Petitioners in both the writ petitions are before this

Court,

challenging

the

common

order

bearing

No.Jr¹.J¥sïJ¸ïJ.zÀÆ.¸ÀA: 1/2012-12 dated 20.02.2013 passed by

the first respondent under Section 68 of the Food Safety and

Standards Act, 2006 (for short <2006 Act=) imposing fine of

Rs.50,000/-

on

petitioner

in

W.P.No.29352/2013

and

Rs.25,000/- on the petitioner in W.P.No.45271/2013.

2.

Heard

learned

counsel

Sri.Jayanth

Poojary

and

Sri.Rajesh Shettigar for petitioners in both the writ petitions

4

and learned HCGP Smt.Rashmi Patel for official respondents.

Perused the writ petition papers.

3.

Learned counsel for the petitioners would submit that

the petitioner in W.P.No.29352/2013 is a distributor and 3^rd

respondent is a retailer. It is submitted that the Food Safety

Officer, Udupi visited the shop of 3^rd respondent on

29.09.2012 and submitted a report on 12.10.2012 as per

Annexure-F reporting that the Tea packet manufactured and

packed by Thirupathi Tea Belnders on which, month and year

of manufacturing was not visible properly. Further, it is also

alleged that the product sold by the 3^rd respondent was

misbranded. Based on the report submitted by the Food

Safety Inspector, Udupi District, Udupi, 2^nd respondent filed a

Complaint No.1/2012-13, before the first respondent as per

Annexure-E on 08.11.2012. In the complaint, it is alleged

that four food articles are seized, including the Tea Packets.

The petitioners were issued with notice of the complaint and

they were directed to appear before the first respondent-

5

Tribunal on 30.01.2013. Accordingly, the petitioners

appeared before the first respondent on 30.01.2013. The first

respondent noted the presence of the petitioners as well as

filing of written statement. The matter was adjourned to

13.02.2013. On that day, the petitioners were not present.

However, it was noted that the petitioners have already filed

their written statement and posted the matter for orders.

Under impugned order the petitioner as well as 3^rd

respondent in W.P.No.29352/2013 are imposed with fine of

Rs.50,000/- and Rs.25,000/- respectively. Challenging the

same, the petitioners are before this Court.

4.

Learned counsel for the petitioners would contend that

no opportunity was provided and order was passed in total

violation of principles of natural justice. Learned counsel

invites attention of this Court to section 68 of 2006 Act and

contends that the Adjudicating Officer shall, after giving the

person a reasonable opportunity for making representation in

the matter and on such inquiry, if he is satisfied that the

6

person has committed the contravention of provisions of 2006

Act or the rules could impose such penalty as he thinks fit in

accordance with the provisions relating to that offence. In the

instant case, learned counsel would submit that no such

enquiry was conducted by the first respondent. Further,

learned counsel would draw attention of this Court to Section

70 and 71 of 2006 Act.

5.

Section 71 of the Act prescribes the procedure and

powers of Tribunal in the matter of enquiry. Further, he

submits that sub-Section (3) of Section 71 makes it clear that

proceedings before the first respondent under 2006 Act is

deemed to be a judicial proceeding. Section 68(3)(a) makes it

clear that all proceedings before the Adjudicating Officer shall

be judicial proceedings within the meaning of Sections 193

and 228 of the Indian Penal Code. Learned counsel would

submit that unless the first respondent-Adjudicating Officer

conducts enquiry, the order of penalty would become illegal.

Learned counsel would submit that Food Safety Officer who

7

had filed report as well as complaint before the first

respondent is not examined nor an opportunity is provided to

the petitioner to cross-examine the Food Safety Officer.

Learned counsel invites attention to the procedure followed by

the first respondent-Adjudicating Officer and submits that it

is opposed to the provisions of 2006 Act and is totall