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2022 DIGILAW 1788 (GUJ)

Hansaben Tapubhai Tank v. C. K. Nimavat

2022-12-16

ASHUTOSH J.SHASTRI

body2022
ORDER : 1. By way of this petition under Articles 226 and 227 of the Constitution of India, petitioners have prayed for following reliefs:- (A) Your Lordships be pleased to quash and set aside the impugned order dated 27.11.2017 passed by the Presiding Officer, Food Safety Appellate Tribunal in Petition No.98/2016 as well as the Order dated 09.08.2016 passed by the Ld. Adjudicating Officer and Resident Additional Collector, Surendranagar in Application No. 17/2015 annexed herewith at Annexure-A (colly.) to this Petition. (B) Your Lordships be pleased stay implementation and Execution of the order dated 27.11.2017 passed by the Presiding Officer, Food Safety Appellate Tribunal in Petition No. 98/2016 annexed herewith at Annexure-A(colly) to this Petition. (C) Any other or further reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case. 2. The background of facts which has given rise to this Special Civil Application is that petitioner No.2 is a Trust registered under the provisions of the Trusts Act and petitioner No.1 is the President of the Trust. The Trust is a low-profit making organization which is run by the group of Women’s of Wadhwan city and its core operation is to undertake Government projects for manufacturing purpose of Pre-mix (flour) and Balbhog. Memorandum of Understanding (MoU) came to be executed with District Program Officer, Surendranagar to produce Take to Home Ration (THR) i.e. Pre- Mix (Flour)- Ready to Cook and Balbhog. Under the said MoU, District Program Officer, Surendranagar was supplied wheat for such production and had also mentioned the standards of Nutrition Elements for producing Premix (flour) as well as Balbhog which was thereafter to be supplied to all Anganwadis. It is the case of the petitioners that on 22.8.2014, respondent No.1 visited the premises of the Trust at 17.30 Hrs. and collected certain samples of premix flour from petitioner No.1 for food analysis and thereafter, said sample was forwarded to Food Analyst, Regional Food Laboratory, Baroda. The case of petitioners is that at a relevant point of time, all work had been completed and only left out parts of premix (flour) and Balbhog was left, out of which the sample was taken. The case of petitioners is that at a relevant point of time, all work had been completed and only left out parts of premix (flour) and Balbhog was left, out of which the sample was taken. On 4.10.2014, Food Analyst, Regional Food Laboratory, Baroda sent its report bearing No.Q3/1800/2014 and clearly opined that in respect of test performed above the Premix Lot (pack) is ‘Misbranded’ as defined under Section 3(1)(zf)(A)(i)(a) as it does not conform to the standards laid down for Food Article under Food Safety and Standards Act, 2006 and Rules made thereunder. Detailed report was submitted, on the basis of which opponent No.1 i.e. FSO filed a complaint before adjudicating officer and Resident Collector, Surendranagar being Application No.17 of 2015 and thereupon notice was served upon the applicants. Certain contentions were raised before the said authority, but then the adjudicating authority was pleased to pass an order by virtue of which penalty was imposed of Rs.1 lac each on petitioner Nos.1 and 2 vide order dated 9.8.2016, as is reflecting from page 24 onwards. 3. Feeling aggrieved by the said decision of imposing costs upon the petitioners in view of the provisions of Section 70 of the Act, petitioners approached the Food Safety Appellate Tribunal, Gandhinagar by way of filing an appeal being Petition No.98 of 2016. After hearing both the sides, learned Appellate Authority was pleased to dispose of the said petition by reducing the penalty from Rs.1 lac to Rs.50,000/- each and thereby reduced the amount of penalty from Rs.2 lac to Rs.1 lac and directed the petitioners to deposit the same within 60 days from the date of receipt of the order. In view of this order being passed, petitioners were served with a notice on 14.12.2017 directing the petitioners to deposit the same failing which recovery proceedings would be initiated under the provisions of the Act of 2006, which has resulted in filing of the present petition before this Court. 4. Learned advocate Mr. Vatsal Parikh appearing for petitioners has vehemently contended that order passed by the Appellate Authority is not in consonance with the provisions of the Act and has submitted that Section 49 of the Act of 2006 is indicating the aspects which are to be considered while determining the penalty. 4. Learned advocate Mr. Vatsal Parikh appearing for petitioners has vehemently contended that order passed by the Appellate Authority is not in consonance with the provisions of the Act and has submitted that Section 49 of the Act of 2006 is indicating the aspects which are to be considered while determining the penalty. According to him, the said aspects have not been taken into consideration and therefore, the orders passed by the authorities below are not in consonance with the General provisions contained under Section 49 of the Act. Mr. Parikh has further contended that even Section 52 of the Act is also not kept in mind by the authority while exercising the discretion and erroneously both the petitioners have been saddled with liability and as such, according to Mr. Parikh, orders passed by the authorities below are not just and proper. On the contrary, reduction of amount is also not justified and according to Mr. Parikh, looking to the report as well as the stand which has been taken, no penalty could have been imposed upon the petitioners and as such has requested to set aside the orders passed by the authorities below. 5. Learned advocate Mr. Parikh has further contended that even if it is taken from the order that there is some inadequacy in respect of certain quantity of items, which is expected, but the authority cannot assume that it is unsafe to consume nor can be stated to be of substandard and therefore, question of imposition of penalty does not arise, hence requested to set aside the impugned orders. No other submissions have been made. 6. As against this, learned Assistant Government Pleader Ms. Hetal Patel appearing on behalf of the authority has strongly supported the orders which have been passed and the discretion exercised by the Authority. Ms. Patel has submitted that the scheme which has been floated by the authority was for a laudable purpose and keeping in view the object of the scheme, this kind of material which has been supplied and the material which has been detected by Food Analyst can certainly attract the penal measure against the petitioners. In fact, according to Ms. Ms. Patel has submitted that the scheme which has been floated by the authority was for a laudable purpose and keeping in view the object of the scheme, this kind of material which has been supplied and the material which has been detected by Food Analyst can certainly attract the penal measure against the petitioners. In fact, according to Ms. Patel, if this report is to be ignored, then very purpose of the object of scheme would be defeated since these items under the scheme to be ultimately supplied to the children and ladies attached to Anganwadi and as such, she has opposed the petition and submitted that there is no merit in the stand taken taken by the petitioner. 7. Learned Assistant Government Pleader Ms. Patel has additionally submitted that on the contrary, by virtue of Section 52 of the Act, amount of penalty can be levied upto Rs.3 lac, but the authority despite such report being on record has taken a lenient view and as such, there is hardly any case made out by the petitioners to call for any interference. On the contrary, Ms. Patel has submitted that these very petitioners have been indulging in such kind of activity in past also and they are faced with such measure of penalty of Rs.15,000/- each which fact has not been even disclosed before the authority and there is gross suppression of material fact and as such also, no extraordinary jurisdiction be exercised in favour of the petitioners. Ms. Patel has shown the document to the other side of imposing penalty of Rs.15,000/- and same has been taken on record. Repetitive act of the petitioners which has been detected deserves no equitable consideration in favour of the petitioners. As a result of this, petition being devoid of merit deserves to be dismissed. In addition to this, Ms. Patel has submitted that both the orders which have been passed by the authorities are in close conformity with the principles of natural justice and after giving due opportunity to the petitioners and therefore, when fact finding authorities have arrived at a specific conclusion, in the absence of any distinguishable material, the view adopted by the authorities may not be substituted. On the contrary, Ms. On the contrary, Ms. Patel has submitted that a very lenient view is taken by the Appellate Authority by reducing the amount of penalty, hence requested the Court not to entertain the petition. 8. Having heard learned advocates appearing for the parties and having gone through the material on record, it is quite visible from the report of the Food Analyst, which is on page 36 of the petition compilation, in which a clear opinion is expressed by the Food Analyst on 30.9.2014. An infirmity which has been found is very much reflecting in the order. The Court would like to reproduce the relevant extract of the said report hereunder:- No. Quality Characteristic Name of the Method of the test used Result Prescribed and as per: (a) Food Safety and Standard Food Product and Food Additive) Regulation,2011 (b) As per label declaration for proprietary food (2.12.1) (c) As per provisions of the Ad. Rules and Regulation for both the above 1 Calorific value Calculation method Ref-DGHS Lab Manual 2005 594.18 K.cal/150 gm Claim Made 600 K. cal/150/gm 2 Protein content Kjeidahi Method Ref:-DGHS Lab Manual., 2005 14.29 g/150 gm Claim Made Min 21/150 gm. 3 Vitamin C Titration method Ref-DGHS Lab Manual 2005 28.76 mg/150 gm --- 4 Calcium Titration method Ref.:Elico Instruments Manual 420.6 mg/150 gm --- 5 Iron Colourimetric method Ref- DGHS Lab Manual 2005 26.9 mg/150 gm --- 6 Extracted Fat Extraction Method Ref: DGHS Lab Manual 2005 5.88% --- 7 Moisture Air Oven Method Ref-DGHS Lab Manual 2005 6.29% --- 8 Total Ash Gravimetric Method Ref: DGHS Lab Manual., 2005 2.03% --- 9 Ash Insoluble in dil HCI Gravimetric Method Ref:-DGHS Lab Manual 2005 0.04% --- 10 Artificial sweetner Chemical test method Ref:-DGHS Manual methods-2005 Absent --- 11 Added Coloring matter Paper chromatography method Ref:-DGHS Lab Manual 2005 Absent --- 12 Printed plastic pack was not in sealed condition but it was teared at the comer hence microbiological parameters were not performed Opinion:- In respect of tests performed above the sample of Premix Lot (Pack) in Misbranded as defined under section 3(1)(A)(a) as it does not conforms to the standards laid down for Food articles under Food Safety and Standards Act-2006 and rules made there under in respect of false claims made for Calorific value & Protein content. Signed this 30th September 2014 Address: Food & Laboratory, Vadodara-390002 Guj Sd/- Food Analyst. 9. Signed this 30th September 2014 Address: Food & Laboratory, Vadodara-390002 Guj Sd/- Food Analyst. 9. Additionally, the original order which has been passed is also after due opportunity to the petitioners and the conclusion which has been reflecting on page 25 is to the effect that an offence which has been alleged is established and thereupon, penalty of Rs.1 lac was ordered to be imposed upon both the petitioners in view of Section 52 of the Act. In response to this order in origin, petitioners have preferred an appeal before the Appellate Authority, wherein after considering both the sides and after considering the relevant provisions of the Act, it has been concluded that the food sample which has been taken and the report is clearly indicating that it is mis-branded which would attract a penal consequence and only circumstance which has been taken into consideration is that looking to the report, instead of Rs.1 lac each, same came to be reduced to the extent of Rs.50,000/- each and in due discharge of its discretion, Appellate Authority has reduced the amount of penalty and as such, both the authorities have prima facie found clearly against the petitioners in respect of an issue of mis-brand and as such, the discretion has been exercised by reducing the penalty. 10. Section 49 of the Act if to be taken into consideration, certain eventualities which are to be kept in mind have been enumerated and while perusing the orders, these aspects to the substantial extent have been kept in mind which is clearly visible from the orders in question and as such, the Court is of the opinion that the conclusion which has been arrived at by an authority while exercising its discretion, there appears to be no perversity, no non-application of mind nor any irregularity, which may call for any interference. In addition to this, a perusal of Section 52 which undisputedly attracts which provides a penalty to be imposed to the extent of Rs.3 lac, whereas the authorities have exercised the discretion by imposing a reasonable amount of penalty and apart from that, the Appellate Authority has already reduced the penalty to the extent of 50% and as such, in this overall circumstances, the Court is of the opinion that no case is made out to call for any interference, particularly when the report has clearly found that the items which have been sent for analysis do not conform the standards laid down by the Act of 2006. This Court is not sitting over the decision of the authorities nor to undertake an exercise of fact finding, hence in the absence of any perversity or irregularity, when the discretion has been exercised by the authority in due regard to the provisions of the Act, the view taken by the authorities does not deserve to be substituted. 11. It is a trite law that exercise of extraordinary jurisdiction is not to merely substitute the finding arrived at by an authority when authorities have competently exercised their discretion vested in law in absence of any distinguishable material and in absence of any material circumstance, this Court is of the clear opinion that the petition is devoid of merits. 12. Apart from this, additional factor which has also weighed with the Court is that these petitioners have been indulging in such kind of activity in past also and petitioners have suppressed this material fact and have projected as if for the first time, they are found to be not upto the mark. In fact, xerox copy which has been placed on record by learned Assistant Government Pleader Ms. Hetal Patel has clearly indicated that in the month of February 2017, these very petitioners were also saddled with penalty of Rs.15,000/- each in exercise of power under Section 52 of the Act and as such, this being a conduct of the petitioners, the Court is not inclined to exercise any extraordinary jurisdiction. 13. It is also to be kept in mind that the object of the scheme is required to be maintained in true spirit and as is visible from the record, no case is made out to exercise equitable jurisdiction. 13. It is also to be kept in mind that the object of the scheme is required to be maintained in true spirit and as is visible from the record, no case is made out to exercise equitable jurisdiction. Considering this situation in mind, petition being devoid of merits stands DISMISSED with no order as to costs. Notice is discharged.