Final Order 23

Order Details: COPY OF JUDGMENT
Pdf Text: FSAT No.04/2022 Sh. Shyam Behari Lal Gupta & Ors. Vs. State through FSO & Ors. Page 1 of 13
IN THE COURT OF SH. VIRENDER KUMAR BANSAL
PRINCIPAL DISTRICT & SESSIONS JUDGE,
NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI
FSAT No. 04/2022
CNR No. DLND01-005115-2022
1. Sh. Shyam Behari Lal Gupta
S/o. Lt. Sh. Brij Behari Lal Gupta
M/s. Brij Behari Lal Gupta
Shop No.10, Block-80, Ram Dwara Road,
Anaj Mandi, Paharganj,
Delhi-110055
R/o.1302, Vakilpura,
Delhi-110006
2. Sh. Satish Kumar Babbar (Prop.)
M/s. Shri. Bhagwan Satish Kumar Oil & General Mills,
49, Madan Pur, Dabas,
Delhi-110081
R/o.50, FF, Avtar Enclave,
Paschim Vihar,
Delhi-110063 ……. Appellants
Versus
1. State, Through Food Safety Officer
Department of Food Safety,
Govt. of NCT of Delhi, 8th Floor, Mayur Bhawan,
Connaught Place, New Delhi-110001
2. Ms. Suvidha
Food Safety Officer,
Department of Food Safety,
Govt. of NCT of Delhi, 8th Floor, Mayur Bhawan,
Connaught Place, New Delhi-110001 ……. Respondents
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Date of institution : 07.06.2022
Arguments heard on : 11.07.2025
Date of Judgment : 14.07.2025
Appearances:
Sh. Kapil Sharma and Sh. Jishnu Bakshi, Ld. Counsels for the appellants.
Sh. Birender Singh Dagar, Ld. Chief Public Prosecutor for the State/FSO.
JUDGMENT
1. The present appeal has been preferred challenging the order dated
22.04.2022 passed by the Ld. Additional District Magistrate (Central),
whereby he has held Sh. Shyam Bihari Lal Gupta and Sh. Satish Kumar
Babbar, proprietor of M/s. Shri. Bhagwan Satish Kumar Oil & General Mills
guilty of selling misbranded food article i.e.
“Mustard Oil” in violation of
Section 23(1), 26(1), 26(2)(ii), 27 (1) and 27(2)(c) read with Section 3(1)(zf)
of the Food Safety and Standards Act, 2006
(in short “FSS Act”) for violating
Regulation No. 2.2.1.3 read with 2.3.1.5 of the Food Safety and Standards
(Packaging and labelling) Regulations, 2011 and imposed penalty of
Rs.50,000/- on Sh. Shyam Bihari Lal Gupta and Rs.2,50,000/- on Sh. Satish
Kumar Babber, proprietor of M/s. Shri. Bhagwan Satish Kumar Oil &
General Mills. Aggrieved by the order, the present appeal has been preferred
by Sh. Shyam Bihari Lal Gupta
(hereinafter referred as respondent
No.1/appellant No.1) and Sh. Satish Kumar Babbar
(hereinafter referred as
respondent No.2/appellant No.2).
2. Notice of the appeal was given to the State as well as the Food
Safety Officer. The record from the Office of Ld. ADM was also called.
3. The brief facts giving rise to the present appeal are that on
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27.05.2019, the Food Safety Officer along with Field Assistant visited the
premises of appellant No.1/respondent No.1 i.e. Shop No. 10, Block No.80,
Ram Dwara Road, Anaj Mandi, Paharganj, Delhi-110055 for inspection. The
appellant No.1/respondent No.1 was present on the shop. The Food Safety
Officer after disclosing her identity inspected the premises. During
inspection, the Food Safety Officer had shown her intention to take the
sample of Mustard Oil which was kept for sale. The respondent
No.1/appellant No.1 agreed to the same. The Food Safety Officer purchased
the bottles of Mustard Oil of 1000 ml. each on payment of the value as
sample for analysis. The samples were divided into four equal parts and
sealed. All the relevant documents were prepared and also obtained the
signatures of appellant No.1/respondent No. 1. The samples were fastened
and sealed in accordance with the rules and regulations.
4. Out of the four samples, one sample was forwarded to the Food
Analyst for analysis on 28.05.2019.
5. Food Analyst vide its report No. FSS/744/2019 dated 10.06.2019
found that the sample is misbranded and there is violation of Regulation
2.2.1.3. read with 2.3.1.5. of the Food Safety and Standards (Packaging and
Labeling) Regulation, 2011. Rest of the sample was found to be conforming
to the other aspects/parameters as laid down under FSS Act and the Rules
and Regulations. The Food Safety Officer accordingly filed an application
before the competent authority against all the appellants. Appellant
No.2/respondent No.2 is prosecuted being manufacturing company of the
sampled commodity. Both the appellants/respondents submitted their written
replies. The rejoinder was filed by the department. After hearing the
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arguments, the Ld. ADM passed the impugned order dated 22.04.2022 which
is under challenge in the present appeal.
6. I have heard the Ld. Counsels appearing for the appellants, Ld.
Counsel for the department and perused the record.
7. Ld. Counsel for the appellants submitted that in this case, the Ld.
ADM had not appreciated the facts in the right perspective. No public
witness was joined at the time of taking the samples. There are no documents
on record that appellant No.1 purchased the sampled commodity i.e. the
Mustard Oil from appellant No.2 against the valid bill having a declaration
cum warrantee with respect to the quality of the product and also compliance
of the Rules and Regulations. Ld. Counsel submitted that under the
circumstances, appellant No.1 is protected U/s.80(B) (2) (d) (i) FSS Act,
2006 and Section 26(4) of the Food Safety and Standards Act, which
provides that a bill, cash memo or invoice in respect of 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 the guarantee in the specified form is
not included in the bill, cash memo or invoices. Ld. Counsel submitted that
under the circumstances, the appellant No.1 is liable to be acquitted.
8. Ld. Counsel in support of his arguments relied upon the
following judgments cited as :
(i)
M/s. Apsara Biscuit Company Vs. Dr. P.M. Kothekar (FSO),
FSAT Appeal No.16/2013 and 17/2013;
(ii)
Anees Ahmed Vs. State and Others, FSAT Appeal No.36/2013;
(iii) Ghanshyam Mulchand Keshwani & Anr.Vs. State Of Maharashtra
& Anr., (2008) ALL MR (Crl.), 701,
wherein it has been observed by the
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Hon’ble High Court, Nagpur Bench as follows :
“11. The principle set out by the learned APP is quite
correct. However, in the present case it is the version of the
complainant (Food Inspector) himself that the petitioners are
retailers and they disclosed him that they had purchased the
packets of chilly powder from respondent no.2 (the
manufacturer). Not only this the petitioners also produced
Bill No.C-460 dated 21.6.1995 containing warranty about
the quality of the chilly powder on the back of the bill. It
may further be noted that the manufacturer has also been
impleaded as accused no.3. In view of these circumstances
there is no force in the submission made by the learned APP
that the petitioners have not discharged the burden of proof
lying on them. Had the manufacturer not been joined as co-
accused, then perhaps it was necessary for the petitioners to
lead evidence in support of their defence. But as pointed out
above in the present case it is not necessary and the
prosecution against the petitioners cannot be proceeded
with.
12. Thus the material on record does not disclose any
offence against the petitioners and it would be an abuse of
the process of law to continue the prosecution against the
petitioners. I, therefore, pass the following order :-
The petition is allowed. Criminal Case No.86/1998 pending
before the Judicial Magistrate, First Class, Warora is
quashed so far as the petitioners (accused nos.1 and 2) are
concerned. It is needless to say that the prosecution would
proceed against respondent no.2 (accused no.3)”.
iv)
State of Gujarat Vs. Manish Bhai Narandas Karia, wherein it was
held by the Hon’ble High Court of Gujarat as under:
11. Thus the burden if at all fastened upon the accused was
considered to have been discharged the moment it was
demonstrated that the sample food article was in a sealed
packed condition.
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(v)
P. Unnikrishnan vs Food Inspector, Palghat Municipality Kerala
State, (1996) (1) EFR397 (SC), wherein the Hon’ble Apex Court has held as
under :
A vendor shall not be deemed to have committed an offence
pertaining to sale of any adulterated or misbranded article of
food if he prove that he had purchased article of food from
any manufacturer, distributor or dealer with a written
warranty in the prescribed form and the article of food while
in his possession was properly stored and that he has sold it
in the same state as he purchased.
9. Keeping in view the law as laid down by the various Courts that
once the retailer had purchased the articles from the manufacturer and
distributor against valid invoice/bill and he is selling the same in the same
condition then he is protected under the law but the Ld. ADM has failed to
consider these facts.
10. Ld. Counsel further submitted that the allegation is that the
product was sold without mentioning the serial number of Agmark. Ld.
Counsel submitted that firstly it was for the manufacturer to put the same and
secondly Agmark is different from the provisions of FSS Act. Agmark is an
acronym for agricultural marketing, which is a certification to the agricultural
products by the Directorate of Marketing and Inspection showing that the
product passes the grading and the certification test. The Agmark is covered
by the Agriculture Produce (Grading and Marking) Act of India, 1937,
whereas the prosecution is under the Food Safety and Standard Act, 2006.
For any violation of Agmark, the appellants herein cannot be prosecuted
under the FSS Act. The Ld. ADM has also failed to take note of these facts.
Ld. Counsel submitted that appellant No.2 is having the Agmark certification
and there was no intention or mensrea not to provide the same on pouch or
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the packet. It is a case of only misbranding due to technical fault. It has not
caused any prejudice to any consumer. There is no case of misbranding. Ld.
ADM has failed to appreciate this fact. The complaint filed is frivolous and
baseless and is not believable. The report of the Food Analyst is wrong and
erroneous, there is no question of misbranding. Even the lab is not NABL
Accredited nor it is notified in the official gazette, therefore, the report also
cannot be looked into. Ld. Counsel submitted that all these facts clearly show
that the order passed by the Ld. ADM is not maintainable. It is prayed that
the appeal be allowed. The order of the Ld. ADM be set aside and they be
acquitted.
11. Ld. Counsel appearing for the FSAT submitted that the Ld. ADM
decided the matter in accordance with law appreciating all the facts. In fact,
appellant No.2 has admitted that Agmark registration number was not
mentioned and this fact is also reflected in the order passed by the Ld. ADM
alleging that there was no malafied intention in not printing the Agmark
registration number on the product i.e. bottle in which the Mustard Oil was
being sold. Ld. Counsel submitted that once this is admitted, then nothing
remains to be adjudicated.
12. Ld. Counsel further submitted that so far as this contention that
appellant No.1 has purchased it from appellant No.2 against the bill has no
liability as he was not knowing that Agmark registration number has not been
mentioned has no merits as firstly he has to be vigilant that he is selling the
product used for human consumption. Ld. Counsel relied upon the judgment
cited as
Jemini Anil Vs. Food Safety Officer (2025) 03 KL CK 0028,
wherein it has been held as under :
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“20. It is pertinent to note that, as per Section 26 of the Act, it
is the responsibility of every food business operator to ensure
that the articles of food satisfied the requirements of the Act,
and the Rules and Regulations made thereunder at all stages
of production, processing, import, distribution and sale
within the business, under his control. As per Section 59(i) of
the Act, any person who, whether by himself or by any other
person on his behalf, manufactures for sale or stores or sells
or distributes or imports any article of food for human
consumption, which is unsafe, is punishable even if such
failure or contravention does not result in injury. Therefore,
for establishing the penal liability in the above regard, the
prosecution need only show that accused Nos.1 to 3 had sold
an article food for human consumption, which was unsafe.
The question whether the accused Nos.1 to 3, had received
the above food item, without the knowledge of it being
unsafe is, in fact, a matter of defence to be dealt with at the
time of trial. Therefore, the argument of the learned counsel
for the petitioners that the petitioners 1 to 3 (accused Nos.1 to
3) are not liable to be proceeded against for the violation
alleged in this case, due to the absence of any indication in
the complaint about their act of receiving the food item with
the knowledge of it being unsafe, cannot be countenanced.”
13. Ld. Counsel further submitted that so far as the accreditation of
the Lab. is concerned, no doubt the Lab. is not accredited but the process is
going on and Section 24 of the General Clauses Act covers period of
transition and provides that :
“24. Continuation of orders, etc., issued under enactments
repealed and re-enacted
Where any Central Act or Regulation, is, after the
commencement of this Act, repealed and re-enacted with or
without modification, then, unless it is otherwise expressly
provided any [appointment, notification] [Inserted by Act 1
of 1903, Section 3 and Sch.II.], order, scheme, rule, form or
bye-law, [made or] [Inserted by Act 1 of 1903, Section 3
and Sch.II.] issued under the repealed Act or Regulation,
shall, so far as it is not inconsistent with the provisions re-
enacted, continue in force, and be deemed to have been
[made or] [Inserted by Act 1 of 1903, Section 3 and
Sch.II.] issued under the provisions so re-enacted, unless
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and until it is superseded by any [appointment,
notification] [Inserted by Act 1 of 1903, Section 3 and
Sch.II.], order, scheme, rule, form or bye-law [made
or] [Inserted by Act 17 of 1914, Section 2 and Sch.I.] issued
under the provisions so re-enacted [and when any [Central
Act] [Inserted by Act 1 of 1903, Section 3 and Sch.II.] or
Regulation, which, by a notification under section 5 or 5-A
of the [Scheduled Districts Act, 1874 (14 of
1874)] [Repealed by A.O.1937.] or any like law, has been
extended to any local area, has, by a subsequent notification,
been withdrawn from and re-extended to such area or any
part thereof, the provisions of such Act or Regulation shall
be deemed to have been repealed and re-enacted in such
area or part within the meaning of this section.]”
14. Ld. Counsel submitted that in view of this provision even if the
Lab. was not accredited, it being transition period, the report still can be
looked into. Even otherwise, in this case, it is important to note that it is not
the quality for which he has been prosecuted but for the misbranding as he
has mentioned on the product that it is ‘Agmark certified’ but has not
mentioned the Agmark serial number on the product and hence non
accreditation of the Lab. does not affect the report. It is prayed that there is
no merit in the appeal, the same be dismissed.
15. After hearing arguments and going through the record, I found
that in this case the appellants are prosecuted as appellant No.1 was found
selling Mustard Oil, which is prepared and packaged by appellant No.2. On
the packaging it is alleged that it is Agmark certified but the certificate
number is not mentioned and hence it is alleged that he has violated the
Regulations 2.2.1.3 and 2.3.1.5, which reads as under :
“2.2: Labelling
2.2.1: General Requirements
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1. Every pre-packaged food shall carry a label containing
information as required here under unless otherwise
provided, namely,
2. The particulars of declaration required under these
Regulations to be specified on the label shall be in English or
Hindi in Devnagri script: Provided that nothing herein
contained shall prevent the use of any other language in
addition to the language required under this regulation.
3. Pre-packaged food shall not be described or presented on
any label or in any labelling manner that is false, misleading
or deceptive or is likely to create an erroneous impression
regarding its character in any respect;
4. Label in pre-packaged foods shall be applied in such a
manner that they will not become separated from the
container;
5. Contents on the label shall be clear, prominent, indelible
and readily legible by the consumer under normal conditions
of purchase and use;
6. Where the container is covered by a wrapper, the wrapper
shall carry the necessary information or the label on the
container shall be readily legible through the outer wrapper
and not obscured by it.”
“2.3.1.5
2.3: Manner of declaration
2.3.1: General Conditions
1. Any information or pictorial device written, printed, or
graphic matter may be displayed in the label provided that it
is not in conflict with the requirements of these Regulations;
2. Every declaration which is required to be made on package
under these regulations shall be:
(i) Legible and prominent, definite, plain and unambiguous,
(ii) Conspicuous as to size, number and colour,
(iii) as far as practicable, in such style or type of lettering as
to be boldly, clearly and conspicuously present in distinct
contrast to the other type. lettering or graphic material used
on the package, and shall be printed or inscribed on the
package in a colour that contrasts conspicuously with the
background of the label:
Provided that-
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(a) Where any label information is blown, formed or
moulded on a glass or plastic surface or where such
information is embossed or perforated on a package, that
information shall not be required to be presented in
contrasting colours;
(b) Where any declaration on a package is printed either in
the form of a handwriting or hand script, such declaration
shall be clear, unambiguous and legible;
3. No declaration shall be made so as to require it to be read
through any liquid commodity contained in the package;
4. Where a package is provided with an outside container or
wrapper, such container or wrapper shall also contain all the
declarations which are required to appear on the package
except where such container or wrapper itself is transparent
and the declarations on the package are easily readable
through such outside container or wrapper;
5 Labels not to contain false or misleading statements: A
label shall not contain any statement, claim, design, device,
fancy name or abbreviation which is false or misleading in
any particular concerning the food contained in the package,
or concerning the quantity or the nutritive value or in relation
to the place of origin of the said food;
Provided that this regulation shall not apply in respect of
established trade or fancy names of confectionery, biscuits
and sweets, such as, barley, sugar, bull's eye, cream cracker
or in respect of aerated waters, such as, Ginger Beer or Gold-
Spot or any other name in existence in international trade
practice.”
16. The contention of Ld. Counsel for the appellant is that in this case
they are having the Agmark registration and that it is covered by the separate
Act and hence they are not liable to be prosecuted but under the provisions of
the FSS Act for any violation of The Food Safety and Standards (Packaging
and Labelling), 2011. I do not agree with this contention of Ld. Counsel as
the Regulation i.e. 2.2.1.3 provides that pre-packaged food shall not be
described or presented on any label or in any labelling manner that is false,
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misleading or deceptive or is likely to create an erroneous impression
regarding its character. The Regulation 2.3.1.5 further provides that labels not
to contain false or misleading statements concerning the food contained in
the package or concerning the quantity or the nutritive value with respect to
the claim, quantity or the nutritive value.
17. In this present case, they have mentioned on the packaged bottle
of the Mustard Oil that it is Agmark certified but number has not been
mentioned. It is also not put on record that they were having Agmark
certification with respect to their product. It is pleaded that they have
labelled their product as Agmark certified without disclosing or mentioning
on it the serial number of such certification and even failed to produce it in
the Court that they were having the Agmark registration in this regard.
Therefore, in my opinion this argument is of no help to the appellants.
18. So far as the contention that appellant No.1 has purchased it from
appellant No.2 and therefore in view of Section 80(B) (2) (d) (i) FSS Act,
2006, I found that this defence is not available to him because it is very
conspicuous and clearly visible on the packaged food that though they claim
that it is Agmark certified, but the serial number is not mentioned. Secondly,
a person claiming defence has to be diligent that he has checked the
particulars. Keeping in view all these facts in my opinion he is not entitled to
any room. In having this opinion, I am fortified by the judgment cited as
Ardor Restaurant v. Bal Mukund, Food Safety Officer, 2019 (197) AIC 617:
“14. According to the learned counsel for the petitioners,
petitioner nos.1 to 4 had not altered the product in any
manner as it was kept/dealt in the same manner as was
purchased. The Tribunal rejected the aforesaid contention, as
it found that the petitioners had not exercised due diligence.
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The Tribunal reasoned that the offence was plainly visible
from the label on the product in question and, therefore,
petitioner nos.1 to 4 were well aware of the offence under the
FSS Act. This Court does not find any infirmity with the said
reasoning as well. In view of the above, this Court finds no
reason to interfere with the impugned order.”
19. Ld. defence counsel has also taken the plea that the lab is not
NABL accredited. This fact is denied by the FSAT. Keeping in view the fact
that it is transition period and the accreditation process is going on and is
under the process, Section 24 deals with such situation that till the new set up
comes in existence, the older one will continue and will be effective. In my
opinion, this contention has no merits in view of Section 24 of the General
Clauses Act. They also took the plea that there is no mensrea about not
mentioning the Agmark registration number and claimed falsely but that is no
defence once it is revealed that there was no misbranding and they should
mention the true facts. They are required to be careful and diligent and
mention all the correct facts.
20. Keeping in view all these facts, in my opinion, Ld. ADM has
rightly appreciated the evidence and decided the matter in the right
perspective. There is no merit in the appeal. The same is dismissed. Record
of the Ld. ADM be returned along with copy of this judgment. Appeal file be
consigned to Record Room.
Announced in the open (Virender Kumar Bansal)
Court on 14th July, 2025 Principal District & Sessions Judge
New Delhi District
Patiala House Courts, New Delhi
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