Bombay High Court
Ahmedabad-382 210 Through Its ... vs Union Of India on 7 December, 2011
Bench: P. B. Majmudar, Mridula Bhatkar
KPP -1- WP Nos. 1355, 1803 & 1857 of 2011
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1355 OF 2011
M/s. Vishnu Packaging, a Partnership firm )
registered under the Indian Partnership Act, 1932, having )
its office at 49 & 50, Mahagujarat Estate, Village Moraiya )
Ahmedabad-382 210 through its partner Mr. Manoj Kumar )
Srivastava )...Petitioners
versus
1. Union of India, through Joint Secretary, )
Ministry of Health & Family Welfare, New Delhi
2. The Secretary, Foods & Drugs Administration
)
)
Department, Mantralaya, Mumbai-400 032 )
3. The Joint Commissioner, Food & Drugs Administration, )
Greater Mumbai, Mumbai-400 051 )
4. The Joint Commissioner (K.D.), )
Food & Drugs Administration (MS), Thane )...Respondents
WITH
WRIT PETITION NO. 1803 OF 2011
1. M/s. Kaipan Panmasala Private Limited, )
a Proprietorship concern, having its office at 10-A, )
Sector-D, Govindpura Industrial Area, Bhopal )
Govindapura, Bhopal, Madhya Pradesh-462 023 )
2. M/s. Shree Hanuman Tobacco, a Proprietorship )
concern, having its office at H. No. B/2, Sakinaka )
Industrial Market, A.G.L. Road, Sakinaka, )
Mumbai-400 072 )..Petitioners
versus
KPP -2- WP Nos. 1355, 1803 & 1857 of 2011
1. Union of India, through Joint Secretary, )
Ministry of Health & Family Welfare, New Delhi )
through Minister of Law & Justice, Aayakar Bhavan )
Annexe, 2nd floor, New Marine Lines, Mumbai-400 020 )
2. The Secretary, Foods and Drug Administration )
Department, Mantralaya, Mumbai )
3. Commissioner, Food & Drug Administration, )
Maharashtra State (Respondent Nos. 2, 3 & 4 to be )
served through Government Pleader, High Court (O.S), )
Bombay. )..Respondents
WITH
WRIT PETITION NO. 1857 OF 2011
1. M/s. Shreenath Enterprises, a Proprietorship concern )
having its office at J-180 & 181, Phase-II, Marudhar )
Industrial Area, Basni, Jodhpur Krishi Upaj Mandi, )
Jodhpur, Rajasthan-342 005 )
2. M/s. M.D. Sales, a Proprietorship concern, having )
its office at Sai Siddhi Chawl, Lenin Nagar, Near Royal )
Challenge, Off. Eastern Express Highway, )
Dist. Thane-400 604 )
versus
1. Union of India, through Joint Secretary, )
Ministry of Health & Family Welfare, New Delhi )
through Minister of Law & Justice, Aayakar Bhavan )
Annexe, 2nd floor, New Marine Lines, Mumbai-400 020 )
2. The Secretary, Foods and Drug Administration )
Department, Mantralaya, Mumbai )
3. Commissioner, Food & Drug Administration, )
Maharashtra State (Respondent Nos. 2, 3 & 4 to be )
served through Government Pleader, High Court (O.S), )
Bombay. )..Respondents
KPP -3- WP Nos. 1355, 1803 & 1857 of 2011
Mr. A. Hidayatullah, Senior Advocate, with Mr. R.F. Totla, Ms. Shailaja
Hidayatullah, Mr. Ricab Chand and Mr. Durgesh Khanapurkar, instructed by
M/s. India Law Alliance, for the petitioners in Writ Petition No. 1355 of 2011.
Mrs. Veena Thadani for the petitioners in Writ Petition Nos. 1803 & 1857 of
2011.
Ms. S.I. Shah for the Union of India in Writ Petition No. 1355 of 2011.
Mr. Rajiv Chavan with Ms. Rutuja Ambekar and Mr. Vinod Joshi for the Union of
India in Writ Petition No. 1803 of 2011.
Mr. Rajiv Chavan with Ms. Hina Shah for the Union of India in Writ Petition No.
1857 of 2011.
In all matters: Mr. D.A. Nalawade, Government Pleader, with Ms. G.R. Shastri,
Assistant Government Pleader, for the State.
CORAM: P.B. MAJMUDAR &
MRS. MRIDULA BHATKAR,
JJ.
DATE: DECEMBER 07, 2011.
ORAL JUDGMENT: (Per P.B. Majmudar, J.)
Since common point is involved in all these matters, for the sake of
convenience, they are being disposed of by this common judgment. The point
involved in Writ Petition No. 1355 of 2011 is taken as a basis for the purpose of
deciding all these matters. Mr. Hidayatullah, learned Senior Counsel, has
advanced arguments in Writ Petition No. 1355 of 2011. The learned counsel
appearing for the petitioners in other matters has adopted the argument of Mr.
Hidayatullah.
KPP -4- WP Nos. 1355, 1803 & 1857 of 2011
2. So far as Writ Petition No. 1355 of 2011 is concerned, the
petitioners are manufacturers of pan masala, gutka and other allied items. The
petitioners appointed dealers and vendors/pan shop owners who sell the
products manufactured by the petitioners. The grievance of the petitioners is
that the respondents have collected samples of the products in purported
exercise of powers under Rule 12 of the Prevention of Food Adulteration Rules,
1955 (hereinafter "the Rules"). According to the petitioners, they have
appointed consignment agents and have entered into consignment agreements
with such consignment agents. As per the consignment agreement, the
petitioners would send the products to the consignment agent for sale and the
goods lying with the consignment agent in the consignment account would
continue to vest in the manufacturer i.e. the petitioners till it was sold. It is the
case of the petitioners that on the basis of the consignment agreement dated 1st
April, 2010, the petitioners forwarded the products to one M/s. Shakir
Forwarding Services, Bhivandi for onward carriage to the dealers in Mumbai.
In the purported exercise of powers under the Prevention of Food Adulteration
Act, 1954 (hereinafter "the PFA Act") and the Rules framed thereunder,
respondent No. 4 took samples for the purpose of finding out as to whether the
article in question is adulterated or not. A notice was also issued under Section
14-A of the said PFA Act to M/s. M. Shakir Forwarding Services. According to
the petitioners, on 11th June, 2011, respondent No.3 purported to seize a
consignment of goods belonging to the petitioners from one Shailesh Shivprasad
KPP -5- WP Nos. 1355, 1803 & 1857 of 2011
Gupta, who is another consignment agent of the petitioners. Similar seizure
also took place from another consignment agent of the petitioners viz. Milan
Dhansukhlal Supariwala and the seizure was effected by respondent No.3. The
initiation of launching prosecution is under challenge at the instance of the
petitioners on the ground that prior to the year 2003, the manufacture of gutka
and pan masala containing tobacco was governed by the provisions of the said
PFA Act and the said Rules. However, in the year 2003, the Union of India
came with a legislation viz. The Cigarettes and other Tobacco Products
(Prohibition of Advertisement and Regulation of trade and Commerce,
Production, Supply and Distribution) Act, 2003 (hereinafter "the Tobacco Act,
2003). The Tobacco Act, 2003 deals with cigarette, cigar, cheroots, beedis,
cigarette, tobacco, pipe tobacco, hookah tobacco, chewing gutka, snuff, pan
masala or any other chewing material containing tobacco as one of its
ingredients (by whatever name called) gutka and tooth powder containing
tobacco. According to the petitioners, in view of the enactment of Tobacco Act,
2003, all the aforesaid products which contain tobacco are taken out from the
purview of the said PFA Act and the said Rules and put under the purview and
administration of the Tobacco Act, 2003.
3. The principal grievance on the part of the petitioners is that since
special enactment has been enacted by the Parliament dealing with tobacco and
tobacco products, the said PFA Act is not applicable. The action on the part of
KPP -6- WP Nos. 1355, 1803 & 1857 of 2011
the respondents regarding seizing the material of the petitioners and launching
prosecution on the ground that it violates the said PFA Act and the said Rules is
without authority of law as, according to the petitioners, the said PFA Act has no
application and, therefore, the said Rules framed under the said PFA Act has
also no application. In view thereof, the initiation of proceedings against the
petitioners in this behalf i.e. under the said PFA Act and the said Rules is
without authority of law. It is prayed that an appropriate writ, order or
direction may be issued for quashing all actions taken by the respondents under
the said PFA Act, the said Rules and under the Maharashtra Prevention of Food
Adulteration Rules, 1962 (hereinafter "the Rules of 1962") in so far as they
relate to the tobacco products scheduled under the Tobacco Act, 2003 as being
ultra vires the powers under the said PFA Act, the said Rules and the Rules of
1962 as the same is in conflict with Tobacco Act, 2003 and, therefore, the
same are unconstitutional, ultra vires, illegal and null and void. It is also prayed
that the respondents may be restrained from proceeding further in any manner
under the said PFA Act, under the said Rules and under the said Rules of 1962
in so far as it relates to the tobacco products scheduled under the Tobacco Act,
2003 are concerned. It is also prayed that the respondents may be directed to
withdraw all the proceedings initiated under the said PFA Act, the said Rules
and the Rules of 1962. It is further prayed that the respondents may be directed
not to initiate any punitive/penal/criminal action in any manner whatsoever
against the petitioners and/or their servants, agents, retailers, employees,
KPP -7- WP Nos. 1355, 1803 & 1857 of 2011
dealers, etc. under the provisions of the said PFA Act, the said Rules and the
Rules of 1962. The cause of action for filing these proceedings is obviously
because the respondents initiated proceedings against the petitioners under the
said PFA Act and the said Rules in connection with the subject matter i.e.
gutka/pan masala.
4. On behalf of the petitioners, strong reliance has been placed by the
learned counsel on the decision of the Supreme Court in the case of Godawat
Pan Masala Products I.P. Ltd. and another vs. Union of India and others 1. Relying
on the said judgment, it is argued by Mr. Hidayatullah that when Tobacco Act,
2003 is a complete code in itself and which is a special legislation dealing with
the said products, the general law framed earlier i.e. the said PFA Act and the
said Rules has no application so far as tobacco products are concerned. It is
submitted that in view of the special enactment, the said PFA Act and the said
Rules are no longer held applicable so far as the said products are concerned. It
is submitted that in view of the same, the Rules framed by the State of
Maharashtra has no application and if these are in conflict with the Tobacco
Act, the same may be struck down being without authority of law and the same
may be treated as unconstitutional. It is further submitted by Mr. Hidayatullah
that if any proceedings are required to be initiated, the same is permissible only
under the Tobacco Act, 2003 and in view of the judgment of the Supreme Court
in Godawat's case (supra), the Officers of the State of Maharashtra functioning
1 (2004) 7 SCC 68
KPP -8- WP Nos. 1355, 1803 & 1857 of 2011
under the said PFA Act and the said Rules cannot take any sample of gutka/pan
masala and the said action is, therefore, without any authority of law and the
proceedings initiated on the said basis be set aside. In the alternative
Mr. Hidayatullah submitted that, assuming that the said PFA Act and the said
Rules are applicable, then also no standard is prescribed regarding gutka/pan
masala under the said PFA Act and the said Rules. The respondent Nos. 3 and 4
cannot launch prosecution especially when no standard is prescribed for
gutka/pan masala and, therefore, one cannot say that it is misbranded or
adulterated gutka. In order to substantiate his say, the learned counsel has
relied upon the decision of the single Judge of the Gujarat High Court in the
case of State of Gujarat vs. Bhuvneshwar Satyaprasad Mishra and others decided
on 8th October, 2010. On the aforesaid premises it is argued by Mr.
Hidayatullah that the proceedings initiated by the respondents under the said
PFA Act and the said Rules, therefore, are required to be struck down and this
Court may hold that since the Tobacco Act is a complete Code, the said PFA Act
and the said Rules have no application in any manner. In order to substantiate
his say, Mr. Hidayatullah has relied upon the provisions of the Tobacco Act,
2003.
5. The instant petitions are opposed on behalf of the respondents by
the learned Assistant Government Pleader and the learned counsel appearing for
the Union of India. Ms. Shastri, learned Assistant Government Pleader (AGP),
KPP -9- WP Nos. 1355, 1803 & 1857 of 2011
has submitted that the State Officers are entitled to adopt proceedings under
the said PFA Act and the said Rules and the Godawat judgment has no
application worth the name. It is submitted by her that under Section 23 of the
said PFA Act, the Central Government is empowered to frame rules to carry out
the provisions of the said PFA Act. It is submitted that if any prohibited article is
used in the preparation of gutka, the same can be treated as misbranded food
and, therefore, prosecution can be launched. It is submitted by her that the
gutka is a proprietary food as per Rule 37-A of the said Rules and, therefore, if it
is in violation of the prescribed standard under Rule 5 of the said Rules, the
State is entitled to initiate proceedings under the said PFA Act. It is submitted
that both the enactments function in different fields altogether i.e. Tobacco Act,
2003 and the said PFA Act and that it has no overriding effect qua the said PFA
Act and the said Rules. It is submitted that there is no inconsistency with
Tobacco Act, 2003 in any manner so far as the said PFA Act and the said Rules
are concerned. It is submitted by her that Respondent Nos. 2 to 4 have not taken
any action under Rule 44-J of the said Rules but the action is taken under
Section 7 (i) (v) of the said PFA Act and Rule 62 of the said Rules. It is
submitted that the Supreme Court in the case of Godawat was not concerned
with adulteration aspect at all nor was there any question of selling adulterated
article of gutka or pan masala. It is submitted that there is no provision in the
Tobacco Act, 2003 that notwithstanding anything contained in any other law,
the Tobacco Act, 2003 will be applicable in connection with even adulterated
KPP -10- WP Nos. 1355, 1803 & 1857 of 2011
food articles.
6. In rejoinder, Mr. Hidayatullah has argued that the Supreme Court in
Godawat's case clearly stated that the Tobacco Act, 2003 has an overriding
effect. It is submitted that even otherwise the presence of magnesium carbonate
in gutka cannot be said to be dangerous and it cannot be injurious to health. It
is, therefore, argued by Mr. Hidayatullah that the proceedings under the said
Rules, therefore, may be struck down by issuing appropriate writ, order or
direction under Article 226 of the Constitution of India.
7. We have heard the learned counsel appearing for the parties at great
length and have also gone through the provisions of the said PFA Act, the said
Rules, the Tobacco Act, 2003 and the Rules of 1962.
8. The principal question which is required to be decided in these writ
petitions is as to whether the action taken by the State Officers i.e. Respondent
Nos. 2 to 4 is without any authority of law and as to whether the provisions of
the said PFA Act and the said Rules are still sustainable and maintainable in
view of the judgment of the Supreme Court in Godawat's case (supra). So far as
Union of India is concerned, Ms. Shah, the learned counsel has supported the
arguments canvassed by Mrs. Shastri and, according to her, the Union of India
is also of the opinion that the said PFA Act and the said Rules are still applicable
KPP -11- WP Nos. 1355, 1803 & 1857 of 2011
in its full swing as Tobacco Act, 2003 cannot be said to have an overriding
effect so far as any article of food which is found to be adultered is concerned.
During the course of hearing, the learned Assistant Government Pleader
submitted that even otherwise the the said PFA Act and the said Rules are now
repealed by new Act viz. the Food Safety and Standards Act, 2006, though,
according to her proceedings initiated under the said PFA Act and under the
said Rules are saved. It is required to be noted that it is not the case of the
petitioners that by virtue of the repealed Act and the Rules, steps taken by the
Respondents are not sustainable. However, the said aspect was highlighted by
the respondents in the reply, the petitioners tried to argue about saving clause
but during the course of hearing, the learned counsel for the petitioners states
that since this point is not raised in the petition, the petitioners are not
challenging the aforesaid aspect as to whether in view of the enactment of the
Food and Safety and Standards Act, 2006, the proceedings initiated by
respondent Nos. 2 to 4 are maintainable or not. In view of the said statement
of Mr. Hidayatullah, it is not necessary for us to examine the said point as the
said point is kept open for consideration in case such point is taken up by any of
the petitioners in future. The petitioners therefore restrict their argument only
regarding applicability of the said PFA Act and the said Rules in view of the
Supreme Court judgment in Godawat's case as well as on the ground that since
no standard is prescribed for gutka, whether respondent Nos. 2 to 4 are entitled
to initiate prosecution against the petitioners in connection with gutka/pan
KPP -12- WP Nos. 1355, 1803 & 1857 of 2011
masala products.
9. Since the basis of the argument of the petitioners is on the judgment
of the Supreme Court in Godawat's case (supra), this Court is required to
consider as to whether the said judgment is applicable so far as the proceedings
initiated by respondent Nos. 2 to 4 in connection with the alleged seizure are
concerned and whether if a particular product is found to be adulterated one,
whether the Officers of the State Government are empowered to take
appropriate proceedings under the said PFA Act and the said Rules. So far as
Godawat's case is concerned, the States of Maharashtra and Goa issued
notifications under Section 7 (iv) of the said PFA Act. Section 7 of the said PFA
Act reads thus:
"7. Prohibitions of manufacture, sale, etc. of certain articles of
food.- No person shall himself or by any person on his behalf
manufacture for sale or store, sell or distribute -
(i) any adulterated food;
(ii) any misbranded food;
(iii)any article of food for the sale of which a license is
prescribed, except in accordance with the conditions of the
license;
(iv)any article of food the sale of which is for the time being
prohibited by the Food (Health) Authority in the interest
of public health;
(v) any article of food in contravention of any other provision
of this Act or of any rule made thereunder; or
(vi)any adulterant.
Explanation._ For the purposes of this section, a person shall be
deemed to store any adulterated food or misbranded food or any
article of food referred to in clause (iii) or clause (iv) or clause (v)
if he stores such food for the manufacture therefrom of any article
KPP -13- WP Nos. 1355, 1803 & 1857 of 2011
of food for sale. "
10. A challenge was made on behalf certain pan masala manufacturers
on the ground that no notification could have been issued under Section 7 of the
said PFA Act in view of the enactment of Tobacco Act, 2003. In the proceedings
which were before the Supreme Court, the validity of the notifications issued by
the Food (Health) Authorities under Section 7 (iv) of the said PFA Act by which
the manufacture, sale, storage and distribution of pan masala and gutka (pan
masala containing tobacco) was banned was under challenge. In the aforesaid
case, a ban was imposed for a period of five years by the notification issued by
the State Government meaning thereby that in the State of Maharashtra as well
as in Goa, by notification issued under Section 7 (iv) of the said PFA Act, the
sale of gutka and pan masala was prohibited for a period of five years with
effect from the dates mentioned therein. The said notification was issued in the
interest of public health. This Court as well as the Andhra Pradesh High Court
upheld the validity of notification which was the subject matter before the
Supreme Court. The ultimate conclusion of the Supreme Court is finding place
in paragraph 77 of the judgment which reads as under:
"77. As a result of the discussions, we are of the view that:
1. Section 7(iv) of the Act is not an independent source of power
for the state authority;
2. The source of power of the state Food (Health) Authority is
KPP -14- WP Nos. 1355, 1803 & 1857 of 2011
located located only in the valid rules made in exercise of the
power under Section 24 of the Act by the State Government, to
the extent permitted thereunder;
3. The power of the Food (Health) Authority under the rules is
only of transitory nature and intended to deal with local
emergencies and can last only for short period while such
emergency lasts;
4. The power of banning an article of food or an article used as
ingredient of food, on the ground that it is injurious to health,
belongs appropriately to the Central Government to be exercised
in accordance with the rules made under Section 23 of the Act,
particularly, sub-section (1A)(f).
5. The state Food (Health) Authority has no power to prohibit
the manufacture for sale, storage, sale or distribution of any
article,whether used as an article or adjunct thereto or not used
as food. Such a power can only arise as a result of wider policy
decision and emanate from Parliamentary legislation or, at least,
by exercise of the powers by the Central Government by framing
rules under Section 23 of the Act;
6. The provisions of the Cigarettes and Other Tobacco Products
(Prohibition of Advertisement and Regulation of Trade and
Commerce, Production, Supply and Distribution) Act, 2003 are
directly in conflict with the provisions of Section 7(iv) of the
Prevention of Food Adulteration Act, 1954. The former Act is a
special Act intended to deal with tobacco and tobacco products
particularly, while the latter enactment is a general enactment.
Thus, the Act 34 of 2003 being a special Act, and of later origin,
overrides the provisions of Section 7(iv) of the Prevention of Food
Adulteration Act, 1954 with regard to the power to prohibit the
sale or manufacture of tobacco products which are listed in the
Schedule to the Act 34 of 2003;
7. The impugned notifications are ultra vires the Act and, hence,
bad in law;
8. The impugned notifications are unconstitutional and void as
abridging the fundamental rights of the appellants guaranteed
under Articles 14 and 19 of the Constitution."
KPP -15- WP Nos. 1355, 1803 & 1857 of 2011
11. In view of the said conclusion, it is clear that Section 7 (iv) of the
said PFA Act is not an independent source of power for the State authorities and
the power available with the State Food (Health) authority under the Rules is
only of transitory nature and intended to deal with local emergent situations. It
is, therefore, held that the power of banning an article of food on the ground
that it is injurious to health belongs to Central Government and it is only the
Central Government which can prohibit such article by exercising powers under
Section 23 of the said PFA Act. It was accordingly held that the notifications
issued are contrary to law and that the State agency had no power to ban the
sale of any food article except in case of emergency. Mr. Hidayatullah has
vehemently argued that as per the conclusion in para 77 of the said judgment,
the provisions of the Tobacco Act, 2003 are directly in conflict with the
provisions of Section 7 of the said PFA Act. The former Act is a special Act
intended to deal with tobacco and tobacco products while the latter enactment
is a general enactment. Thus the Tobacco Act, 2003 being a special Act
overrides the provisions of Section 7 of the said PFA Act with regard to the
power to prohibit the sale or manufacture of tobacco products which are listed
in the schedule to the Tobacco Act, 2003. Mr. Hidayatullah strongly relying on
the said conclusion of the Supreme Court argued that since Tobacco Act, 2003
is a special Act and is a subsequently enacted legislation, it will have an
overriding effect in all respects and that may include even the question of
adulteration of food article. It is argued by Mr. Hidayatullah that it is for the
KPP -16- WP Nos. 1355, 1803 & 1857 of 2011
Parliament to consider as to whether a specific provision is required to be
inserted in the Tobacco Act dealing with adulteration of such food articles which
are covered under the said PFA Act and if the Act is silent on that basis, the
State authority cannot be allowed to function under the said PFA Act and the
said Rules by treating any particular article which is covered under the Tobacco
Act, 2003. It is submitted by Mr. Hidayatullah that even assuming that in a
given case gutka is misbranded or adulterated which may be treated as an
offence under the said PFA Act, yet since the said PFA Act will have no
application, no proceedings can be initiated against the manufacturers of such
gutka or pan masala. It is submitted by him that since Tobacco Act, 2003 is a
complete Code and since it has an overriding effect over the said PFA Act and
the said Rules and same being a special Act, the proceedings initiated by
Respondent Nos. 2 to 4 are required to be quashed and set aside.
12. In order to appreciate the argument of Mr. Hidayatullah, reference
is required to the made to the various provisions of the said PFA Act and the
said Rules. Section 2 (i) of the said PFA Act deals with 'adulterant' means any
material which is or could be employed for the purposes of adulteration.
Section 23 (l) of the said PFA Act prescribes prohibiting or regulating the
manufacture, transport or sale of any article known to be used as an adulterant
of food. At this stage, reference may be made to Section 23 of the said PFA Act
and the same reads as under:
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"23. Power of the Central Government to make rules.- (1)
The Central Government may, after consultation with the
Committee and after previous publication by notification in the
Official Gazette, make rules to carry out the provisions of this
Act.
Provided that consultation with the Committee may be
dispensed with if the Central Government is of the opinion that
circumstances have arisen which render it necessary to make
rules without such consultation, but, in such a case, the
Committee shall be consulted within six months of the making of
the rules and the Central Government shall take into
consideration any suggestions which the Committee may make
in relation to the amendment of the said rules.]
(1-A) In particular and without prejudice to the generality of
the foregoing power, such rules may provide for all or any of the
following matters, namely:-
(a)specifying the articles of food or classes of food for the import
of which a license is required and prescribing the form and
conditions of such license, the authority empowered to issue the
same, the fees payable therefor, the deposit of any sum as
security for the performance of the conditions of the license and
the circumstances under which such license or security may be
cancelled or forfeited;
(b)defining the standards of quality for, and fixing the limits of
variability permissible in respect of, any article of food;
(c)laying down special provisions for imposing rigorous control
over the production, distribution and sale of any article or class
of articles of food which the Central Government may, by
notification in the Official Gazette,specify in this behalf including
registration of the premises where they are manufactured,
maintenance of the premises in a sanitary condition and
maintenance of the healthy state of human beings associated
with the production, distribution and sale of such article or class
of articles;
KPP -18- WP Nos. 1355, 1803 & 1857 of 2011
(d)restricting the packing and labelling of any article of food and
the design of any such package or label with a view to
preventing the public or the purchaser being deceived or misled
as to the character, quality or quantity of the article or to
preventing adulteration;
(e)defining the qualifications, powers and duties of food
inspectors and public analysts;
[(ee) defining the laboratories where samples of articles of food
or adulterants may be analysed by public analysts under this Act;
(f)prohibiting the sale or defining the conditions of sale of any
substance which may be injurious to health when used as food
or restricting in any manner its use as an ingredient in the
manufacture of any article of food or regulating by the issue of
licenses the manufacture or sale of any article of food;
(g)defining the conditions of sale or conditions for license of sale
of any article of food in the interest of public health;
(h) specifying the manner in which containers for samples of
food purchased for analysis shall be sealed up or fastened up;
(hh) defining the methods of analysis;
(i)specifying a list of permissible preservatives, other than
common salt and sugar, which alone shall be used in preserved
fruits, vegetables or their products or any other article of food as
well as the maximum amounts of each preservative;
(j)specifying the colouring matter and the maximum quantities
thereof which may be used in any article of food;
(k)providing for the exemption from this Act or of any
requirements contained therein and subject to such conditions, if
any, as may be specified, of any article or class of articles of
food;
KPP -19- WP Nos. 1355, 1803 & 1857 of 2011
(l) prohibiting or regulating the manufacture, transport or sale
of any article known to be used as an adulterant of food;
(m)prohibiting or regulating--
(i)the addition of any water, or other diluent or adulterant to
any article of food;
(ii)the abstraction of any ingredient from any article of food;
(iii)the sale of any article of food to which such addition or from
which such abstraction has been made or which has been
otherwise artificially treated;
(iv)the mixing of two or more articles of food which are similar
in nature or appearance;
(n)providing for the destruction of such articles of food as are
not in accordance with the provisions of this Act or of the rules
made there under.....".
Rules have been framed under the said PFA Act. Rule 23 of the said Rules
defines the addition of a colouring matter to any article of food except as
specifically permitted by these Rules is prohibited. Rule 37-A states
manufacture of proprietary food and the same reads thus:
"37-A. Manufacture of proprietary food.- (i) Proprietary food
means a food which has not been standardised under the
Prevention of Food Adulteration Rules, 1955.
(2) In addition to the provisions including labelling
requirements specified under these rules, the proprietary foods
KPP -20- WP Nos. 1355, 1803 & 1857 of 2011
shall also conform to the following requirements, namely:_
(a) the name of the food and category under which it
falls in these rules shall be mentioned on the label;
(b) The proprietary food product shall comply with all
other regulatory provisions specified in these rules and in
Appendixes."
Rule 44-J of the said Rules defines that tobacco and nicotine shall not be used as
ingredients in any food products. Reference is also required to be made to Rule
62 of the said Rules which reads thus:
" 62. Restriction on use of anticaking agents._ No anticaking
agents shall be used in any food except where the use of
anticaking agents is specifically permitted.
Provided that table salt, onion powder, garlic powder, fruit
powder and soup powder may contain the following anticaking
agents in quantities not exceeding 2.0 per cent, either singly or in
combination, namely:-
(1) carbonates of calcium and magnesium;
(2) phosphates of calcium and magnesium;
(3) silicates of calcium, magnesium, aluminium or sodium or
silicon dioxide;
(4) myristates, palmitates or stearates of aluminium,
ammonium, calcium, potassium or sodium;
Provided further that calcium, potassium or sodium ferrocyanide
may be used as crystal modifiers and anticaking agent in common
salt, iodised salt and iron fortified salt in quantity not exceeding
10 mg./kg. Singly or in combination expressed as ferrocyanide."
KPP -21- WP Nos. 1355, 1803 & 1857 of 2011
13. Considering the aforesaid Rules, it is clear that if any article of food
is misbranded or is found to be adulterated, remedial measures are provided
under the aforesaid Rules framed under the said PFA Act. It is required to be
noted that in so far as Tobacco Act, 2003 is concerned, it nowhere deals with any
situation by which if any article of food is found to be adulterated, what action
can be taken against the manufacturers. The Tobacco Act, 2003 does not deal
with the situation where tobacco products such as pan masala or gutka are found
to be adulterated or misbranded. In view of the same, we fail to understand as
to how it can ever be said that there is a conflict between Tobacco Act, 2003 and
the said PFA Act, in so far as dealing with adulterated food article i.e. gutka/pan
masala is concerned. In so far as the judgment of the Supreme Court in the case
of Godawat (supra) is concerned, as pointed out earlier, notification under
Section 7 (iv) was issued prohibiting manufacture and sale of gutka and pan
masala for a period of five years on the ground that it is injurious to health. The
matter before the Supreme Court was in connection with the validity of the said
notification on the ground that in view of the provisions under the Tobacco Act,
2003 which prescribes sale of tobacco on certain conditions and since the
Tobacco Act deals with regulating the sale of tobacco, no notification under
Section 7 (iv) of the said PFA Act could have been issued.
KPP -22- WP Nos. 1355, 1803 & 1857 of 2011
14. Considering the issue involved in the matter, it has been held by the
Supreme Court that Tobacco Act, 2003 being subsequently enacted special law,
it will govern the field so far as manufacture and sale of tobacco products are
concerned with certain restrictions provided under the Tobacco Act i.e. it should
not be sold to minor persons below 18 years old. In our view, considering the
judgment of the Supreme Court, it is not possible for us to accept the say of Mr.
Hidayatullah that even in a given case if the article is misbranded or adulterated
or even may contain dangerous substance, yet such manufacturer or producer
may go scot-free, as there is no provision in the Tobacco Act, 2003 dealing with
adulteration of an article. If the Tobacco Act, 2003 deals with such a situation
by taking care of adulterated gutka/pan masala, naturally, in view of the
subsequent special legislation, one can say that impliedly it will have no
application dealing with adulteration of gutka/pan masala is concerned. But the
factual aspect in this case is totally different as there is no provision in the
Tobacco Act dealing with adulteration of gutka or pan masala. If that is so, we
fail to understand as to why adulterated gutka/pan masala cannot be dealt with
under the said PFA Act and rules framed thereunder. The Supreme Court in the
aforesaid case has considered ban on sale of gutka/pan masala for a period of
five years which was found to be without any authority of law. At this stage, it is
also required to be noted that in paragraph 77 of the said judgment of the
Supreme Court, in sub-para (6) it has been clearly provided by the Supreme
Court that the provisions of the Tobacco Act, 2003 are directly in conflict with
KPP -23- WP Nos. 1355, 1803 & 1857 of 2011
the provisions of Section 7 (iv) of the said PFA Act. Therefore, in the aforesaid
judgment, the Supreme Court has considered only in connection with Section 7
(iv) of the said PFA Act. In sub-para (5) of para 77 it has also been held that the
State authority has no power to prohibit the manufacture for sale, storage, sale
or distribution of any article, whether used as an article or adjunct thereto or not
used as food. The Supreme Court, therefore, has clearly held that such a power
can only arise as a result of wider policy decision and emanate from
parliamentary legislation or, at least, exercise of the powers by the Central
Government by framing rules under Section 23 of the said PFA Act. If
submission of Mr. Hidayatullah is accepted, then even no such Rules can be
framed under Section 23 of the said PFA Act. However, the Supreme Court has
in terms stated that such decision can be taken by the Central Government by
framing appropriate Rule under Section 23 of the said PFA Act. The Supreme
Court has, therefore, only set aside the notifications issued by the State
Governments on the ground that the State had no jurisdiction to issue such
notification prohibiting sale or manufacture of such article under Section 7 (iv)
of the Act. Considering the said aspect, it is not possible for us to accept the
argument of Mr. Hidayatullah that even in a case where the gutka or pan masala
is found to be adulterated or misbranded, then no steps can be taken by the
concerned agency under the Rules framed under the provisions of the said PFA
Act. As pointed out earlier, if any provision is contained under the Tobacco Act,
2003 or Rules, if any, framed prescribing taking care of such a situation i.e.
KPP -24- WP Nos. 1355, 1803 & 1857 of 2011
dealing with the adulterated article or food, then naturally the provisions of the
said subsequently enacted law is to prevail over the said PFA Act and the said
Rules but that is not the fact situation so far as adulterated gutka or pan masala
is concerned as the Tobacco Act, 2003 nowhere deals with the said aspect. In
view of the same it can never be said that there is conflict between the Tobacco
Act, 2003 and the said PFA Act. It is required to be noted that the Tobacco Act,
2003 nowhere provides any overriding effect in any manner whatsoever in
connection with tobacco products. So far as Tobacco Act, 2003 is concerned, it
deals with in the field of regulating the manufacture and sale of tobacco and
prescribing certain conditions such as giving statutory warning, not to sell the
said product to a minor, or sell the same in nearby school area, etc. The
interpretation put forward by Mr. Hidayatullah, therefore, in our view cannot be
accepted which may allow the manufacturer or producer of gutka to sell the said
article freely even if it contains dangerous and harmful substance. Considering
the same, we are of the view that it cannot be said that the respondent Nos. 2 to
4 have no authority to inspect the gutka material and to send the same for
laboratory checking to find out whether it is misbranded or adulterated article
or not. The judgment of the Supreme Court in the case of Godawat (supra) has
no application so far as adulterated gutka or pan masala is concerned. The said
judgment is in connection with prohibiting sale or manufacture of pan masala or
gutka. Even otherwise, as stated earlier, the Supreme Court itself has clearly
mentioned in the concluding sub-para (5) of para 77 that such prohibition
KPP -25- WP Nos. 1355, 1803 & 1857 of 2011
regarding manufacture or sale of such tobacco products can be imposed by
exercising powers by the Central Government by framing appropriate Rules
under Section 23 of the said PFA Act meaning thereby that the provisions of
Section 23 of the said PFA Act are not given a go-by in spite of the enactment of
Tobacco Act, 2003. Considering the said aspect, the first submission made by Mr.
Hidayatullah in this behalf is required to be rejected.
15. It was next submitted by Mr. Hidayatullah that since no standard is
prescribed under the said PFA Act regarding gutka, the intended action of the
respondents in launching prosecution is not maintainable. In order to
substantiate his say, he has relied upon the unreported judgment of the learned
single Judge of the Gujarat High Court in the case of State of Gujarat (supra). So
far as the aforesaid case is concerned, it arose from the criminal proceedings
initiated by the State in connection with gutka. The Magistrate discharged the
accused on the ground that no standard is prescribed for such gutka and,
therefore, prosecution launched against the accused is required to be discharged.
The State took the matter in revision before the learned single Judge and learned
single Judge also took the same view. However, Ms. Shastri, the learned AGP
vehemently submitted that the view taken by the Gujarat High Court is not
correct as, according to her, in a proprietary food there is a combination of
various food articles and it is not necessary to prescribe separate standards for
gutka. She has relied upon Rule 37-A of the said Rules, which has been quoted
KPP -26- WP Nos. 1355, 1803 & 1857 of 2011
above. According to her, gutka is a proprietary food for which no separate
standard is required to be provided and proprietary food product shall comply
with all other regulatory provisions specified in the said Rules and in
Appendixes. It is submitted by her that carbonates of calcium and magnesium is
an anticaking agent. She has relied upon Rule 62 of the said Rules. According
to her, such anticaking is not permissible so far as preparation of gutka is
concerned. Mr. Hidayatullah has, however, submitted that there is no scientific
basis for coming to the conclusion that use of carbonates of calcium and
magnesium is injuries to health. As against that it is argued by Mrs. Shastri that
on the basis of scientific study it has been found that it is dangerous to human
health. So far as this argument is concerned, in our view, this Court is not
required to examine this point in its writ jurisdiction. Whether the prosecution is
rightly launched or not and whether any particular standard is prescribed for
gutka or not are questions which can be decided by competent Court taking
criminal case, as and when any question arises before such Court. Suffice it to
say that it is for the petitioners to take out appropriate criminal proceedings
under Section 482 of the Criminal Procedure Code or even before the concerned
Magistrate in case proceedings have been launched or initiated against the
concerned persons. It is for the competent court to adjudicate this aspect as and
when this question arises for determination. It is, therefore, not necessary for us
to examine this aspect and this Court has only considered the powers of
Respondent Nos. 2 to 4 to initiate proceedings under the provisions of the said
KPP -27- WP Nos. 1355, 1803 & 1857 of 2011
PFA Act and the said Rules in connection with the alleged food article which are
found to be adulterated or misbranded under the provisions of the said PFA Act.
Since the judgment of the Supreme Court in the case of Godawat's case (supra)
deals with a different fact situation i.e. Regarding imposing of ban by the State
Government, the ratio laid down in the said judgment has no application so far
as the issue involved in these petitions are concerned. The other points are not
required to be examined in these writ petitions as the writ petitions are mainly
filed challenging the powers of the State machinery to initiate the prosecution
against the petitioners. The aspect as to whether any particular standard is
provided for tobacco and whether proceedings are required to be quashed
and/or set aside is a question which we are not required to deal with in the civil
writ petitions and such question is kept open for consideration at an appropriate
stage before the appropriate Court.
16. In view of what is stated above, we uphold the powers of the
Respondent Nos. 2 to 4 to initiate proceedings under the said PFA Act and the
said Rules regarding misbranding of gutka or tobacco products are concerned.
We, therefore, do not find any substance in the main grievance raised by the
petitioners challenging the authority of the State to initiate such proceedings.
Writ petitions being devoid of any merit are accordingly dismissed. Rule is
discharged. Interim relief stands vacated.
KPP -28- WP Nos. 1355, 1803 & 1857 of 2011
17. At the request on the part of the learned counsel for the petitioners,
the statement made by the learned AGP at the time of admitting these writ
petitions that they will not act further, which statement was made during the
pendency of the writ petitions, is ordered to be continued for a period of three
weeks from today.
P. B. MAJMUDAR, J.
MRS. MRIDULA BHATKAR, J.
