Section 49 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Section 49 of the Food Safety and Standards Act, 2006 tells the Adjudicating Officer or the Tribunal what to weigh when fixing the amount of a penalty under Chapter IX. There are five factors: gain or unfair advantage, loss caused or likely, repetition, absence of knowledge, and any other relevant factor.
When adjudging the quantum of penalty under Chapter IX, the Adjudicating Officer or the Tribunal must have due regard to: (a) gain or unfair advantage, where quantifiable; (b) loss caused or likely to be caused to any person; (c) the repetitive nature of the contravention; (d) whether the contravention was without his knowledge; and (e) any other relevant factor. The penalty sections set a maximum, and s.49 governs where the amount falls below it.
The five factors
The text reads: "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".
| Clause | Factor | What to show |
|---|---|---|
| (a) | The amount of gain or unfair advantage, wherever quantifiable, made as a result of the contravention | Profit or saving from the breach, for example the cost saved by using a cheaper ingredient |
| (b) | The amount of loss caused or likely to be caused to any person as a result | Harm to consumers or others, including likely loss |
| (c) | The repetitive nature of the contravention | Earlier similar breaches |
| (d) | Whether the contravention is without his knowledge | Good faith, reliance on a supplier, an honest error |
| (e) | Any other relevant factor | Open-ended |
The wording "shall have due regard" is mandatory. The officer may not ignore the factors, although the Act does not give them weights or a formula.
Who applies these factors
Section 49 names the Adjudicating Officer and the Tribunal. The Adjudicating Officer is appointed under s.68, and the Food Safety Appellate Tribunal under s.70 hears appeals against the Adjudicating Officer's decisions. See our posts on adjudication of food safety cases and the appeal against an Adjudicating Officer's order. A criminal court deciding a fine under the punishment sections of the same Chapter is governed by the provisions of those sections and the general law. Section 49 speaks only of the Adjudicating Officer and the Tribunal.
If you are facing adjudication and want to organise the facts under these five heads, our penalty and adjudication team can help you prepare.
The maximum is a ceiling
Most penalty sections in Chapter IX say a penalty "which may extend to" or "not exceeding" a stated amount. For example, s.51 provides a penalty which may extend to five lakh rupees for sub-standard food, s.52 three lakh rupees for misbranded food, and s.54 one lakh rupees for food containing extraneous matter. The words "may extend to" make the amount a ceiling. Section 49 is the guide for where below the ceiling the actual penalty should fall. The Act does not set a minimum for those penalties.
Applying the factors
(a) Gain or unfair advantage
The factor applies "wherever quantifiable". If an operator saved money by substituting a cheaper ingredient, the saving can be computed from purchase records. If it cannot be computed, the factor does not count against the operator. Records that show true cost are therefore useful either way.
(b) Loss caused or likely to be caused
The words "or likely to cause" mean that actual injury is not needed. A contravention that could have harmed many consumers, even if no complaint has been made, can be weighed under this head. Where injury or death has in fact occurred, see the article on section 65 on compensation.
(c) Repetition
A record of earlier contraventions cuts against the operator under s.49. Separately, s.64 makes a subsequent conviction for the same offence punishable with twice the punishment, a daily fine for a continuing offence and cancellation of the licence; see our article on sections 58 and 64. Section 49(c) is about the amount of a penalty. Section 64 is about a later conviction.
(d) Without knowledge
A food business operator can argue that the contravention happened without his knowledge. Section 80 separately provides defences in prosecution; see the article on section 80. Under s.49 it goes to the amount. The Act does not say what standard of proof applies, so keep documents, such as supplier guarantees, batch records and training logs, that show you did not know.
(e) Any other relevant factor
This is the open clause. Matters such as prompt corrective action, cooperation with the inquiry or the scale of the business can be raised under it, though the Act does not list them and this article does not suggest that any will succeed.
Example. Two manufacturers are each found to have sold misbranded packs. One is a first-time offender whose printer made the error and who withdrew the stock at once. The other has been found in the same breach before and saved printing cost by reusing old labels. On the same ceiling, the factors (c), (d) and (a) point to different amounts.
What to prepare
- A note of the gain, if any, and the means of computing it.
- Evidence of loss or the absence of loss.
- Your compliance history.
- Documents showing absence of knowledge.
- Any other facts you want treated as relevant, recorded before the hearing.
Need help presenting your case on penalty?
If an adjudication notice has been served on you and the amount is in question, TaxClue can help you structure the reply around these factors. See our penalty and adjudication page.
Key takeaways
- Section 49 applies to the Adjudicating Officer and the Tribunal when fixing the quantum of penalty under Chapter IX.
- The five factors are gain, loss, repetition, absence of knowledge and any other relevant factor.
- The penalty sections set ceilings; s.49 governs where the amount falls.
- Keep records of cost, loss, history and knowledge before any hearing.
- Repetition is also dealt with separately in s.64 for later convictions.
Read next
- Section 48: general provisions relating to offences
- Adjudication of food safety cases
- Sections 54 and 55: penalty for extraneous matter and failure to comply with FSO directions
- Penalty for substandard food: section 51
Disclaimer: Based on the Food Safety and Standards Act, 2006 as enacted, read with the Jan Vishwas (Amendment of Provisions) Act, 2023 where it applies (ss.59, 61 and 63 only). Verify current notifications, regulations and FSSAI orders before acting.