CHHATTISGARH HIGH COURT
Sanjay K. Agrawal, J.
Ramakant Gupta —Petitioner
versus
State of Chhattisgarh and Ors. Respondents
Writ Petition (Cr) No.220 of 2015
Decided on 12.5.2016

IMPORTANT POINT
By virtue of provisions contained in sub-section (2) of Section 68 of the FSS Act of 2006 holding of an enquiry by the Adjudicating Officer is sine qua non for arriving at the conclusion that such a person or party has committed contravention of provisions of FSS Act and/or the rules.

Headnote:Food Safety and Standards Act, 2006—Section 26(2)(1) and 68—Sample of Cow milk taken by Food Safety officer from petitioner when petitioner was carrying milk in a container of 60 kg capacity—Food Analyst reported sample to be unsafe—Petitioner preferred appeal and second sample was sent to Referral Food Laboratory and report was to effect that sample did not confirm to standard of Cow milk—District Magistrate-cum-Adjudicating Officer held petitioner guilty and imposed penalty of Rs 75000/-—Appeal/ Writ—Adjudicating Officer was required to make an enquiry into all relevant facts-particularly reliability of test reports—Holding of enquiry was sine qua non for arriving at conclusion that person had committed contravention of Act/rules—Record showed that no such inquiry was made—Even food safety officer was not examined to prove the manner of taking sample—No material to show if milk was homogenised to hold sample as representative one—Food Analyst found the milk fat as 3.5% solid not fat as 8.7%—Referral Food Laboratory found milk fat 6% and milk solid not fat 8.01% and thus it could not be safely held that sample was truely representative one—Impugned order was liable to be set aside

       Held: A careful perusal of the order passed by the Adjudicating Officer would show that the said authority has relied upon two reports, first made by the Food Analyst dated 5.6.2012, whereby the said Food Analyst has held the sample to be unsafe under Section 3 (1) (a) (zz) (v) (xi) of the Act of 2006 and on appeal being preferred by the petitioner, it was referred to the Director, Referral Food Laboratory, Pune, in which, it has been held that sample does not conform to the standard of Cow milk as per Food Safety and Standards Act, 2006 and Rules made thereunder. The Adjudicating Officer further relied upon clause 2.1.8 of the Food Safety and Standards (Food Products Standards & Food Additives) Regulations, 2011 to hold that sample taken from the petitioner was of the sub-standard and it was violation of Section 26 (2) (i) of the FSS Act of 2006 punishable under Section 51 of the said Act for which 75,000/- is proper penalty which the petitioner is liable to pay for contravention of the provisions of the FSS Act of 2006.

       Thus, by virtue of provisions contained in sub-section (2) of Section 68 of the FSS Act of 2006 holding of an enquiry by the Adjudicating Officer is sine qua non for arriving at the conclusion that such a person or party has committed contravention of provisions of FSS Act and/or the rules or the regulations made thereunder and satisfaction can be arrived into after making an enquiry into all relevant facts.

       Fact of the present case would show that on 26.7.2013, the Food Safety Officer filed the report in which on the same day notice was issued by the District Magistrate, Rajnandgaon to the petitioner, reply was filed on 12.3.2014 and thereafter it was directed to file written submission. After filing of the written submission, straightway matter was fixed for final order and on 28.11.2014, order was passed imposing the impugned penalty which goes to show that the Adjudicating Officer has not made any enquiry before passing the impugned order, even the Food Safety Officer was not examined to prove the manner of taking sample and to establish the case of prosecution etc. and the petitioner has not been afforded an opportunity to cross-examine the Food Safety Officer, who has taken the sample and sent it to the Food Analyst and the Referral Food Laboratory, Pune as the Food Safety Officer was not examined. The petitioner has been deprived to cross-examine the Food Safety Officer and merely on the basis of report submitted by the Food Safety Officer along with reports from Food Analyst and Referral Food Laboratory after taking the reply from the petitioner straightway order has been passed. In the considered opinion of this Court, without making any enquiry into the relevant factors and without giving reasonable opportunity to petitioner to defend himself, imposition of fine over the petitioner is unsustainable in law.

       There is one more reason for not upholding the impugned order of imposing fine to the petitioner. It is the case of the petitioner that sample was taken by the Food Safety Officer and notice dated 22.5.2012 was given to the petitioner as he was transporting 60 kg of milk and thereafter the Food Safety Officer has paid 60/- towards cost of milk to the petitioner. Panchnama was also prepared as per rules. A bare perusal of the statement of Shri H. C. Panji, Food Safety Officer would show that the petitioner was carrying 60 kg of milk in a container out of which on notice and payment of 60/-, two kg. of milk was purchased by the Food Safety Officer and it was sealed, labelled and formalin was mixed. The panchnama nowhere states that the Food Safety Officer before taking the sample of Cow milk in a container thoroughly mixed it either from one vessel to another or by shaking it gently or it nowhere records that milk had no globules or bubbles before the sample was taken. Even otherwise, Food Safety Officer was not examined before the Adjudicating Officer to prove the aforesaid fact. It was the imperative duty of the Food Safety Officer while taking the sample to bring evidence on record to show that Cow-milk was thoroughly stirred before taking the sample and sent to the Public Analyst for examination in order to make it homogeneous as the Food Inspector had obtained the sample of milk from the container in which the petitioner had 60 kg. of milk. Thus, the Food Safety Officer had taken the sample of milk from the bulk milk kept in the container of 60 kg. without stirring it and without making it homogeneous in order to make the sample truly represent the milk to be tested.

       In the light of the rules noticed hereinabove, law laid-down by the Supreme Court in K. Harikumar (supra) and in view of the guidelines laid down for careful and accurate sampling of milk by learned authors A.C. Aggarwala and B.M. Sharma in the aforesaid book, if the facts of the present case are examined, it appears that sample of Cow milk was taken by the Food Safety Officer without thoroughly mixing the milk either by stirring with long handled dipper or by pouring with one vessel to another vessel or by shaking it gently, therefore it cannot be said that the sample taken was the representative sample and it is possible that the sample of milk might not have a true representative of a whole body of the milk contained in the container on account of presence of flat globules or bubbles in it. The Food Analyst in its report dated 5.6.2012 has found the milk fat as 3.5% and solid not fat as 8.7% and the Referral Food Laboratory, Pune in its certificate of analyst dated 27.7.2012 found the milk fat 6% and milk sold not fat 8.01% and on account of that it has been held that it does not conform to the standards laid by the Act and the Regulations made under the Act of 2006. Therefore, in a case like present where sampling of Cow milk has not been carefully done by the Food Safety Officer, it cannot be safely held that sample of milk sent to the Food Analyst truly represented the milk to be tested. I am of the considered opinion that the sampling done is not in accordance with the FSS Act, 2006 and Regulation, 2011 and therefore, the prosecution has failed to bring home the offence under Section 26(2) (i) of the FSS Act of 2006 and consequently penalty imposed is vulnerable.

       As a fall out and consequence of the aforesaid discussion, the instant writ petition is allowed and penalty of 75,000/- imposed by the Adjudicating Officer upon the petitioner under Section 51 read with Section 68 of the FSS Act of 2006 is hereby quashed. (Paras 6, 11 to 13, 15 and 16)

       Result: Writ Petition allowed.