Chapter X
ADJUDICATION AND FOOD SAFETY APPELLATE TRIBUNAL
68. Adjudication.
68. Adjudication.—(1) For the purposes of adjudication under this chapter, an officer not below the rank of Additional District Magistrate of the district where the alleged offence is committed, shall be notified by the State Government as the Adjudicating Officer for adjudication in the manner as may be prescribed by the Central Government.
(2) The Adjudicating Officer shall, after giving the person a reasonable opportunity for making representation in the matter, and if, on such inquiry, he is satisfied that the person has committed the contravention of provisions of this Act or the rules or the regulations made thereunder, impose such penalty as he thinks fit in accordance with the provisions relating to that offence.
(3) The Adjudicating Officer shall have the powers of a civil court and—
(a) all proceedings before him shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Indian Penal Code (45 of 1860);
(b) shall be deemed to be a court for the purposes of Sections 345 and 346 of the Code of Criminal Procedure, 1973 (2 of 1974).
(4) While adjudicating the quantum of penalty under this chapter, the Adjudicating Officer shall have due regard to the guidelines specified in Section 49.
69. Power to compound offences.
69. Power to compound offences.—(1) The Commissioner of Food Safety may, by order, empower the Designated Officer, to accept from petty manufacturers who himself manufacture and sell any article of food, retailers, hawkers, itinerant vendors, temporary stall holders against whom a reasonable belief exists that he has committed an offence or contravention against this Act, payment of a sum of money by way of composition of the offence which such person is suspected to have committed.
(2) On the payment of such sum of money to such officer, the suspected person, if in custody, shall be discharged and no further proceedings in respect of the offence shall be taken against such person.
(3) The sum of money accepted or agreed to be accepted as composition under sub-section (1), shall not be more than one lakh rupees and due regard shall be made to the guidelines specified in Section 49:
Provided that no offence, for which punishment of imprisonment has been prescribed under this Act, shall be compounded.
70. Establishment of Food Safety Appellate Tribunal.
70. Establishment of Food Safety Appellate Tribunal.—(1) The Central Government or as the case may be, the State Government may, by notification, establish one or more tribunals to be known as the Food Safety Appellate Tribunal to hear appeals from the decisions of the Adjudicating Officer under Section 68.
(2) The Central Government or the State Government, as the case may be, shall prescribe, the matters and areas in relation to which the Tribunal may exercise jurisdiction.
(3) The Tribunal shall consist of one person only (hereinafter referred to as the Presiding Officer of the Tribunal) to be appointed, by notification, by the Central Government or the State Government, as the case may be:
Provided that no person shall be qualified for appointment as a Presiding Officer to the Tribunal unless he is or has been a District Judge.
(4) The qualifications, appointment, term of office, salary and allowances, resignation and removal of the Presiding Officer shall be such as may be prescribed by the Central Government.
(5) The procedure of appeal and powers of the Tribunal shall be such as may be prescribed by the Central Government.
71. Procedure and powers of Tribunal.
71. Procedure and powers of Tribunal.—(1) The Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908) but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and the rules made thereunder, the Tribunal shall have powers to regulate its own procedure including the place at which it shall have its sittings.
(2) The Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:—
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of documents or other electronic records;
(c) receiving evidence on affidavits;
(d) issuing commissions for the examination of witnesses or documents;
(e) reviewing its decisions;
(f) dismissing an application for default or deciding it ex parte;
(g) any other matter which may be prescribed by the Central Government.
(3) Every proceeding before the Tribunal shall be deemed to be judicial proceeding within the meaning of Sections 193 and 228, and for the purposes of Section 196 of the Indian Penal Code (45 of 1860), it shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).
(4) The appellant may either appear in person or authorise one or more legal practitioners or any of its officers to represent his case before the Tribunal.
(5) The provisions of the Limitation Act, 1963 (36 of 1963), shall, except as otherwise provided in this Act, apply to an appeal made to the Tribunal.
(6) Any person aggrieved by any decision or order of the Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Tribunal to him on any question of fact or law arising out of such order:
Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days.
72. Civil court not to have jurisdiction.
72. Civil court not to have jurisdiction.—No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an Adjudicating Officer or the Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.
73. Power of court to try cases summarily.
73. Power of court to try cases summarily.—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences not triable by a Special Court, shall be tried in a summary way by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such a trial:
Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year:
Provided further that when the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.
74. Special courts and Public Prosecutor.
74. Special courts and Public Prosecutor.—(1) Notwithstanding anything contained in this Act or in the Code of Criminal Procedure, 1973 (2 of 1974), the Central Government or the State Government in their respective jurisdictions may, if consider expedient and necessary in the public interest, for the purposes of the trial of offences relating to grievous injury or death of the consumer for which punishment of imprisonment for more than three years has been prescribed under this Act, constitute, by notification in the Official Gazette, as many Special Courts with the concurrence of the Chief Justice of the High Court as may be necessary for such area or areas and for exercising such jurisdiction, as may be specified in the notification.
(2) A Special Court may, on its own motion, or on an application made by the Public Prosecutor and if it considers it expedient or desirable so to do, sit for any of its proceedings at any place other than its ordinary place of sitting.
(3) The trial under this Act of any offence by a Special Court shall have precedence over the trial of any other case against the accused in any other court (not being a Special Court) and shall be concluded in preference to the trial of such other case and accordingly the trial of such other case shall remain in abeyance.
(4) For every Special Court, the Central Government or the State Government, as the case may be, shall appoint a person to be the Public Prosecutor and may appoint more than one person to be the Additional Public Prosecutors:
Provided that the Central Government or the State Government, as the case may be, may also appoint for any case or class or group of cases, a Special Public Prosecutor.
(5) A person shall not be qualified to be appointed as a Public Prosecutor or an Additional Public Prosecutor or a Special Public Prosecutor under this section unless he has been in practice as an Advocate for not less than seven years or has held any post, for a period of not less than seven years, under the Union or a State, requiring special knowledge of law.
75. Power to transfer cases to regular courts.
75. Power to transfer cases to regular courts.—Where, after taking cognizance of any offence, a Special Court is of the opinion that the offence is not triable by it, it shall, notwithstanding that it has no jurisdiction to try such offence, transfer the case for the trial of such offence to any court having jurisdiction under the Code of Criminal Procedure, 1973 (2 of 1974) and the court to which the case is transferred may proceed with the trial of the offence as if it had taken cognizance of the offence.
76. Appeal.
76. Appeal.—(1) Any person aggrieved by a decision or order of a Special Court may, on payment of such fee as may be prescribed by the Central Government and after depositing the amount, if any, imposed by way of penalty, compensation or damage under this Act, within forty-five days from the date on which the order was served, prefer an appeal to the High Court:
Provided that the High Court may entertain any appeal after the expiry of the said period of forty-five days, if it is satisfied that the appellant was prevented by sufficient cause for filing the appeal within the said period.
(2) An appeal preferred under this section shall be disposed of by the High Court by a bench of not less than two judges.
77. Time limit for prosecutions.
77. Time limit for prosecutions.—Notwithstanding anything contained in this Act, no court shall take cognizance of an offence under this Act after the expiry of the period of one year from the date of commission of an offence:
Provided that the Commissioner of Food Safety may, for reasons to be recorded in writing, approve prosecution within an extended period of up to three years.
78. Power of court to implead manufacturer, etc.
78. Power of court to implead manufacturer, etc.—Where at any time during the trial of any offence under this Act alleged to have been committed by any person, not being the importer, manufacturer, distributor or dealer of any article of food, the court, is satisfied, on the evidence adduced before it, that such importer, manufacturer, distributor or dealer is also concerned with that offence, then the court may notwithstanding anything contained in sub-section (3) of Section 319 of the Code of Criminal Procedure, 1973 (2 of 1974), or in Section 71 of this Act, proceed against him as though a prosecution has been instituted under this Act.
79. Magistrate’s power to impose enhanced punishment.
79. Magistrate’s power to impose enhanced punishment.—Notwithstanding anything contained in Section 29 of the Code of Criminal Procedure, 1973 (2 of 1974), it shall be lawful for the court of ordinary jurisdiction to pass any sentence authorised by this Act, except a sentence of imprisonment for a term exceeding six years in excess of his powers under the said section.
80. Defences which may or may not be allowed in prosecution under this Act.
80. Defences which may or may not be allowed in prosecution under this Act.—(A) Defence relating to publication of advertisements—
(1) In any proceeding for an offence under this Act in relation to the publication of an advertisement, it is a defence for a person to prove that the person carried on the business of publishing or arranging for the publication of advertisements and that the person published or arranged for the publication of the advertisement in question in the ordinary course of that business.
(2) Clause (1) does not apply if the person—
(a) should reasonably have known that the publication of the advertisement was an offence; or
(b) had previously been informed in writing by the relevant authority that publication of such an advertisement would constitute an offence; or
(c) is the food business operator or is otherwise engaged in the conduct of a food business for which the advertisements concerned were published.
(B) Defence of due diligence—
(1) In any proceedings for an offence, it is a defence if it is proved that the person took all reasonable precautions and exercised all due diligence to prevent the commission of the offence by such person or by another person under the person’s control.
(2) Without limiting the ways in which a person may satisfy the requirements of clause (1), a person satisfies those requirements if it is proved—
(a) that the commission of the offence was due to—
(i) an act or default of another person; or
(ii) reliance on information supplied by another person; and
(b)(i) the person carried out all such checks of the food concerned as were reasonable in all the circumstances; or
(ii) it was reasonable in all the circumstances to rely on checks carried out by the person who supplied such food to the person; and
(c) that the person did not import the food into the jurisdiction from another country; and
(d) in the case of an offence involving the sale of food, that—
(i) the person sold the food in the same condition as and when the person purchased it; or
(ii) the person sold the food in a different condition to that in which the person purchased it, but that the difference did not result in any contravention of this Act or the rules and regulations made thereunder; and
(e) that the person did not know and had no reason to suspect at the time of commission of the alleged offence that the person’s act or omission would constitute an offence under the relevant section.
(3) In sub-clause (a) of clause (2), another person does not include a person who was—
(a) an employee or agent of the defendant; or
(b) in the case of a defendant which is a company, a director, employee or agent of that company.
(4) Without limiting the ways in which a person may satisfy the requirements of clause (1) and item (i) of sub-clause (b) of clause (2), a person may satisfy those requirements by proving that—
(a) in the case of an offence relating to a food business for which a food safety programme is required to be prepared in accordance with the regulations, the person complied with a food safety programme for the food business that complies with the requirements of the regulations, or
(b) in any other case, the person complied with a scheme (for example, a quality assurance programme or an industry code of practice) that was—
(i) designated to manage food safety hazards and based on national or international standards, codes or guidelines designed for that purpose, and
(ii) documented in some manner.
(C) Defence of mistaken and reasonable belief not available—
In any proceedings for an offence under the provisions of this Act, it is no defence that the defendant had a mistaken but reasonable belief as to the facts that constituted the offence.
(D) Defence in respect of handling food—
In proceedings for an offence under Section 56, it is a defence if it is proved that the person caused the food to which the offence relates to be destroyed or otherwise disposed of immediately after the food was handled in the manner that was likely to render it unsafe.
(E) Defences of significance of the nature, substance or quality of food—
It shall be no defence in a prosecution for an offence pertaining to the sale of any unsafe or misbranded article of food to allege merely that the food business operator was ignorant of the nature, substance or quality of the food sold by him or that the purchaser having purchased any article for analysis was not prejudiced by the sale.
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