M/S Tapan Milk Products, Agra & ... vs State Of U.P.,Thru. Secy.,Food & ...
2011 Latest Caselaw 6124 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
Court No. 24
 

 
Writ Petition No. 6379 (MS) of 2011
 

 
M/s Tapan Milk Products & another		...	Petitioners
 

 
Versus
 

 
The State of U.P. and others			...	Respondents
 

 
 ----------- 
 

 
Hon'ble Rajiv Sharma, J.

Heard Sri S.K.Kalia, Senior Advocate assisted by Sri Sameer Kalia and Sri J. N. Mathur, Additional Advocate General.

Draped in brevity, the facts of the case are that the petitioners are the proprietorship firms and are engaged in manufacturing, marketing and sale of the propriety foods under the licenses issued by the Competent Authority. On 28.9.2011, an inspection was conducted by the Designated Officer, Food Safety & Drug Administration, Agra on the premises of M/s Tapan Milk Products and thereafter an Improvement Notice dated 29.9.2011 was issued to the petitioner. In the Improvement Notice it has been indicated that every brand of Mild Fat and 'Ghee' being manufactured by the Firm is not only in breach of the provisions of Section 3.1 (zf) (A) (1-a,b) of the Food Safety and Standards Act, 2006 [hereinafter referred to as 'Act'] but is also violative of Regulation 2.3.7 of Chapter-2 of the Regulation framed under the aforesaid Food Safety and Standards Act, 2006. By the aforesaid notice, the Firm was provided 5 days time to make improvement.

Being dissatisfied with the improvement notice, petitioners preferred an Appeal under Section 32(4)(a) & (c) of the Safety Act before the Commissioner,Food Safety, U.P.,Lucknow inter-alia on the ground that the Improvement Notice was absolutely bald and vague as no act of omission has been pointed while manufacturing their products. Further, it cannot be said to be an Improvement Notice as nothing was suggested, which the Firm was required to improve. The appellate authority after exchange of pleadings, rejected the appeal of the petitioners vide order dated 18.10.2011, which has been impugned in the instant writ petition.

It is said that during the pendency of the aforesaid proceedings, another Improvement Notice dated 15.10.2011 was issued to the petitioners mentioning therein that the petitioners have not replied to the previous Improvement Notice, they have filed a report so as to show that they have complied with the directions contained in the previous Improvement Notice.

Counsel for the petitioners has stated that one copy of the notice dated 15.10.2011 was received by the petitioners on 17.10.2011 and another copy was received on 18.10.2011 and that too without any enclosures. By this notice, petitioners were required to submit their response to the said notice by 21.10.2011.

Before proceeding further, it would be relevant to point out that this Court while entertaining the writ petition passed an ad interim order dated 21.10.2011 providing therein that no action with regard to cancellation of the license of petitioners shall be taken.

Sri J. N. Mathur, Additional Advocate General assisted by Mr. Vinay Bhushan, Standing Counsel submitted that before the restraint order passed on 21.10.2011 could be brought to the notice of the Authorities, on the same day, the order cancelling the licence was already passed. Therefore, the impugned order of cancellation cannot be said to be unjust or having been passed under the teeth of an order of this Court. On the other hand, Counsel for the petitioners submitted that as referred above, Improvement Notices dated 15.10.2011 were issued to the petitioners which were received on 17.10.2011 and 18.10.2011 by which they were required to submit their reply by 21.10.2011 and as such, at least before 21.10.2011, no order cancelling the license granted to the petitioners could have been passed. The circumstances shown hereinabove clearly establish that the order has been passed in haste and arbitrary manner at the behest of some higher authorities without proper application of mind.

It may be noted that this Court while passing an ad interim order had slated the matter for 3.11.2011. On 3.11.2011, when it was brought to the notice of this Court that the order of cancellation has been passed, even during existence of interim order, this Court summoned the Designated Officer and the Secretary, Food and Civil Supplies.

It is relevant to point out that the petitioners by means of amendment has also questioned the validity and the correctness of the cancellation order dated 21.10.2011. Thereafter, the matter was taken up on subsequent dates and the record was also produced by the Designated Officer.

Challenge to the aforesaid order is being made inter alia on the ground that the respondent No.3 had no jurisdiction to proceed against the petitioners in view of Regulation 1.2.1 (1) of Food Safety and Standards (Licensing and Registration of Food Business) Regulations, 2011 [hereinafter referred to as 'Regulations'].

Sri S. K. Kalia at the cost of repetition, submitted that both the Improvement Notice and suspension order dated 29.9.2011 as well as Appellate Order dated 18.10.2011 were challenged before this Court in the instant writ petition and while entertaining the instant writ petition, this Court by means of its order dated 21.10.2011 provided that no action with regard to cancellation of licenses of the petitioners shall be taken. The said order was passed in presence of the Standing Counsel, who appeared in the matter and since the certified copy of the said order was not available, therefore, the order as passed by this court was sought to be served on the respondent No.3, by means of an affidavit, which he refused to take and as such, the affidavit was served in his office and to the other concerned officers through FAX, on the same day, i.e. 21.10.2011. However, on the same day itself, i.e. 21.10.2011, the impugned order of cancellation of food licenses of the petitioners was passed even though by means of notice dated 15.10.2011, the petitioners were given time till 21.10.2011 to submit their reply and as such, the same amounts to irresponsible and contumacious act of the respondents, which vitiated the impugned order dated 21.10.2011 as well.

It is relevant to point out here that this Court by means of its order dated 3.11.2011 had permitted the parties to exchange the pleadings and the matter was fixed for 16.11.2011 inter alia providing production of records as well on the said date. On the next date of listing, i.e. 16.11.2011, though no Counter Affidavit was filed, however, records were produced. The records so produced were perused by this Court and the matter was again fixed for 24.11.2011. However, even then, no affidavit was filed by the respondents disputing the contents of the writ petition. It is also pertinent to point out here that though no counter affidavit was filed by the respondents, yet list of dates and events alongwith certain documents was placed by the respondents, before this Court for its appreciation and a perusal of the records so produced by the respondents reveal that the petitioners have been time and again requesting the authorities concerned to inform them about the improvement, which is being sought by them to be made by the petitioners. One such letter/reply of the petitioners as received by them on 7.10.2011 has been filed by the respondents and contained at Sl. No.10 of the list of dates and events as submitted by the respondents. Thus, it is relevant that at no point of time, the petitioners were informed about what improvement was expected from them by the respondents to be carried out, at least not before 18.10.2011 when they were granted time till 21.10.2011 to submit a reply to the show cause notice on which date itself the impugned order of cancellation of Food Licenses was passed.

Clarifying the position it has been submitted that on the same day, i.e. 21.10.2011, the petitioners moved an application dated 21.10.2011 before the respondent No.3 for extension of time for submitting their reply to the notice dated 15.10.2011 received on 18.10.2011. It appears that the Designated Officer was moving in haste and in absolutely whimsical and arbitrary manner with an oblique motive against the petitioners, passed the impugned order of cancellation.

Elaborating his arguments, it has been contended that the Lab Test carried-out by the respondents is not final and they are subject to challenge by any person by requesting for retesting by referral or any accredited Lab as provided under Rule 2.4.1 of the Food Safety and Standard Rules, 2011 [hereinafter referred to as 'Rules'], relevant portion of which is being quoted below for ready reference:-

"2.4.1 Procedure for taking sample and manner of sending it for analysis:

The Food Safety Officer while taking sample of food for analysis under clause (1) of sub-section (1) of Section 38 and Section 47 (except 47 (5)] of the Act, shall also follow the procedure specified hereunder:-

X X X

(10) The containers of the samples shall be dispatched forthwith in the following manner:-

(i) The sealed container of one part of the sample for analysis along with memorandum in Form VI shall be sent in a sealed packet to the Food Analyst under appropriate condition to retain the integrity of the sample.

(ii) The sealed container of the second and third parts of the sample and two copies of memorandum in Form VI shall be sent to the Designated Officer by any suitable means, and

(iii) The sealed container of the remaining fourth part of the sample and a copy of the memorandum in Form VI shall be sent to an accredited laboratory along with fee prescribed by the Authority, if so requested by the Food Business Operator, under intimation to the Designated Officer.

PROVIDED that fourth part also shall be deposited with Designated Officer if Food Business Operator does not request to send the sample to an accredited lab.

(iv) For lifting a sample for testing microbiological parameters, the method of lifting sample, type of container, temperature to be maintained, method of transportation and any other condition to maintain the integrity of the sample shall be notified by the Food Authority from time to time."

Further, Rule 2.4.6 of the Rules also provides for an appeal against the Lab Reports to be preferred within 30 days to the Designated Officer and in this regard, petitioners on 29.9.2011 and 15.10.2011, contained in Annexure No.13 to the writ petition, had requested the respondent No.3 to make them available a list of the accredited Labs and the charges thereof for sending their product samples for its testing, which till date has not been done by the respondents and the petitioners request for re-testing has been completely ignored by the respondents and as such, it appears that the respondents are acting in an arbitrary manner with ulterior motive against the petitioners.

In view of the provisions of the Act, Rules and Regulations made thereunder and the facts as narrated hereinabove, it is abundantly clear that entire action of the respondent No.3 was without jurisdiction as he did not have the competence to proceed against the petitioners, while issuing the impugned Improvement Notice and suspending the licenses of the petitioners therewith and further to cancel the food licenses issued to the petitioners and further that even if, it is presumed (though not admitted) that the respondent No.3 was competent to proceed against the petitioners, even then the Improvement Notice did not conform the provisions of Section 32 of the Act, as the same nowhere mentioned the Improvements which were required by the petitioners to make and no reasons were recorded while suspending the license, which is mandatory under Section 32 of the Act and further only five days' time was granted to the petitioners for submitting a reply or to make improvements. The Appeal of the petitioners was also dismissed ignoring the provisions of law and the facts, as mentioned hereinabove and as such, the same is also absolutely illegal and unsustainable, hence the impugned Improvement Notice and suspension order dated 29.9.2011, the appellate order dated 18.10.2011 and the impugned order dated 21.10.2011 cancelling the licenses of the petitioners deserve to be quashed with consequential benefits.

As much emphasis has been laid on the various provisions of the Safety Act, 2006, I deem it proper to reproduce certain relevant provisions of the Act. The aforesaid Act was enacted by the Parliament with a view to consolidate the laws relating to food and to establish the Food Safety and Standards Authority of India for laying down science based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import to ensure availability of safe and wholesome food for human consumption and for matters connected therewith.

The statement of object and reasons of the Act reads as under:-

(1) Multiplicity of foods laws, standard setting and enforcement agencies pervades different sectors of food, which creates confusion in the minds of consumers, traders, manufacturers and investors. Detailed provisions under various laws regarding admissibility and levels of foods additives, contaminants, food colours, preservatives, etc., and other related requirements have varied standards under these laws. The standards are often rigid and non-responsive to scientific advancements and modernization. In view of multiplicity of laws, their enforcement and standard setting as well as various implementing agencies are detrimental to the growth of the nascent food processing industry and is not conducive to effective fixation of food standards and their enforcement.

(2) In as early as in the year 1998, the Prime Minister's Council on Trade and Industry appointed a Subject Group on Food and Agro Industries, which had recommended for one comprehensive legislation on Food with a Food Regulatory Authority concerning both domestic and export markets. Joint Parliamentary Committee on Pesticide Residues in its report in 2004 emphasized the need to converge all present food laws and to have a single regulatory body. The Committee expressed its concern on public health and food safety in India. The Standing Committee of Parliament on Agriculture in its 12th Report submitted in April 2005 directed that the much needed legislation on Integrated Food Law should be expedited.

(3) As an on going process, the then Member-Secretary, law Commission of India, was asked to make a comprehensive review of Food Laws of various developing and developed countries and other relevant international agreements and instruments on the subject. After making an indepth survey of the International scenario, the then Member-Secretary recommended that the new Food Law be seen in the overall prospective of promoting nascent food processing industry given its income, employment and export potential. It has been suggested that all acts and orders relating to food be subsumed within the proposed Integrated Food Law as the international trend is towards modernization and convergence of regulations of Food Standards with the elimination of multi-level and multi-departmental control. Presently, the emphasis is on (a) responsibility with manufactures, (b) recall, (c) Genetically Modified and Functional Foods, (d) emergency control, (e) risk analysis and communication and (f) Food Safety and Good Manufacturing Practices and Process Control, viz., Hazard Analysis and Critical Control Point.

(4) In this background, the Group of Ministers constituted by the Government of India, held extensive deliberations and approved the proposed Integrated Food Law with certain modifications. The Integrated Food Law has been named as 'The Food Safety and Standards Bill, 2005'. The main objective of the Bill is to bring out a single statute relating to food and to provide for a systematic and scientific development of Food Processing Industries. It is proposed to establish the Food Safety and Standards Authority of India, which will fix food standards and regulate/monitor the manufacturing, import, processing, distribution and sale of food, so as to ensure and wholesome food for the people. The Food Authority will be assisted by Scientific Committees and Panels in fixing standards and by a Central Advisory Committee in prioritization of the work. The enforcement of the legislation will be through the State Commissioner for Food Safety, his officers and Panchayati Raj/ Municipal bodies.

Section 3 of the Act is the definition clause and defines 'adulterant' 'contaminant' 'food' 'food additive' 'food business' 'hazard', 'manufacture', 'sale', 'substance', 'sub-standard' and 'unsafe food' amongst other words, which read as under:-

"(a ) "adulterant" means any material which is or could be employed for making the food unsafe or sub-standard, mis-branded or containing extraneous matter;

(g) "contaminant" means any substance, whether or not added to food, but which is present in such food as a result of the production (including operations carried out in crop husbandry, animal husbandry or veterinary medicine), manufacture, processing, preparation, treatment, packing, packaging, transport or holding of such food or as a result of environmental contamination and does not include insect fragments, rodent hairs and other extraneous matter;

(j) "food" means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food, to the extent defined in clause (ZK) genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances:

Provided that the Central Government may declare, by notification in the Official Gazette, any other article as food for the purposes of this Act having regards to its use, nature, substance or quality;

(k) "food additive" means any substance not normally consumed as a food by itself or used as a typical ingredient of the food, whether or not it has nutritive value, the intentional addition of which to food for a technological (including organoleptic) purpose in the manufacture, processing, preparation, treatment, packing, packaging, transport or holding of such food results, or may be reasonably expected to result (directly or indirectly), in it or its by-products becoming a component of or otherwise affecting the characteristics of such food but does not include "contaminants" or substances added to food for maintaining or improving nutritional qualities;

(n) "food business" means any undertaking, whether for profit or not and whether public or private, carrying out any of the activities related to any stage of manufacture, processing, packaging, storage, transportation, distribution of food, import and includes food services, caterings services, sale of food or food ingredients;

(u) "hazard" means a biological, chemical or physical agent in, or condition of, food with the potential to cause an adverse health effect;

(zd ) "manufacturer" means a person engaged in the business of manufacturing any article of food for sale and includes any person who obtains such article from another person and packs and labels it for sale or only labels it for such purposes;

(zr) "sale" with its grammatical variations and cognate expressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article;

(zw) "substance" includes any natural or artificial substance or other matter, whether it is in a solid state or in liquid form or in the form of gas or vapour;

(zx) "sub-standard" - an article of food shall be deemed to be sub- standard if it does not meet the specified standards but not so as to render the article of food unsafe;

(zz) "unsafe food" means an article of food whose nature, substance or quality is so affected as to render it injurious to health:

(i)by the article itself, or its package thereof, which is composed, whether wholly or in part, of poisonous or deleterious substances; or

(ii)by the article consisting , wholly or in part, of any filthy, putrid, rotten, decomposed or diseased animal substance or vegetable substance; or

(iii)by virtue of its unhygienic processing or the presence in that article of any harmful substance; or

(iv)by the substitution of any inferior or cheaper substance whether wholly or in part; or

(v)by addition of a substance directly or as an ingredient which is not permitted; or

(vi)by the abstraction, wholly or in part, of any of its constituents; or

(vii)by the article being so coloured, flavoured or coated, powdered or polished, as to damage or conceal the article or to make it appear better or of greater value than it really is; or

(viii)by the presence of any colouring matter or preservatives other than that specified in respect thereof; or

(ix)by the article having been infected or infested with worms, weevils or insects; or

(x)by virtue of its being prepared, packed or kept under insanitary conditions; or

(xi)by virtue of its being mis-branded or sub-standard or food containing extraneous matter; or

(xii)by virtue of containing pesticides and other contaminants in excess of quantities specified by regulations."

Section 32 of the Act reads as under:-

"32. Improvement Notices:

(1) If the Designated Officer has reasonable ground for believing that any food business operator has failed to comply with any regulations to which this section applies, he may, by a notice served on that food business operator (in this Act referred to as an 'improvement notice') -

(a) state the grounds for believing that the food business operator has failed to comply with the regulations;

(b) specify the matters which constitute the food business operator's failure so to comply;

(c) specify the measures which, in the opinion of the said Authority, the food business operator must take, in order to secure compliance; and

(d) require the food business operator to take those measures, or measures which are at least equivalent to them, within a reasonable period (not being less than fourteen days) as may be specified in the notice.

(2) If the food business operator fails to comply with an improvement notice, his license may be suspended.

(3) If the food business operator still fails to comply with the improvement notice, the Designated Officer may, after giving the licensee an opportunity to show cause, cancel the license granted to him:

PROVIDED that the designated officer may suspend any license forthwith in the interest of public health for reasons to be recorded in writing.

(4) Any person who is aggrieved by -

(a) an improvement notice; or

(b) refusal to issue a certificate as to improvement; or

(c) cancellation or suspension or revocation of license under the Act,

may appeal to the Commissioner of Food Safety whose decision thereon, shall be final.

(5) The period within which such an appeal may be brought shall be -

(a) fifteen days from the date on which notice of the decision was served on the person desiring to appeal; or

(b) in the case of an appeal under sub-section (1), the said period or the period specified in the improvement notice, whichever expires earlier."

Section 36 of the Act reads as under:-

"36 (1) The Commissioner of Food Safety shall, by order, appoint the Designated Officer who shall not be below the rank of a Sub-Divisional Officer, to be in-charge of food safety administration in such area as may be specified by regulations."

Section 89 gives overriding effect of the Act over the other food related laws and reads as under:-

"89.Overriding effect of this Act over all other food related laws - The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."

Section 97 of the Act seeks to repeal the enactment and orders specified in the Second Schedule immediately with effect from the date on which the Act is enacted and comes into force. It further provides that if there is any other law for the time being in force in any State, corresponding to the Act, the same shall, upon the commencement of the Act, stand repealed and in such case, the provisions of Section 6 of the General Clauses Act, 1897 shall apply.

Relevant portion of Section 97 of the Act is being quoted below for ready reference:

"97. Repeal and savings - (1) With effect from such date as the Central Government may appoint in this behalf, the enactment and orders specified in the Second Schedule shall stand repealed:

x x x x x x x x x

(3) Notwithstanding the repeal of the aforesaid enactment and Orders, the licenses issued under any such enactment or Order, which are in force on the date of commencement of this Act, shall continue to be in force till the date of their expiry for all purposes, as if they had been issued under the provisions of this Act or the rules or regulations made thereunder."

Thus, after the aforesaid notification the FSSA now stands as the only law relating to deal with the adulteration of food. Various provisions of the Act were notified on different dates over a period of time.

Relevant Regulations read as under:-

"1.2.1 (1) 'Central Licensing Authority' means Designated Officer appointed by the Chief Executive Officer of the Food Safety and Standards Authority of India in his capacity of Food Safety Commissioner."

Regulation 1.2.1 (3) of the Regulations defines the 'Licensing Authority' and the same reads as under:-

"1.2.1 (3) 'Licensing Authority' means the Designated Officer appointed under Section 36 (1) of the Act by the Commissioner of Food Safety of the State or by the Chief Executive Officer of the Food Safety and Standards Authority of India in his capacity of Food Safety Commissioner."

Regulation 1.2.1 (6) of the Regulations defines the 'State Licensing Authority' and the same reads as under:-

"1.2.1 (6) 'State Licensing Authority' means Designated Officer appointed under Section 36 (1) of the Act by the Food Safety Commissioner of a State or UT."

A perusal of the aforesaid provisions of the Regulations reveal that there is a Central Licensing Authority and as also State Licensing Authority. 'Central Licensing Authority' would mean the Designated Officer appointed by the Chief Executive Officer of the Food Safety and Standards Authority of India in his capacity as Food Safety Commissioner and the 'State Licensing Authority' means the Designated Officer appointed under Section 36 (1) of the Act by the Food Safety Commissioner of the State.

Regulation 2.1.2 (3) of the Regulations is being quoted below for ready reference:-

"2.1.2 License for food business:

(1) .... .....

(2) .... .....

(3) License for commencing or carrying on foods business, which falls under Schedule I, shall be granted by the Central Licensing Authority, provided that Food Authority may through notification make such changes or modify the list given in the Schedule I as considered necessary."

Relevant portion of Schedule I of the Regulations is also being quoted below for ready reference:-

"List of Food Business Falling Under the purview of Central Licensing Authority.

V. All food processing units other than mentioned under (I) to (IV) including relabellers and repackers having installed capacity more than 2 MT/day except grains, cereals and pulses milling units."

IX.Food Business Operator operating in two or more States."

According to petitioners, their licenses were issued by the State Authorities under the provisions of earlier Prevention of Food Adulteration Act, 1954, however, after coming into force of the Act, the licenses issued to the petitioners are deemed to have been issued in view of provisions of Section 97 of the Act by the competent authority. Since under the Act, the authority to issue or cancel the licenses of the petitioners would be the Central Licensing Authority and as such, the power to cancel the same also vests with the said authority and as such, the licenses of the petitioners could not have been cancelled or suspended by the respondent No.3 and the same is absolutely illegal.

To examine, the aforesaid question of competence of Designated Officer, Food Safety & Drug Administration, Agra in issuing Improvement Notice under Section 32 of the Safety Act, 2006, it is imperative to first look into the constitutional provisions with regard to Adulterated food stuff.

The Apex Court on number of occasions has reminded us that the expression "life" in Article 21 of the Indian Constitution does not connote merely physical or animal existence. Every State has a constitutional obligation and duty to protect the life and liberty of its citizens. That is the fundamental requirement for observance of the rule of law.

Right to food is a fundamental right and similarly, right to health is also a part of right to life. Undoubtedly, Article 19 (1) (g) of the Constitution gives freedom of trade or business subject to reasonable restriction. However, under Article 19 (2), no such right can be enforced where the business is dangerous or immoral.

Adulteration of food stuffs and other goods finds place under Entry 18 of list III, i.e. concurrent list of the Constitution. Part IV of the Constitution deals with the Directive Principles of the State Policy. Article 39 (e) and (f) which are relevant in the present context, read as under:-

Article 39

(e):- " that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age of strength;

(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

Article 47 deals with the duty of the State to raise the Level and the standard of living and to improve public health. It says as under:-

"Article 47:Duty of the State to raise the level of nutrition and the standard of living and to improve public health:- The shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as amongst its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medical purposes of intoxicating drinks and of drugs which are injurious to health.

Therefore, the above referred, constitutional provisions cast a duty on the State to take measures for good health and standard of nutritional products, i.e. all types of eatables consumed by the public. It is also the duty of the State to raise the level of nutrition and standard of living including improvement of public health. In my considered view raising of health standards of the general public is the utmost priority and perhaps should be placed at the top by the State.

During festivals, the news channels are very active educating and informing the public about the malpractice and substandard quality of sweets and other eatables. It seems that during festival time adulteration in eatables is at peak. But the reality is that we hardly consume food at any time which can be considered pure and unadulterated.

When we see on TV and read news in news-paper that young children and adults are suffering from various diseases due to adulteration of food, we realize that it has become a big problem. Food adulteration can be defined as the intentional debasing of the quality of food offered for sale either by the mixture or substitution of inferior substances. The average Indian family (even the affluent) is eating dangerous dyes, sawdust, soapstone, harmful chemicals and other harmful substances mixed with consumable goods. Lack of maintenance standards resulting in the proliferation of molds and fungi has resulted in the dangers of liver cancer.

Under these circumstances, the State Authorities cannot be debarred from taking action against the food operators. In other words, they cannot be a silent spectator and give all sorts of liberties to indulge in all sorts of unlawful activities by the food operators and playing with the health of the general public and the young children on whose shoulders the future of India is depended.

It is also pertinent to mention here that initial Improvement Notice and the inspection was conducted not on its own by the officials of the State Government, but it was on account of the direction/ letter dated 29.7.2011 written by the Chief Director, Department of Food and Public Distribution, Government of India addressed to the Chief Secretary of the State of Uttar Pradesh. It appears that the Directorate has conducted analysis and found that the Firm does not comply with quality standard for products defined under Vegetable Oil Production Order, 1998 in any manner whatsoever. The State Government was asked to take necessary action against the firm and the action so taken was to be informed to the Government of India. Had the jurisdiction been vested in the Central Licensing Authority/Designated Officer, there was no occasion for the Government of India to ask the State Government to take necessary action in the matter.

From fruits to vegetables, from milk to cold drinks, from ghee to edible oils, from wheat atta to common dal, from spices to sweets, it is said that there is consumption of 'poison'. In recent festivities, almost on every News Channel was flashing 'Breaking news' Synthetic Milk and 'Mawa' has been recovered. It is highly unfortunate that almost for every eatable that is being purchased from the market, a common man has a doubt that it is probably adulterated but he has no option except to purchase and consume it. This doubt is not wrong as the Food Laboratories and Accredited Agencies on number of occasions have certified of adulteration in eatables. Adulterated foods can cause all kinds of ailments and diseases. Although the doctors are unable to point out the specific after-effects unless they are sure that one has consumed an adulterated food product. Thus the State Government as well as Central Government should make a mechanism for routine inspection and dereliction by any official should be viewed very seriously. It should be embossed in the mind of the manufacturers and like people that adulteration, if any would lead to stringent action.

In view of the aforesaid legal position, the assertion of the petitioners that the Designated Officer appointed by the State has no jurisdiction to issue Improvement Notice and to take action against the Firm, as the power vests only with the Central Licensing Authority, i.e. the Designated Officer appointed by the Chief Executive Officer of the Food Safety and Standards Authority of India in his capacity of Food Safety Commissioner, is not acceptable. Moreover, Section 97 (3) provides that if there is any other law for the time being in force in any State, corresponding to the Act, the same shall, upon the commencement of the Act, stand repealed and in such case, the provisions of Section 6 of the General Clauses Act, 1897 (10 of 1987) shall apply as if such provisions of the State law had been repealed. It also provides that the standards, safety requirements and other provisions of the Acts, rules, regulations and orders listed in the Second Schedule shall continue to operate and be in force till new provisions are prescribed under the Act and the rules and regulations made thereunder. But the fact remains that the terms and condition of the licence between the licensor and the licensee issued earlier remained intact unless and until the licence of the petitioners are renewed as per the Safety Act, 2006. In these circumstances, I am afraid that if suggestion of petitioners is accepted, it would mean that the State would be a silent spectator and the Food Operators would be at liberty to indulge in all sort of unlawful activities and play with the life of general public. Therefore, the contention of the petitioner that the Designated Officer, Agra has no jurisdiction to issue Improvement Notice is wholly misconceived and is rejected.

Now, we come to examine the second assertion of the petitioner, which is to the effect that the impugned Improvement Notices are legally defective and the consequent action is in blatant disregard of the principles of natural justice. Therefore, the entire proceedings are bad in law.

As averred above, a perusal of the record produced by the State shows that after inspection on 28.9.2011, Sri Ram Naresh, Designated Officer issued an Improvement Notice dated 29.9.2011 requiring therein to take the corrective measures within five working days. This notice was received on behalf of the Firm by Mr. N. N. Chaturvedi on 1.10.2011 and on perusal of the same it reflects that the said notice is vague in so far as neither any improvement nor corrective measures have been pointed out. But only violation of certain Rules and Regulations have been indicated. Thereafter, two notices dated 5.10.2011 were sent to the Firm - one by post and the other notice by hand, which contains the endorsement of receipt by the Firm. Later on, two notices dated 15.10.2011 were sent through postal department receipt dated 15.10.2011, while the other dated 17.10.2011 through messenger. By these two notices, petitioners were required to submit explanation failing which all licenses would be cancelled.

It is pertinent to note that this Court had passed an ad interim order dated 21.10.2011in favour of the petitioners. Counsel for the petitioners has brought to the notice of the Court that the ad interim order was communicated to the Designated Officer through an Affidavit, but the same was not accepted by him. The record shows that a letter dated 22.10.2011 was sent by Mr. N.N. Chaturvedi for and on behalf of Tapan Milk Products addressed to the Designated Officer and copies thereof were also forwarded to the District Magistrate and Additional District Magistrate, Agra. This letter contains an endorsement of receipt dated 22.10.2011. It is pertinent to mention here that on this letter, an endorsement has also been made in Hindi Language to the effect that at 4.30 PM an attempt was made to get it received, but they went away after closing the office."

As regards the legal position, it is clear that Section 32 (1) (d) postulates that not less than fourteen days' time shall be provided for taking measures and complying with the Improvement Notice. When this fact was confronted with the State Counsel, he fairly conceded that the notice is defective and is not in consonance with the provisions of Section 32 of the Act. He also admitted that no satisfactory reasons have been recorded for curtailing the period . Be that as it may, when the initial Improvement Notices itself are legally defective, they are not sustainable in law. Therefore consequent proceedings arising thereupon are also untenable in the eyes of law. Under these circumstances, the entire proceedings are vitiated and are liable to be quashed.

In view of the aforesaid discussion, the writ petition is allowed and the impugned orders dated 18.10.2011 and 21.10.2011 and the consequent proceedings are hereby quashed. However, the State Government is directed to act strictly in accordance with law, in compliance of the direction/letter of the Government of India as the matter is very serious and needs corrective measures in public interest.

Dt.24.11.2011

lakshman/MH