1 CRA No. 238 of 2022 2025:CGHC:15772 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 238 of 2022 [Arising out of judgment dated 26.11.2021 passed in Criminal Appeal No.67/2020 by the Appeal Tribunal (Food Safety Appeal Tribunal)/Sessions Judge, Raigarh, District Raigarh, Chhattisgarh .] 1. Madan Lal Agrawal S/o Rajaram Agrawal, aged about 60 years, R/o Ram Mandir Maidan, Ambikapur, P.S. & P.O. Ambikapur, District – Surguja Chhattisgarh. 2. Harsh Kumar Goyal S/o Vijay Kumar Goyal, aged about 40 years, R/o Mahadev Para, South Shrigarh, Surguja P.S. & P.O. Ambikapur, District – Surguja, Chhattisgarh. 3. Subhash Chand Goyal S/o Vedprakash Goyal, aged about 50 years, R/o Baramroad, Sangamchauk, Ambikapur, P.S. & P.O. Ambikapur, District – Ambikapur, Chhattisgarh. Appellants are directors of Firm Mahamaya Foods and Grains Private Limited, Bhittikala Industrial Area, Ambikapur, District Surguja, Chhattisgarh. … Appellants versus 1. State of Chhattisgarh through Sarita Patel and other Food Safety Officer Food and Drug Administration Officer, Raigarh, P.S. & P.O. Raigarh, District – Raigarh, Chhattisgarh. ANKIT KUMAR SINGH Digitally signed by ANKIT KUMAR SINGH Date: 2025.04.15 10:34:16 +0530 2 CRA No. 238 of 2022 2. State of Chhattisgarh through District Magistrate and Adjudicating Officer Raigarh, P.S. & P.O. Raigarh, District- Raigarh, Chhattisgarh. 3. Bundram Sao S/o Janak Ram Sao (Seller) aged about 45 years, R/o Sao Mohalla Kodatarai, Tahsil Pussour, Distric t- Raigarh, Chhattisgarh. ... Respondents For Appellants :- Mr. Jitendra Nath Nande, Advocate. For State-Respondents :- Mr. Rahul Tamaskar, Government Advocate & Mr. Sharad Mishra, Panel Lawyer. Hon'ble Shri Justice Sanjay K. Agrawal Judgment On Board 03/04/2025 1. Feeling agrieved and dissatisfied with the judgment of conviction and order of sentence dated 26.11.2021 passed by the Food Safety Appellate Tribunal)/Sessions Judge, Raigarh, District Raigarh, Chhattisgarh, in Criminal Appeal No.67 of 2020, the appellants herein/manufacturers have preferred this appeal under Section 71(6) of the Food Safety and Standards Act, 2006 (for brevity “the Act, 2006”) questioning the impugned order by which their (appellants herein) appeal against the order dated 24.02.2020 passed by the Adjudicating Officer has been dismissed while affirming the order of the Adjudicating Officer finding no merit. 3 CRA No. 238 of 2022 Case of the present appellants:- 2. The aforesaid challenge has been made on the following backdrop:- (i) Sarita Patel, Food Safety Officer, on 21.11.2017 collected the samples of Chetak Semolina (सूजी) from the shop of retailer/accused Bundram Sao (total 4 packets of 500 gms each i.e. 5 Kg) in presence of the witnesses. After making payment of 60/- for that samples, duly packed it, and sent it ₹ for analysis to the State Food Testing Laboratory before the concerned Food Analyst under the relevant Regulations. (ii) The said samples were received to the office of Food Analyst on 24.11.2017 and ultimately the samples were analysed on 11.12.2017. The Food Analyst, State Food Testing Laboratory, Food & Drugs Administration, Raipur, in his report dated 11.12.2017, had found that the sample was “within the norms”, but “misbranded” within the meaning of Section 3(1) (zf)(C)(i) as per standards/provisions laid down under the Act, 2006 and the Food Safety and Standards Regulations and Rules, 2011. 4 CRA No. 238 of 2022 (iii) Thereafter, the Food Safety Officer, sent the said report to the Designated Officer/Commissioner for grant of sanction of prosecution against the appellants as well as the Distributor Rajesh Agrawal and the retailer/Bundram Sao. Pursuant to which the sanction was granted by Designated Officer on 09.07.2018. Consequently, criminal complaint was filed by Sarita Patel, Food Safety Officer, on 05.12.2018 before the Additional District Magistrate and Adjudicating Officer, Raigarh for prosecuting the appellants for violation of Section 26(2)(ii) the Act, 2006 which is punishable under Section 51 of the Act, 2006. In which the appellants herein had submitted their reply on 20.05.2019. (iv) Thereafter, the case was fixed for hearing on 22.07.2019 vide order dated 15.07.2019, however, the case was not taken up for hearing on 22.07.2019 and it was taken up for hearing on 05.08.2019 and in absence of the appellants herein the statement of Sarita Patel, Food Safety Officer was recorded, on that date, due to changed date of hearing, all the appellants herein remained ex-parte and ultimately their opportunity to testify the witness was closed by order dated 5 CRA No. 238 of 2022 14.10.2019. Thereafter, the impugned order came to be passed on 24.02.2020. Against which the present appellants preferred an appeal under Section 70 of the Act, 2006, before the Appellate Tribunal constituted under the Act 2006/Sessions Judge, Raigarh, however, the said appeal came to be dismissed on 26.11.2021 against which questioning that orders the present criminal appeal has been filed by the present appellants under Section 71(6) of the Act, 2006. Submission of the parties:- 3. Mr. J. N. Nande, learned counsel for the appellants, would submit that the Adjudicating Officer as well as Food Safety Appeal Tribunal both have concurrently erred in dismissing the appeal of the appellants. He would further submit that the learned Food Safety Appellate Tribunal has legally erred in dismissing the appeal of the appellants and affirming the order of the Adjudicating Officer as no reasonable opportunity of hearing was afforded to the appellants herein and no inquiry was held before imposing the fine upon the present appellants which is violative of Section 68(2) of the Act, 2006. He would further submit that the case was fixed by the 6 CRA No. 238 of 2022 Adjudicating Officer for hearing on 22.07.2019 vide order dated 15.07.2019, however, the case was not taken up for hearing on 22.07.2019 and all of sudden the case was taken up for hearing on 05.08.2019, without informing/issuing notice to the present appellant, and statement of Sarita Patel, Food Safety Officer was recorded in absence of the present appellants and thereafter, impugned order dated 24.02.2020 has been passed and, as such, the appellants have been deprived of reasonable opportunity of hearing and also to defend themselves and thereby the impugned order is vulnerable and consequently, order of the Adjudicating Officer as well as the order of the Food Safety Appellate Tribunal both deserve to be set aside. He would further submit that relevant documents have not exhibited and examined by the Adjudicating Officer and in very casual manner Adjudicating Officer has passed the impugned order which the Food Safety Appellate Tribunal also did not notice and straightway dismissed the appeal of the present appellants which is liable to be set aside by granting this criminal appeal. 7 CRA No. 238 of 2022 4. Mr. Rahul Tamaskar & Mr. Sharad Mishra, learned counsel for the State, would support the impugned orders and submit that since the present appellants remained absent on 05.08.2019, therefore, the statement of Food Safety Officer was recorded and in that view of the matter appellants cannot complaint that no reasonable opportunity of hearing was aforded to them before passing the order by the Adjudicating Officer and, as such, the present appeal deserves to be dismissed. 5. I have heard learned counsel for the parties, considered their rival submissions made herein above and perused the records minutely. Discussion & analysis:- 6. Admittedly, Sarita Patel, Food Safety Officer, had filed the criminal complaint on 05.12.2018 on the basis of report of Food Analyst finding violation of Section 26(2)(ii) the Act, 2006 which is punishable under Section 52 of the Act, 2006, penalty for misbranded food. 8 CRA No. 238 of 2022 7. At this stage, it would be appropriate to notice the Section 52 of the Act 2006, provides penalty for misbranded food which states as under:- “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 lakhs 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.” 8. It would be also appropriate to notice the procedure for adjudication by the Adjudicating Officer, which has been prescribed in Chapter X of the Act, 2006, which states as under:- “68. Adjudication.-(1) For the purposes of adjudication under this chapter, an officer not below the rank of Additional District Magistrate of the district where the alleged offence is committed, shall be notified by the State Government as the Adjudicating Officer for adjudication in the manner as may be prescribed by the Central Government. (2) The Adjudicating Officer shall, after giving the person a reasonable opportunity for making representation in the matter, and if, on such inquiry, he is satisfied that the person has committed the contravention of provisions of this Act or the rules or 9 CRA No. 238 of 2022 the regulations made thereunder, impose penatly as he thinks fit in accordance with the provisions relaitng to that offence. (3) The Adjudicating Officer shall have the powers of a civil court and – (a) all proceedings before him shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860); (b) shall be deemed to be a court for the purposes of Sections 345 and 346 of the Code of Criminal Procedure, 1973 (2 of 1974). (4) While adjudicating the quantum of penatly under this chapter, the Adjudicating Officer shall have due regard to the guidelines specified in section 49.” 9. A careful perusal of Section 68(2) of the Act 2006, would show that the Adjudicating Officer shall, after giving the person charged a reasonable opportunity for making representation in the matter and thereafter the Adjudicating Officer is required to make an inquiry into all relevant facts particularly the reliability of test report submitted by the Food Safety Officer and test report given by the Referral Food Laboratory, if he is satisfied that the person concerned has committed the contravention of provisions of the Act, 2006 or the Rules or the Regulations made thereunder, impose such penalty as he thinks fit in accordance with the provisions 10 CRA No. 238 of 2022 relating to that breaches. The word “Inquiry” has not been defined in the Act, 2006, however, procedure for holding “Inquiry” has been provided in the Food Safey and Standards Rules, 2011. 10. Thus, by virtue of provisions contained in sub-section (2) of Section 68 of the Act, 2006 holding of an inquiry by the Adjudicating Officer is sine qua non for arriving at the conclusion that such a person or party has committed contravention of provisions of the Act and/or the rules or the regulations made thereunder and satisfaction can be arrived into after making an inquiry into all relevant facts. 11. At this stage, it would be appropriate to notice the Rule 3.1.1 of the Food Safety and Standards Rules, 2011 (for brevity “the Rules, 2011”), the manner in which the inquiry should be held, which states as under:- “3.1.1: Holding of inquiry (1) On receipt of the copy of the report of Food Analyst in Form VII A from the Designated Officer, the person from whom the sample was taken or the persons, whose names and addresses and other particulars have been disclosed under Rule 2.5 of these 11 CRA No. 238 of 2022 rules or wholesaler or manufacturer has preferred an appeal against the findings of the report of the Food Analyst before the Designated Officer in terms of sub- section (4) of section 46 of the Act and the same has been dismissed, or the referral laboratory has, pursuant to the reference made by the Designated Officer in terms of sub-section (4) of section 46 of the Act confirmed the findings of the Food Analyst in his report, or if no appeal has been preferred, the Designated Officer shall examine the case on the basis of the sections under which the person has been charged as to whether the contravention is punishable with imprisonment or the same is punishable with fine only under the Act. However, if no contravention is established and the sample conforms to the requirement of FSS regulations, the same will be communicated to the Food Business Operator immediately. (2) If the Designated Officer decides that such contravention is not punishable with imprisonment but only with fine under the provisions of the Act, he shall cause and authorize the Food Safety Officer to file with the Adjudicating Officer an application for adjudication of the offence alleged to have been committed by the person from whom the food sample has been taken or the person whose name and address and other particulars have been disclosed under Rule 2.5 of these rule and/or the seller or manufacturer of the food item in respect of which the report has been received. (3)On receipt of the communication from the Designated Officer authorizing the filing of the adjudication application, the Food Safety Officer shall file the application for adjudication with the Adjudicating Officer for adjudication of the offence/contravention alleged to have been committed. (4) On receipt of the application for adjudication from the Food Safety Officer, the Adjudicating Officer shall commence the inquiry proceedings. 12 CRA No. 238 of 2022 (5) The Adjudicating Officer shall have power to hold an inquiry for purpose of adjudicating offences punishable under sections 50, 51, 52, 53, 54, 55, 56, 57, 58, 64, 65, 66 and 67 of the Act. (6) For holding an inquiry for the purpose of adjudication under section 68 of the Act as to whether any person(s) has/have committed contravention of any of the provisions of the Act referred to in Rule 3.1.1(5) herein or the rules or regulations in respect of which the offence is alleged to have been committed, the Adjudicating Officer shall, in the first instance, issue a notice to such person or person giving him or them an opportunity to make a representation in the matter within such period as may be specified in the notice (not being less than 30 days from the date of service thereof). (7) Every notice under Rule 3.1.1(6) to any such person shall indicate the nature of offence alleged to have been committed by him or them, the section(s) of the Act alleged to have been contravened, and the date of hearing of the matter. A copy of the report of the Food Analyst shall also be annexed to such notice. (8) On the date fixed for hearing, the Adjudicating Officer shall explain to the person or persons proceeded against or to his authorized representative, the offence alleged to have been committed by such person, indicating the provision of the Act, rules or regulations in respect of which the contravention is alleged to have taken place. (9) The Adjudicating Officer shall then give an opportunity to such person or persons to produce such documents or evidence as he may consider relevant to the inquiry and if necessary the hearing may be adjourned to a future date. Provided that the notice referred to in Rule 3.1.1. (6) may, at the request of the person concerned, be waived: 13 CRA No. 238 of 2022 Provided further that the Adjudicating Officer shall pass the final order within 90 days from the date of first hearing mentioned in Rule 3.1.1 (8) above. (10) The State Government may appoint a presenting officer from amongst the panel of advocates of the court of local jurisdiction, in an inquiry under this rule. (11) While holding an inquiry under this rule, the Adjudicating Officer shall have the power to summon and enforce the attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any document which, in the opinion of the Adjudicating Officer may be useful for or relevant to, the subject-matter of the inquiry. (12) If any person fails neglects or refuses to appear as required by Rule 3.1.1 (6&7) before the Adjudicating Officer, the Adjudicating Officer may proceed with the inquiry in the absence of such person, after recording the reason for doing so.” 12. On perusal of Section 68(2) of the Act, 2006 read with Rule 3.1.1 of the Rules, 2011 would show that the Adjudicating Officer is required to issue notice to such person or person giving him or them an opportunity to make a representation in the matter within the specified time. The notice issued shall indicate the nature of offence alleged and other details; on the date fixed for hearing, the Adjudicating Officer shall explain to the person or persons proceeded against, the offence alleged to have been committed by such person, indicating the 14 CRA No. 238 of 2022 provision of the Act, Rules or Regulations and thereafter he shall give an opportunity to such person or persons to produce such documents or evidence as he may consider relevant to the inquiry. In an inquiry, the State Government may appoint a presenting officer from amongst the panel of advocates of the court of local jurisdiction. Also while holding an inquiry, the Adjudicating Officer shall have power to summon and enforce the attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any document which, in his opinion may be useful for or relevant to the subject-matter of the inquiry and in absence of such person, he may proceed with the inquiry after recording the reason for doing so. 13. Coming to the facts of the present case in light of Section 68(2) of the Act, 2006 read with Rule 3.1.1 of the Rules, 2011, it is quite clear that it was imperative on the part of the Adjudicating Officer to hold an inquiry in accordance with the provisions prescribed in the Rules, 2011 by which the Adjudicating Officer is required to issue notice to the appellants giving them an opportunity to make a 15 CRA No. 238 of 2022 representation in the matter within the specified time. However, it appears from the records that though the present appellants were afforded the opportunity for making representation in the matter, but the Adjudicating Officer has not explained the nature of offence alleged to have been committed by the appellants indicating the provisions of the Act, Rules, or Regulations. The present appellants had filed their reply on 20.05.2019 and thereafter time to time the case was adjourned and lastly, vide order dated 15.07.2019, though the appellants were absent, it was fixed on 22.07.2019. Further, it appears from the records that on 22.07.2019 the case was not taken up for hearing and without informing/issuing notice to the present appellants, the case was abruptly taken for hearing on 05.08.2019 and on that day, statement of Sarita Patel, Food Safety Officer was recorded in absence of the present appellants and thereafter on 14.10.2019, their (appellants herein) opportunity to adduce evidence was closed and ultimately, final order imposing fine was passed. 16 CRA No. 238 of 2022 14. As such, though the inquiry was sought to be done, but that was not done in accordance with Section 68(2) of the Act, 2006 read with Rule 3.1.1 of the Rules, 2011 and ex-parte statement of Sarita Patel, Food Safety Officer, was recorded and the same was accepted by the Adjudicating Officer as it is. Therefore, the present appellants have been deprived of to cross-examine Sarita Patel, Food Safety Officer, who had taken the samples and sent it to Food Analyst Laboratory and merely on the basis of statement of the Food Safety Officer and relying upon the Food Analyst Report the impugned order was passed. 15. In considered opinion of this Court, without making an inquiry the manner in which the inquiry should be held as per Section 68(2) of the Act, 2006 read with Rule 3.1.1 of the Rules, 2011 and without giving reasonable opportunity to the present appellants to defend themselves, imposition of fine to the extent of 3,00,000/- is unsustainable in law. Not only ₹ this, the Adjudicating Officer has also failed to decide the case in accordance with law and simply recorded the statement of Sarita Patel, Food Safety Officer, without following the 17 CRA No. 238 of 2022 procedure and imposed the fine which is absolutely uncalled for. The Adjudicating Officer, entrusted with a responsibility under the Act, 2006, who must have acted properly while examining the documents and recording the order sheets properly and if the case could not be taken on the date of hearing as fixed, he could have informed to the parties about the next date of hearing, like in this case, the case was fixed for hearing on 22.07.2019, but it was not taken up for hearing on that day and before fixing the further date of evidence he could have informed to the present appellants that the next date of hearing is 05.08.2019, which has not been done and thereby the present appellants suffered prejudice. As such, in view of the aforesaid discrepancies and also looking to the fact that the Adjudicating Officer has not held the inquiry in accordance with the Rules, 2011, the manner in which the inquiry should be held, the impugned orders are liable to be set aside. Conclusion:- 16. In view of the aforesaid discussion and analysis, the impugned order dated 24.02.2020 passed by the Adjudicating 18 CRA No. 238 of 2022 Officer as well as the impugned order dated 26.11.2021 passed by the Food Safety Appellate Tribunal affirming the order of the Adjudicating Officer are hereby set aside to the extent of the appellants herein and consequently, this appeal is allowed. 17. However, I hope and trust in furture Food Safety Officer will record the proceedings strictly in accordance with law, by following mandate as prescribed under Section 68(2) of the Act, 2006 read with Rule 3.1.1 of the Rules, 2011, in which the manner of holding inquiry has been provided by virtue of Rule 3.1.1(5) of the Rules, 2011, which is imperative for holding an inquiry for offence punishable under Section 52 of ther Act, 2006. 18. Copy of this order be sent to the Principle Secretary, Food Safety and Drug Administration, Raipur, for information and circulation to all the Food Safety Officers of the State. Sd/- Sd/- (Sanjay K. Agrawal) Judge Ankit