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2015 DIGILAW 698 (JHR)

Laxman Mandal v. State of Jharkhand

2015-06-17

PRAMATH PATNAIK, R.R.PRASAD

body2015
JUDGMENT : 1. This appeal is directed against the judgment and order dated 2.9.2014, passed by Deputy Commissioner, Deoghar in F.S.S. Case No. 27/2013-14, whereby and whereunder the court having found the appellant guilty for selling salt of Sub-standard quality and for keeping it in unhygienic condition, convicted the appellant for the offences punishable under Sections 51 and 59(1) of the Food Safety and Standard Act and sentenced him to pay a fine of Rs. 3 lacs for both the offences. 2. Food Safety Officer, Deoghar collected the sample of salt having brand name as “SUDH” and sent for its testing to State Food and Drugs Laboratory, Namkom, Ranchi through Designated Officer, A.C.M.O, Deoghar. Upon the sample being analyzed, it was found of substandard grade with unsafe in terms of Section 3 (zz) (x) and (xi) of Food Safety and Standard Act, 2006. On receiving report, Designated Officer sent the report to the appellant calling upon him to get the sample reanalyzed, if he wishes to do so, from the Referral Laboratory, Ghaziabad. The appellant did not opt for reanalyzing and thereby, the report was submitted before the Adjudicating Officer. Upon which, the case was registered as Case No. 27/2013-14. Thereupon, summon was issued to the appellant, who upon putting appearance, submitted an application stating therein that though the appellant does deal with the Iodized salt, but the salt, sample of which has been collected from a bag, had become wet while the bags of salt were being brought to the shop on Thela and, therefore, the salt had been kept out side of the shop for the purpose of use for tanning of skin of the animal and also for the purpose of using electrical earthing and, thereby, it was never for the use of human consumption. The Adjudicating Officer, after having regard to the fact that the sample which was collected from the shop of the appellant was of substandard quality and had been kept in unhygienic condition and also the plea taken by the appellant found the appellant guilty for selling the salt which was of substandard quality and has been kept in unhygienic condition and, thereby, recorded the order of conviction and sentence as aforesaid, which is under challenge before this Court. 3. 3. According to the learned counsel appearing for the appellant since Food Safety Appellate Tribunal has still not been constituted by the State Government appeal has been preferred before this Court. 4. Mr. Deo, learned counsel appearing for the appellant submits that the impugned judgment suffers from several illegalities and, as such, it is fit to be quashed. It was submitted that iodized salt no doubt would be covered by the definition of 'Food' as defined in Section 3 (j) of the Food Safety and Standard Act, 2006, but so far as the case of the appellant is concerned iodized salt, sample of which was collected from a bag which had been kept outside of the shop, as it had become wet while the bags of salt were being brought to shop on Thela and, therefore, it had been kept outside of the shop for the purpose of use for tanning of skin of the animal and also for the purpose of using electrical earthing but not for human consumption and, thereby, that would never come within the definition of 'food' and, hence, any prosecution would be bad but the Adjudicating Officer did not take into account this aspect of the matter. Proper course would have been for the adjudicating officer to give an opportunity to the appellant for leading evidence to that effect and since the appellant has denied with the opportunity to lead evidence to establish that fact a grave error has been committed by the Adjudicating Officer. Further, it is submitted that so far as order of sentence is concerned, the Court has imposed penalty of Rs.3 lacs for both the charges relating to salt being of substandard quality and for keeping it in unhygienic condition, but while imposing sentence the court did not take into account the factors as mentioned in Section 49 of the Food Safety and Standard Act and, thereby, Adjudicating Authority certainly committed illegality in awarding sentence against the appellant. 5. 5. As against this, learned counsel appearing for the State submits that so far as submission relating to fair trial is concerned, it is devoid of any substance as it is never the case of the appellant that he had not been afforded opportunity to lead evidence to prove that the salt kept in bag lying outside of the shop, had not been kept for consumption of human purpose and, thereby, now the grievance cannot be raised on behalf of the appellant that opportunity was not given to the appellant to lead evidence with respect to defence taken by the appellant. Further, it was submitted that so far quantum of sentence is concerned it is never there that the appellant was inflicted with maximum punishment. The maximum punishment, as prescribed under Section 51, is Rs.5 lacs whereas the appellant has been inflicted with the fine of Rs.3 lacs for the offence punishable under Section 51 and also for the offence punishable under Section 59 (1) and thereby, the impugned judgment never warrants to be interfered with. 6. Having heard learned counsel appearing for the appellant and learned counsel appearing for the State, we do find that a sample of iodized salt was collected from the bag which had been kept outside of the shop. According to the learned counsel appearing for the appellant, when the bags of the salt, on account of being wet, had been kept outside of the shop it was never meant for selling it for human consumption and, thereby, the salt kept outside, cannot be brought within the definition of food as has been defined under Section 3 (j) of the Food Safety and Standard Act. Further submission, which has been made is that if the situation was like that than it was for the prosecution to prove its case that salt, sample of which was collected, was meant for selling for human consumption as it is the case of the appellant that the bags of salt kept outside of the shop were to be sold for the purpose of tanning of skin or for other purposes like that of electrical earthing. 7. We do not find any substance in the submission. Before proceeding further in the matter. 7. We do not find any substance in the submission. Before proceeding further in the matter. The definition of the 'Food' given under Section 3 (j) of the Act needs to be taken notice of which reads as follows:- “3(j) “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: Provided that the Central Government may declare, by notification in the Official Gazette, any other article as food for the purposes of this Act having regards to its use, nature, substance or quality.” 8. According to the case of the appellant, initially the salt was purchased for human consumption but on account of reason as stated above, the case was made out that it no longer remained for human consumption but in view of the definition of food any substance which is for human consumption is food within the definition of food. However, on account of any reason a plea is taken that it no longer remained for human consumption, onus was upon the person to prove that plea. Here in the instant case though the plea, by way of application submitted before the adjudicator, has been taken but at no point of time any prayer was made to give opportunity to lead evidence and thereby now plea cannot be taken that the appellant had been denied opportunity to lead evidence and, thus, we do find that opportunity of fair trial was given to the appellant. 9. Now, coming to the point of sentence we may take notice of the provision as have been enshrined under Sections 49, 51 and 59(1) of the Food Safety and Standard Act, which reads as follows:- 49. 9. Now, coming to the point of sentence we may take notice of the provision as have been enshrined under Sections 49, 51 and 59(1) of the Food Safety and Standard Act, which reads as follows:- 49. General provisions relating to penalty.—While adjudging the quantum of penalty under this Chapter, the Adjudicating Officer or the Tribunal, as the case may be, shall have due regard to the following:— (a) the amount of gain or unfair advantage, wherever quantifiable, made as a result of the contravention, (b) the amount of loss caused or likely to cause to any person as a result of the contravention, (c) the repetitive nature of the contravention, (d) whether the contravention is without his knowledge, and (e) any other relevant factor. For Disclaimer, see under Help. 51. Penalty for substandard food.—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 substandard, shall be liable to a penalty which may extend to five lakh rupees. 59. Punishment for unsafe food.—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, shall be punishable,— (i) where such failure or contravention does not result in injury, with imprisonment for a term which may extend to six months and also with fine which may extend to one lakh rupees. 10. From perusal of the aforesaid provisions, it does appear that maximum penalty prescribed under Section 51 is Rs.5 lacs, whereas under Section 59 (1) it may extend to Rs.1 lac. The Court had imposed fine of Rs.3 lacs for both the offences under Sections 51 as well as 59 (1) of the Food Safety and Standard Act, but while imposing penalty factors which were required to be taken into account mentioned in Section 49 which were required to be taken into account has not been taken into account at all while imposing sentence and thereby on account of this reason the order relating to sentence suffers from illegality. Accordingly, sentence imposed against the appellant is hereby set aside and the matter is remanded back so that a fresh order be passed on the point of sentence keeping in view the factors mentioned under Section 49 of the Food Safety and Standard Act after taking the evidence if either side in this regard. 11. Accordingly, this appeal stands disposed of.