jyoti Jain
R/o. E-173, Gali No.7, Pandav Nagar,
East Delhi-110091
3. Sh. Bhagwan Singh Rawat
S/o. Sh. Hashwant Singh Rawat
R/o. D-50-T, Gali No.3,
Nagli Rajapura, Sarai Kale Khan,
New Delhi-110013
4. Sh. Vikash Kumar Singh
S/o. Sh. Vimal Pal Singh
R/o. Galha Mau, Barabanki,
Uttar Pradesh 225121
5. M/s. Vestige Marketing Pvt. Ltd.
Plot No. 128, Bamnoli Village, Sector 28,
Dwarka, New Delhi-110077
Also at :
A-89, Okhla Industrial Area,
Phase-II, New Delhi-110020
Through its Authorized Representative
Sh. Santosh Kumar ....Appellants
Versus
State of Delhi through Food Safety Officer,
Sh. Naresh Kumar Sharma
Department of Food Safety,
Government of NCT of Delhi,
8th Floor, Mayur Bhawan,
FSAT No. 09/2023 Daksh Jain & Ors. v. State through FSO Page 1 of 8
Connaught Palace, New Delhi-110001 ....Respondent
Date of Institution : 12.05.2023
Date of hearing arguments : 08.01.2024
Date of Judgment : 08.01.2024
Appearances:
Sh. Jitender Anand, Ld. counsel for the appellant.
Sh. P.N. Singh, Special, Public Prosecutor for the
State/Respondent.
JUDGMENT
1. This is an appeal filed under Food Safety and Standards Act, 2006 (hereinafter referred as 'FSS Act') against the impugned order dated 12.04.2023 of the Adjudicating Officer/ADM, East imposing penalty of Rs.50,000/- (Rupees Fifty Thousand only) on appellant No.1, penalty of Rs.30,000/- (Rupees Thirty Thousand only) on appellant No.2, penalty of Rs.1,00,000/- (Rupees One Lac) on appellant No.3, penalty Rs.1,00,000/- (Rupees One Lac) on appellant No.4 and penalty of Rs.1,50,000/- (Rupees One Lac Fifty Thousand) on appellant No.5 for violation of Section 26 (1) and Section 26 (2) (ii) read with Section 3 (1) (zf) of the Food Safety and Standards Act, 2006 and violation of Regulation No.2.2.1(23) of the Food Safety and Standards (Food Products Standards and Food Additives) Regulation, 2011, punishable under Section 51 of the FSS Act.. BRIEF FACTS
2. It is stated that on 20.01.2021, Sh. Naresh Kumar Sharma, Food Safety Officer visited the premises of M/s. Vestige Marketing Pvt. Ltd. situated at E-175, Gali No.7, Pandav Nagar, East Delhi-110091 and purchased four originally sealed plastic bottles of 2 Litre each of "Rice Bran Oil" for analysis under the provisions of FSS Act/Rules/Regulations. Thereafter, one portion FSAT No. 09/2023 Daksh Jain & Ors. v. State through FSO Page 2 of 8 of this sample along with memorandum of Form VI was sent to Food Analyst, Delhi for analysis. The Food Analyst analyzed the sample and opined vide his report No.FSS/85/2021 dated 01.02.2021 that, "the sample is substandard because Acid value exceeds the prescribed maximum limit of 0.5". Against this report, an appeal U/s.46(4) of the FSS Act was preferred by appellant No.1 and one counterpart of the sample was sent to Referral Food Laboratory, Ghaziabad and certificate of its Director opined that, "the sample of Rice Bran Oil does not conform to the standards laid down under regulation No. 2.2.1(23) of FSS Act as the sample shows Acid Value above the maximum prescribed limit and Oryzanol content below the minimum prescribed limit". It further opined that, "the fatty acid composition of C 22:1 above the maximum prescribed limit. The sample is thus substandard U/s.3(1)(zx) of FSS Act, 2006". It is submitted that the abovesaid report has neither fully confirmed the findings of report of the Food Analyst nor declared the sample unsafe/harmful for human consumption/adulterated.
3. Thereafter, Ld. Adjudicating Officer after going through the documents available on record and in the facts and circumstances found the appellants to have committed an offence by violating the provisions of Section 26 (1) and Section 26 (2)
(ii) read with Section 3 (1) (zx) of the Food Safety and Standards Act, 2006 and the appellants also violated regulation No.2.2.1(23) of the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011, punishable under Section 51 of the FSS Act and also additionally violated provisions of Section 27(1) of the FSS Act, 2006 and passed the impugned order dated 12.04.2023 thereby imposing a penalty of FSAT No. 09/2023 Daksh Jain & Ors. v. State through FSO Page 3 of 8 Rs.50,000/- (Rupees Fifty Thousand only) on appellant No.1, penalty of Rs.30,000/- (Rupees Thirty Thousand only) on appellant No.2, penalty of Rs.1,00,000/- (Rupees One Lac) on appellant No.3, penalty Rs.1,00,000/- (Rupees One Lac) on appellant No.4 and penalty of Rs.1,50,000/- (Rupees One Lac Fifty Thousand) on appellant No.5.
GROUNDS OF APPEAL
4. The impugned order is assailed on the ground that the same is wholly misconceived, illegal, devoid of any merits and contrary to the provisions of FSS Act and Regulations. The Adjudicating Officer failed to appreciate that the appellants are entitled to the benefit of defense of due diligence as provided U/s.80(B), (2)(d)(i) read with Section 26(4) of FSS Act, 2006 for the alleged violations and it is evident from the record of the adjudication proceedings, from the reports of the Food Analyst and from the label of the product that the product in question was manufactured by M/s.A.P. Organics Ltd., who has also been impleaded as respondent No.7 along with its nominee as respondent No.6 in the impugned adjudication proceedings. It is submitted that as per the report of the Food Analyst, the violation alleged against the appellant is that the acid value of Rice Bran Oil is 0.78 against the maximum of 0.5 and Oryzanol Content is 0.78 against the minimum specified limit of 1%. As per the report of the Food Analyst, acid value is found to be 1.25% against the prescribed standard of not more than 0.5. He submits that this sample was sent to Referral Food Laboratory, Ghaziabad and as per its report, acid value of this sample was found to be . 78 instead of 1.25% as given by the Food Analyst. It is further submitted that the impugned proceedings have been filed by the FSAT No. 09/2023 Daksh Jain & Ors. v. State through FSO Page 4 of 8 respondent on the basis of certificate of Director, RFL, Ghaziabad where the sample of Rice Bran Oil was tested on 47 parameters and only 03 parameters has shown marginal difference with the prescribed standards. It is further mentioned that Director, RFL, Ghaziabad took 15 days to analyze the sample i.e. from 09.03.2021 till 24.03.2021 and the report was finalized on 30.03.2021 and during such period, the product was left open/exposed to atmosphere which in turn may have material bearing/adverse effect on the chemical properties of the sample including acid value. It is further mentioned that the impugned order has been passed by the Adjudicating Officer without considering the fact that no evidence has been led by the FSO/respondent against the appellants and even the Food Safety Officer was not examined to prove the manner of taking the sample and to establish its case.
ARGUMENTS
5. Heard the arguments of Sh. Jitender Anand, Ld. counsel for the appellants and Sh. P.N. Singh, Special, Public Prosecutor for the State/Respondent. I have gone through the record of the Adjudicating Officer and record of the present appeal and documents filed therewith.
DECISION
6. One of the sole contention raised on behalf of Ld. Counsel for the appellants is that all the appellants are vendors and U/s.26 (4) of the FSS Act, they cannot be held responsible for the act of the manufacturer. He submits that U/s.80(A)(2)(d), this is the permissible defence of the vendors but same was not considered by Ld. Adjudicating Authority.
FSAT No. 09/2023 Daksh Jain & Ors. v. State through FSO Page 5 of 87. Sh. P.N. Singh, Ld. S.P.P. for the State/respondent admits that appellants are the vendors and second connected appellant, the manufacturer i.e. M/s. A.P. Organics Limited is the party.
8. Perusal of the complaint on the record of the Adjudicating Authority reveal that appellant No.1 is Food Business Operator-cum-Incharge of mini DLCP of M/s. Vestige Marketing Pvt. Ltd. The appellant No.2 is proprietor of M/s.Vestige Marketing Pvt. Ltd. Appellant No.3 is the nominee of the supplier unit of accused No.5 i.e. Ms. Vestige Marketing Pvt. Ltd. and No.4 is the nominee of the marketing unit-cum- registered office of accused No.5 i.e. Ms. Vestige Marketing Pvt. Ltd. Appellant No.5 is storage-cum-wholesale branch and supplier of appellant No.1.
9. From the application filed by the respondent department before Adjudicating Authority, it is clear that these appellants are Food Business Operators only. Section 26 of the Act provides responsibilities of the Food Business Operator. The relevant section 26(4) runs as follows :
"26(4). No food business operator shall sell or offer for sale any article of food to any vendor unless he also gives a guarantee in writing in the form specified by regulations about the nature and quality of such article to the vendor.
Provided that a bill, cash memo, or invoice in respect of the sale of any article of food given by a food business operator to the vendor shall be deemed to be a guarantee under this section, even if a guarantee in the specified form is not included in the bill, cash memo or invoice".FSAT No. 09/2023 Daksh Jain & Ors. v. State through FSO Page 6 of 8
10. Section 80 provides the defences which may or may not be allowed in prosecution under this Act. Section 80(B)(2)
(d) provides defence of due diligence. The relevant part of this Section runs as follows :
"S.80. Defences which may or may not be allowed in prosecution under this Act. (B) Defence of due diligence-
(1) In any proceedings for an offence, it is a defence if it is proved that the person took all reasonable precautions and exercised all due diligence to prevent the commission of the offence by such person or by another person under the person's control.
(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:
(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".
11. It is not the case of the respondent if appellants had made any changes/alterations in the food article which they had received from manufacturer i.e. M/s. A.P. Organics Limited for sale. It is also not the case of the respondent that the plea raised by Ld. Counsel for the appellant U/s.26 (4) of the Act is not applicable to the appellants. The Adjudicating Officer has not given any reason that why ignoring Section 26(4) and Section 80(B)(2) and (d) of the Act, he has imposed penalties on the appellants. The impugned order of the Adjudicating Authority FSAT No. 09/2023 Daksh Jain & Ors. v. State through FSO Page 7 of 8 dated 12.04.2023 qua the appellants is set aside. The appeal is thereby accepted.
12. The DD No.014106 dated 23.05.2023 for Rs.2,15,000/- (Rupees Two Lacs Fifteen Thousand only) lying filed on record by the appellants be released.
13. The record of the Adjudicating Officer/Addl. District Magistrate along-with copy of this Judgment be sent back. File of appeal be consigned to the Record Room.
SANJAY Digitally signed by SANJAY GARG - I GARG - I Date: 2024.01.08 16:32:36 +0530 Announced in the open Court (Sanjay Garg-I) th on 08 January, 2024 Principal District & Sessions Judge New Delhi District, Patiala House Courts, New Delhi(mc) FSAT No. 09/2023 Daksh Jain & Ors. v. State through FSO Page 8 of 8