FORM X

(Refer Rule (i) of 3.3.1 (2))

FORM OF APPEAL
BEFORE THE FOOD SAFETY APPELLATE TRIBUNAL
(JAIPUR, RAJASTHAN)

In the matter of Food Safety and Standards Act, 2006 (34

of 2014)
AND
In the matter of appeal against the order dated
22.02.2021 passed by Shri Omprakash Bishnoi
Adjudicating Officer Cum Additional District Magistrate,
Barmer, Rajasthan in FSSA Case No. 11/2020

APPEAL NO. __________ OF 2021

1) Kishore S/o Lekhraj by caste Khatri, aged about 45

year, R/o Khatriyo ka Bas, Badmer (Manager) M/s
Lekhraj Chimaniram, Jatiyo ka Bas, Hamirpur, District
Barmer.
2) Lekraj Bhoot S/o Chimaniram Bhoot, aged about 50
years, Khatriyo ka Bas, Badmer. (Owner) M/s Lekhraj
Chimaniram, Jatiyo ka Bas, Hamirpur, District Barmer.

.…. APPELLANT
VS

1) State Of Rajasthan Through The Commissioner - Food

Safety, Rajasthan, Jaipur
2) Sh. Bhooraram Godara, Food Safety Officer, O/o The
Chief Medical & Health Officer, Barmer (Rajasthan)
…. RESPONDENTS
For use in Appellate Tribunal’s Office
Date of presentation in the registry
Date of receipt by post
Registration No.
Signature
(Registrar)
 INDEX

S. No. EXHIBI PARTICULARS Page

T No.
Particulars of online
registration of Appeal and A
Payment of fee
1 Memorandum of Appeal
Copy of Adjudication
Application, Form VA and
2 A
FA Report filed by the Food
Safety Officer
Copy of the impugned
4 B
order dated 22.02.2021
Affidavit in support of
5
documents
6 Vakalatnama
 MEMORANDUM OF APPEAL

1. Particulars of the Appellant

(i) Name of the Appellant:

1) Kishore S/o Lekhraj by caste Khatri, aged
about 45 year, R/o Khatriyo ka Bas,
Badmer (Manager) M/s Lekhraj
Chimaniram, Jatiyo ka Bas, Hamirpur,
District Barmer.
2) Lekraj Bhoot S/o Chimaniram Bhoot, aged
about 50 years, Khatriyo ka Bas, Badmer.
(Owner) M/s Lekhraj Chimaniram, Jatiyo
ka Bas, Hamirpur, District Barmer.

(ii) Address of the Appellant:

Appellant No. 1- M/s Lekhraj Chimaniram,
Jatiyo ka Bas, Hamirpur,
District Barmer
Appellant No.2- M/s Lekhraj Chimaniram,
Jatiyo ka Bas, Hamirpur,
District Barmer

(iii) Address for service of all notices:

Appellant No.1- M/s Lekhraj Chimaniram,
Jatiyo ka Bas, Hamirpur,
District Barmer
Appellant No.2- M/s Lekhraj Chimaniram,
Jatiyo ka Bas, Hamirpur,
District Barmer
 (iv) Telephone / Fax No., Email address if
any:
Counsel for Appellant Sh. Abhijeet
Panchariya, Advocate

2. Particulars of the Respondents

(i) Name of the Respondent:

1. State of Rajasthan through The
Commissioner - Food Safety, Rajasthan,
Jaipur

2. Sh. Bhooram Godara, Food Safety Officer,

Barmer

(ii) Address of the Respondent:

1. For Respondent No. 1 – Swasthya
Bhawan, C-Scheme, Jaipur (Rajasthan)

2. For Respondent No. 2 – Office of Chief

Medical & Health Officer, Barmer
(Rajasthan)

(iii) Address for service of all notices:

1. For Respondent No. 1 – Swasthya
Bhawan, C-Scheme, Jaipur (Rajasthan)

2. For Respondent No. 2 – Office of Chief

Medical & Health Officer, Barmer
(Rajasthan)

(iv) Telephone / Fax No., Email address if

any: Not known.
3. Jurisdiction of the Appellate Tribunal

The Appellants declares that the matter of appeal

falls within the jurisdiction of the Appellate
Tribunal.

4. Limitation

The Appellant further declares that the appeal is not

in limitation as prescribed in Rule 3.3.1(1). Because
appellant apply for copy of order dated 22.02.2021
on 25.03.2021 and same was received on very same
day but that time curfew and lockdown was
imposed by the Rajasthan Government due this
appellant filling this appeal with some delay under
Rule 3.3.1(1).

5. Facts of the Case

i) That, the Food Safety Officer, in the Office
of Chief Medical and Health Officer Barmer
– Respondent No. 2 (hereinafter referred to
as “FSO”) visited M/s Lekhraj Chimaniram,
Jatiyo ka Bas, Hamirpur, District Badmer, on
03.10.2019 and lifted sample of “Flavoured
Processed Supari (Brand Minaxi)” 16x120
Grams, (hereinafter referred to as
“Sample”) for analysis and accordingly
issued Form VA to the Vendor - Appellant.
Thereafter, the sample was sent to the Food
 Analyst, Jodhpur (hereinafter referred to as
“FA”) for analysis. The FA in its report
dated 16.10.2019 opined that the sample
was Misbranded under section 3(1)(zf)
(C)(i) of Food Safety and Standards Act-
2006 and Substandard as it does not
conform to the prescribed standards and
provision of Food Safety and Standards
(Food Products and Food Additives)
Regulations 2011 that, consequently, after
obtaining sanction for prosecution, the
Respondent FSO initiated adjudication
proceedings in the Court of Adjudication
Officer cum Additional District Magistrate,
Barmer (hereinafter referred to as “AO”)
against the Appellants for contravention of
Regulation of FSS (Food Products Standards
and Food Additives) Regulation, 2011.

In view thereof, the Appellant were prosecuted

for alleged violation of section 26(2)(ii) of FSSA
and the rules framed thereunder and punishable
u/s – 51 and 52 of the FSSA. Copy of Adjudication
Application, Form VA and FA report are annexed
herewith in colly and marked as Exhibit – A.

ii) That, learned Adjudicating Officer &

Additional District Magistrate Barmer, issued
show cause notices and appellants.
 iii) Thereafter, the case was finally heard by
Ld. A.O. and vide impugned order dated
22.02.2021, Ld. A.O held the Appellants are
liable u/s-51 and 52 of FSSA and imposed
penalty of Rs. 2,00,000 (Two Lakh) on
Appellants and directed to deposit the amount
within 1 Month from date of order. Copy of the
impugned order dated 22.02.2021 is annexed
hereto and marked as Exhibit-C.

iv)That, being aggrieved by the impugned

order dated 22.02.2021 passed by the
Adjudicating Officer, Barmer in FSSA Case
No.11/2020, the appellant is filing this
appeal before this Hon’ble Tribunal for
setting aside the impugned order on the
following amongst other grounds which
are set out herein below which are without
prejudice to each other:

GROUNDS

A) For that, the impugned order passed by the

Learned Adjudicating Officer is bad in law, invalid
and vitiated by error apparent on the facts of the
record and against the provisions of the Food
Safety and Standards Act, 2006 & also against
Food Safety and Standards Rules, 2011.
 Therefore, same is liable to be quashed and set –
aside.

B) For that, the impugned order was passed by the

Learned Adjudicating Officer doesn’t speak for
itself and totally unreasoned. Therefore, being
unreasoned and implausible the penalty made
against the present appellant is illegal.

C) For that, the Learned Adjudicating Officer without

given any notice under Rule 3.1.2(6) to appellant
for filling his reply and supersede the procedure
laid down under Food Safety and Standards
Rules, 2011 and passed the order against the
appellant is unreasoned and implausible.
Therefore, EX-PARTE order is liable to be
quashed and set –aside.

D) For that, that Learned Adjudicating officer erred

in passing the impugned order relying upon the
report analysis conducted by State Central Public
Health Laboratory, Jodhpur (Rajasthan). The said
Laboratory wherein the sample in the instant
case has been tested/analyzed is void-ab-initio
because the report given by the Food Analyst is
completely false and unsubstantiated as the
Artificial Sweetener Saccharin is allowed with
prescribed maximum limit is 4000 ppm of
artificial sweetner in Supari as per Table given
under Regulation No. 3.1.3(1) of Food Safety and
Standards (Food Product Standards and Food
Additives) Regulations, 2011. For the Hon’ble
Tribunal reference

Regulation 3.1.3: ARTIFICIAL SWEETNERS

(1) Use and Sale of artificial Sweetners :- Artificial sweeteners

mentioned in column 2 of the table below, may be used only

in the food articles mentioned in column 3 and in quantities

not exceeding the limits mentioned in column 4 and as per

provision contained in these regulations and appendices and

shall bear the label declarations as provided in the regulation

2.4.5 (24,25,26,27,28 & 29) of Food Safety and Standards

(Packaging and Labelling) Regulations, 2019

SI. Name Maximum Limit of

No. of Artificial Article of Food Artificial Sweetner

Sweetner
1. 2 3 4

1. Saccharin Saccharin Sodium Carbonated water 100ppm

Sodium Soft Drink concentrate 100ppm

Supari 4000ppm

XXXX

XXXX

Maximum limit of artificial sweetener already

mentioned in Act but food analyst directly
given his opinion involuntarily and
discretionary manner without given any limit
of artificial sweetener prescribed under
regulation and quantity of saccharin used in
the appellant product. Nevertheless, the
Additional District Magistrate, after looking at
the wrong and fabricated report without
 checking it, ordered a penalty against
Appellant. Hence, the impugned order passed
by the Ld. AO Basis the report of FA is liable to
be dismissed and set aside by this Hon’ble
Tribunal.

A) For that, the Ld. AO erred in passing the

impugned order relying upon the report of
analysis conducted by State Central Public Health
Laboratory, Jodhpur (Rajasthan). The said
Laboratory wherein the sample in the instant
case has been tested/analyzed is not accredited
by NABL or other accreditation agency nor it has
been recognized by the Food Authority under it
has been recognized by the Food Authority under
section 43 of the FSSA. Hence, the impugned
order passed by the Ld. AO Basis the report of FA
is liable to be dismissed and set aside by this
Hon’ble Tribunal.

B) For that, it is clear that under section 3(p), “food

laboratory” is a laboratory which is either State or
Central laboratory or any other allied laboratory
which is accredited by NABL or any other
accreditation agency and recognized by the Food
Authority under section 43 of the Act. Sub-section
(1) of section 43 makes it abundantly clear that
only in that laboratory which is recognized by the
Food Authority by Notification, food can be sent
for analysis by the Food Analyst. Section 43(1)
mandates that the Food Analyst has to analyze the
food in a laboratory accredited by NABL and also
recognized by the Food Authority and notified by
it. It is therefore apparent that if there is non-
compliance of said provisions and if the food
product or the label on packing of food product is
tested/analysed in a laboratory which does not
fall within the definition of section 3(p) and not
recognized by the Food Authority, the analysis
made in such laboratory cannot be relied upon.
Reliance is placed on judgment passed by Hon’ble
Bombay Highcourt in Writ Petition
(L)No.1688/2015: M/s Nestle India Ltd – vs –
The Food Safety and Standards Authority of
India & Others [Para 96. – It is not in dispute
that the Laboratories in which these food
samples were tested were either not accredited
by NABL or not recognized by the Food
Authority under section 43(1) of the Act or even
if they were accredited or notified, they were
not accredited to make analysis in respect of
lead in the sample. There is no material on
record to show whether the procedure of
testing sample mentioned under the Act and
Rules and Regulation framed which is
thereunder has been followed. There is a grave
doubt about the samples tested at Avon Food
 Lab (Pvt.) Ltd. And even if they are so tested,
prime facie, it does appear that procedure of
testing the samples has not been followed. The
contention of Mr. Pracha, the learned Counsel
for respondent No.2 that in view of Notification
issued on 5/7/2011 even the State and central
Laboratories, though not notified, were entitled
to test the samples, is incorrect. The said
Notified reads as under:-

“No.83-Dir(Enf)/FSSAI/2011
Food Safety and Standards Authority of India
(A Statutory Regulatory Body of Govt. of India)
Ministry of Health & Family Welfare 3rd Floor,
FDA Bhawan, Kotla Road New Delhi-110002
Dated : 5th July, 2011

To,
Food Safety Commissioner of all States/UTs
Subject:- Clarification on the status of Public
Labs
Functioning at Central/State/UT after the
promulgation of FSS Act, 2006 with effect from 5 th
August, 2011.

Section 43 of the FSS Act requires that all food testing

under the Act will be done in NABL or any other
FSSAI approved accrediated lab. State Governments
and UT Government have already been advised in this
regards and the results of a ‘gap analysis’
commissioned by FSSAI in respect of the State Labs
have been shared for appropriate action for the
upgradation of the Labs to accredited standards.
However, from the interaction with the State
Government it is clear that the process is likely to
take some time and the labs will not be able to get
accreditation before 5th August,2011 when the FSS
Act will become operational.
The matter has been examined and it is clarified that
the existing Public Food Testing Laboraties which are
testing food samples under PFA will continue to
perform their function of food testing under Section
98 of FSS Act,2006.
The Central Food Laboratories at Kolkata, Pune and
Mysore and FRSL, Ghaziabad will function as the
referral laboratories
Yours sincerely, (S.S Ghonkrokta) Director”

The said Notification clearly mentions that the said

Notification had been issued till the laboratories
under the FSS Act, 2006 were accredited by NABL
and recognized and notified by the Food Authority.
It is an admitted position that in 2012 the several
Laboratories have been so recognized by the Food
Authority and notified by issuing Notifications. The
contention of the learned Counsel for Respondent
No.2 is therefore, not acceptable. The contention of
Mr. Khambatta the learned Senior Counsel for
Respondent No.3 and 4 that this issue which was
raised in rejoinder by the Petitioner was an
afterthought, also cannot be accepted and
therefore, it is not possible to place reliance on the
reports of Food Analysts given by various States in
respect of analysis of the samples of the product of
the petitioner and therefore decision taken by the
Food Authority relying on these reports therefore
will have to be set aside…]

C) For that, without prejudice to the above, it is

submitted that, in the matter of Initiating Suo
Moto Action V/s State & Ors. before Hon’ble J&K
 Highcourt decided on 17.07.2017
[FAC2017(2)Pg.355], the Ld. Counsel appearing
on behalf of FSSAI had Submitted that unless and
until the laboratories are accredited with NABL,
Prosecutions of violations by FBO may run into
difficulties. The Hon’ble J&K High Court also held
that it is imperative that the food laboratories at
Srinagar and Jammu are upgraded immediately
and that they apply for accreditation with NABL
at the earliest. In view of thereof, the impugned
order is liable to be set aside for having been
passed relying on a report issued after analysis in
an unauthorized laboratory.

D) For that, after receiving the report dated

16.10.2019 of analysis conducted by State Central
Public Health Laboratory, Jodhpur (Rajasthan)
appellant already ameliorated his mistake on
label and printed the new label as prescribed
under Food Safety and Standards (packaging and
labelling) Regulation, 2011. A Copy of the rectified
label will be submitted at the time of argument.
Thus the order of Ld. Adjudicating Officer
imposing penalty is liable to be set aside.
E) That, the Additional District Magistrate Barmer
without applying the Section 49 of Food Safety
Standard Act 2006, passed the order against the
appellant.
 49. General provision relating to penalty:
While adjudging the quantum of penalty under
this chapter, the Adjudicating Officer or the
Tribunal, as the case may be, shall have due
regard to the following-
a. the amount of gain or unfair advantage,
wherever quantifiable, made as a result
of the contravention,
a. the amount of loss caused or likely to
cause to any person as a result of the
contravention,
b. the repetitive nature of the
contravention,
c. whether the contravention is without
his knowledge, and
d. Any other relevant factor.

F) For that, the Ld. AO erred in relying on the report

of FA in passing the impugned order. Since, FA
could not give his opinion regarding the
declarations mentioned on the label as he is
authorized and liable to report result of analysis
of the sample, as to, whether the sample is unsafe
or the same is as per the prescribed standards.
Reliance is placed on the Following judgments:-
Gopi Nath & Sons Vs The State of Himachal
Pradesh&Anr.
{1981CriLJ175(MANU/HP/0016/1980)
 Nehrudasan Vs Food Inspector, Madurai
Corporation, Madurai 2010(1)FAC49

G) For that, in view of the aforesaid facts it can safely

be inferred that the impugned order passed by
the Adjudicating Officer is not accordance with
law as reasonable and fair opportunity of hearing
which is mandatory under sub-section(2) of
Section 68 of FSSA Act was not afforded to the
appellant. No enquiry was made before recording
a finding that the appellant has committed
contravention of the provisions of the FSSA Act
and Rules and Regulation made thereunder, and
therefore, order of the Ld. Adjudicating Officer
deserves to be set aside.
H) That the Appellant craves leave to submit other
grounds at the time arguments.

6) Relief (s) sought

In view of the facts mentioned in paragraph 5 and

the grounds on which the impugned order is
challenged, the Appellants prays for the following
relief (s);

i) That, this Hon’ble Tribunal be pleased to admit

the Appeal and call for the records pertaining
to FSSA Case No. 11/2020 from the Court of
the Learned Adjudicating Officer, Barmer;

ii) That, this Hon’ble Tribunal after examining the

records be pleased to quash / set aside the
 impugned order dated 22.02.2021 against the
Appellants passed by the Learned Adjudicating
Officer, Barmer in FSSA Case No. 22/2021;

iii) Any further and other reliefs as this Hon’ble

Tribunal deem fit and proper considering the
facts and circumstances of the case;

7) Interim relief (s) sought (if prayed for)

Pending the final decision in the appeal, the

Appellant seeks the following interim relief (s).

That, pending the hearing and final disposal of the

Appeal, this Hon’ble Tribunal be pleased to stay the
impugned order dated 22.02.2021 and all
consequent proceedings thereto as against the
appellants passed by the Learned Adjudicating
Officer, Barmer in FSSA Case No. 11/2021 for the
following reasons;

i) That, the Appellants have a good case and have

every chance to succeed in the appeal.

ii) That, if the impugned order is not stayed the

Appellants will suffer irreparable loss and
injury as because as per the impugned order if
the penalty is not paid within 30 days from the
date of impugned order, proceedings under
Section 96 of FSSA shall be initiated and the
license shall be suspended till the penalty is
paid.
 iii) For that, the sanction for prosecution by the
designated Officer suffers from non –
application of mind on the part of the
designated officer and as such the impugned
order is liable to be set aside by this Hon’ble
Tribunal.

iv) That, the balance of convenience lies in staying

the impugned order till the decision in the
present appeal by this Hon’ble Tribunal.

v) That to secure the ends of justice the impugned

order is liable to be stayed by the Hon’ble
Tribunal.

8) Matters not pending with any other Court

The Appellants further declares that the matter

regarding which this appeal is not pending before
any Court of law or any other authority or any other
Tribunal.

9) Particulars of fee paid

(i) Amount of fee paid : - As per particulars of
online Appeal Registration
(ii) Name of the bank on which the Demand
Draft is drawn – NA
(iii) Demand draft No. and date – NA

10) Details of Index

 An index containing the details of the documents
relied upon is enclosed.

11) List of enclosures

 Exhibit A - Copy of Adjudication Application,

Form VA and FA Report filed by the Food
Safety Officer
 Exhibit B – Copy of the impugned order dated
22.02.2021
 Vakalatnama

Signature of the Appellant

COUNSEL FOR APPELLANT

Abhijeet Panchariya
Advocates
 VERIFICATION

I, Kishore S/o Lekhraj by caste Khatri, aged about 45

year, R/o Khatriyo ka Bas, Badmer (Manager) M/s
Lekhraj Chimaniram, Jatiyo ka Bas, Hamirpur, District
Barmer, being Appellant do hereby verify that the
contents of paragraphs of the above Appeal are true to
my personal knowledge and belief and that I have not
suppressed any material fact.

Place: Jaipur Signature of the Appellant

Date:

(Kishore Khatri)
BEFORE THE FOOD SAFETY APPELLATE TRIBUNAL
(RAJASTHAN AT JAIPUR)

APPEAL NO. /2021

Kishore and Another

Versus
State of Raj. & Anr.

AFFIDAVIT IN SUPPORT OF DOCUMENTS

I, Kishore S/o Lekhraj by caste Khatri, aged about 45

year, R/o Khatriyo ka Bas, Badmer (Manager) M/s Lekhraj
Chimaniram, Jatiyo ka Bas, Hamirpur, District Barmer.
(Rajasthan), solemnly affirm and state on oath as
under:-

1. That, I am one of the Appellant in present case

and I am fully acquainted with the facts and
circumstances of the case.

2. That, the documents mentioned and annexed to

the Appeal are true and correct copy to the best
of my knowledge and belief.

Date:

DEPONENT
 VERIFICATION
I, the above named deponent do hereby verify that
the contents of the above affidavit are true and correct,
nothing has been concealed and no part of it is false.
MAY GOD HELP ME.

Date:

DEPONENT