Delhi District Court
R/O 217 vs State on 7 June, 2019
IN THE COURT OF SH. YASHWANT KUMAR
DISTRICT & SESSIONS JUDGE / FSAT, NEW DELHI
In the matter of :
FSAT No. 08/16
(Old No. 47/2013)
Sh. Rakesh Kumar
M/s Daily Foods (India)
7980, HSIDC Indl. Estate
Kundli, Sonipat, Haryana.
R/o 217, 1st Floor
Joshi Road, Karol Bagh
New Delhi110005
.....Appellant
Versus
1. State, Through Commissioner
Department of Food Safety,
Govt. of NCT of Delhi
A20, Lawrence Road Indl. Area
Delhi110035.
2. Sh. O.P.S. Ahlawat
Food Safety Officer
Department of Food Safety,
Govt. of NCT of Delhi
A20, Lawrence Road Indl. Area
Delhi110035. ..... Respondents
FSAT No. 08/16 Rakesh Kumar vs State & FSO Page No. 1 of 12
FSAT No. 16/16 Pawan Goswami Ors. vs State &FSO
In the matter of :
FSAT No. 16/16
(Old No. 46/13)
1. Sh. Pawan Goswami
S/o Sh. Ashok Goswami
C/o M/s Reliance Fresh Ltd.
B213, Nehru Vihar
Delhi110 054.
2. Sh. Abhijet Dass
S/o Sh. Adhir Chand Dass
M/s Reliance Fresh Ltd.
B2/2, Near Sagar Ratna
Ashok Vihar, PhaseII
Delhi110052.
R/o C12, Hans Apartment
Sant Nagar, Burari
Delhi110 084.
3. M/s Reliance Fresh Ltd.
B2/2, Near Sagar Ratna
Ashok Vihar, PhaseII
Delhi110052.
4. Sh. Ashwani Arora
S/o Sh. M.L. Arora
7980, Kundli, Sonipat, Haryana
R/o H.No. 516, Jawahar Nagar
Police Line, Ambala134001.
5. M/s Reliance Dairy Food Ltd.
7980, Kundli, Sonipat, Haryana .....Appellants
Versus
1. State, Through Commissioner
Department of Food Safety,
Govt. of NCT of Delhi
A20, Lawrence Road Indl. Area
FSAT No. 08/16 Rakesh Kumar vs State & FSO Page No. 2 of 12
FSAT No. 16/16 Pawan Goswami Ors. vs State &FSO
Delhi110035.
2. Sh. O.P.S. Ahlawat
Food Safety Officer
Department of Food Safety,
Govt. of NCT of Delhi
A20, Lawrence Road Indl. Area
Delhi110035. ..... Respondents
APPEALS AGAINST THE ORDER
DATED 03.07.2013 OF LD. ADDL.
DISTRICT MAGISTRATE (DISTRICT
NORTH WEST) / ADJUDICATING
OFFICER
Date of filing of appeals : 29.07.2013
Arguments concluded on : 07.06.2019
Date of judgment : 07.06.2019
J U D G M E N T :
1. Vide this common judgment, I shall dispose of the above two appeals, challenging the order dated 03.07.2013 ("the impugned order" in short) of Ld. Adjudicating Officer/Additional District Magistrate (District North West) ("ADM" in short), directing the appellants to pay a penalty of Rs.1,44,000/ for violating the provision of Section 26(2)(ii) read with Section 3(1) (zx) of the Food Safety and Standards Act, 2006 ("FSS Act" in short).
FSAT No. 08/16 Rakesh Kumar vs State & FSO Page No. 3 of 12 FSAT No. 16/16 Pawan Goswami Ors. vs State &FSO
2. The facts of the case in brief are that on 26.12.2011, Food Safety Officer ("FSO" in short), purchased sample of "Full Cream Milk" from appellant Sh. Pawan Goswami S/o Sh. Ashok Goswami, Food Business Operator Cum Assistant Manager of M/s Reliance Fresh Limited, where the said food article was found stored for sale for human consumption and where he was found vending the article of food at the time of taking the sample. The sample was taken in four sealed polythene packets of 500ml each. One counterpart of the sample under sealed cover was sent to Food Analyst on 27.12.2011 for analysis under the provisions of Food Safety and Standards Act/Rules/Regulations. The Food Analyst vide his report dated 02.01.2012 opined "The sample is substandard because milk solids not fat is less than the prescribed minimum limit of 9.0%". The Designated Officer concerned sent a copy of the Food Analyst report to the appellants giving them an opportunity to file an appeal against the report of the Food Analyst u/s 46(4) of the FSS Act for sending one part of the same to the Referral Lab, if so desired by him. The FBO appeared before the Designated Officer and requested to send the sample to Referral Laboratory. The Director Referral Food Laboratory, Mysore vide its report dated 19.03.2012, opined that the sample is "sub standard" as defined under Section 3(1)(zx) of FSS Act as it does FSAT No. 08/16 Rakesh Kumar vs State & FSO Page No. 4 of 12 FSAT No. 16/16 Pawan Goswami Ors. vs State &FSO not conform to the standards laid down for Full Cream Milk under the provisions of Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 and that the "Test for cane sugar is positive". In view of the above, an application/complaint under rule 3.1.1(3) of The Food Safety and Standards Rules, 2011("FSSR" in short) was filed before the Ld. ADM. After enquiry, the Ld. ADM passed the impugned order dated 03.07.2013.
3. The appellants have challenged the impugned order inter alia on the grounds that Ld.ADM failed to consider the materials available on record and passed a very cryptic order without considering or referring the pleadings and arguments of the parties or the fact on record. The Ld.ADM failed to appreciate that the variation in the values could be due to analytical error. The variation in the results of Food Analyst and Referral Food Laboratory was only because of the reason that the sample was not taken so as to be representative. The variation between both the report indicated that a representative sample was not taken. The Judgment of Hon'ble High Court of Delhi in case titled as M/s Raja Ram Seth & Sons Vs. Delhi Admn. 2012(2) FAC 523 was squarely applicable to the facts of the case.
FSAT No. 08/16 Rakesh Kumar vs State & FSO Page No. 5 of 12 FSAT No. 16/16 Pawan Goswami Ors. vs State &FSO
4. I have heard Sh.R.K. Ahuja and Sh. Kapil Sharma, Ld. Advocate for the appellants and Sh. Anil, Ld. Chief Public Prosecutor for the State and have perused the written arguments filed on behalf of the appellants and record carefully.
5. The Ld. Counsel for the appellants argued that the accuracy of the sample should be seen. Sugar was not positive I the sample. Report by the RFL should be proved by the Director. The variation in the values could be due to analytical error. The variation in the results of Food Analyst and Referral Food Laboratory was only because of the reason that the sample was not taken so as to be representative. The variation between both the report indicated that a representative sample was not taken. The counterparts could not be deemed to be representative. The appellant Nos. 1 to 3 in the case of Pawan Goswami and others are protected by the defence u/s 80 (B) (2)(d)(i) of FSS Act, 2006 r/w/s 26 (4) of the Act since the above said appellants purchased the sample commodity i.e. Full Cream Milk in sealed polythene packets and further sold the same to the FSO in the same sealed condition. The Ld. Counsel for the appellants also filed photocopy of the Agreement dt. 22.01.2009 executed between M/s Reliance Dairy Foods Limited and Mr. Rakesh Kumar s/o Late Sh. Ratan Lal, FSAT No. 08/16 Rakesh Kumar vs State & FSO Page No. 6 of 12 FSAT No. 16/16 Pawan Goswami Ors. vs State &FSO Managing Director and proprietor of M/s Daily Foods (India) and copy of the List of Products Annexure1 and invoice dt.25.12.2011 filed with the said agreement. The Ld. Counsel for the appellants relied upon the judgments in the cases of Municipal Corporation of Delhi versus Bishan Sarup in Criminal Appeal No. 48D of 1966 decided on 11.03.1970 by the Hon'ble High Court of Delhi; National Dairy Development Board, Anand versus State of Haryana in Criminal Misc. No. 13493M of 1995 decided on 22.01.1997 by Hon'ble Punjab and Haryana High Court; M/s Cargill India Private Limited versus State of Uttarakhand and others 2016 (1) FAC 416; Lachhman Dass Vs. State of Punjab in Criminal Revision No. 1078/1969 of Punjab and Haryana High Court, Decided on 13.05.1970; State of Gujarat Vs. Laghadhirbhai Vaghjibhai in Crl. Appeal No. 438/1996 of Gujarat High Court, Decided on 12.03.2008 and Food Inspector Vs. Abdul Jameel in 2014(2) FAC 138 of Delhi High Court and M/s Raja Ram Seth & Sons Vs. Delhi Admn. 2012(2) FAC 523.
6. Ld. Chief Public Prosecutor has argued that the Food Analyst analyzed the sample and gave the report that the sample is substandard since Milk Solid not fat is less than the prescribed minimum limit of 9.0%. Even the sample was also analyzed by FSAT No. 08/16 Rakesh Kumar vs State & FSO Page No. 7 of 12 FSAT No. 16/16 Pawan Goswami Ors. vs State &FSO Referral Food Laboratory, which also opined the sample as sub standard. The sample did not confirmed to the standards laid down for full cream milk as per Food Safety and Standards Act/Rules/Regulations. Therefore, the Ld. Chief PP has further argued that the above appeals are not maintainable and the same may be dismissed with heavy costs since they are not having any merits. The impugned order dt.03.07.2013 has been rightly passed by the Ld.ADM on the basis of the evidence on record. The Ld. Chief PP for the State, in support of his arguments, has relied upon the judgment reported in the case of Delhi Administration Vs. Vidya Gupta in Crl. Appeal No. 625/2018 of Hon'ble Supreme Court of India, decided on 24.04.2018. The Ld. Chief PP also argued that the aforesaid judgment in the case of Delhi Administration vs. Vidya Gupta (supra) is not applicable to the facts and circumstances of the case.
7. Section 26 of the FSS Act 2006 provides responsibilities of the Food Business Operator. Sub clause (2)(ii) of Section 26 the said Act provides that no Food Business Operator shall himself or by any person on his behalf manufacturer, store, sell or distribute any article of food which is misbranded or sub standard or contains extraneous matter. Section 26 of the FSS Act, FSAT No. 08/16 Rakesh Kumar vs State & FSO Page No. 8 of 12 FSAT No. 16/16 Pawan Goswami Ors. vs State &FSO 2006, seeks to provide for the responsibilities of the food business operator to ensure that the articles of food satisfy the requirements of the Act and the rules and regulations made thereunder at all stages of production, processing, import, distribution and sale within the businesses under his control. Subclause (2) provides that no food business operator shall himself or by any person on his behalf manufacturer, store, sell or distribute any article of food which is misbranded or substandard or contains extraneous matter or which is for the time being prohibited by the Food Authority or the Central Government or the State Government in the interest of public health.
8. Section 3(1)(zx) FSS Act provides that "In this Act, unless the context otherwise requires, an article of food shall be deemed to be "substandard" if it does not meet the specified standards but not so as to render the article of food unsafe".
9. Perusal of the record in the present case reveals that on 26.12.2011 at about 03.15 pm Food and Safety Officer Sh. O.P.S. Ahlawat purchased a sample of "Full Cream Milk" and article of food of analysis from Sh. Pawan Goswami s/o Sh. Ashok Goswami, Food Business Operatorcum Assistant Manager of M/s Reliance Fresh Limited where the said food article was found stored FSAT No. 08/16 Rakesh Kumar vs State & FSO Page No. 9 of 12 FSAT No. 16/16 Pawan Goswami Ors. vs State &FSO for sale for human consumption and where he was also found vending the article of food at the time of taking the sample and the same was sent on 27.12.2011 for analysis under the provisions of Food Safety and Standards Act/Rules/ Regulations. The Food Analyst analyzed the sample and reported that the sample is substandard because Milk solid not fat is less than the prescribed minimum limit of 9.0% as per the report dt.02.01.2012.
10. The application under Rule 3.1.1 (3) of Food Safety and Standards Rules, 2011 was filed before the Ld. Adjudicating Officer / ADM, NorthWest District by the FSO Sh. O.P.S. Ahlawat for adjudication of the offence for violation of Section 26 (2) (ii) of the Food Safety and Standards Act, 2006 r/w/s 3 (1) (zx) of the Food Safety and Standards Act, 2006 which is punishable u/s 51 of Food Safety and Standards Act, 2006. After giving due and proper hearing to the parties, the Ld. ADM found that the respondents therein Appellants herein violated Section 26(2) (ii) r/w/s 3 (1)(zx) of the Food Safety and Standards Act, 2006, which is punishable u/s 51 of Food Safety and Standards Act, 2006 being of substandard food.
11. It is not the case of the appellants herein that their request was not considered for the sample to be analyzed by referral FSAT No. 08/16 Rakesh Kumar vs State & FSO Page No. 10 of 12 FSAT No. 16/16 Pawan Goswami Ors. vs State &FSO food laboratory. Even otherwise, sufficient opportunity was also given to the parties/appellants to represent and prove their case before the Ld. Adjudicating Officer / ADM. Whereas, the sample was analyzed and found "SubStandard" not only as per the report dt.02.01.2012 of the Food Analysts but also the report dt.19.03.2012 of RFL. The Ld. ADM, after considering facts and circumstances of the case, going through the averments, written submissions of the parties, documents placed on records and the aforesaid analyst report dt.02.01.2012 and report dt.19.03.2012 of RFL also observed and found that the producers / distributors have not discharged efficiently the corporate social responsibility of providing wholesome and full standard eatable items, which may have an adverse impact on the health of the forthcoming generation specially the milk fed babies who are exclusively fed milk only. Therefore, storing a substandard food article for human consumption is against the provisions/rules/regulations as discussed above. Nothing has been brought on record to prove against the sample purchased by the FSO and reports of the Analyst and RFL by the appellants except objections or the allegations raised / made against the FSO and the said reports before the Ld. ADM. It is pertinent to mention here that as per the said reports, the appellants have violated the provisions/rules/regulations as discussed above.
FSAT No. 08/16 Rakesh Kumar vs State & FSO Page No. 11 of 12 FSAT No. 16/16 Pawan Goswami Ors. vs State &FSO Moreover, the appellants have also failed to exercise and demonstrate due diligence before selling the food article, therefore, they are not entitled to the benefit of Section 80(B)(2) of FSS Act. The aforesaid judgments relied upon by the Ld. Counsel for the appellants are not applicable to the facts and circumstances of the present case. Thus, I do not find any infirmity in the impugned order dated 03.07.2013 of the Ld. Adjudicating Officer/ADM. Accordingly, the aforesaid appeals are dismissed. No order as to costs. Record of the Ld. ADM be returned along with copy of this judgment.
12. Original judgment be kept in FSAT No.08/16 and copy thereof be kept in FSAT No.16/16.
13. Both the appeal files be consigned to record room.
Digitally signed by YASHWANT YASHWANT KUMAR
KUMAR Date: 2019.06.07
18:10:29 +0530
Announced in open Court (YASHWANT KUMAR)
on this 07th day of June 2019 District & Sessions Judge/FSAT
Patiala House Courts, New Delhi
FSAT No. 08/16 Rakesh Kumar vs State & FSO Page No. 12 of 12
FSAT No. 16/16 Pawan Goswami Ors. vs State &FSO