1. Heard Sri Laxmi Kant Pathak, learned counsel for the appellant and Sri L.M. Khare, learned Standing Counsel for the respondents.
2. This is an appeal under Section 71(6) of the Food Safety and Standards Act, 2006 (hereinafter referred to as 'the Act') against the judgment dated 01st April, 2019 passed by Food Safety Appellate Tribunal/ Additional District and Sessions Judge, Lucknow, in M.C.A. No.193 of 2016, titled as Anil Kumar Mishra v. State of U.P. and Ors..
3. With the consent of learned counsel for both the parties, the appeal is taken up for final disposal.
4. Succinctly stating, the facts of the present case are that on 23rd July, 2014, the Food Safety Officer, Faizabad bought two liters milk from the appellant who was carrying 60 liters milk in four cans. The sample of milk was sent to the Food Analyst; the report of the Food Analyst dated 16th August, 2014 was received. A notice dated 30th December, 2014 was given to the appellant and the appellant was informed that if he wants to challenge the said report, he may file an appeal against the report of the Food Analyst under Section 46(4) of the Act.
5. Vide order dated 20th October, 2016, Adjudicating Officer/ Additional District Magistrate, Faizabad found the appellant guilty and after considering the provisions of Section 49 of the Act imposed a penalty of Rs.1,00,000/-(One Lakh Rupees only) and the appellant was directed to deposit the amount of penalty within thirty days.
6. Against the said order dated 20th October, 2016, the appellant filed an appeal bearing M.C.A. No.193 of 2016. Vide impugned judgment dated 01st April, 2019, the said appeal was dismissed, however, the amount of penalty was reduced to Rs.50,000/- (Fifty Thousand Rupees only)
7. Being aggrieved by the said order dated 01st April, 2019, the appellant has filed the present appeal.
8. Learned counsel for the appellant submits that the Adjudicating Officer did not consider the provisions of the Act in as much as no independent witness was joined at the time of taking sample. The general provisions relating to penalty have not been complied with; there is no report that milk was of sub-standard quality.
9. Lastly, learned counsel for the appellant submits that amount of penalty of Rs.50,000/- (Fifty Thousand Rupees Only) imposed by the Appellate Tribunal is too high and the same may be reduced.
10. On the other hand, learned Standing Counsel for the respondents submits that on 23rd July, 2014, sample of milk was taken by Food Safety Officer, Faizabad, the same was sent to the Food Analyst and after receiving the report of the Food Analyst dated 16th August, 2014, a notice dated 30th December, 2014 was given to the appellant and the appellant was informed about the report of the Food Analyst and he was also informed that he may file an appeal under Section 46(4) of the Act against the report of the Food Analyst; the appellant did not file any appeal against the report of the Food Analyst.
11. Learned Standing Counsel for the respondents also submits that the milk was found to be of sub-standard quality and is punishable with penalty which may extend to five lakh rupees. The Adjudicating Officer imposed a penalty of Rs. One lakh which was reduced by the Appellate Tribunal to the tune of Rs.50,000/- only. According to him, the impugned order dated 01st April, 2019 does not call for any interference.
12. I have carefully considered the submissions made by learned counsel for both the parties and have gone through the materials available on record.
13. The term 'sub-standard' has been defined in Section 3 (zx) of the Act which reads as under:
" (zx). "sub-standard" , an article of food shall be deemed to be sub-standard if it does not meet the specified standards but not so as to render the article of food unsafe;"
14. In the instant case, the sample of milk was taken and sent to the Food Analyst, as per the report dated 16th August, 2014 of the Food Analyst, the sample was found to be Mixed Milk falling under Regulation No.2.1.1 of the Food Safety and Standards (Food Products and Food Additive) Regulations, 2011. As per analysis report, there was deficiency of about 53% in milk fat and about 35% deficient in milk solids not fat and, therefore, the sample was found to be sub-standard.
15. Undisputedly, vide letter dated 30th December, 2014, the petitioner was informed about the report of the Food Analyst and he was also informed that he may file an appeal under Section 46(4) of the Act against the report of the Analyst. However, the appellant did not challenge the report of the Food Analyst which amounts to admission on the part of the appellant.
16. It is well settled law that now-a-days no public person wants to become a witness in criminal cases. The solitary evidence of the Food Analyst cannot be discarded only because no public witness was joined. A similar question arose in 'Shri Ram Labhaya v. Municipal Corporation of Delhi and Anr.', (1974) 4 Supreme Court Cases 491. In the said case it was held that the Food Inspector was unable to secure the presence of independent persons and was, therefore, driven to take the sample in the presence of the members of his staff only. It is easy enough to understand that shopkeepers may feel bound by fraternal ties but no Court can countenance a conspiracy to keep out independent witnesses in a bid to defeat the working of laws.
17. In another case, 'State of U.P. v. Hanif', (1992) 3 SCC 100, it was held that ;
"4. ............It is not the law that the evidence of Food Inspector must necessarily need corroboration from independent witnesses. The evidence of the Food Inspector is not inherently suspected, nor be rejected on that ground. He discharges the public function in purchasing an article of food for analysis and if the article of food so purchased in the manner prescribed under the Act is found adulterated, he is required to take action as per law. He discharges public duty. His evidence is to be tested on its own merits and if found acceptable the court would be entitled to accept and rely on to prove prosecution case. If in a given case where the factum of the very purchase is put in question and any personal allegations are made against the Food Inspector, perhaps it may be necessary for the prosecution to dispel the doubt and to examine the Panch witnesses seeking corroboration to the evidence of the Food Inspector. In this case the factum of purchase by the Food Inspector was not disputed. Even in the appellate court, the contention raised was regarding the delay in sending the public analyst report to the authority and laying the prosecution, but no other controversy was raised. Under these circumstances, we find no substance in the contention that the evidence of Food Inspector must be corroborated by independent evidence. "
18. In view of aforesaid judgments, the submission of learned counsel for the appellant that no public witness was joined at the time of taking sample is without any substance.
19. Learned counsel for the petitioner has not been able to show which provision of the Act has not been complied with.
20. In the present case, as per report of the Food Analyst, the milk was found to be sub-standard, the sample was about 53% deficient in milk fat and about 35% deficient in milk solids not fat. According to Section 51 of the Act, the offence is punishable with penalty which may extend to Rs.5 lakh. The Adjudicating Authority imposed a penalty of one lakh rupees. However, the appellate authority reduced the amount of penalty to Rs.50,000/- (Fifty Thousand Rupees only).
21. The appellant was found selling milk of sub-standard quality which is punishable with a penalty up to five lakh rupees. In my view, the amount of penalty imposed by the appellate Tribunal is adequate and does not call for any interference.
22. In the result, the appeal is without any merit, same deserves to be dismissed and the same is hereby dismissed.
23. No order as to costs.
(Ved Prakash Vaish) Judge Order Date :-19.12.2019 Shanu/-