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Judgment
Madhuresh Prasad, J
The present appeal arises out of judgment of the West Bengal Food Safety Appellate Tribunal on the appeal filed by the present appellant. The tribunal has dismissed the appeal.
The brief factual matrix is required to be noted for better appreciation of the issue pending in the present appeal. The Food Safety Officer (‘FSO’ for short) under the Food Safety and Standards Act, 2006 (hereinafter referred to as ‘The Act’) took a unit of packaged drinking water, on sale for human consumption, from a food stall on Platform No. 5 at the Malda Town Railway Station. after sampling and sealing in accordance with the statute, the same was sent for analysis, under due intimation to the food stall owner. After analysis a report was submitted by the Food Safety Officer that the sample is misbranded under Clause (zf)(C)(i) of sub-Section 1 of Section 3 of the Act. The case was thus placed before the Adjudicating Officer for consequential directions as contemplated under Section 52 of the Act. The present appellant who is the manufacturer of the unit of packaged drinking water and therefore the “Food Business Operator” (FBO) under Section 3(0) of the Act, appeared before the Adjudicating Officer and filed a written statement denying the allegations. The Adjudicating Officer passed an order dated 12.11.2021 whereby and whereunder after due consideration of the matter and hearing the parties returned a finding that ‘…misbranding of product is ruled out’.
The same authority, however, recorded a finding that the name of salts and sodium is not on the label and thus found that the label contravenes regulation 2.2.2:(c) of the Food Safety and Standards (Packaging and Labelling) Regulations, 2011. Relevant portion of the report of the Analyst:-
“Though the quality parameters as reported for the sample of Kinley Packaged Drinking Water bearing code No. 904/AKG/05/2017 complies FSS regulation, but the label under regulation 2.2 of FSS (Packaging and labeling) regulation has under stated defects.
Ingredient list contains “Salt of Sodium & Magnesium” as ingredient. Non-declaration of specific names of salts of Sodium & Magnesium contravenes regulation 2.2.2.2
…”
As a consequence of such finding, the Adjudicating Officer instructed the present appellant (FBO) to put the name of the salts of sodium on the label within a month from issue of the order dated 12.11.2021. This second finding and the consequential direction issued by the Adjudicating Officer was assailed by the present appellant before the tribunal, i.e. the Appellate Authority established under Section 70 of the Act, in Food Safety Appeal No. 1 of 2022.
Before the Tribunal, the present appellant raised an issue regarding the order passed by the Adjudicating Officer being without jurisdiction, and also that the label of the packaged drinking water was containing disclosures regarding the ingredients, as per statutory requirement under Regulation 2.2.2 (c) of the 2011 Regulations. The disclosure was thus complying with the requirements of 2011 Regulations.
The Tribunal vide its judgment dated 27.07.2023, has rejected the plea raised by the present appellant and dismissed the appeal. It has come to a finding that there was failure on the part of the appellants to make disclosure as per Regulation 2.2.2:(c) of the 2011 Regulations as well as Clause 5(2) of the subsequent Food Safety and Standards (Labelling and Display) Regulations, 2020 (hereinafter referred to as ‘2020 Regulations’). The tribunal was of the opinion that in view of the non-disclosure in terms of the Regulations, the instructions of the Adjudicating Officer which was in the nature of an improvement direction as per Section 32 of the Act, was rightly issued. The present appellant was thus directed to display the name of the salts of sodium on the label within a month from the date of the judgment of the tribunal.
Mr. Kalyan Bandopadhyay, learned Senior Counsel appearing on behalf of the appellant has submitted that the order of the Adjudicating Officer amounts to issuance of an improvement notice and is unsustainable. He submits that the power of issuing any improvement notice upon an FBO (the appellant) is vested with the Designated Officer. The statute does not vest the power of issuing any improvement notice upon any other officer. The improvement notice, if at all required, could have been issued only by the Designated officer. The Adjudicating Officer did not have any statutory authority for issuing such a notice. The directions issued by the Adjudicating Officer, therefore, is without jurisdiction and illegal. That being so, affirmation of such an order by the tribunal by its judgment under appeal is unsustainable.
Mr. Bandopadhyay has also submitted that the directions issued by the Adjudicating Officer on 12.11.2021 was to ensure compliance with the labelling requirements under Regulation 2.2.2(c) of the 2011 Regulations, which was replaced by the 2020 Regulations published in the Gazette of India on 18.11.2020; and came into force on 18.09.2021. The labelling requirements under the earlier 2011 Regulations, therefore, cannot be insisted upon after coming into force of the 2020 Regulations. It is further submitted by the learned Senior Counsel that the present appellant is complying with the requisite disclosure in terms of the 2020 Regulations. The directions thus issued by the Adjudicating Officer was not enforceable; and the consequential directions issued by the tribunal in the judgment dated 27.07.2023 under appeal are thus unwarranted and unsustainable.
The learned Counsel for the respondent on the other hand, referred to a communication dated 14.04.2017 issued by the designated officer to the food stall owner, to submit that it is signed by the designated officer in the Eastern Railways. After a notice was issued on 14.04.2017 by the designated officer, the complaint dated 13.06.2017 was also lodged by the same designated officer. Upon consideration of the complaint the order has been passed by the Adjudicating Officer and, therefore, there is substantial procedural compliance as per the scheme of the Act. It is not a case where the Adjudicating Officer has usurped any statutory authority vested in the designated officer. The tribunal has, therefore, rightly upheld the order passed by the Adjudicating Officer.
Referring to paragraph 4 of their affidavit-in-opposition, it is submitted that after collection of the samples from the food stall owner, the same was forwarded for analysis, followed by service of a copy of the report to the food stall owner from whom the sample was taken. Thus, the Designated officer, after complying with statutory requirements sanctioned and lodged the complaint laying the statutory foundation for the FSO to file an application for adjudication before the Adjudicating Officer. The Adjudicating Officer in turn held an enquiry into the alleged contravention of the labeling requirements, as well as the allegation of misbranding. Only after giving due notice and after considering the stand of the parties, the Adjudicating Officer has arrived at a finding that no case of misbranding is made out. However, contravention of labelling requirement has been observed. The procedure leading to passing of the order by the Adjudicating Officer is valid and requires no interference. The Adjudicating Officer was well within his powers to consider the complaint and pass orders thereupon, which cannot be said to be without jurisdiction.
It is further submitted that the Adjudicating Officer has the power to hold an inquiry for adjudication of offences punishable under Section 52(2) of the Act. The Adjudicating Officer may also issue a direction to a person found guilty of an offence under Section 52, for taking corrective action to rectify the mistake failing which the food article is to be destroyed. In the present case during the course of adjudication of alleged offence of misbranding, when the Adjudicating Officer found a violation of the 2011 Regulation, he was justified in issuing the improvement notice upon the FBO. It is only when there is a minor labelling defect that the Section 32 of the Act contemplates issuance of an improvement notice by the designated officer. In the present case a larger issue of misbranding was being considered, having penal consequences. The contravention of labelling requirement contained in the 2011 Regulation, therefore could not have been overlooked by the Adjudicating Authority.
The report of the Food Analyst dated 14.04.2017 and 02.05.2017 has been assailed by the FBO itself by filing an appeal before the designated officer. Therefore, the action as a consequence of the report of the Food Analyst taken by such appellate authority (Adjudicating Authority) cannot be questioned by the present FBO. The fact that the designated officer had the jurisdiction to issue improvement notice only in respect of minor labelling defects of insignificant nature and without any safety concern, is evident from the scheme of the Act as well as the Annexure-I of the letter dated 14.01.2020 written by the Deputy Director (RCD)/FSSAI’s which is Annexure R2 to the Affidavit-in-opposition filed by the respondents. Such improvement notice is, therefore, to be issued by the designated officer, instead of initiating adjudication proceeding, only when the violation of the labelling regulation is trivial in nature.
When the Adjudicating Officer is adjudicating a higher offence, as in the instant case of misbranding then he is not denuded of his power to issue an improvement notice as is evident from bare perusal of Rule 2.1.3; 4(g) of the Food Safety Standards Rules, 2011, containing the power and duties of the Food Safety Officer which reads thus:
“To recommend Designated Officer to issue of improvement notices to the Food Business Operator whenever necessary;”
In the present case, upon seizure and analysis of the food product (packaged drinking water), it was observed that the labelling was not as per the 2011 Regulation, which was in vogue as on the date of seizure of the sample. The labelling requirement, however, has changed under the 2020 Regulations. Even under the 2020 Regulations, the FBO is required to specify the name(s) of the ingredients, i.e. “mineral(s)” and “salts” contained in the packaged drinking water instead of specifying the name of the mineral/salts. The FBO in the present case has been found to have mentioned “salts of sodium and magnesium” only in the label, which has been held to be in clear violation of the 2011 as well as 2020 Regulations.
In the present case we find that sampling has been done while the 2011 Regulation was in vogue. The authorities have found the label to be in violation of the 2020 Regulations also. We, therefore, consider it useful to quote Regulation 2.2.2:2 of the 2011 Regulations and Regulation 5(2) of the 2020 Regulation which reads:
“2011 Regulations
2.2.2: Labelling of Pre-packaged Foods
In addition to the General Labelling requirements specified in 2.2.1 above every package of food shall carry the following information on the label, namely.-
…
2.
…
(c) A specific name shall be used for ingredients in the list of Ingredients;
Provided that for ingredients falling in the respective classes, the following class titles may be used, namely:-
Classes
Class Title
Edible vegetable oils/Edible vegetable fat Animal fat/oil other than milk fat
Edible vegetable oil/ Edible vegetable fat or both hydrogenated or Partially hydrogenated oil
Give name of the source of fat. Pork fat, lard and beef fat or extracts thereof shall be declared by specific
names
Starches, other than chemically modified starches
Starch
All species of fish where the fish constitutes an ingredient of another food and provided that the labelling and presentation of such food does not refer to a species of fish
Fish
All types of poultry meat where such meat constitutes an ingredient of another food and provided that the labelling and presentation of such a food does not refer to a specific type of poultry meat
Poultry meat
Cheese
All types of cheese where cheese or mixture of cheeses constitutes an ingredient of another food and provided that the labelling and presentation of such food does not refer to a specific type of cheese
All spices and condiments and their extracts
Spices and condiments or mixed spices/ condiments as appropriate
Gum Base
All types of gum or preparations used in the manufacture of
gum base for chewing gum
Dextrose or Glucose
Anhydrous dextrose and dextrose monohydrate
Caseinates
Cocoa butter
All types of Caseinates
Press, expeller or refined cocoa butter
Crystallized fruit
Milk solids
All crystallized fruit
All milk and milk products derived solely from milk
Cocoa bean, Coconib, Cocomass, Cocoa press cakes, Cocoa powder
(Fine/Dust)
Cocoa solids
“2020 Regulations 5. Labelling Requirements. –
In addition to general requirements specified in Regulation 4, every package shall carry the following information on the label, namely,-
… (2) List of ingredients: Except for single ingredient foods, a list of ingredients shall be declared on the label in the following manner: …
(d) A specific name shall be used for ingredients in the list of ingredients: Provided that for ingredients falling in the respective classes, the following class titles may be used, namely:
Sl.
No.
Name of the classes
Class title
1
Edible vegetable oil
Give name of the specific edible oil such as mustard oil, groundnut oil, etc.
2
Edible vegetable fat
Give type of vegetable fat (interesterified vegetable fat, fractionated fat, hydrogenated oils, partially hydrogenated oils, and fat margarine and fat spreads,
such as mixed fat spreads, vegetable fat spreads)
3
Animal fat/oil other than milk fat
Give name of the source of fat, pork fat, lard and beef fat or extract thereof shall be declared by specific means.
4
Starches, other than modified starches
Starch
5
All species of fish where the fish constitutes an ingredient of another food and provided that the labelling and
presentation of such food does not refer to a species of fish
Fish
6
All types of meat where such meat constitutes an ingredient of another food and provided that the labeling and presentation of such a food does o not refer to a specific type of meat
Give name of the source of meat
7
All types of cheese where cheese
or mixture of cheese constitute an
ingredient of another food and provided that the labelling and
presentation of such a food does not refer to a specific type of cheese
Cheese
8
All spices, herbs and condiments and
their extracts
Spice and condiments, herbs or mixed spices/condiments as appropriate
9
All types of gum or preparations used in the manufacture of gum base for chewing gum and
bubble gum
Gum base
10
Anhydrous dextrose and dextrose Sucrose monohydrate
Dextrose or Glucose
11
Sucrose
Sugar
12
All types of caseinates
Caseinates
13
Press, expeller or refined cocoa butter
Cocoa butter
14
All crystallized fruits/vegetables
Crystallized fruits/vegetables
15
All milk and milk products derived solely from milk
Milk solids (source may also be given)
16
Cocoa bean, Cocoa nib, Cocoa mass, Cocoa press cakes, Cocoa powder
(Fine/dust)
Cocoa solids
17
All vitamin(s) and their compounds
Vitamin(s)
18
All minerals and trace elements and their compounds/salts
Mineral (s) and/or element(s)
…”
Regulation 2.2.2 of the 2011 Regulations mandated that a specific name shall be used for ingredients in the label displaying the list of ingredients. The two ingredients in question here, i.e., salt and mineral were not specified in the “class of ingredients” falling in the proviso containing the exceptions. Under the 2011 Regulation, the FBO had no other option than to mention the specific name of the mineral/salt present in the food (packaged drinking water). The findings, therefore, of the Adjudicating Officer regarding violation of the labelling requirement under the 2011 Regulations is in accordance with law.
Insofar as the 2020 Regulation is concerned, we find that the mineral/salt has been specified in the table under the proviso to the Regulation 5(2)(d). The disclosure, insofar as mineral/salt is concerned, are therefore, to be guided after coming into force of the 2020 Regulation by this provision. This provision provides that the name of mineral(s) and/or element(s) is to be mentioned on the label of the food therefore, even as per the 2020 Regulation the seized bottle of packaged drinking water was non-compliant with the requirement of the 2020 Regulation since the FBO in the present case had indicated on the label “salts of sodium and magnesium”. Thus, there is no disclosure of the individual salt and/or mineral present in the food. This apparently was in contravention of both the Regulations since under the Regulation/s, this disclosure cannot be accepted as these ingredients (sodium and magnesium) were separate and not a compound ingredient. They were, therefore, required to be indicated separately/specifically mentioned in the label in compliance with the Regulation/s.
We, therefore, find no reason to interfere with the improvement notice issued on the basis of the label of the packaged drinking water as it existed at the time of its seizure in the year 2017.
We, however, are informed during course of the present proceedings that after coming into force of the 2020 Regulation, the details being mentioned on the label of the packaged drinking water in question has changed and at present the FBO has indicated the presence of the salt of sodium and magnesium in the list of ingredients of the packaged drinking water as follows:
“Ingredients: Treated water, Minerals [salts of magnesium (0.8* mg.), Calcium (1.2* mg.) and sodium (0.1* mg.)].
Added quantity per 100 ml.”
Whereas earlier at the time of seizure of the sample forming the basis of the present improvement notice, the same ingredients were being disclosed in the following manner:
“Ingredients: Treated water, salts of magnesium (0.3* mg) and sodium (0.1* mg.).
Added quantity per 100 ml.”
The disclosure of ingredients, therefore, has now undergone a change.
In view of this changed circumstance, we are of the opinion that the improvement notice based on the earlier label is a futile notice. In view of the change in the disclosure printed on the label of the food now by the FBO (appellant) there is no occasion for the authorities to contend that improvement or change in the label is required as per order passed by the Adjudicating Officer on 12.11.2021, affirmed by the judgment of the Tribunal dated 27.07.2023. This is for the simple reason that the changed label under the Regulation 2020 was not the subject matter of consideration before the Adjudicating Officer, which led to issuance of the impugned improvement notice. In view of this changed circumstance, we are of the opinion that the improvement notice has lost its force. The impugned improvement notice, therefore, being unenforceable due to the subsequent event of change in the list of ingredients on the label of the food, Thus, we find that the appeal insofar as impugned improvement notice and the impugned order of the Tribunal is concerned has become infructuous, and is accordingly dismissed as infructuous.
The other issues argued by the parties whether the Adjudicating Officer had any jurisdiction to issue the impugned improvement notice or not are, therefore, left open to be decided in an appropriate case.
Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties, expeditiously after complying with all necessary legal formalities.