Bombay High Court
Sunil Ashwinikumar Sharma Nominee Of ... vs Ramchandra Marotrao Bharkad Food ... on 18 October, 2019
Author: R. G. Avachat
Bench: R. G. Avachat
1 ao-31.18-r.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPEAL FROM ORDER NO. 31 OF 2018
1) Sunil Ashwinikumar Sharma
Nominee of Vikram Tea Processor Pvt.Ltd.,
Gat No.11-12, Village Borkhedi,
Tq. & Dist. Jalna
2) Vikram Tea Processor Pvt. Ltd.
Through its nominee
Sunil Ashwinkumar Sharma
Gat No.11-12, Village Borkhedi,
Tq. & Dist. Jalna ... Appellants
Versus
Ramchandra Marotrao Bharkad
Food Safety Officer,
Food & Drug Administration,
Jalna ... Respondent
....
Mr. Sanjeev B. Deshpande, Advocate for appellants.
Mr. A. B. Chate, AGP for respondent-State.
....
CORAM : R. G. AVACHAT, J.
Date of reserving Judgment : 26th AUGUST, 2019
Date of Pronouncing Judgment : 18th OCTOBER, 2019
JUDGMENT :
1. Heard learned counsel for the parties.
2. The challenge in this appeal is to the order of Adjudicating Officer, in Application No.68 of 2015, dated 28.04.2016 and 1 of 9 ::: Uploaded on - 21/11/2019 ::: Downloaded on - 21/04/2020 19:22:11 ::: 2 ao-31.18-r.doc affirmation of the said order by Foods Safety Appellate Tribunal, in FSA/03/2016 vide order dated 31.01.2018. The appellant No.2, "Vikram Tea Processor Pvt. Ltd." is a company registered under the provisions of the Companies Act. The appellant No.1 is its nominee for the purposes of the proceedings in hand, are concerned. The appellant No.2 - company is in the business of preparation, production and marketing of tea products.
On 29.08.2014, the appellant company published an advertisement in "Hello Jalna", a supplement of daily "Lokmat". The respondent herein is a Food Safety Officer, Food & Drug Administration, Jalna. He came across the said advertisement to find therein to have no logo to depict whether it is the veg or non-veg product. The respondent, therefore, preferred application/complaint before the Adjudicating Officer, Food and Drug Administration, contending therein that the appellants contravened the provisions of Section 24(1) r/w Section 66 r/w Regulation 2.2.2(4)(iv)(iii) r/w regulation 2.5 of Food Safety and Standards (Packaging and Labeling) Regulation 2011 p/u Section 53 of the Food Safety and Standards Act, 2006. The advertising agency through which the advertisement was published, was also arrayed along with the appellants as a party to the said application/complaint. On hearing the parties to the 2 of 9 ::: Uploaded on - 21/11/2019 ::: Downloaded on - 21/04/2020 19:22:11 ::: 3 ao-31.18-r.doc application/complaint, the Adjudicating Officer found the appellants/non applicant Nos. 1 and 2, to have contravened the provisions of Section 24(1) r/w Section 66 of the Food Safety and Standards Act, 2006, and therefore, directed them to pay fine of Rs.1,00,000/- each.
The appellants preferred appeal, being FSA/03/2006 before the Food Safety Appellate Tribunal, but have been unsuccessful therein. The appellants are thus, before this Court.
3. Shri S.B. Deshpande, learned counsel appearing for the appellants, would submit that the Hon'ble Apex Court in the case of S. Samuel, M.D., Harrisons Malayalam and anr vs. Union of India in Appeal (civil) No. 12746-12747 of 1996, held that, tea is not food. He would further submit that since tea is not included in the definition clause, the provisions of the Food Safety and Standards Act, 2006 (for short "the Act of 2006"), cannot be made applicable to tea products. The learned counsel would further submit that the provisions of Section 53 of the Act of 2006, are not applicable to the matter in hand. Learned counsel would further submit that tea is a vegetarian product, known worldwide. Therefore, there is no question of any false description of the food article. The appellant company has not gained financially by publishing the advertisement. The appellant No.1 is the employee of 3 of 9 ::: Uploaded on - 21/11/2019 ::: Downloaded on - 21/04/2020 19:22:11 ::: 4 ao-31.18-r.doc appellant No.2 company. He would, therefore, not be liable. The learned counsel ultimately urged for allowing of the appeal.
4. The learned AGP appearing for the respondent, would, on the other hand, submit that the judgment of Hon'ble Apex Court in the case of S. Samuel (supra) dates back to 2003 and Food Safety and Standards Act came into force thereafter. The definition of "Tea" and "Food" have been given in the said Act and Rules thereunder. The learned AGP would further submit that the appellants have admitted to have contravened the relevant provisions of the Act and rules thereunder. the appeal is therefore liable to be dismissed.
5. The appellant company is in the business of production and marketing of tea products. On 29.08.2004, the appellant company published in a supplement of daily "Lokmat", an advertisement of its products. The advertisement, admittedly, did not depict whether it is a veg or non-veg product. Regulation 2.2.2(4)(iv)(iii) r/w regulation 2.5 of Food Safety and Standards (Packaging and Labeling) Regulation 2011, mandates declaration regarding veg or non-veg. It states that every package of vegetarian food shall bear a declaration to this effect by a symbol and colour code as stipulated below for this purpose to indicate that the product is vegetarian food.
4 of 9 ::: Uploaded on - 21/11/2019 ::: Downloaded on - 21/04/2020 19:22:11 ::: 5 ao-31.18-r.doc Admittedly, such a declaration in the nature of logo was not there in the advertisement published in the daily. Section 24 of the Act of 2006 speaks restrictions on advertisement and prohibition as to unfair trade practices. Section 24 reads thus :
"24. Restrictions on advertisement and prohibition as to unfair trade practices. - (1) No advertisement shall be made of any food which is misleading or deceiving or contravenes the provisions of this Act, the rules and regulations made thereunder.
(2) No person shall engage himself in any unfair trade practice for purpose of promoting the sale, supply, use and consumption of articles of food or adopt any unfair or deceptive practice including the practice of making any statement, whether orally or in writing or by visible representation which -
(a) falsely represents that the foods are of a particular standard, quality, quantity or grade- composition;
(b) makes a false or misleading representation concerning the need for, or the usefulness;
(c) gives to the public any guarantee of the efficacy that is not based on an adequate or scientific justification thereof:
........"
6. Section 53 of the Act of 2006 speaks penalty for misleading advertisement. It states that any person who publishes or is a party to the publication of an advertisement, which falsely describes any food, or is likely to mislead as to the nature or substance or quality of any food or gives false guarantee, shall be liable to a penalty which may extend to ten lakh rupees.
5 of 9 ::: Uploaded on - 21/11/2019 ::: Downloaded on - 21/04/2020 19:22:11 ::: 6 ao-31.18-r.doc While Section 58 of the Act of 2006 provides for penalty for contraventions, for which, no specific penalty is provided. Under Section 58, amount of penalty may extend to two lakh rupees.
7. The basic contention of learned counsel for the appellants is that tea is not a food article, and therefore, the provisions of the Act of 2006 have no application. Section 3(j) of the Act of 2006 defines the term.
"Food" means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food to the extent defined in clause (zk), genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances.
8. True, in S. Samuel (supra), the Apex Court, in para 22 has observed thus :
"22. As an upshot of the above discussion, also keeping in view the judicial exposition of the terms 6 of 9 ::: Uploaded on - 21/11/2019 ::: Downloaded on - 21/04/2020 19:22:11 ::: 7 ao-31.18-r.doc foodstuffs and tea we are definitely of the opinion that tea is not foodstuff. Even in a wider sense as dealt with in Virkumar Gulabchand Shahs case (supra) foodstuffs will not include tea as tea either in the form of the leaves or in the form of beverage does not go into the preparation of food proper to make it more palatable and digestible. Tea leaves are not eaten. Tea is a beverage produced by steeping tea leaves or buds of the tea plants in boiled water. Such tea is consumed hot or cold for its flavour, taste and its quality as a stimulant. The stimulating effect is caused by the presence of caffeine therein. Tea neither nourishes the body nor sustains or promotes is growth. It does not have a nutritional value. It does not help formation of enzymes nor does it enable anabolism. Tea or its beverage does not go into the preparation of any foodstuff. In common parlance, any one who has taken tea would not say that he has taken or eaten food. Thus, tea is not food. It is not understood as food or foodstuff either in common parlance or by the opinion of Lexicographers."
9. Reading of the judgment in S. Samuel (supra) case, would indicate that it was a matter under the Essential Commodities Act. The Court observed that the E.C. Act defines "essential commodity" and one of the meaning is "foodstuffs" including edible oilseeds and oils. The terms "essential commodity" and "foodstuff" are ambiguous terms, exercising the power delegated by the Central Government, Tamil Nadu Scheduled Articles (Prescription of Standards) Order, 1977, in the interest of toning up the supply and availability of certain essential articles and also for maintaining and raising standard of quality and supply and sale of such articles.
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10. The judgment in case of S. Samuel (supra) dates back to 2003, and the Food Safety and Standards Act, came into force in the year 2006, while the rules thereunder have been of 2011.
11. On reading of the definition of the term "food" given in the Act of 2006, one would have no hesitation to hold that "tea" is covered by the term "food".
12. The learned AGP also placed on record a copy of the rules under the Act of 2006. As per Rule 2.10.1, "tea" has been included in beverages.
13. Learned counsel for the appellants, therefore, could not be heard to say that "tea" is not a food article within the meaning of the Act of 2006.
14. Since, admittedly, the advertisement did not bear logo to indicate whether tea is veg product or not, appellant company has committed a breach of the relevant rules and provisions of relevant sections of the Act. The appellants therefore, have rightly been directed to pay penalty of rupees one lakh.
8 of 9 ::: Uploaded on - 21/11/2019 ::: Downloaded on - 21/04/2020 19:22:11 ::: 9 ao-31.18-r.doc Appellant No.1 is the nominee of appellant No.2 company. It is not denied that appellant No.1, at the time the breach was committed, was incharge and responsible for conduct of the business. Such a person is liable to be proceeded against and penalised.
15. For the reasons given herein above, no interference is called for with the impugned orders. The appeal, therefore fails. The appeal is thus, dismissed.
[ R. G. AVACHAT, J. ] SMS 9 of 9 ::: Uploaded on - 21/11/2019 ::: Downloaded on - 21/04/2020 19:22:11 :::