Writ Petition No. 5285 of 2017 · The High Court
Case Details
- 1 - NC: 2025:KHC:10195 WP No. 5285 of 2017 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 5285 OF 2017 (GM-EC) BETWEEN: SATYARAJ M S/O MURUGESH AGED ABOUT 30 YEARS, RESIDING ATN EAR GOKUL COLLEGE PC EXTENSION, KOLAR-563101 NOMINEE M/S MAHARAJA INDUSTRIES, NOI.2051/A,KIADB INDUSTRIA AREA LOKIKERE ROAD DAVANGERE-577005 (BY SRI. RAVI H K., ADVOCATE) AND: …PETITIONER Digitally signed by SHWETHA RAGHAVENDRA Location: HIGH COURT OF KARNATAKA 1. THE STATE OF KARNATAKA BY THE DEPUTY COMMISSIONER, CHIKKABALLAPUR DISTRICT CHIKKABALLAPUR-562110 2. THE DESIGNATED OFFICER (ADDITIONAL INCHARGE) SENIOR FOOD SAFETY OFFICER DISTRICT HEALTH AND FAMILY WELFARE OFFICE, ZILLADLITHA BAVANA CHIKKABALLAPUR-562110 3. KIRAN KUMAR S/O VEERABHADRAPPA SVGS PROVISION STORE, NO.3, 1ST FLOOR, SRI VINAYAKA COMPLEX, - 2 - NC: 2025:KHC:10195 WP No. 5285 of 2017 VIJAYAPURA ROAD H CROSS SHIDLAGHATTA TALUK-562105 (BY SRI. S.H. RAGHAVENDRA, AGA FOR R1 & R2; V/O DATED 23.11.2024 NOTICE TO R3 IS D/W) …RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER IN CASE NO.ZIANKA/ASSUGOOKAA/VI-01/2016-17 DTD.30.12.2016 PASSED BY THE R-1 AT ANNEX-A BY ISSUING A WRIT OF CERTIORARI AND ETC. THIS WRIT PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ ORAL ORDER 1. The petitioner is before this Court seeking for the following reliefs: a. the
Decision
order no. Quash ZiAnKa/AaSuGooKaa/Vi-01/2016-17 dated 30.12.2016 passed by the R1 at Annexure-A by issuing a Writ of Certiorari. case in b. Grand such other and further reliefs in the interest of justice and equity. 2. The petitioner claims to be a nominee of one M/s.Maharaja Industries, Davanagere, who is in the business of manufacturing a product of Shashi Iodine - 3 - NC: 2025:KHC:10195 WP No. 5285 of 2017 Crystal Salt. On 7.9.2015, Respondent No.2 visited the shop of Respondent No.3 and collected 1 kg pack of Shashi Iodine Crystal Salt and sent the same to the Public Health Institution, Bangalore for examination; the report received was that the sample was insoluble in water to an extent of 1.46% and iodine content was ‘nil’. 3. Therefore, proceedings were taken up against the Petitioner for substandard product and misbranded product, more so, when there was no batch number printed on the package in terms of the FSS Regulations, 2011. The Petitioner forwarded the sample to TUV SCD South Asia Private Limited who submitted a report that the product was insoluble in water to an extent of 0.29% and iodine content in the sample was 31.20% vide report dated 1.12.2015 and as such, disputed the report of the Public Health Institution, Bangalore. - 4 - NC: 2025:KHC:10195 WP No. 5285 of 2017 4. Hence, the authorities forwarded the sample to the Referral Food Laboratory, Kolkata for analysis who vide its report dated 18.5.2016 opined that the sample was insoluble in water to an extent of 1.52% and iodine content was nil. On that basis, the proceedings were continued against the Petitioner. The Petitioner did not submit any objections and/or documents but sought for a further reference of the sample for a further examination. The same was rejected. Respondent No.1 proceeded with the matter vide its order dated 30.8.2016 imposed a penalty of Rs.3,00,000/-. It is challenging the same, the Petitioner is before this Court. 5. The submission of Sri.Ravi H.K., learned counsel for the Petitioner is that 5.1. When there are three reports which are available and one of the reports is favourable to the Petitioner, benefit of doubt has to be given to the Petitioner. - 5 - NC: 2025:KHC:10195 WP No. 5285 of 2017 5.2. The imposition of penalty at Rs.3,00,000/- is not in terms of Section 49 of the Food Safety and Standards Act, 2006 (for short, ‘the Act of 2006’) inasmuch as while fixing the amount of Rs.3,00,000/- as penalty, the various components of Section 49 of the Act of 2006 have not been taken into consideration. 5.3. Lastly, he submits that the Petitioner being the manufacturer/packer, the question of any allegation being made against the Petitioner for the product being misbranded would not arise and in this regard, he relies upon Subsection (3) of Section 27 of the Act of 2006 to contend that the said allegation can only be made against the seller and not the manufacturer. 6. Learned AGA would submit that the report which has been relied upon by the Petitioner to indicate that iodine content in the sample is 31.20% is that of a - 6 - NC: 2025:KHC:10195 WP No. 5285 of 2017 private laboratory though NABL certified. The same has not been accepted and it is for that reason that the sample was sent to the Referral Food Laboratory, Kolkata. The report of the Public Health Institution Bengaluru and the Referral Food Laboratory, Kolkata indicating that there is no iodine content, action has been taken against the Petitioner and since iodine content was nil, the product is substandard and misbranded. The claim made by the Petitioner being that the salt is iodine infused. Therefore, he submits that the Petition is required to be dismissed. 7. Heard the learned counsel for the parties and perused papers. 8. Insofar as the first contention that benefit of doubt is required to be granted to the Petitioner is concerned, since there is one report which indicates that iodine content in the sample is 31.20% and insolubility is to an extent of 0.29%; the same is ex facie contrary to - 7 - NC: 2025:KHC:10195 WP No. 5285 of 2017 two of the reports namely the Public Health Institution, Bengaluru, which indicates that there is no iodine content and the insolubility is to an extent of 1.46%. In view of the dispute raised by the Petitioner by producing the private laboratory report, the sample was sent to the Referral Food Laboratory, Kolkata where it was found that the insolubility is to an extent of 0.90% and iodine content was ‘nil’. The report of the Referral Food Laboratory, Kolkata insofar as the insolubility is concerned favours the Petitioner since the report indicates that 0.90% insolubility is available in the sample. The maximum permissible being 1%. However, insofar as iodine content is concerned, the report of both the Public Health Institution, Bengaluru and the Referral Food Laboratory, Kolkata indicates that there is no iodine content in the sample. In that view of the matter, I am of the considered opinion that Respondent No.1 has rightly rejected the report of the Private Laboratory and taken into consideration the reports - 8 - NC: 2025:KHC:10195 WP No. 5285 of 2017 of the Public Health Institution and the Referral Food Laboratory. It was however required for the authorities to have taken action as against the private laboratory, since the reports furnished by it are exfacie not correct. 9. Insofar as insolubility is concerned, Respondent No.1 has erred by taking into consideration the report of the Public Health Institution. Respondent No.1 ought to have taken into consideration the report of the Referral Food Laboratory, Kolkata which is in favour of the Petitioner. 10. As regards the contention of Sri.Ravi H.K., learned counsel for the Petitioner that in terms of Section 27 of the Act of 2006, no action can be taken against a manufacturer or a packer for a product being misbranded. The said Section is reproduced hereunder for easy reference: 27. Liability of manufacturers, packers, wholesalers, distributors and sellers.–(1) The manufacturer or packer of an article of food shall be liable for such article of food if it - 9 - NC: 2025:KHC:10195 WP No. 5285 of 2017 does not meet the requirements of this Act and the rules and regulations made thereunder. (2) The wholesaler or distributor shall be liable under this Act for any article of food which is– (a) supplied after the date of its expiry; or (b) stored or supplied in violation of the safety instructions of the manufacturer; or (c) unsafe or misbranded; or (d) unidentifiable of manufacturer from whom the article of food have been received; or (e) stored or handled or kept in violation of the provisions of this Act, the rules and regulations made thereunder; or (f) received by him with knowledge of being unsafe. (3) The seller shall be liable under this Act for any article of food which is– (a) sold after the date of its expiry; or (b) handled or kept in unhygienic conditions; or (c) misbranded; or (d) unidentifiable of the manufacturer or the distributors from whom such articles of food were received; or (e) received by him with knowledge of being unsafe. 11. A perusal of the above provision would indicate that Subsection (1) of Section 27 of the Act of 2006, categorically states that a manufacturer or packer of - 10 - NC: 2025:KHC:10195 WP No. 5285 of 2017 an article of food shall be liable for such article of food if it does not meet the requirements of the Act and the rules and regulations made thereunder. That would mean and imply that the manufacturer or packer would be responsible for all violations under the Act and there is no restriction on the manufacturer or the packer as regards the liability. Subsection (2) of Section 27 of the Act of 2006 deals with the liability of the wholesaler or distributor which is limited to the items which are ascribed in Subsection (2) of Section 27 of the Act of 2006. Subsection (3) of Section 27 of the Act of 2006 deals with the liability of a seller and such liability is as ascribed under Subsection (3) of Section 27 of the Act of 2006. 12. Merely because the word ‘misbranded’ comes under the liability of the seller would not imply that a manufacturer or packer is not liable for misbranded items. As indicated in Subsection (1) of Section 27 - 11 - NC: 2025:KHC:10195 WP No. 5285 of 2017 of the Act of 2006, a manufacturer or packer of an article of food shall be liable for the said food article if it does not meet the requirements of the Act and the rules which would include misbranding. Subsection (3) of Section 27 of Act of 2006 only restricts the liability of the seller to misbranding and certain items ascribed under subsection (3) of Section 27 of the Act of 2006, that does not mean, that a manufacturer or a packer is not liable for those items which have been ascribed under subsection (3) of Section 27 of the Act of 2006. Hence, this contention of Sri.Ravi H.K, learned counsel for the petitioner stands rejected. 13. As regards the contention of Sri.Ravi H.K., learned counsel for the petitioner that the requirement of Section 49 of the Act of 2006 have not been complied by the respondent No.1 while passing the impugned order inasmuch as respondent No.1 has not even considered let alone give due regard to the - 12 - NC: 2025:KHC:10195 WP No. 5285 of 2017 various items mentioned in Section 49 of the Act of 2006. The said Section 49 is reproduced hereunder for easy reference: 49. General provisions relating to penalty While adjudging the quantum of penalty under this Chapter, the Adjudicating Officer or the Tribunal, as the case may be, shall have due regard to the following:-- (a) the amount of gain or unfair advantage, wherever quantifiable, made as a result of the contravention, (b) the amount of loss caused or likely to cause to any person as a result of the contravention, (c) the repetitive nature of the contravention, (d) whether the contravention is without his knowledge, and (e) any other relevant factor. 14. A perusal of the above provision would indicate that while determining the quantum of penalty, the amount of gain or unfair advantage wherever quantifiable would have to be taken into consideration. The amount of loss caused or likely to be caused to a person would have to be taken into consideration amongst several other aspects detailed under Section 49 of the Act of 2006. - 13 - NC: 2025:KHC:10195 WP No. 5285 of 2017 15. A perusal of the impugned order passed by respondent No.1 does not indicate any consideration of these aspects. In that view of the matter, without these aspects being considered, the imposition of penalty of a sum of Rs.3,00,000/- would be without any basis. In that view of the matter, the matter would have to be remanded back to the respondent No.1 to consider the quantum of penalty that would be levied by taking into account the requirement of Section 49 of the Act of 2006. Hence, I pass the following: ORDER i) The Writ Petition is partly allowed. ii) The order passed by Respondent No.1 dated 13.12.2016 at Annexure-A bearing number ZiAnKa/ AaSuGooKaa /Vi-01 /2016-17 at Annexure-A is quashed insofar as the quantum of penalty levied on the Petitioner is concerned. - 14 - NC: 2025:KHC:10195 WP No. 5285 of 2017 iii) The matter is remitted to respondent No.1 to consider the quantum of penalty in accordance with Section 49 of the Act of 2006. The Petitioner is permitted to furnish the details of the sales and turnover made by the Petitioner for the last 5 years prior to the date of issuance of notice for consideration by respondent No.1, which shall be so furnished within 15 days from today. The orders to be passed by respondent No.1 within 30 days thereafter. Sd/- (SURAJ GOVINDARAJ) JUDGE PRS List No.: 1 Sl No.: 42