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HIGH COURT OF DELHI
W.P.(C) 10418/2018 & CM No. 40604/2018
ARDOR RESTAURANT AND ORS. ..... Petitioners
Through: Mr Sanjeev Narang with Mr R. K. Ahuja and Mr Kapil Sharma, Advocates.
Through: Mr Ramesh Singh, Standing Counsel, GNCTD with Ms
Nikita Goyal, Advocate.
VIBHU BAKHRU, J
JUDGMENT
1. Although, the present petition has been styled as writ petition under Article 226 of the Constitution of India, it ought to be treated as an appeal under Section 71(6) of the Food Safety and Standards Act, 2006 (hereafter ‗the FSS Act‘).
2. The petitioners herein have impugned an order dated 19.07.2018 (hereafter ‗the impugned order‘) passed by the Food Safety Appellate Tribunal (hereafter ‗the Tribunal‘). By the impugned order, the penalty imposed on the petitioners for non-disclosure of nutritional facts on the label of the food article, ‗Chilli Sauce‘, in terms of the Food Safety & Standards (Packaging and Labelling) 2019:DHC:1548 Regulations, 2011 (hereafter ‗the FSS Regulations), has been upheld.
3. Petitioner no.1 is the vendor of the food article, ‗Chilli Sauce‘ (the food article in question), recovered from petitioner no.1‘s restaurant. Petitioner no.2 to 4 are the suppliers of the food article in question, whereas petitioner no.5 is engaged in the manufacturing and packaging of the aforesaid food article.
4. The petitioners have challenged the impugned order, essentially, on the ground that the food article in question, by virtue of its nature, composition and ingredients, is exempted from declaring Nutritional information on the label under the exemptions provided to such products in terms of the proviso to Regulation 2.2.2.[3] of the FSS Regulations. Petitioner nos. 1 to 4 further contend that being the vendor and suppliers of the article in question, they have not altered the food article in question obtained from the manufacturer (petitioner no.5) by any means and hence, they are entitled to claim the defence of due diligence under Section 80 of the FSS Act. Factual Background
5. On 14.06.2012, the Food Safety Officer (FSO) lifted a sample of the food article – green ‗Chilli Sauce‘ – from the premises of petitioner no.1. The said food article was picked by the FSO for analysis under the provisions of the Food Safety and Standards Act, 2006 (the FSS Act). The analyst submitted its report, wherein it was found that the label of the said bottle did not specify ―nutritional information‖ in terms of Regulation 2.2.2.[3] and 2.2.2.10 of the Regulations. Accordingly, the said sample was held to be misbranded.
6. Taking the aforesaid report into consideration, the FSO instituted a complaint before the Adjudicating Officer against the petitioners in this regard. By an order dated 03.09.2015 (which is also impugned in the present petition), the Adjudicating Officer held the petitioners guilty of violating the provisions of the FSS Act and the Regulations thereunder and further imposed a penalty of ₹1,00,000/each on all the petitioners under the provisions of the FSS Act.
7. Aggrieved by the aforesaid order, the petitioners preferred five separate appeals before the Food Safety Appellate Tribunal (the Tribunal). The said appeals were disposed of by a common judgment dated 19.08.2018 (the impugned order), whereby the Tribunal absolved the petitioners of the alleged violation under Regulation 2.2.2.10 of the FSS Regulations. However, the Tribunal upheld the penalty of ₹1,00,000/- each imposed upon the petitioners for nondeclaration of nutritional facts values on the label of the bottle of ‗Chilli Sauce‘ (the food article), and thus violating Regulation 2.2.2.[3] of the FSS Regulations. The Tribunal observed that the said food article is comprised of more than one ingredient, and in that view, it is not exempted under the proviso of Regulation 2.2.2.[3] of the Regulations. Reasons and Conclusion
8. The principal question that arises for consideration in the present case is whether petitioner no.1 can be held guilty of misbranding of the product in question – the bottle of chilli sauce recovered from the premises of petitioner no.1.
9. A bottle of chilli sauce, which is manufactured by petitioner no.5, was recovered from the restaurant run by petitioner no.1 on 14.06.2012. The Recovery Challan indicates that the said bottle was sealed and it was not for sale but for being used in the restaurant. The label on the said product did not mention any of the nutritional facts and accordingly, it is alleged that the same fell foul of the Regulation 2.[2] of the FSS Regulations. The relevant Regulation is set out below:- ―2.2.2: Labelling of Pre-packaged Foods In addition to the General Labelling requirements specified in 2.2.[1] above every package of food shall carry the following information on the label, namely,— XXXX XXXX XXXX XXXX
3. Nutritional information – Nutritional Information or nutritional facts per 100 gm or 100 ml or per serving of the product shall be given on the label containing the following:—
(i) energy value in kcal;
(ii) the amounts of protein, carbohydrate (specify quantity of sugar) and fat in gram (g);
(iii) the amount of any other nutrient for which a nutrition or health claim is made: Provided that where a claim is made regarding the amount or type of fatty acids or the amount of cholesterol, the amount of saturated fatty acids, monounsaturated fatty acids and polyunsaturated fatty acids in gram (g) and cholesterol in milligram (mg) shall be declared, and the amount of trans fatty acid in gram (g) shall be declared in addition to the other requirement stipulated above;
(iv) Wherever, numerical information on vitamins and minerals is declared, it shall be expressed in metric units;
(v) Where the nutrition declaration is made per serving, the amount in gram (g) or milliliter (ml) shall be included for reference beside the serving measure; Provided that the food claimed to be enriched with nutrients, such as, minerals, proteins, vitamins, metals or their compounds, amino acids or enzymes shall give the quantities of such added nutrients on the label. Provided that —
(i) the nutritional information may not be necessary, in case of foods such as raw agricultural commodities, like, wheat, rice, cereals, spices, spice mixes, herbs, condiments, table salt, sugar, jaggery, or non –nutritive products, like, soluble tea, coffee, soluble coffee, coffee-chicory mixture, packaged drinking water, packaged mineral water, alcoholic beverages or fruit and vegetables, processed and prepackaged assorted vegetables, fruits, vegetables and products that comprise of single ingredient, pickles, papad, or foods served for immediate consumption such as served in hospitals, hotels or by food services vendors or halwais, or food shipped in bulk which is not for sale in that form to consumers.
XXXX XXXX XXXX XXXX‖
10. It is the case of petitioner no.1 that the product in question was not required to bear any nutritional information in view of the proviso to the said Regulation. The petitioner contended that the product in question was comprised of ―water, chilli (32%), potato, edible common salt, spices and acidifying agent‖. It is contended that in this view, the product in question ought to be considered as processed and pre-packaged assorted vegetables, fruits, vegetables and products that comprise of single ingredient‖ and, therefore, the petitioners were exempt from disclosing any nutritional information on the label.
11. The said contention was not accepted by the Tribunal, as the Tribunal was of the view that the product in question was not comprised of a single ingredient. The relevant extract of the said decision is set out below:- ―7.[4] Let me now examine the appellants contention that Chilli Sauce is exempted under proviso (i). From the plain reading of the proviso (i), it is evident that it exempts only those processed & pre-packaged products which comprise of single ingredient. It is not in dispute that the ingredients of the Chilli Sauce (as detailed in Form V-A) described on the label are as under:- “Water, Chilli (32%), Potato, Edible common salt, spice, acidifying agent.” 7.[5] From the above, it is evident that the Chilli Sauce contained more than one ingredient i.e. Chilli (32%) and Potato besides water, salt etc. 7.[6] It would also be pertinent to refer here to the Regulation 2.3.28(2) of the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 (‗FSS(FPS and FA) Regulation‖ in short) which provides for the following requirements: ―2.3.28 Culinary Pastes/Fruits and Vegetable Sauces Other than Tomato Sauce and Soya Sauce 1.……..
2. The product may contain food additives permitted in these regulations including Appendix
8.0 per cent 1.0 per cent 7.6.[1] Regulation 2.2.28(2) FSS (FPS and FA) Regulations lays down that content of ―total soluble solids (plural) in Chilli Sauce should not be less than 8.0%. In view of the same, I am inclined to accept the argument of the Ld. Chief PP that use of word ―Solids‖ (for Chilli Sauce) itself reflects that the Chilli Sauce consists of more than one ingredient.‖
12. This Court finds no infirmity with the aforesaid view. Clearly, the product Chilli Sauce is a processed food product, which does not fall within the proviso to Regulation 2.2.2.[3] of the FSS Regulations, as the said product is not comprised of a single ingredient. Further, it also cannot be considered as processed and pre-packaged assorted vegetables and fruits. It is, clearly, a product that is manufactured by manufacturing process and involves using several ingredients as raw materials including acidifying agents and spices. The identity of the product – Chilli Sauce – is materially different from the identity of the ingredients that are used to manufacture the said product. (See: Devi Das Gopal Krishnan v. State of Punjab: AIR 1967 SC 1895).
13. The next question that arises for consideration is whether the defence is available to petitioner nos. 1 to 4 under Section 80 of the FSS Act, inasmuch as they had not altered the product in question in any manner. Section 80(B)(2) of the FSS Act is set out below:- “80. Defences which may or may not be allowed in prosecution under this Act.- XXXX XXXX XXXX XXXX (2) Without limiting the ways in which a person may satisfy the requirements of clause (1), a person satisfies those requirements if it is proved: (a) that the commission of the offence was due to-
(i) an act or default of another person; or
(ii) reliance on information supplied by another person; and
(ii) it was reasonable in all the circumstances to rely on checks carried out by the person who supplied such food to the person; and
(c) that the person did not import the food into the jurisdiction from another country; and
(d) in the case of an offence involving the sale of food, that-
(i) the person sold the food in the same condition as and when the person purchased it, or
(ii) the person sold the food in a different condition to that in which the person purchased it, but that the difference did not result in any contravention of this Act or the rules and regulations made thereunder, and (e) that the person did not know and had no reason to suspect at the time of commission of the alleged offence that the person's act or omission would constitute an offence under the relevant section.‖
14. According to the learned counsel for the petitioners, petitioner nos.[1] to 4 had not altered the product in any manner as it was kept/dealt in the same manner as was purchased. The Tribunal rejected the aforesaid contention, as it found that the petitioners had not exercised due diligence. The Tribunal reasoned that the offence was plainly visible from the label on the product in question and, therefore, petitioner nos.[1] to 4 were well aware of the offence under the FSS Act. This Court does not find any infirmity with the said reasoning as well. In view of the above, this Court finds no reason to interfere with the impugned order.
15. In addition to various contentions, it is also contended on behalf of petitioner no.1 that it only runs a restaurant, and the product in question was for its own use in order to provide service to its customers. In this view, petitioner no.1 could not have been considered to be a seller at all. This Court is not inclined to examine this contention, since no such contention was advanced before the Tribunal. The question of law whether the restaurant owner could be charged for an offence of misbranding a product found in its premises, which is meant for providing services to its customers, is left open to be considered in an appropriate case.
16. The petition and the pending application are disposed of.
VIBHU BAKHRU, J MARCH 13, 2019 MK