1. Heard the parties. It is the case of the complainant that he had purchased four packets of Gathia [Namkeen], each of 180 grams on payment of a sum of Rs. 128 [One Hundred Twenty Eight Only] for the purpose of its analysis from Reliance Hyper Mart, Maru Tower, Kanke Road, Ranchi. That sample was sent before the Analyst for its analysis. After analyzing the sample, the Food Analyst submitted its report that packet of "Panchi Balajee Gathia" has not been found labeled in accordance with the requirement of Food Safety and Standard Rule, 2011 as ''Best Before Use'' had never been found mentioned in-capital letters, rather it was in the small letters and thereby, it was found to be misbranded in terms of. Section 3zfc(1) of the Food Safety and Standards Act, 2006. Thereupon the proceeding was initiated against the salesman of the Reliance Mart and also against this petitioner who was manufacturer of "Panchi Balajee Gathia". Since the sample of "Panchi Balajee Gathia" was found misbranded, an order was passed in terms of Section 52 of the Food Safety and Standards Act, 2006 whereby a fine of Rupees three lacs which is the maximum punishment was imposed. That order has been challenged.
2. Learned counsel appearing for the petitioner submits that while passing the order in terms of Section 52 of the Act, the authority never took into account certain factors which had been enumerated under Section 49 of the Act and thereby the authority committed illegality in passing the order dated 19.12.2013 and hence, that order suffers from illegality.
3. In the context of the submission advanced on behalf of the petitioner, one needs to take notice of provisions as contained in Section 52 and Section 49 of the Act, which read as follows:
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.
52. Penalty for misbranded food--(1) Any person who whether by himself or by any other person on his behalf manufactures for sale or stores or sells or distributes or imports any article of food for human consumption which is misbranded, shall be liable to a penalty which may extend to three lakh rupees.
(2) The Adjudicating Officer may issue a direction to the person found guilty of an offence under this section, for taking corrective action to rectify the mistake or such article of food shall be destroyed.
4. From the perusal of the aforesaid provisions, it does appear that if any person manufactures, sells or distributes any article of food for human consumption which is misbranded shall be liable to penalty which may extend to rupees three lakhs whereas the provision as contained in Section 49 of the Act, 2006 does stipulate that while adjudicating the quantum of penalty, the Adjudicating Officer or the Tribunal as the case may be, shall have due regard to the Clauses as have been mentioned as (a) to (e) indicated above.
5. From the impugned order, it does appear that the authority while imposing penalty of rupees three lakhs which is maximum had never taken into account those factors which have been mentioned under Section 49 of the Act, 2006 for assessing the quantum of penalty and thereby, the order impugned suffers from illegality and hence, it is set aside. However, the matter is remanded back for passing afresh order keeping in view the provisions as contained in Section 49 of the Act, 2006 and also after giving sufficient opportunity to the petitioner to be heard in the matter. In the result, this petition stands disposed of. Petition allowed.
