JUDGMENT : 1. This writ petition is filed under Article 226 of the Constitution of India whereby and where under the order dated 21.05.2018 passed by the Deputy Commissioner, Deoghar in F.S.S. Case No.19 of 2017-18, by which the authority in exercise of power conferred under Section 52 of the Food Safety and Standards Act, 2006, has imposed penalty of amount of Rs.75,000/- to be recovered from the petitioner on the ground of the proved allegation of selling substandard food articles (Khowa). 2. Mr. Vineet Prakash, learned counsel for the petitioner has raised the following issues (I) the provision as stipulated under Section 49 of the Food Safety and Standard Act, 2006, has not been followed. (II) the provision of Food Safety and Standard Rules 2011 as 3.1.1 (5), 3.1.1 (6), 3.1.1 (7), 3.1.1 (8), 3.1.1 (9), and 3.1.1 (12) have not been followed, therefore the impugned order is nothing but without any application of mind and not in consonance with the statutory provision as contained under the Act, 2006. It is further the case of the petitioner that the Deputy Commissioner has passed an order merely on the recommendation of the Additional Chief Medical Officer Deoghar-cum- Designated Officer. Learned counsel for the petitioner has relied upon the order, passed by the Co-ordinate Bench of this Court in W.P.(C). No.1637 of 2014 in the case of Shri Bhagwan Naidu Vrs. The State of Jharkhand dated 25.06.2014 and order passed by this Court in W.P.(C). No.3354 of 2018 in the case of M/s. Baba Dham Jal Vrs. The State of Jharkhand & Ors. dated 04.01.2019. 3. The State-respondents have appeared and filed counter affidavit inter alia therein the ground has been taken that there is no infirmity in the order impugned rather the petitioner after being provided with the opportunity and strictly in consonance with the statutory provision as laid down under the Act, 2006 and Rule 2011, the Deputy Commissioner within his jurisdiction has passed the order impugned, therefore, the same may not be interfered with. The submission has been made by refuting the argument advanced on behalf of the learned counsel for the petitioner with respect to the violation of provision of Section 49 of the Act, 2006 of the Rules 2011 by submitting that the Section 49 speaks about quantification of the money wherever it is possible but taking into consideration the factual aspect involved in this case that the food articles (Khowa) has been seized from the shops and in course of the testing of the sample has followed the procedures wherefrom it has been found that the food articles is sub-standard and as such a prosecution has been initiated for violation of the provision of Section 51 of the Act, 2006 and proper penalty of Rs.75,000/- have been imposed and therefore it is not a case in the nature where the sub-standard food grain articles can be quantified in terms of money since the sub-standard directly relates to the bad effect upon the human beings since the article is to be used by the human beings. So far as the contention of the petitioner is that the provision as contained in Rules 3.1 has not been followed, the same is incorrect since the same has strictly been followed and on being satisfied with the nature of the offence committed imposition of penalty, the Deputy Commissioner, Deoghar, in exercise of power conferred under the statute, has passed the order, hence same is not required to be interfered with. 4. Having heard the learned counsel for the parties and after appreciating their rival submissions, this Court deem it fit and proper to refer the objects and reasons for enactment of Food Safety and Standards Act, 2006 which has been enacted to bring out a statute relating to food and provide for systematic, scientific development of food processing industries. It is proposed to stipulate that the Food Safety and Standard Authority of India, which will fix food standards and regulate/monitor the manufacturing, import, processing, distribution and sale of food, so as to ensure safe and hold some food for people. The Food Authority will be assisted by the committees and panels in fixing standards and by a Central Advisory Committee in prioritization herein. The Food Authority will be assisted by the committees and panels in fixing standards and by a Central Advisory Committee in prioritization herein. Since ‘Khowa’ which is to be consumed by the human being, therefore, the definition of food as provided under Section 3(J) needs to refer hereunder as:- “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, package 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 t harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substance: 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;” Section 3(L) defines the definition of “Food Analyst” which means an analyst appointed under section 45. The standard has been defined under Section (zu) which means, in relation to any article of food, means the standards notified by the Food Authority. The statute which provides to maintain the second standards of food articles, therefore the officers have also been appointed to conduct surprise inspection and to take the sample for following procedure as provided under the statute by the analyst in the laboratory in order to assess the standard of the food articles. The authority to take decision has been conferred upon the designated officer to be appointed in pursuance to the provision as contained under Section 36 of the Act, 2006. The Food Safety Officers has also been appointed in pursuance to the provision of Section 37 of the Act, conferring the power as contained under Section 38 of the Act, 2006. Section 41 provides for power of search, seizure, investigation, prosecution, and procedure while Section 42 provides procedure for launching prosecution. The Food Safety Officers has also been appointed in pursuance to the provision of Section 37 of the Act, conferring the power as contained under Section 38 of the Act, 2006. Section 41 provides for power of search, seizure, investigation, prosecution, and procedure while Section 42 provides procedure for launching prosecution. Section 47 provides the provision for sampling and analysis which contains a provision that when a Food Safety Officer takes a sample of food for analysis, he shall notice in writing of his to have it so analysed to the person from whom he has taken the sample and the person, if any, whose name, address and other particulars have been disclosed. While Section 47 provides general provisions relating to offences. Section 49 provides general provisions relating to penalty wherein it has been stipulated that while adjudged 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 the 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 respective nature of the contravention, (d) whether the contravention is without his knowledge, and (e) any other relevant factor. Section 70 provides for Establishment of Food Safety Appellate Tribunal. The food and standard Rules, 2011 has been enacted w.e.f. its notification in the Official Gazette from 05.05.2011 Chapter 3 thereof, provides provision for Adjudication and Food Safety Appellate Tribunal. 3.1 contained therein the provision for adjudication of the proceeding the following provision of Clause- 3.1.1 quoted herein below:- “3.1.1: Holding of inquiry 1. The food and standard Rules, 2011 has been enacted w.e.f. its notification in the Official Gazette from 05.05.2011 Chapter 3 thereof, provides provision for Adjudication and Food Safety Appellate Tribunal. 3.1 contained therein the provision for adjudication of the proceeding the following provision of Clause- 3.1.1 quoted herein below:- “3.1.1: Holding of inquiry 1. On receipt of the copy of the report of Food Analyst in Form VII-A from the Designated Officer, the person from whom the sample was taken or the persons, whose names and addresses and other particulars have been disclosed under rule 2.5 of these rules or wholesaler or manufacturer has preferred an appeal against the findings of the report of the Food Analyst before the Designated Officer in terms of sub-section (4) of section 46 of the Act and the same has been dismissed, or the referral laboratory has, pursuant to the reference made by the Designated Officer in terms of subsection (4) of section 46 of the Act confirmed the findings of the Food Analyst in his report, or if no appeal has been preferred, the Designated Officer shall examine the case on the basis of the sections under which the person has been charged as to whether the contravention is punishable with imprisonment or the same is punishable with fine only under the Act. However, if no contravention is established and the sample conforms to the requirement of FSS regulations, the same will be communicated to the Food Business Operator immediately. 2. If the Designated Officer decides that such contravention is not punishable with imprisonment but only with fine under the provisions of the Act, he shall cause and authorize the Food Safety Officer to file with the Adjudicating Officer an application for adjudication of the offence alleged to have been committed by the person from whom the food sample has been taken or the person whose name and address and other particulars have been disclosed under rule 2.5 of these rules and/or the seller or manufacturer of the food item in respect of which the report has been received. 3. On receipt of the communication from the Designated Officer authorizing the filing of the adjudication application, the Food Safety Officer shall file the application for adjudication with the Adjudicating Officer for adjudication of the offence/contravention alleged to have been committed. 4. 3. On receipt of the communication from the Designated Officer authorizing the filing of the adjudication application, the Food Safety Officer shall file the application for adjudication with the Adjudicating Officer for adjudication of the offence/contravention alleged to have been committed. 4. On receipt of the application for adjudication from the Food Safety Officer, the Adjudicating Officer shall commence the inquiry proceedings 5. The Adjudicating Officer shall have power to hold an inquiry for purpose of adjudicating offences punishable under sections 50, 51, 52,53,54 55, 56, 57, 58, 64, 65, 66 and 67 of the Act. 6. For holding an inquiry for the purpose of adjudication under section 68 of the Act as to whether any persons has/have committed contravention of any of the provisions of the Act referred to in rule 3.1.1.(5) herein or the rules or regulations in respect of which the offence is alleged to have been committed, the Adjudicating Officer shall, in the first instance, issue a notice to such person or persons giving him or them an opportunity to make a representation in the matter within such period as may be specified in the notice (not being less than 30 days from the date of service thereof). 7. Every notice under rule 3.1.1.(6) to any such person shall indicate the nature of offence alleged to have been committed by him or them, the (sections) of the Act alleged to have been contravened, and the date of hearing of the matter. A copy of the report of the Food Analyst shall also be annexed to such notice. 8. On the date fixed for hearing, the Adjudicating Officer shall explain to the person or persons proceeded against or to his authorized representative, the offence alleged to have been committed by such person, indicating the provision of the Act, rules or regulations in respect of which the contravention is alleged to have taken place. 9. The Adjudicating Officer shall then give an opportunity to such person or persons to produce such documents or evidence as he may consider relevant to the inquiry and if necessary the hearing may be adjourned to a future date: Provided that the notice referred to in rule 3.1.1. 9. The Adjudicating Officer shall then give an opportunity to such person or persons to produce such documents or evidence as he may consider relevant to the inquiry and if necessary the hearing may be adjourned to a future date: Provided that the notice referred to in rule 3.1.1. (6) may, at the request of the person concerned, be waived: Provided further that the Adjudicating Officer shall pass the final order within 90 days from the date of first hearing mentioned in rule 3.1.1 (8) above. 10. The State Government may appoint a presenting officer from amongst the panel of advocates of the court of local jurisdiction, in an inquiry under this rule. 11. While holding an inquiry under this rule, the Adjudicating Officer shall have the power to summon and enforce the attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any document which, in the opinion of the Adjudicating Officer may be useful for or relevant to, the subject matter of the inquiry. 12. If any person fails neglects or refuses to appear as required by rule 3.1.1 (6&7) before the Adjudicating Officer, the Adjudicating Officer may proceed with the inquiry in the absence of such person, after recording the reasons for doing so. It needs to refer herein that there is Forum of appellate tribunal as provided under Section 70 of the Act, 2006 but as has been stated in the counter affidavit in the State of Jharkhand, no Appellate Tribunal has yet been constituted, therefore, the writ petition has been filed and hence in absence of Forum, this Court, is entertaining the writ petition in order to look into the factual aspects on merit. This Court perused the original records which has been produced by the State respondent as directed vide order dated 05.04.2019 wherefrom it is evident that the process of collecting the sample is in presence petitioner, process of sending the food articles before the analyst, and a report of the analyst, the analyst has followed the procedure. This Court perused the original records which has been produced by the State respondent as directed vide order dated 05.04.2019 wherefrom it is evident that the process of collecting the sample is in presence petitioner, process of sending the food articles before the analyst, and a report of the analyst, the analyst has followed the procedure. The petitioner has provided opportunity of hearing by issuing show cause notice in which the reply has been submitted by denying the allegation but the competent authority has passed order on 21.05.2018 whereby and where under the petitioner has been held to be guilty of violation of Section 52 of the Act, 2006 and thereafter he has been imposed with the penalty of Rs.75,000/- and directed to deposit it, the said order is under challenge in this writ petition. The petitioner has raised the issue of not following the procedure under Section 49 of the Act, 2006 and Rules, 2011 as contained under clause-3.1.1. It is evident from the original record that the procedure as laid down under the Act/Rules has been followed as stipulated under clause 3.1 and therefore, this Court, is of the view that the procedure laid down for adjudication of the proceeding by holding an enquiry, has fulfilled as provided under the Act, 2006 while taking such decision by the authority is concerned. The learned counsel for the petitioner has given much emphasis that there is no consideration of provision of Section 49 while adjudged the quantum of penalty since there is no reference of condition stipulated therein under Section 49 (a), (b), (c), (d), and (e). The learned counsel for the petitioner has given much emphasis that there is no consideration of provision of Section 49 while adjudged the quantum of penalty since there is no reference of condition stipulated therein under Section 49 (a), (b), (c), (d), and (e). This Court on examination of condition stipulated in the aforesaid provision as contained under sub-section (a) to Section 49 which speaks about the amount of gain or unfair advantage, wherever quantifiable, made as a result of contravention subsection (b) of Section 49 speaks that the Amount of loss caused or likely to cause to any person as a result of the contravention, is of the considered view it cannot be disputed by using the substandard material there would be gain or unfair advantage, herein since the material (Khowa) is to be consumed by the human being cannot be definitely quantified with respect to the amount of gain or unfair advantage, wherever quantifiable, made as a result of the contravention, considering the nature of Article, so far as the amount of loss caused or likely to cause to any person as a result of the contravention. 5. In the considered view of this Court since the food article is (Khowa) to be consumed by the people and as such the authority is supposed to assess and quantify the loss on the basis of best judgment assessment process because if the food article would be consumed or and loss will be caused it cannot be quantified in terms of the money. So far as the contravention is having without his knowledge is concerned if the substandard material is being used it cannot be believed that the contravention is without his knowledge as because if the petitioner dealing with the project of the food article which is found to be substandard which is found to be substandard it will be said to be within his knowledge. But so far as the repetitive nature of contravention, as has been stated by the petitioner on oath by filing a supplementary affidavit dated 26.04.2019 by serving copy of the same to the advocate general wherein at Paragraph-3 it has been stated that the earlier no case has been instituted against the petitioner for the same offence, therefore the instant case is not said to be repetitive nature of contravention and it is evident from the order dated 21.05.2018 (impugned) that no consideration with respect to the fact about the repetitive nature of contravention have been taken care of by the authority and therefore the matter needs consideration afresh by the Deputy Commissioner, Deoghar so far as the quantum of penalty is concerned. 6. In view of the facts stated hereinabove and reason assigned according to the considered view of this Court, while conducting an enquiry and finding the petitioner guilty liable for appropriate action in view of the provision of Section 52 of the Act, 2006, this Court has not found any error in the process but so far as the quantum is concerned since it is not repetitive nature of contravention as has been stated by the petitioner hereinabove, if that be so, the Deputy Commissioner, Deoghar will take decision afresh by adjudging the quantum in this regard within a period of two months from the date of receipt of copy of this order. 7. It is made clear that the supplementary affidavit has been filed stating therein that the instant offence has been committed for the first time, therefore, it needs to be verified by the Deputy Commissioner, Deoghar by calling upon the record from the competent authority before taking such decision and if it is found that the contravention is repetitive in nature, there is no requirement to take fresh decision rather the order impugned dated 21.05.2018 will remain intact. 8. In view thereof, this writ petition is accordingly, disposed of.