Sri A V Ravindra Babu

IN THE COURT OF THE PRINCIPAL DISTRICT JUDGE: NELLORE

Present: A.V.RAVINDRA BABU

Principal District Judge, Nellore

Saturday, the 22nd day of December, 2018

APPEAL SUIT No.161/2016

Aluru Seshamma .. Appellant

Vs.

Swarna Mastan Reddy .. Respondent

On appeal against the judgment and decree dated 18.7.2016 passed by the Senior Civil Judge, Kovur, in—

ORIGINAL SUIT No.25/2010

Swarna Masthan Reddy .. Plaintiff

Vs.

Aluru Seshamma .. Defendant

This appeal coming on 10.12.2018 for final hearing before me, in the presence of Sri K.Sanathana Reddy – advocate for the appellant and of Sri P.Venkateswarlu-advocate for respondent and having stood over for consideration till this day, this Court delivered the following—

J U D G M E N T

The unsuccessful defendant in O.S.No.25/2010 on the file of

Senior Civil Judge, Kovur, filed the present appeal questioning the

judgment and decree dated 18.7.2016, whereunder the learned Senior

Civil Judge, Kovur, decreed the suit of the plaintiff, which was filed

seeking specific performance of agreement of sale dated 26.07.2004, and for delivery of possession in respect of the plaint schedule property to him.

-: 2 :-

2. The parties to this appeal will hereinafter referred as described before the trial court, for the sake of convenience.

3. The case of the plaintiff in brief, according to the averments in the plaint is that, the defendant is the owner of the plaint schedule property. The plaintiff purchased the same under an agreement of sale

dated 26.7.2004 for Rs.1,20,000/- and paid Rs.40,000/- on the said date.

The plaintiff has to pay the balance sale consideration of Rs.80,000/-, and the defendant has to execute regular registered sale deed. Time is not the essence of the contract. The plaintiff paid Rs.10,000/- on 31.8.2004, and

Rs.15,000/- on 06.02.206 to the defendant, towards sale consideration, which were endorsed on the back of the agreement of sale, signed by the defendant. The plaintiff is ever ready and willing to perform his part of the contract, and demanding the defendant to receive the balance sale consideration, and to execute regular registered sale deed by producing the original link document dated 13.8.1993 under which the defendant purchased the property from one Vemareddy Srinivasulu Reddy. The defendant postponed the same on one pretext or the other. On 17.7.2009 the defendant got issued a legal notice, through her counsel as if the plaintiff purchased the property for Rs.1,10,000/-, and only part payment of Rs.10,000/- was made. She falsely failed to mention another part payment of Rs.15,000/- dated 6.2.2006. She alleged that the plaintiff is not residing in the village, and demanded the plaintiff to vacate and deliver possession to her. Then the plaintiff got issued a reply dated 28.8.2009 disclosing the facts, and demanding her to come to the Sub-

Registrar’s Office, Kovur within 10 days, and to execute registered sale deed. She received the said notice, and failed to comply the demand.

Hence the suit.

4. The defendant got filed written statement before the trial court, admitting that the first part-payment to a tune of Rs.10,000/- is -: 3 :- true that and contending that the second part payment endorsement of

Rs.15,000/- on 6.2.2006 is forged and that as the plaintiff’s whereabouts are not known, the defendant got issued a legal notice, asking him to deliver the possession, because, the plaintiff obtained delivery. After receiving the said notice, the plaintiff gave a false reply. Since 26.7.2004, the plaintiff kept quiet without obtaining regular registered sale deed, and the suit is filed after completing 5 years, that too after issuance of notice by the defendant. So, there are no bona-fides on the part of the plaintiff, which disentitles him for the relief prayed. The allegations that the plaintiff is always ready and willing to perform his part of contract are false, and they are vague. Hence, the suit is liable to be dismissed.

5. Basing on the above pleadings, the following issues were settled for trial, before the trial court—

(1) Whether the part payment endorsement dated 6.2.2006 is

true, valid and supported for consideration?

(2) Whether the plaintiff is always ready and willing to

perform its part of contract?

(3) Whether the plaintiff has no bona-fides in filing the suit?

(4) Whether the plaintiff has come to the court with unclean

hands?

(5) Whether the plaintiff is entitled for specific performance

as prayed for?

(6) Whether the plaintiff is entitled for delivery of possession

as prayed for?

(7) To what relief?

6. During the course of trial, on behalf of the plaintiff PW-1 and

PW-2 were examined, and Exhibits A-1 to A-3 were marked. On behalf of the defendants, DW-1 and DW-2 were examined.

7. The learned Senior Civil Judge, Kovur, on hearing both sides, and on considering the oral as well as documentary evidence, answered -: 4 :- the issues in favour of the plaintiff, and as against the defendant, as such decreed the suit of the plaintiff.

8. Aggrieved by the same, the unsuccessful defendant filed the present appeal, contending in substance that, the judgment and decree of the trial court is not in accordance with the settled provisions of law, and the trial court, without looking into the limitation, decreed the suit, and the plaintiff was never ready to perform his part of contract, and the trial court failed to consider the citations relied upon by the learned counsel for the defendant, and failed to look into the cross-examination part, and failed to look into important aspects, as such, the appeal is liable to be allowed.

9. Now, in deciding the appeal, the points that arise for consideration are as follows—

(1) Whether the plaintiff has proved before the trial

court, the part payment endorsement on 6.2.2006 to

a tune of Rs.15,000/- on the reverse of the suit

agreement of sale?

(2) Whether the plaintiff has proved before the trial

court, his entitlement for specific performance of

agreement of sale as prayed?

(3) Whether the judgment and decree of the trial court is

tenable under law and facts, and whether there are

any grounds to interfere with the same?

(4) To what relief?

10. POINTS No.(1) TO (3): - PW-1, who is the plaintiff, before the trial court, deposed according to the averments in the plaint. Exhibit is the suit agreement of sale. Exhibit A-2 is the original legal notice issued by the defendant. Exhibit A-3 is the office copy of reply. Coming to the evidence of PW-2, who is a third party, he deposed that, he knows both the parties to the suit. At the instance of the defendant, he went to Taluk -: 5 :-

Office compound, Kovur, and in his presence, the defendant received

Rs.40,000/- and executed agreement of sale in favour of the plaintiff.

Subsequently, in two occasions, the defendant called him (PW-2), and in his presence, the plaintiff paid Rs.10,000/- and Rs.15,000/- in two occasions. But he did not sign as attestor.

11. DW-1, who is the defendant, deposed according to the averments in her written statement. Turning to the evidence of DW-2, he knows both the parties, and about the agreement of sale between the parties to the suit. After obtaining the agreement of sale, the defendant informed him that the plaintiff did not pay the balance of sale consideration, and then he came to know that the plaintiff is not residing in Kovur, and he went to Gowravaram of Kavali and Hyderabad, as such, he advised the defendant to meet an advocate and to send a legal notice.

12. The learned counsel for the appellant filed written arguments, contending in substance that, PW-1 admitted that he did not issue any legal notice to the defendant, expressing his readiness to perform his part of contract, and it was only after issuance of legal notice by the defendant, the plaintiff issued a reply, as such, there are no bona-fides on the part of the plaintiff, and though time was not the essence of the contract, but the plaintiff would have issued a legal notice or would have taken appropriate steps, if really he was bona-fide to perform his part of contract. The suit is filed after 5 ½ years subsequent to the agreement of sale. The trial court simply relied upon the evidence of PW-2, who has never seen the defendant signing in his presence, and he is not an attestor, and the second part payment is not proved. The trial court failed to look into the conduct of the plaintiff, as per the decisions reported in

2007(3) ALD 617 (DB), 1998(5) ALT 412 (D), 2010(1) ALT 664,

and 2015(3) ALT 673, which were there before the trial court. So, the appeal is liable to be allowed.

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13. The learned counsel for the respondent also filed written arguments reiterating the case of the plaintiff, and relying upon the evidence of PW-1 and PW-2, and his argument in substance is that, the plaintiff proved his entitlement to claim the relief before the trial court, as such, the appeal is liable to be dismissed.

14. The execution of suit agreement of sale under the cover of

Exhibit A-1 is not in dispute. The total amount of sale consideration of

Rs.1,20,000/- is not in dispute. The advance payment of Rs.40,000/- is not in dispute. But the thing is that, prior to issuance of any legal notice by the plaintiff, the defendant ventured to issue Exhibit A-2, alleging that the suit agreement of sale was for Rs.1,10,000/- and the plaintiff paid

Rs.40,000/-, and subsequently paid Rs.10,000/-, and thereafter he was not ready to perform his part of contract. Now, coming to the evidence of

PW-1, during cross-examination, his testimony is not challenged as to the total amount of sale consideration as Rs.1,20,000/- under Exhibit A-1. So, when the contents of Exhibit A-1 are such that the total amount of sale consideration is Rs.1,20,000/-, the contents of Exhibit A-2 legal notice, as if it is Rs.1,10,000/-, is not proper. So, there is no dispute about the contents of Exhibit A-1 and part payment of Rs.10,000/-.

15. Coming to the evidence of part payment of Rs.15,000/- dated 6.2.2006, PW-1 deposed about the same, and according to PW-2, he was present and witnessed both the part payment endorsements, though he did not sign as an attestor. During cross-examination PW-1 denied that, his evidence that on 6.2.2006 he paid a sum of Rs.15,000/- to the defendant is false, and the purported signature under the said endorsement is not that of the defendant, and that though the defendant was always ready to execute registered sale deed, but the plaintiff was not ready. Coming to the evidence of DW-1, in cross-examination, she -: 7 :- admitted about Exhibit A-1 agreement of sale, and the total amount of sale consideration therein as Rs.1,20,000/- and receipt of Rs.40,000/- and further receipt of Rs.10,000/- on 31.8.2004. She further, on going through the endorsement dated 6.2.2006, which is on the back of Exhibit

A-1, admitted the signature on it as belongs to her. So, in view of the above said admission, it is crystal clear that the plaintiff is able to prove the part payment endorsement of Rs.15,000/- on 6.2.2006. Hence, this court is of the considered view that the contention of the defendant, that the plaintiff did not make part payment of Rs.15,000/- on 6.2.2006 is not tenable.

16. Coming to the other angles of specific performance of agreement of sale, this court would like to make it clear that, admittedly it was the duty of the plaintiff, to prove that he was always ready and willing to perform his part of contract. There is pleading of the plaintiff in the plaint, as well as the evidence let in to that effect. The two part payments made by the plaintiff to the defendant, to a tune of Rs.10,000/- and Rs.15,000/- demonstrate his willingness to perform his part of contract. It is the defendant, who suppressed the part payment endorsement dated 6.2.2006, to contend that the plaintiff was not willing to perform his part of contract, and it is proved to be untrue. The only ground on which the defendant tried to defeat the claim of the plaintiff is that, the plaintiff left the village and he was elsewhere. It is very difficult to accept such a contention. The notice under Exhibit A-2 was sent to the native village of the plaintiff. It is not as though such notice could be served elsewhere. Even otherwise, if the plaintiff went out of the village, in pursuit of any occupation or otherwise, what is material to see is whether the plaintiff was within the reach of the defendant. So, in the year 2006, he was within the reach of the defendant, and paid

Rs.15,000/-. Admittedly, when the time is not the essence of the -: 8 :- contract, it is a matter of convenience, to both the parties, to perform their own obligations in pursuance of the agreement of sale. The very act of the defendant, in initiating a pre emptive action throwing blame on the plaintiff, suppressing the part payment dated 6.2.2006 itself is sufficient to say that there are bona-fides on the part of the defendant’s claim. The evidence on record cogently proves that the plaintiff was always ready and willing to perform his part of contract.

17. As regards the limitation aspect, admittedly, the suit was to be filed within three years from the date of accrual of cause of action, and it was only after receipt of Exhibit A-2 legal notice, the plaintiff noticed that the performance of contract was at refusal by the defendant. So, the limitation is to be computed when the plaintiff has knowledge that the performance of the obligations under Exhibit A-1, are refused by the defendant, as such, the suit is within the period of limitation. The conduct of the plaintiff is not hit under the principles of equity. Hence, the contention of the appellant that the conduct of the plaintiff is to be looked into in view of certain decisions, which are available in the bundle before the trial court, is not at all tenable. So such citations are not there and even these were not cited before the trial Court. In the light of the above, this court is of the considered view that, absolutely there are no merits in the grounds of appeal, and the contentions advanced by the appellant. A perusal of the judgment of the trial court reveals that the Senior Civil

Judge, Kovur has rightly looked into the facts in proper perspective and

recorded valid reasons, to grant the relief of specific performance of agreement of sale, as such, the judgment of the trial court is sustainable under law and facts. The points are answered accordingly.

18. PONT No.(4): - In view of the findings as referred to above, the appeal must fail.

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19. In the result, the appeal is dismissed with costs, confirming the judgment and decree dated 18.7.2016 in O.S.No.25/2010 on the file of the Senior Civil Judge, Kovur.

Dictated to the Stenographer, transcribed by him, corrected

and pronounced by me in the Open Court, this the 22nd day of December, 2018.

Sd/-A.V.RAVINDRA BABU

Principal District Judge

NELLORE

APPENDIX OF EVIDENCE

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Sd/-A.V.RAVINDRA BABU

Principal District Judge

NELLORE

IN THE COURT OF THE PRINCIPAL SESSIONS JUDGE: NELLORE

(COURT OF SESSION: NELLORE DIVISION: NELLORE)

Present: A.V.RAVINDRA BABU

Principal Sessions Judge, Nellore

Friday, the 28th day of December, 2018

CRIMINAL APPEAL No.239/2017

1. Mr Narayan Das, Nominee Adani Wilmar Limited

2. Adani Wilmar Limited, Pantapalem (Epuru-1B) Village, Muthukur Mandal

SPSR Nellore District .. Appellants

Vs.

G.Venkateswara Rao, D-II O/o The Gazetted Food Inspector &

Food Safety Designated Officer, Nellore. .. Respondent

On appeal against the order dated 27.5.2017 passed by the Adjudicating Officer, Nellore, in—

Adjudication Application No.Rc.No.02/009/DII/07925/2016

G.Venkateswara Rao, Food Safety Officer

D-II, SPSR Nellore District .. Complainant

Vs.

1. Narayan Das, Nominee M/s Adani Wilmar Limited

2. M/s Adani Wilmar Limited, Pantapalem (Epuru-1B) Village

Muthukur Mandal, SPSR Nellore District .. Respondents

This appeal coming on 17.12.2018 for final hearing before me, in the presence of Sri M.Dhruvaraj – advocate for the appellants, and of Smt M.Vijayalakshmi – Public Prosecutor for the respondent, and having stood over for consideration to this day, this Court delivered the following—

J U D G M E N T

The unsuccessful respondents 1 and 2 in Rc.No.02/009DII/ 07925/2016 on the file of the Joint Collector-cum-Adjudicating Officer, -: 2 :- filed the present appeal, under section 70 of Food Safety and Standards

Act, 2006, read with sections 382, 454, 374(3) Cr.P.C., questioning the order dated 27.5.2017, in the said adjudication application, whereunder the Joint Collector-cum-Adjudicating Officer, SPSR Nellore District, dealing with the complaint under section 68 of the Food Safety and Standards

Act, 2006, found the respondents guilty of the relevant provisions in the said Act, and imposed a penalty of Rs.1,00,000/- against the 1st respondent.

2. The parties to this appeal will hereinafter be referred as described before the Joint Collector-cum-Adjudicating Officer, for the sake of convenience.

3. The State, represented by G.Venkateswara Rao, Food Safety

Officer, filed a complaint under section 68 of the Food Safety and

Standards Act, 2006, against the respondents, alleging in substance that, the complaint is a case of sale of misbranded Fortune Sunlite Refined

Sunflower Oil (1 Litre sealed packet). On 2.3.2016, Sri G.Venkateswara

Rao, Food Safety Officer, along with his Office Subordinate Sri

V.Hanumantha Rao, visited M/s Adani Wilmar Limited, Edible Oil Industry situated at Survey Nos.292 & 317, Pantapalem village, Muthukur Mandal, for inspection. The 1st respondent was present, and he was found transacting the business. The complainant disclosed his identity, and the purpose of his visit, and called one Kondeti Venkata Narasimha Rao, to act as mediator. During inspection, he enquired about the nominee of the unit, for which the 1st respondent disclosed that he is the nominee of the said oil industry. The Food Safety Officer, enquired about the stock of 352 carton boxes, and in each carton box 12 numbers one litre sealed packets are found. The 1st respondent disclosed that the sealed packets are sunflower oil one litre sealed packets, of Fortune Sunlite Refined

Sunflower Oil, which are kept for sale to public for human consumption.

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The complainant found necessary labels with regard to said sunflower oil thereon. He suspected the quality of the said oil, and purchased 4 (four) x 1 litre sealed packets, by paying Rs.280/-, each packet at Rs.70/-, to the 1st respondent and obtained receipt. He served Form-VA expressing his intention to send it to the Food Analyst, State Food Laboratory,

Nacharam, Hyderabad. He obtained acknowledgement from the 1st respondent. He divided the four parts and followed necessary procedure, in tying the samples, and handed over one sample to the 1st respondent.

The 1st respondent has been informed that, if he so desires, he may make an application for sending the fourth part of the sample to any of the laboratories as per the Food Safety and Standards Act, 2006. To that effect a mahazar was drafted.

4. On the next day i.e., on 3.3.2016, one part of the sealed sample, along with copy of memorandum in Form-VI was sent to the Food

Analyst, State Food Laboratory, Hyderabad, by registered post, in a sealed cover. Other parts of samples, along with copies of memorandum were handed over to the Food Safety Designated Officer. The Food

Analyst, State Food Laboratory, after causing analysis, delivered report stating that, the sample does not contain Vitamin-A, which is declared on the label as an ingredient, as such it is misbranded. The Food Safety

Designated Officer sent a notice under section 46(4) of the Food Safety and Standards Act, 2006, intimating the respondents that, if they have any appeal against the report of the Food Analyst, State Food Laboratory, they may file an appeal before the Food Safety Designated Officer, for sending one part of the sample to the referral food laboratory. There is no response from the respondents. On perusal of the file, the Food Safety

Designated Officer, came to a conclusion that the sample was found to be misbranded. Hence the complaint.

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5. The learned Joint Collector-cum-Adjudicating Officer, took the case on file, and issued notice to the respondent, and after conducting necessary enquiry, passed the impugned order.

6. Aggrieved by the same, the respondents filed the present appeal, and their contention in brief, according to the grounds of appeal, is that, the trial court erred in not appreciating the fact that the adjudication application was filed on the basis of the report prepared by the Food Analyst, on misrepresentation of facts. Food Analyst failed to read the declaration on the food packet in its true sense. The declaration about Vitamin-A was very much specific and categorical, as such, the report of the Food Analyst was on account of improper examination of the food packet. The declaration which was made on the food packet was so specific that it should contain Vitamins A and D if the manufacturing unit is at Gujarat and when the sample is packed at Gujarat for sale in the

State of Gujarat. The respondents’ company is a multi-state operator and maintains a centralized packing material inventory. All the food packets manufactured by it, contain multiple addresses. The trial court failed to appreciate that the language which was used in the declaration is only relating to Gujarat, but not to any other place. The trial court erred in not passing any order on the application filed by the respondents, for production of sample before the Court. There is no sanction for the offence under section 66 of the Food Safety and Standards Act, 2006, and even the so-called sanction was without proper application of mind. The trial court failed to consider that the Food Safety Officer did not follow the procedure of sampling, and that the respondents did not violate any provisions of law. The trial court failed to consider that the sample should be tested before the accredited laboratory. Hence, the appeal is liable to be allowed.

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7. Now, in deciding the appeal, the points that arise for consideration are as follows—

(1) Whether the complainant, before the learned Joint

Collector-cum-Adjudicating Officer, proved that the

respondents therein stored misbranded food article for

the purpose of sale for human consumption in the

manner as alleged, as such, they violated section 52 of the

Food Safety and Standards Act, 2006?

(2) Whether the impugned order of the Joint Collector-cum-

Adjudicating Officer, is tenable under law and facts, and

whether there are any grounds to interfere with such

order?

8. POINTS No.(1) & (2): - The learned counsel for the appellants, during the course of hearing, filed copy of Order

No.742/FSSA/ AP/2015 dated 5.6.2015 of the Government of Andhra

Pradesh, and copy of the order in Writ Petition (L) No.1688 of 2015 of the

Hon’ble High Court of Judicature at Bombay, and argued that, the Food

Analyst, who examined the sample has no necessary qualification, and it is not an accredited laboratory, to examine the food sample. He further contended that, there should be a specialized training laid down by the

Food Authorities, to examine a sample, and the analyst, who examined the sample, has no such experience. He further put-forth his contentions in accordance with the grounds of appeal.

9. The learned Public Prosecutor for the respondent/State contended that, when the complainant has got tested the sample before the Food Analyst at Hyderabad, and when a notice was served on the appellants herein, intimating that they have right of appeal against the opinion given by the Analyst, and that they can seek to refer the sample with them to any other laboratory, they kept quiet. They did not follow the proper procedure, and the so-called application filed before the Joint

Collector-cum-Adjudicating Officer for production of sample from the -: 6 :- complainant is not proper. On account of the division of the State, the laboratory at Nacharam has been common for both the States, and the procedure followed by the complainant in referring the sample to

Hyderabad, cannot be found fault with, and absolutely there are no merits in the grounds of appeal, as such, the appeal is liable to be dismissed.

10. This court has carefully gone through the order

No.742/FSSA/ AP/2015 dated 5.6.2015 of the Government of Andhra

Pradesh, which provides that the persons appointed shall undergo a specialized training laid down by the Food Authority, within a period of two years from the commencement of the Rules. Apart from this, according to the decision in Writ Petition (L) No.1688 of 2015 of the

Hon’ble High Court of Judicature at Bombay, it altogether dealt with a

different situation, that Food Laboratory is a Laboratory which is either

State or Central Laboratory or any other Allied Laboratories. Now, coming to the present case on hand, it is the case of the complainant that, he lifted samples, by following the due procedure, and he handed over one sample to the 1st respondent, and on the next day of the inspection he sent the sample to the Food Analyst, State Food Laboratory, Nacharam,

Hyderabad. Virtually it is never the case of the respondents before the

Joint Collector-cum-Adjudicating Officer, that the State Food Laboratory at Nacharam is not an accredited laboratory, and the Food Analyst has no requisite experience.

11. Absolutely, the inspection made by the complainant to the unit of the respondents is never in dispute. The fact that the complainant purchased oil packets with an intention to send the same to the State

Food Laboratory, for analysis, is not in dispute. There is no dispute about the receipt of one part of the sample by the 1st respondent. There is also no dispute that the complainant sent a notice to the respondents, giving option to them that they have right of appeal against the report of the -: 7 :-

Food Analyst, and to file an appeal they have to follow certain procedure.

All these things are not in dispute. So, the fact remained is that, when the

Adjudicating Officer issued notice to the respondents, to appear, they appear to have filed an application seeking direction to the complainant to produce one of the samples, without expressing their intention to produce their sample, and to take proper steps, to send the same to the Analyst.

So, obviously the said act of the respondents appears to be not tenable, and the Adjudicating Officer dealt with such a contention. Now, the fact remained is that, according to the report of the Food Analyst, the sample is of misbranded article.

12. The respondents sought to defeat the case of the complainant on the ground that the question of maintaining the sample with Vitamins would arise only if the sample is packed and meant for sale in Gujarat. This contention is nothing but fallacious, for the reason that, the respondents have no probable explanation as to how they kept the oil packets in the State of Andhra Pradesh, when those are intended for sale at Gujarat. So, virtually the respondents kept the packets for the purpose of sale, conveying a meaning that, it conforms to certain standards as regards the particulars of vitamins. So, there is every possibility for the public to be misguided by going through the said label declaration, thereby definitely they would be compelled to purchase the food article, as if it contains necessary vitamins as contained on the label. The very contention of the respondents, that the question of maintaining vitamins is only relating to the food article to be sold at Gujarat, is baseless in my considered view. So, virtually, all the contentions raised in the grounds of appeal are nothing but evasive, and they are not meeting with any point, and respondents kept quiet without exercising their right to refer the samples to any other laboratory, and in my considered view, there are no merits in the grounds of appeal.

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13. The Joint Collector-cum-Adjudicating Officer, virtually did not find any reason, to find fault with the report of the Food Analyst, State

Food Laboratory, Nacharam, Hyderabad, and in my considered view, the impugned order is sustainable under law and facts, as such, there are no merits in the grounds of appeal. In view of the above reasons, the complainant is able to prove violation of section 52 of the Food Safety and

Standards Act, 2006, before the Joint Collector-cum-Adjudicating Officer, as such, the impugned order is sustainable under law and facts. The points are answered accordingly.

14. In the result, the appeal is dismissed, confirming the order

dated 27.5.2017 in Rc.No.02/009DII/07925/2016 on the file of the Joint

Collector-cum-Adjudicating Officer, SPSR Nellore District.

Dictated to the Stenographer, transcribed by him, corrected

and pronounced by me in the Open Court, this the 28th day of December, 2018.

Sd/-A.V.RAVINDRA BABU

Principal Sessions Judge

NELLORE

APPENDIX OF EVIDENCE

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Sd/-A.V.RAVINDRA BABU

Principal Sessions Judge

NELLORE

IN THE COURT OF THE PRINCIPAL SESSIONS JUDGE: NELLORE

(COURT OF SESSION: NELLORE DIVISION: NELLORE)

Present: A.V.RAVINDRA BABU

Principal Sessions Judge, Nellore

Friday, the 28th day of December, 2018

CRIMINAL APPEAL No.241/2017

1. Mr Narayan Das, Nominee Adani Wilmar Limited

2. Adani Wilmar Limited, Pantapalem (Epuru-1B) Village, Muthukur Mandal

SPSR Nellore District .. Appellants

Vs.

G.Venkateswara Rao, D-II O/o The Gazetted Food Inspector &

Food Safety Designated Officer, Nellore. .. Respondent

On appeal against the order dated 27.5.2017 passed by the Adjudicating Officer, Nellore, in—

Adjudication Application No.Rc.No.04/009/DII/07927/2016

G.Venkateswara Rao, Food Safety Officer

D-II, SPSR Nellore District .. Complainant

Vs.

1. Narayan Das, Nominee M/s Adani Wilmar Limited

2. M/s Adani Wilmar Limited, Pantapalem (Epuru-1B) Village

Muthukur Mandal, SPSR Nellore District .. Respondents

This appeal coming on 17.12.2018 for final hearing before me, in the presence of Sri M.Dhruvaraj – advocate for the appellants, and of Smt M.Vijayalakshmi – Public Prosecutor for the respondent, and having stood over for consideration to this day, this Court delivered the following—

J U D G M E N T

The unsuccessful respondents 1 and 2 in Rc.No.04/009/DII/ 07927/2016 on the file of the Joint Collector-cum-Adjudicating Officer, -: 2 :- filed the present appeal, under section 70 of Food Safety and Standards

Act, 2006, read with sections 382, 454, 374(3) Cr.P.C., questioning the order dated 27.5.2017, in the said adjudication application, whereunder the Joint Collector-cum-Adjudicating Officer, SPSR Nellore District, dealing with the complaint under section 68 of the Food Safety and Standards

Act, 2006, found the respondents guilty of the relevant provisions in the said Act, and imposed a penalty of Rs.1,00,000/- against the 1st respondent.

2. The parties to this appeal will hereinafter be referred as described before the Joint Collector-cum-Adjudicating Officer, for the sake of convenience.

3. The State, represented by G.Venkateswara Rao, Food Safety

Officer, filed a complaint under section 68 of the Food Safety and

Standards Act, 2006, against the respondents, alleging in substance that, the complaint is a case of sale of misbranded Fortune Sunlite Refined

Sunflower Oil (500 ml sealed packet). On 2.3.2016, Sri G.Venkateswara

Rao, Food Safety Officer, along with his Office Subordinate Sri

V.Hanumantha Rao, visited M/s Adani Wilmar Limited, Edible Oil Industry situated at Survey Nos.292 & 317, Pantapalem village, Muthukur Mandal, for inspection. The 1st respondent was present, and he was found transacting the business. The complainant disclosed his identity, and the purpose of his visit, and called one Kondeti Venkata Narasimha Rao, to act as mediator. During inspection, he enquired about the nominee of the unit, for which the 1st respondent disclosed that he is the nominee of the said oil industry. The Food Safety Officer, enquired about the stock of 266 carton boxes, and in each carton box 24 numbers 500 ml sealed packets are found. The 1st respondent disclosed that the sealed packets are sunflower oil 500 ml sealed packets, of Fortune Sunlite Refined Sunflower

Oil, which are kept for sale to public for human consumption. The -: 3 :- complainant found necessary labels with regard to said sunflower oil thereon. He suspected the quality of the said oil, and purchased 4 (four) x 500 ml sealed packets, by paying Rs.140/-, each packet at Rs.35/-, to the 1st respondent and obtained receipt. He served Form-VA expressing his intention to send it to the Food Analyst, State Food Laboratory,

Nacharam, Hyderabad. He obtained acknowledgement from the 1st respondent. He divided the four parts and followed necessary procedure, in tying the samples, and handed over one sample to the 1st respondent.

The 1st respondent has been informed that, if he so desires, he may make an application for sending the fourth part of the sample to any of the laboratories as per the Food Safety and Standards Act, 2006. To that effect a mahazar was drafted.

4. On the next day i.e., on 3.3.2016, one part of the sealed sample, along with copy of memorandum in Form-VI was sent to the Food

Analyst, State Food Laboratory, Hyderabad, by registered post, in a sealed cover. Other parts of samples, along with copies of memorandum were handed over to the Food Safety Designated Officer. The Food

Analyst, State Food Laboratory, after causing analysis, delivered report stating that, the sample does not contain Vitamin-A, which is declared on the label as an ingredient, as such it is misbranded. The Food Safety

Designated Officer sent a notice under section 46(4) of the Food Safety and Standards Act, 2006, intimating the respondents that, if they have any appeal against the report of the Food Analyst, State Food Laboratory, they may file an appeal before the Food Safety Designated Officer, for sending one part of the sample to the referral food laboratory. There is no response from the respondents. On perusal of the file, the Food Safety

Designated Officer, came to a conclusion that the sample was found to be misbranded. Hence the complaint.

-: 4 :-

5. The learned Joint Collector-cum-Adjudicating Officer, took the case on file, and issued notice to the respondent, and after conducting necessary enquiry, passed the impugned order.

6. Aggrieved by the same, the respondents filed the present appeal, and their contention in brief, according to the grounds of appeal, is that, the trial court erred in not appreciating the fact that the adjudication application was filed on the basis of the report prepared by the Food Analyst, on misrepresentation of facts. Food Analyst failed to read the declaration on the food packet in its true sense. The declaration about Vitamin-A was very much specific and categorical, as such, the report of the Food Analyst was on account of improper examination of the food packet. The declaration which was made on the food packet was so specific that it should contain Vitamins A and D if the manufacturing unit is at Gujarat and when the sample is packed at Gujarat for sale in the

State of Gujarat. The respondents’ company is a multi-state operator and maintains a centralized packing material inventory. All the food packets manufactured by it, contain multiple addresses. The trial court failed to appreciate that the language which was used in the declaration is only relating to Gujarat, but not to any other place. The trial court erred in not passing any order on the application filed by the respondents, for production of sample before the Court. There is no sanction for the offence under section 66 of the Food Safety and Standards Act, 2006, and even the so-called sanction was without proper application of mind. The trial court failed to consider that the Food Safety Officer did not follow the procedure of sampling, and that the respondents did not violate any provisions of law. The trial court failed to consider that the sample should be tested before the accredited laboratory. Hence, the appeal is liable to be allowed.

-: 5 :-

7. Now, in deciding the appeal, the points that arise for consideration are as follows—

(1) Whether the complainant, before the learned Joint

Collector-cum-Adjudicating Officer, proved that the

respondents therein stored misbranded food article for

the purpose of sale for human consumption in the

manner as alleged, as such, they violated section 52 of the

Food Safety and Standards Act, 2006?

(2) Whether the impugned order of the Joint Collector-cum-

Adjudicating Officer, is tenable under law and facts, and

whether there are any grounds to interfere with such

order?

8. POINTS No.(1) & (2): - The learned counsel for the appellants, during the course of hearing, filed copy of Order

No.742/FSSA/ AP/2015 dated 5.6.2015 of the Government of Andhra

Pradesh, and copy of the order in Writ Petition (L) No.1688 of 2015 of the

Hon’ble High Court of Judicature at Bombay, and argued that, the Food

Analyst, who examined the sample has no necessary qualification, and it is not an accredited laboratory, to examine the food sample. He further contended that, there should be a specialized training laid down by the

Food Authorities, to examine a sample, and the analyst, who examined the sample, has no such experience. He further put-forth his contentions in accordance with the grounds of appeal.

9. The learned Public Prosecutor for the respondent/State contended that, when the complainant has got tested the sample before the Food Analyst at Hyderabad, and when a notice was served on the appellants herein, intimating that they have right of appeal against the opinion given by the Analyst, and that they can seek to refer the sample with them to any other laboratory, they kept quiet. They did not follow the proper procedure, and the so-called application filed before the Joint

Collector-cum-Adjudicating Officer for production of sample from the -: 6 :- complainant is not proper. On account of the division of the State, the laboratory at Nacharam has been common for both the States, and the procedure followed by the complainant in referring the sample to

Hyderabad, cannot be found fault with, and absolutely there are no merits in the grounds of appeal, as such, the appeal is liable to be dismissed.

10. This court has carefully gone through the order

No.742/FSSA/ AP/2015 dated 5.6.2015 of the Government of Andhra

Pradesh, which provides that the persons appointed shall undergo a specialized training laid down by the Food Authority, within a period of two years from the commencement of the Rules. Apart from this, according to the decision in Writ Petition (L) No.1688 of 2015 of the

Hon’ble High Court of Judicature at Bombay, it altogether dealt with a

different situation, that Food Laboratory is a Laboratory which is either

State or Central Laboratory or any other Allied Laboratories. Now, coming to the present case on hand, it is the case of the complainant that, he lifted samples, by following the due procedure, and he handed over one sample to the 1st respondent, and on the next day of the inspection he sent the sample to the Food Analyst, State Food Laboratory, Nacharam,

Hyderabad. Virtually it is never the case of the respondents before the

Joint Collector-cum-Adjudicating Officer, that the State Food Laboratory at Nacharam is not an accredited laboratory, and the Food Analyst has no requisite experience.

11. Absolutely, the inspection made by the complainant to the unit of the respondents is never in dispute. The fact that the complainant purchased oil packets with an intention to send the same to the State

Food Laboratory, for analysis, is not in dispute. There is no dispute about the receipt of one part of the sample by the 1st respondent. There is also no dispute that the complainant sent a notice to the respondents, giving option to them that they have right of appeal against the report of the -: 7 :-

Food Analyst, and to file an appeal they have to follow certain procedure.

All these things are not in dispute. So, the fact remained is that, when the

Adjudicating Officer issued notice to the respondents, to appear, they appear to have filed an application seeking direction to the complainant to produce one of the samples, without expressing their intention to produce their sample, and to take proper steps, to send the same to the Analyst.

So, obviously the said act of the respondents appears to be not tenable, and the Adjudicating Officer dealt with such a contention. Now, the fact remained is that, according to the report of the Food Analyst, the sample is of misbranded article.

12. The respondents sought to defeat the case of the complainant on the ground that the question of maintaining the sample with Vitamins would arise only if the sample is packed and meant for sale in Gujarat. This contention is nothing but fallacious, for the reason that, the respondents have no probable explanation as to how they kept the oil packets in the State of Andhra Pradesh, when those are intended for sale at Gujarat. So, virtually the respondents kept the packets for the purpose of sale, conveying a meaning that, it conforms to certain standards as regards the particulars of vitamins. So, there is every possibility for the public to be misguided by going through the said label declaration, thereby definitely they would be compelled to purchase the food article, as if it contains necessary vitamins as contained on the label. The very contention of the respondents, that the question of maintaining vitamins is only relating to the food article to be sold at Gujarat, is baseless in my considered view. So, virtually, all the contentions raised in the grounds of appeal are nothing but evasive, and they are not meeting with any point, and respondents kept quiet without exercising their right to refer the samples to any other laboratory, and in my considered view, there are no merits in the grounds of appeal.

-: 8 :-

13. The Joint Collector-cum-Adjudicating Officer, virtually did not find any reason, to find fault with the report of the Food Analyst, State

Food Laboratory, Nacharam, Hyderabad, and in my considered view, the impugned order is sustainable under law and facts, as such, there are no merits in the grounds of appeal. In view of the above reasons, the complainant is able to prove violation of section 52 of the Food Safety and

Standards Act, 2006, before the Joint Collector-cum-Adjudicating Officer, as such, the impugned order is sustainable under law and facts. The points are answered accordingly.

14. In the result, the appeal is dismissed, confirming the order

dated 27.5.2017 in Rc.No.04/009/DII/07927/2016 on the file of the Joint

Collector-cum-Adjudicating Officer, SPSR Nellore District.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in the Open Court, this the 28th day of December,

2018.

Sd/-A.V.RAVINDRA BABU

Principal Sessions Judge

NELLORE

APPENDIX OF EVIDENCE

----NIL----

Sd/-A.V.RAVINDRA BABU

Principal Sessions Judge

NELLORE

IN THE COURT OF THE PRINCIPAL SESSIONS JUDGE: NELLORE

(COURT OF SESSION: NELLORE DIVISION: NELLORE)

Present: A.V.RAVINDRA BABU

Principal Sessions Judge, Nellore

Friday, the 28th day of December, 2018

CRIMINAL APPEAL No.240/2017

1. Mr Narayan Das, Nominee Adani Wilmar Limited

2. Adani Wilmar Limited, Pantapalem (Epuru-1B) Village, Muthukur Mandal

SPSR Nellore District .. Appellants

Vs.

G.Venkateswara Rao, D-II O/o The Gazetted Food Inspector &

Food Safety Designated Officer, Nellore. .. Respondent

On appeal against the order dated 27.5.2017 passed by the Adjudicating Officer, Nellore, in—

Adjudication Application No.Rc.No.01/009/DII/07924/2016

G.Venkateswara Rao, Food Safety Officer

D-II, SPSR Nellore District .. Complainant

Vs.

1. Narayan Das, Nominee M/s Adani Wilmar Limited

2. M/s Adani Wilmar Limited, Pantapalem (Epuru-1B) Village

Muthukur Mandal, SPSR Nellore District .. Respondents

This appeal coming on 17.12.2018 for final hearing before me, in the presence of Sri M.Dhruvaraj – advocate for the appellants, and of Smt M.Vijayalakshmi – Public Prosecutor for the respondent, and having stood over for consideration to this day, this Court delivered the following—

J U D G M E N T

The unsuccessful respondents 1 and 2 in Rc.No.01/009/DII/ 07924/2016 on the file of the Joint Collector-cum-Adjudicating Officer, -: 2 :- filed the present appeal, under section 70 of Food Safety and Standards

Act, 2006, read with sections 382, 454, 374(3) Cr.P.C., questioning the order dated 27.5.2017, in the said adjudication application, whereunder the Joint Collector-cum-Adjudicating Officer, SPSR Nellore District, dealing with the complaint under section 68 of the Food Safety and Standards

Act, 2006, found the respondents guilty of the relevant provisions in the said Act, and imposed a penalty of Rs.1,00,000/- against the 1st respondent.

2. The parties to this appeal will hereinafter be referred as described before the Joint Collector-cum-Adjudicating Officer, for the sake of convenience.

3. The State, represented by G.Venkateswara Rao, Food Safety

Officer, filed a complaint under section 68 of the Food Safety and

Standards Act, 2006, against the respondents, alleging in substance that, the complaint is a case of sale of misbranded Raag Gold Refined

Palmolein (1 Litre sealed packet). On 2.3.2016, Sri G.Venkateswara Rao,

Food Safety Officer, along with his Office Subordinate Sri V.Hanumantha

Rao, visited M/s Adani Wilmar Limited, Edible Oil Industry situated at

Survey Nos.292 & 317, Pantapalem village, Muthukur Mandal, for inspection. The 1st respondent was present, and he was found transacting the business. The complainant disclosed his identity, and the purpose of his visit, and called one Kondeti Venkata Narasimha Rao, to act as mediator. During inspection, he enquired about the nominee of the unit, for which the 1st respondent disclosed that he is the nominee of the said oil industry. The Food Safety Officer, enquired about the stock of 450 carton boxes, and in each carton box 10 numbers one litre sealed packets are found. The 1st respondent disclosed that the sealed packets are palmolein oil one litre sealed packets, of Raag Gold Refined Palmolein, which are kept for sale to public for human consumption. The complainant -: 3 :- found necessary labels with regard to said palmolein oil thereon. He suspected the quality of the said oil, and purchased 4 (four) x 1 litre sealed packets, by paying Rs.184/-, each packet at Rs.46/-, to the 1st respondent and obtained receipt. He served Form-VA expressing his intention to send it to the Food Analyst, State Food Laboratory,

Nacharam, Hyderabad. He obtained acknowledgement from the 1st respondent. He divided the four parts and followed necessary procedure, in tying the samples, and handed over one sample to the 1st respondent.

The 1st respondent has been informed that, if he so desires, he may make an application for sending the fourth part of the sample to any of the laboratories as per the Food Safety and Standards Act, 2006. To that effect a mahazar was drafted.

4. On the next day i.e., on 3.3.2016, one part of the sealed sample, along with copy of memorandum in Form-VI was sent to the Food

Analyst, State Food Laboratory, Hyderabad, by registered post, in a sealed cover. Other parts of samples, along with copies of memorandum were handed over to the Food Safety Designated Officer. The Food

Analyst, State Food Laboratory, after causing analysis, delivered report stating that, the sample does not contain Vitamin-A, which is declared on the label as an ingredient, as such it is misbranded. The Food Safety

Designated Officer sent a notice under section 46(4) of the Food Safety and Standards Act, 2006, intimating the respondents that, if they have any appeal against the report of the Food Analyst, State Food Laboratory, they may file an appeal before the Food Safety Designated Officer, for sending one part of the sample to the referral food laboratory. There is no response from the respondents. On perusal of the file, the Food Safety

Designated Officer, came to a conclusion that the sample was found to be misbranded. Hence the complaint.

-: 4 :-

5. The learned Joint Collector-cum-Adjudicating Officer, took the case on file, and issued notice to the respondent, and after conducting necessary enquiry, passed the impugned order.

6. Aggrieved by the same, the respondents filed the present appeal, and their contention in brief, according to the grounds of appeal, is that, the trial court erred in not appreciating the fact that the adjudication application was filed on the basis of the report prepared by the Food Analyst, on misrepresentation of facts. Food Analyst failed to read the declaration on the food packet in its true sense. The declaration about Vitamin-A was very much specific and categorical, as such, the report of the Food Analyst was on account of improper examination of the food packet. The declaration which was made on the food packet was so specific that it should contain Vitamins A and D if the manufacturing unit is at Gujarat and when the sample is packed at Gujarat for sale in the

State of Gujarat. The respondents’ company is a multi-state operator and maintains a centralized packing material inventory. All the food packets manufactured by it, contain multiple addresses. The trial court failed to appreciate that the language which was used in the declaration is only relating to Gujarat, but not to any other place. The trial court erred in not passing any order on the application filed by the respondents, for production of sample before the Court. There is no sanction for the offence under section 66 of the Food Safety and Standards Act, 2006, and even the so-called sanction was without proper application of mind. The trial court failed to consider that the Food Safety Officer did not follow the procedure of sampling, and that the respondents did not violate any provisions of law. The trial court failed to consider that the sample should be tested before the accredited laboratory. Hence, the appeal is liable to be allowed.

-: 5 :-

7. Now, in deciding the appeal, the points that arise for consideration are as follows—

(1) Whether the complainant, before the learned Joint

Collector-cum-Adjudicating Officer, proved that the

respondents therein stored misbranded food article for

the purpose of sale for human consumption in the

manner as alleged, as such, they violated section 52 of the

Food Safety and Standards Act, 2006?

(2) Whether the impugned order of the Joint Collector-cum-

Adjudicating Officer, is tenable under law and facts, and

whether there are any grounds to interfere with such

order?

8. POINTS No.(1) & (2): - The learned counsel for the appellants, during the course of hearing, filed copy of Order

No.742/FSSA/ AP/2015 dated 5.6.2015 of the Government of Andhra

Pradesh, and copy of the order in Writ Petition (L) No.1688 of 2015 of the

Hon’ble High Court of Judicature at Bombay, and argued that, the Food

Analyst, who examined the sample has no necessary qualification, and it is not an accredited laboratory, to examine the food sample. He further contended that, there should be a specialized training laid down by the

Food Authorities, to examine a sample, and the analyst, who examined the sample, has no such experience. He further put-forth his contentions in accordance with the grounds of appeal.

9. The learned Public Prosecutor for the respondent/State contended that, when the complainant has got tested the sample before the Food Analyst at Hyderabad, and when a notice was served on the appellants herein, intimating that they have right of appeal against the opinion given by the Analyst, and that they can seek to refer the sample with them to any other laboratory, they kept quiet. They did not follow the proper procedure, and the so-called application filed before the Joint

Collector-cum-Adjudicating Officer for production of sample from the -: 6 :- complainant is not proper. On account of the division of the State, the laboratory at Nacharam has been common for both the States, and the procedure followed by the complainant in referring the sample to

Hyderabad, cannot be found fault with, and absolutely there are no merits in the grounds of appeal, as such, the appeal is liable to be dismissed.

10. This court has carefully gone through the order

No.742/FSSA/ AP/2015 dated 5.6.2015 of the Government of Andhra

Pradesh, which provides that the persons appointed shall undergo a specialized training laid down by the Food Authority, within a period of two years from the commencement of the Rules. Apart from this, according to the decision in Writ Petition (L) No.1688 of 2015 of the

Hon’ble High Court of Judicature at Bombay, it altogether dealt with a

different situation, that Food Laboratory is a Laboratory which is either

State or Central Laboratory or any other Allied Laboratories. Now, coming to the present case on hand, it is the case of the complainant that, he lifted samples, by following the due procedure, and he handed over one sample to the 1st respondent, and on the next day of the inspection he sent the sample to the Food Analyst, State Food Laboratory, Nacharam,

Hyderabad. Virtually it is never the case of the respondents before the

Joint Collector-cum-Adjudicating Officer, that the State Food Laboratory at Nacharam is not an accredited laboratory, and the Food Analyst has no requisite experience.

11. Absolutely, the inspection made by the complainant to the unit of the respondents is never in dispute. The fact that the complainant purchased oil packets with an intention to send the same to the State

Food Laboratory, for analysis, is not in dispute. There is no dispute about the receipt of one part of the sample by the 1st respondent. There is also no dispute that the complainant sent a notice to the respondents, giving option to them that they have right of appeal against the report of the -: 7 :-

Food Analyst, and to file an appeal they have to follow certain procedure.

All these things are not in dispute. So, the fact remained is that, when the

Adjudicating Officer issued notice to the respondents, to appear, they appear to have filed an application seeking direction to the complainant to produce one of the samples, without expressing their intention to produce their sample, and to take proper steps, to send the same to the Analyst.

So, obviously the said act of the respondents appears to be not tenable, and the Adjudicating Officer dealt with such a contention. Now, the fact remained is that, according to the report of the Food Analyst, the sample is of misbranded article.

12. The respondents sought to defeat the case of the complainant on the ground that the question of maintaining the sample with Vitamins would arise only if the sample is packed and meant for sale in Gujarat. This contention is nothing but fallacious, for the reason that, the respondents have no probable explanation as to how they kept the oil packets in the State of Andhra Pradesh, when those are intended for sale at Gujarat. So, virtually the respondents kept the packets for the purpose of sale, conveying a meaning that, it conforms to certain standards as regards the particulars of vitamins. So, there is every possibility for the public to be misguided by going through the said label declaration, thereby definitely they would be compelled to purchase the food article, as if it contains necessary vitamins as contained on the label. The very contention of the respondents, that the question of maintaining vitamins is only relating to the food article to be sold at Gujarat, is baseless in my considered view. So, virtually, all the contentions raised in the grounds of appeal are nothing but evasive, and they are not meeting with any point, and respondents kept quiet without exercising their right to refer the samples to any other laboratory, and in my considered view, there are no merits in the grounds of appeal.

-: 8 :-

13. The Joint Collector-cum-Adjudicating Officer, virtually did not find any reason, to find fault with the report of the Food Analyst, State

Food Laboratory, Nacharam, Hyderabad, and in my considered view, the impugned order is sustainable under law and facts, as such, there are no merits in the grounds of appeal. In view of the above reasons, the complainant is able to prove violation of section 52 of the Food Safety and

Standards Act, 2006, before the Joint Collector-cum-Adjudicating Officer, as such, the impugned order is sustainable under law and facts. The points are answered accordingly.

14. In the result, the appeal is dismissed, confirming the order

dated 27.5.2017 in Rc.No.01/009/DII/07924/2016 on the file of the Joint

Collector-cum-Adjudicating Officer, SPSR Nellore District.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in the Open Court, this the 28th day of December,

2018.

Sd/-A.V.RAVINDRA BABU

Principal Sessions Judge

NELLORE

APPENDIX OF EVIDENCE

----NIL----

Sd/-A.V.RAVINDRA BABU

Principal Sessions Judge

NELLORE

IN THE COURT OF THE PRINCIPAL SESSIONS JUDGE: NELLORE

(COURT OF SESSION: NELLORE DIVISION: NELLORE)

Present: A.V.RAVINDRA BABU

Principal Sessions Judge, Nellore

Friday, the 28th day of December, 2018

CRIMINAL APPEAL No.242/2017

1. Mr Narayan Das, Nominee Adani Wilmar Limited

2. Adani Wilmar Limited, Pantapalem (Epuru-1B) Village, Muthukur Mandal

SPSR Nellore District .. Appellants

Vs.

G.Venkateswara Rao, D-II O/o The Gazetted Food Inspector &

Food Safety Designated Officer, Nellore. .. Respondent

On appeal against the order dated 27.5.2017 passed by the Adjudicating Officer, Nellore, in—

Adjudication Application No.Rc.No.03/009/DII/07926/2016

G.Venkateswara Rao, Food Safety Officer

D-II, SPSR Nellore District .. Complainant

Vs.

1. Narayan Das, Nominee M/s Adani Wilmar Limited

2. M/s Adani Wilmar Limited, Pantapalem (Epuru-1B) Village

Muthukur Mandal, SPSR Nellore District .. Respondents

This appeal coming on 17.12.2018 for final hearing before me, in the presence of Sri M.Dhruvaraj – advocate for the appellants, and of Smt M.Vijayalakshmi – Public Prosecutor for the respondent, and having stood over for consideration to this day, this Court delivered the following—

J U D G M E N T

The unsuccessful respondents 1 and 2 in Rc.No.03/009/DII/ 07926/2016 on the file of the Joint Collector-cum-Adjudicating Officer, -: 2 :- filed the present appeal, under section 70 of Food Safety and Standards

Act, 2006, read with sections 382, 454, 374(3) Cr.P.C., questioning the order dated 27.5.2017, in the said adjudication application, whereunder the Joint Collector-cum-Adjudicating Officer, SPSR Nellore District, dealing with the complaint under section 68 of the Food Safety and Standards

Act, 2006, found the respondents guilty of the relevant provisions in the said Act, and imposed a penalty of Rs.1,00,000/- against the 1st respondent.

2. The parties to this appeal will hereinafter be referred as described before the Joint Collector-cum-Adjudicating Officer, for the sake of convenience.

3. The State, represented by G.Venkateswara Rao, Food Safety

Officer, filed a complaint under section 68 of the Food Safety and

Standards Act, 2006, against the respondents, alleging in substance that, the complaint is a case of sale of misbranded Raag Gold Refined

Palmolein (500 ml sealed packet). On 2.3.2016, Sri G.Venkateswara Rao,

Food Safety Officer, along with his Office Subordinate Sri V.Hanumantha

Rao, visited M/s Adani Wilmar Limited, Edible Oil Industry situated at

Survey Nos.292 & 317, Pantapalem village, Muthukur Mandal, for inspection. The 1st respondent was present, and he was found transacting the business. The complainant disclosed his identity, and the purpose of his visit, and called one Kondeti Venkata Narasimha Rao, to act as mediator. During inspection, he enquired about the nominee of the unit, for which the 1st respondent disclosed that he is the nominee of the said oil industry. The Food Safety Officer, enquired about the stock of 400 carton boxes, and in each carton box 20 numbers 500 ml sealed packets are found. The 1st respondent disclosed that the sealed packets are palmolein oil 500 ml sealed packets, of Raag Gold Refined Palmolein, which are kept for sale to public for human consumption. The complainant -: 3 :- found necessary labels with regard to said palmolein oil thereon. He suspected the quality of the said oil, and purchased 4 (four) x 500 ml sealed packets, by paying Rs.92/-, each packet at Rs.23/-, to the 1st respondent and obtained receipt. He served Form-VA expressing his intention to send it to the Food Analyst, State Food Laboratory,

Nacharam, Hyderabad. He obtained acknowledgement from the 1st respondent. He divided the four parts and followed necessary procedure, in tying the samples, and handed over one sample to the 1st respondent.

The 1st respondent has been informed that, if he so desires, he may make an application for sending the fourth part of the sample to any of the laboratories as per the Food Safety and Standards Act, 2006. To that effect a mahazar was drafted.

4. On the next day i.e., on 3.3.2016, one part of the sealed sample, along with copy of memorandum in Form-VI was sent to the Food

Analyst, State Food Laboratory, Hyderabad, by registered post, in a sealed cover. Other parts of samples, along with copies of memorandum were handed over to the Food Safety Designated Officer. The Food

Analyst, State Food Laboratory, after causing analysis, delivered report stating that, the sample does not contain Vitamin-A, which is declared on the label as an ingredient, as such it is misbranded. The Food Safety

Designated Officer sent a notice under section 46(4) of the Food Safety and Standards Act, 2006, intimating the respondents that, if they have any appeal against the report of the Food Analyst, State Food Laboratory, they may file an appeal before the Food Safety Designated Officer, for sending one part of the sample to the referral food laboratory. There is no response from the respondents. On perusal of the file, the Food Safety

Designated Officer, came to a conclusion that the sample was found to be misbranded. Hence the complaint.

-: 4 :-

5. The learned Joint Collector-cum-Adjudicating Officer, took the case on file, and issued notice to the respondent, and after conducting necessary enquiry, passed the impugned order.

6. Aggrieved by the same, the respondents filed the present appeal, and their contention in brief, according to the grounds of appeal, is that, the trial court erred in not appreciating the fact that the adjudication application was filed on the basis of the report prepared by the Food Analyst, on misrepresentation of facts. Food Analyst failed to read the declaration on the food packet in its true sense. The declaration about Vitamin-A was very much specific and categorical, as such, the report of the Food Analyst was on account of improper examination of the food packet. The declaration which was made on the food packet was so specific that it should contain Vitamins A and D if the manufacturing unit is at Gujarat and when the sample is packed at Gujarat for sale in the

State of Gujarat. The respondents’ company is a multi-state operator and maintains a centralized packing material inventory. All the food packets manufactured by it, contain multiple addresses. The trial court failed to appreciate that the language which was used in the declaration is only relating to Gujarat, but not to any other place. The trial court erred in not passing any order on the application filed by the respondents, for production of sample before the Court. There is no sanction for the offence under section 66 of the Food Safety and Standards Act, 2006, and even the so-called sanction was without proper application of mind. The trial court failed to consider that the Food Safety Officer did not follow the procedure of sampling, and that the respondents did not violate any provisions of law. The trial court failed to consider that the sample should be tested before the accredited laboratory. Hence, the appeal is liable to be allowed.

-: 5 :-

7. Now, in deciding the appeal, the points that arise for consideration are as follows—

(1) Whether the complainant, before the learned Joint

Collector-cum-Adjudicating Officer, proved that the

respondents therein stored misbranded food article for

the purpose of sale for human consumption in the

manner as alleged, as such, they violated section 52 of the

Food Safety and Standards Act, 2006?

(2) Whether the impugned order of the Joint Collector-cum-

Adjudicating Officer, is tenable under law and facts, and

whether there are any grounds to interfere with such

order?

8. POINTS No.(1) & (2): - The learned counsel for the appellants, during the course of hearing, filed copy of Order

No.742/FSSA/ AP/2015 dated 5.6.2015 of the Government of Andhra

Pradesh, and copy of the order in Writ Petition (L) No.1688 of 2015 of the

Hon’ble High Court of Judicature at Bombay, and argued that, the Food

Analyst, who examined the sample has no necessary qualification, and it is not an accredited laboratory, to examine the food sample. He further contended that, there should be a specialized training laid down by the

Food Authorities, to examine a sample, and the analyst, who examined the sample, has no such experience. He further put-forth his contentions in accordance with the grounds of appeal.

9. The learned Public Prosecutor for the respondent/State contended that, when the complainant has got tested the sample before the Food Analyst at Hyderabad, and when a notice was served on the appellants herein, intimating that they have right of appeal against the opinion given by the Analyst, and that they can seek to refer the sample with them to any other laboratory, they kept quiet. They did not follow the proper procedure, and the so-called application filed before the Joint

Collector-cum-Adjudicating Officer for production of sample from the -: 6 :- complainant is not proper. On account of the division of the State, the laboratory at Nacharam has been common for both the States, and the procedure followed by the complainant in referring the sample to

Hyderabad, cannot be found fault with, and absolutely there are no merits in the grounds of appeal, as such, the appeal is liable to be dismissed.

10. This court has carefully gone through the order

No.742/FSSA/ AP/2015 dated 5.6.2015 of the Government of Andhra

Pradesh, which provides that the persons appointed shall undergo a specialized training laid down by the Food Authority, within a period of two years from the commencement of the Rules. Apart from this, according to the decision in Writ Petition (L) No.1688 of 2015 of the

Hon’ble High Court of Judicature at Bombay, it altogether dealt with a

different situation, that Food Laboratory is a Laboratory which is either

State or Central Laboratory or any other Allied Laboratories. Now, coming to the present case on hand, it is the case of the complainant that, he lifted samples, by following the due procedure, and he handed over one sample to the 1st respondent, and on the next day of the inspection he sent the sample to the Food Analyst, State Food Laboratory, Nacharam,

Hyderabad. Virtually it is never the case of the respondents before the

Joint Collector-cum-Adjudicating Officer, that the State Food Laboratory at Nacharam is not an accredited laboratory, and the Food Analyst has no requisite experience.

11. Absolutely, the inspection made by the complainant to the unit of the respondents is never in dispute. The fact that the complainant purchased oil packets with an intention to send the same to the State

Food Laboratory, for analysis, is not in dispute. There is no dispute about the receipt of one part of the sample by the 1st respondent. There is also no dispute that the complainant sent a notice to the respondents, giving option to them that they have right of appeal against the report of the -: 7 :-

Food Analyst, and to file an appeal they have to follow certain procedure.

All these things are not in dispute. So, the fact remained is that, when the

Adjudicating Officer issued notice to the respondents, to appear, they appear to have filed an application seeking direction to the complainant to produce one of the samples, without expressing their intention to produce their sample, and to take proper steps, to send the same to the Analyst.

So, obviously the said act of the respondents appears to be not tenable, and the Adjudicating Officer dealt with such a contention. Now, the fact remained is that, according to the report of the Food Analyst, the sample is of misbranded article.

12. The respondents sought to defeat the case of the complainant on the ground that the question of maintaining the sample with Vitamins would arise only if the sample is packed and meant for sale in Gujarat. This contention is nothing but fallacious, for the reason that, the respondents have no probable explanation as to how they kept the oil packets in the State of Andhra Pradesh, when those are intended for sale at Gujarat. So, virtually the respondents kept the packets for the purpose of sale, conveying a meaning that, it conforms to certain standards as regards the particulars of vitamins. So, there is every possibility for the public to be misguided by going through the said label declaration, thereby definitely they would be compelled to purchase the food article, as if it contains necessary vitamins as contained on the label. The very contention of the respondents, that the question of maintaining vitamins is only relating to the food article to be sold at Gujarat, is baseless in my considered view. So, virtually, all the contentions raised in the grounds of appeal are nothing but evasive, and they are not meeting with any point, and respondents kept quiet without exercising their right to refer the samples to any other laboratory, and in my considered view, there are no merits in the grounds of appeal.

-: 8 :-

13. The Joint Collector-cum-Adjudicating Officer, virtually did not find any reason, to find fault with the report of the Food Analyst, State

Food Laboratory, Nacharam, Hyderabad, and in my considered view, the impugned order is sustainable under law and facts, as such, there are no merits in the grounds of appeal. In view of the above reasons, the complainant is able to prove violation of section 52 of the Food Safety and

Standards Act, 2006, before the Joint Collector-cum-Adjudicating Officer, as such, the impugned order is sustainable under law and facts. The points are answered accordingly.

14. In the result, the appeal is dismissed, confirming the order

dated 27.5.2017 in Rc.No.03/009/DII/07926/2016 on the file of the Joint

Collector-cum-Adjudicating Officer, SPSR Nellore District.

Typed to my dictation by the Stenographer, corrected and

pronounced by me in the Open Court, this the 28th day of December,

2018.

Sd/-A.V.RAVINDRA BABU

Principal Sessions Judge

NELLORE

APPENDIX OF EVIDENCE

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Sd/-A.V.RAVINDRA BABU

Principal Sessions Judge

NELLORE