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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
RAJESH S. PATIL, J.
The State of Maharashtra, Through Food Safety Officer Smt. Pradnya P. Surse – Appellant
Versus
Pankaj Gupta, Nominee, Adani Wilmar Limited – Respondent
Appeal From Order No. 09 of 2019
Decided on : 23-12-2022
Appeal from Order - Maintainability of Appeal from Order under Section 71(6) of the Food Safety and Standards Act, 2006 - Sections 68, 71, 76 of FSS Act - The court analyzed the provisions of the FSS Act and concluded that the Appeal against the Order of Food Safety Appellate Tribunal will be a Civil Appeal under Section 71(6). It also held that the Appeal from Order against the Order passed by Food Safety Tribunal is not maintainable. The court further clarified that an Appeal under Section 76 will lie before the Division Bench by way of Criminal Appeal.
Fact of the Case:
The Appeal challenges the Judgment and Order passed by the Food Safety Appellate Tribunal under Section 71(6) of the Food Safety and Standards Act, 2006. The matter was heard only on the issue of maintainability of Appeal from Order.
Finding of the Court:
The court found that the Appeal against the Order of Food Safety Appellate Tribunal will be a Civil Appeal under Section 71(6) and that the Appeal from Order against the Order passed by Food Safety Tribunal is not maintainable. It also clarified that an Appeal under Section 76 will lie before the Division Bench by way of Criminal Appeal.
Issues: The issues before the court were whether an order passed by Food Safety Appellate Tribunal can be challenged before the Civil Side or Criminal Side of High Court, and whether the challenge under Section 71(6) of the FSS Act, 2006 can be by way of 'Appeal from Order'.
Ratio Decidendi: The court concluded that the Appeal against the Order of Food Safety Appellate Tribunal will be a Civil Appeal under Section 71(6) and that the Appeal from Order against the Order passed by Food Safety Tribunal is not maintainable. It also clarified that an Appeal under Section 76 will lie before the Division Bench by way of Criminal Appeal.
Final Decision: The present Appeal from Order is allowed to be converted into First Appeal, which should be numbered as Civil First Appeal, and the same be listed before Single Judge, taking up assignment of First Appeal. Necessary steps be taken up by appellant within three (03) weeks from today.
JUDGMENT :
1. This Appeal from Order is filed challenging the Judgment and Order dated 24.04.2018 passed by the Food Safety Appellate Tribunal, Jalna.
2. At the initial stage, the Advocate appearing for the respondent raised an objection about the maintainability of the “Appeal from Order”. Hence, this matter was heard only on the issue of maintainability of Appeal from Order, which challenges the Judgment and Order passed by the Food Safety Appellate Tribunal under Section 71(6) of the Food Safety and Standards Act, 2006 [hereinafter referred to as “FSS Act”]. The questions before this Court are, Whether an order passed by Food Safety Appellate Tribunal, which is established under Section 70 of the FSS Act, can be challenged:
(ii) Whether the challenge under Section 71(6) of the FSS Act, 2006 can be by way of “Appeal from Order”.
3. The State of Maharashtra through it’s Food Safety Officer have filed the present Appeal from Order under the provisions of Section 71(6) of the FSS Act.
SUBMISSIONS :
4. The Counsel for the respondents has preliminarily raised objection about maintainability of Appeal from Order. Therefore, matter is heard only on maintainability and not on merits. The Counsel for respondents submitted that the provision of Section 71(6) of the FSS Act mentions that an order of the Tribunal can be challenged by way of an Appeal to High Court. There is no mention of Appeal from Order in the said sub-section. Therefore, in clear terms, an Appeal from Order will not be tenable before this Court. Advocate for the respondent further argued that taking into consideration the provisions of the FSS Act and more particularly Section 68 thereof, it only refers to adjudication by the Addl. District Magistrate of the District for the purpose of adjudication and further refers to penalty. So also, Section 68(3)(a) of the FSS Act states that all the proceedings before him shall be deemed to be judicial proceedings within the meaning of Section 193 and 228 of the Indian Penal Code and further sub-section (b) mentions that, it should be deemed to be a Court for the purpose of Section 345 and 346 of the Code of Criminal Procedure. Sub-section (4) refers to quantum of penalty. Further, Section 69 refers to Power to Compound Offences. Further, Section 71(3) refers to Section 193 and 228 and Section 196 of the Indian Penal Code.
5. Further, Section 73 refers to offences triable by Special Court and Section 74 refers to Special Court and Public Prosecutor. Hence, the correct course of action for the State should have been to file Appeal at Criminal Side, under Section 71(6) of the FSS Act. The learned Counsel further submits that if the present proceeding of “Appeal from Order” is withdrawn and Criminal Appeal is filed, his client has no objection for the same.
6. The learned Amicus Curiae, who appeared on notice of this Court, has shown to me Chapter X of the FSS Act and submitted that there are two kind of appeals provided under Chapter X, one would be an Appeal before the Civil Side of this Court and another would be at the Criminal Side to the Division Bench.
7. He further referred to the provisions of Section 68(1), which states that for the purpose of adjudication under this Chapter, an Officer not below the rank of Additional District Magistrate of the District, where the alleged offence is committed, shall be notified by the State Government as Adjudicating Officer. Therefore, according to him, an Additional District Magistrate is not a Judicial Magistrate as contemplated under the Code of Criminal Procedure. He further showed me the provisions of Section 68(2). He argued that the Section states that Adjudicating Officer shall give an opportunity to the person and on such Inquiry, if satisfied that the person has committed the contravention of provisions of the Act or the rules or the regulations, he may impose such penalty as he thinks fit in accordance with the pr
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