Bombay High Court
Parle Biscuits Private Limited vs Food Safety & Standard Authority ... on 19 December, 2012
Bench: S.J. Vazifdar, R.Y. Ganoo
ASWPL28980.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST) NO. 28980 OF 2012
Parle Biscuits Private Limited ]
a private limited company, incorporated ]
under the Companies Act, 1956, having it ]
office at North Level Crossing, ]
Mumbai - 400057. ] ... Petitioner
Vs
1. Food Safety & Standard Authority of ig ]
India, Ministry of Health & Family ]
Welfare, Hallmark Business Plaza, ]
Opp. Gurunanak Hospital, Bandra (E), ]
Mumbai - 400 051. ]
2. Commissioner of Food Safety, ]
Food & Drug Administration, FDA ]
Bhavan, 2nd Floor, Survey No.341, ]
Bandra-Kurla Complex, Bandra (E). ]
Mumbai - 400 051. ]
3. Assistant Commissioner (Food) ]
Food & Drug Administration, ]
Saptagiri, 2nd Floor, Shrinagar Workshop ]
Road, Nanded 431602, Maharashtra ]
Presently Mr. K.R. Jaipurkar ]
4. Assistant Commissioner (Food) ]
Food & Drug Administration, ]
Nath Market, 2nd Floor, Aurangapura, ]
Aurangabad - 431 001 ]
Presently Mr. C.D. Salunkhe ]
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5. The Food & Drug Administration, ]
Food & Drug Administration, FDA ]
Bhavan, 2nd Floor, Survey No.341, ]
Bandra-Kurla Complex, Bandra (E). ]
Mumbai - 400 051. ]
6. The Union of India. ] ... Respondents
Mr. Virag Tulzapurkar, senior counsel with Mr. Firoz Palkhiwala and
Mr. R.H. Gajria, i/b M/s. Gajria & Co. for the Petitioner.
Mr. Parag Vyas with Mr. M.S. Bhardwaj for the Respondent Nos.1 and
6 - Union of India.
Mr. Sandeep K. Shinde, GP, with Mr. Jaydeep Deo, AGP, for the
Respondent Nos.2 to 5 - State.
CORAM : S.J. VAZIFDAR, &
R.Y. GANOO, JJ.
WEDNESDAY, 19TH DECEMBER, 2012
JUDGMENT :- [Per S.J. Vazifdar, J.]
1. Respondent Nos.2, 3 and 4 are the Commissioner of Food
Safety, Assistant Commissioner (Food) Nanded, Maharashtra,
Assistant Commissioner (Food), Aurangabad of the Food and Drug
Administration. Respondent No.5 is the Food and Drug
Administration. Respondent No.6 is the Union of India.
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2. By the impugned action, the respondents have sealed and
seized the petitioner's food products and the raw material. The
petitioner seeks a writ of certiorari to set aside several notices issued
by the respondents. The petitioner also seeks an order directing the
respondents to take any action against it with regard to the alleged
excess use of colour in any particular batches of its products only after
following due process of law. The petitioner further seeks a writ of
prohibition restraining the respondents from taking any action against
it with regard to its products on the ground that they contain lactic
acid and a writ of mandamus directing the respondents to withdraw all
the actions and decisions on the basis that its products contain lactic
acid.
The petitioner did not press the challenge to section 38 of
the Food Safety and Standards Act, 2006.
3. For the purpose of this petition, it is not necessary to refer
to the details furnished by the petitioner in respect of their contention
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that their manufacturing process conforms to very high and stringent
standards of quality and hygiene. The petitioner manufactures
confectionery products, including sugar boiled confectionery which
are sold under the trade name "Kaccha Mango Bite" and "Mazelo".
The said products have been manufactured and sold by the petitioner
since the year 2004 and 2008. This is the first time that action has
been taken against the petitioner on the ground that its products
contain lactic acid. To the knowledge of the respondents, several other
manufacturers have also used lactic acid in similar products - sugar
boiled confectionery and similar imported products also contain lactic
acid. For some inexplicable reason action of this nature was taken
only against the petitioner.
The Food Safety and Standards Act, 2006 (hereinafter
referred to as the "said Act") was enacted on 23.8.2006 and various
provisions thereof came into force on various dates during the years
2007 to 2010. The Food Safety and Standards Rules, 2011 (hereinafter
referred to as the "said Rules') and the Food Safety and Standards
(Food Products Standards & Food Additives) Regulations, 2011
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(hereinafter referred to as the "said Regulations") were also framed.
4. The petitioner received a notice dated 11th July, 2012 from
the respondents stating that the Food Safety Officer had taken a
sample of its products, which would be submitted for analysis under
the provisions of the said Act, Rules, and Regulations. By another
notice dated 18th July, 2012, the Food Safety Officer informed the
petitioner that he had drawn samples of the said products from one of
its agents. The petitioner was informed that under section 47 (1)(c)(iii)
[wrongly typed as 4 (1)(c)(iii)] and the relevant rules, it had an
opportunity to get the fourth part of the sample analyzed by the Food
Analyst Incharge of N.A.B.L. Accredited / FSSA, notified laboratory
by paying requisite fee. The petitioner states that as no analysis report
was received, it had no reason to believe that the analysis would be
adverse to it and, therefore, did not respond to the said letter.
5. On 3rd October, 2012, the petitioner received a letter dated
1st October, 2012, from respondent No.3 stating that a sample of the
said products from the particular batch had been drawn for analysis.
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The letter stated that the same had been declared as unsafe and of sub-
standard quality by the Director Referral Laboratory, Ghaziabad
(U.P.), as the same contained more than the permissible amount of
colour as well as acidulants 270 i.e. lactic acid. The petitioner was
requested to recall the entire stock of the said products and to confirm
the same under section 28 of the said Act. The documents annexed to
the letter indicated that the Food Safety Officer had seized and/or
sealed the quantities of the products at the petitioner's depot. All the
documents were dated 1st October, 2012, which included certain
forms, letters from the Food Safety Officer, seizure memo and the
form of the order of seizure. The same are annexed as Exhibits C-1 to
C-8 to the petition which have also been impugned in the petition.
The action was, therefore, on two grounds viz. that the
products contained lactic acid, which was impermissible and that the
samples contained more than the permissible amount of colour. The
main question which arises in this petition is whether the use of lactic
acid is impermissible under the said Act, Rules and Regulations.
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6. The question of the products containing more than the
permissible limit of colour cannot be decided by the writ Court. The
question in that regard is limited to the manner in which the
authorities ought to determine the same. The respondents have in fact
fairly examined this aspect on the basis of the samples taken from the
relevant batches. In other words, the question of the extent of colour
was based on the samples taken from the various batches. At the time
of the pronouncement of this judgment, Mr. Shinde stated that out of
forty eight batches of the said products that were seized, thirty nine
batches contained products with colour within the prescribed limit and
only nine batches of the seized products contained colour exceeding
the permissible limits. The petitioner disputed the correctness of the
finding so far as the nine batches are concerned. In respect of the said
nine batches, it is ordered that the respondents shall follow the
procedure prescribed under the said Act, Rules and Regulations.
7. In view thereof, it is not necessary to consider the various
provisions of the Act, Rules and Regulations pertaining to the manner
in which the samples are to be taken/drawn and forwarded to the
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laboratories and to the manufacturer. Suffice it to note that the
petitioner raised several very serious grievances regarding the manner
in which the samples were taken / drawn and dealt with. Allegations
were also raised regarding the manner in which the analysis reports
were obtained. We however, do not intend dealing with the same in
view of the aforesaid statement on behalf of the respondents regarding
the manner in which the amount of colour was used. The petitioner's
grievance is that the respondents wrongfully and illegally kept it in
the dark about the analysis report and on 3rd October, 2012 and 4th
October, 2012. The Food Safety Officers in various districts in the
State of Maharashtra went on a search and seizure spree at its
manufacturing centres and depots with an intention of sending the
same for analysis. Moreover, even before sending the samples for
analysis, the officers seized and sealed the products as well as the
stock of lactic acid. The documents in respect of this action are
annexed at Exhibits "D" to "J" of the petition, which are also
challenged by the petitioner.
8. Respondent No.4 - Assistant Commissioner (Food),
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FDA, Aurangabad, by a letter dated 3rd October, 2012 raised similar
allegations against the petitioner namely regarding the petitioner's
products containing excess colour and lactic acid as an acidulant and
stated that the same was not a permitted ingredient. Annexed to the
letter was a certificate dated 13th September, 2012 from the Referral
Food Laboratory stating that the products did not conform to the
regulations on account of the above facts. The letter and the report,
which are annexed as Exhibits K-1 and K-2, are also challenged in this
petition. Similar notices were received from the Food Safety Officer
from other locations, which are annexed as Exhibits "L" and "M".
The same are challenged in the petition. Exhibit "O" is a list of the
impugned notices, letters, memos, documents and laboratory analysis
reports.
9. As we noted earlier, the main question in this petition is
whether the use of the lactic acid in the petitioner's products viz. sugar
boiled confectionery is permitted under the said Act, Rules and
Regulations. The petitioner does not deny the fact that its products
contain lactic acid. The petitioner contends that lactic acid is a
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permissible ingredient in its sugar boiled confectionery products. It is
not the respondents case that the quantity is in excess of the prescribed
limit. The respondents contend that it is not a permissible ingredient.
10. In support of his submission that lactic acid is a
permissible ingredient in sugar boiled confectionery, Mr. Tulzapurkar
relied upon the following provisions of the Act, 2006 and the
Regulations :-
The Act :
"3. Definitions.-
(1) In this Act, unless the context otherwise
requires,
(a) ........
(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 qualifies;"
The Regulations :
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" CHAPTER 2
FOOD PRODUCT STANDARDS.
2.7. SWEETS & CONFECTIONERY :
2.7.1 Sugar boiled confectionery:
Sugar boiled confectionery whether sold as hard
boiled sugar confectionery or pan goods
confectionery or toffee or milk toffee or modified
toffee or lacto-bon-bon or by any other name shall
mean a processed composite food article made from
sugar with or without doctoring agents such as cream
of tartar by process of boiling whether panned or not.
It may contain centre filling, or otherwise, which may
be in the form of liquid, semi-solid or solids with or
without coating of sugar or chocolate or both. It may
also contain any of the following:--..."
Items (i) to (xxv) which follow refer to various ingredients
such as milk and milk products, malt extracts, edible starches, none of
which are relevant to this petition. After setting out these items, the
Regulation 2.7.1 continues as follows :-
"It shall also conform to the following standards,
namely:--
(i) Ash sulphated (on salt free basis) Not more than
2.5 per cent by weight.
Provided that in case of sugar boiled confectionery
where spices are used as centre filling, the ash
sulphated shall not be more than 3 per cent by weight.
(ii) Ash insoluble (in dilute Hydrochloric acid) Not
more than 0.2 Percent by weight.
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Provided that in case of sugar boiled confectionery
where spices are used as centre filling, the ash
insoluble in dilute Hydrochloric acid shall not be
more than 0.4 per cent.
Where the sugar boiled confectionery is sold under
the name of milk toffee and butter toffee, it shall
conform to the following additional requirements as
shown against each;
(1) Milk toffee-
(i) Total protein (N x 6.25) shall not be less than 3 per
cent by weight on dry basis.
(ii) Fat content shall not be less than 4 per cent by
weight on dry basis.ig
(2) Butter toffee- fat content shall not be less than 4
per cent by weight on dry basis.
Provided that it may contain food additives permitted
in these regulations including appendix 'A'.
Provided further that if artificial sweetener has been
added as provided in Regulation 3.1.3, it shall be
declared on the label as provided in regulation 3.1.3,
it shall be declared on the label as provided in
Regulation 2.4.5 (24, 25, 26, 28 & 29) of Food Safety
and Standards (Packaging and Labeling)
Regulations, 2011."
Appendix-A referred to in the proviso opens as follows :
" APPENDIX A
LIST OF FOOD ADDITIVES
List of Food Additives in Food Products: Food
products may contain additives as specified in the
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regulations and in the following tables."
Appendix A then sets out several tables. Suffice it to note at
this stage that the title to Table 13 is "LIST OF FOOD ADDITIVES
FOR USE IN ...... SUGAR BOILED CONFECTIONERY ....". Item
G of Table 13 lists the "Neutralising agents/Acidulants". Lactic acid
is not one of them. This is an aspect which Mr. Shinde, the learned
GP appearing on behalf of the respondent Nos.2 to 5 relied upon for
reasons we will deal with later. Mr. Tulzapurkar also relied upon the
following provisions of Chapter 3 of the Regulations :
"CHAPTER 3
SUBSTANCES ADDED TO FOOD
3.1: FOOD ADDITIVES
For the purpose of this regulation "Good
Manufacturing Practices (GMP) for use of food
additives" means the food additives used under the
following conditions namely:-
(i) the quantity of the additive added to food shall
be limited to the lowest possible level necessary to
accomplish its desired effect;
(ii) the quantity of the additive becomes a
component of food as a result of its uses in the
manufacturing, processing or packaging of a food and
which is not intended to accomplish any physical or
other technical effect in the food itself; is reduced to
the extent reasonably possible; and the additive is
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prepared and handled in the same way as a food
ingredient.
3.1.1:
(1) Use of Food Additives in Food Products:
The food produces may contain food additives as
specified in these regulations and in Appendix A.
..................
3.1.12: SEQUESTERING AND BUFFERING
AGENTS (ACIDS, BASES, AND SALTS)
(i) "Sequestering agents" means substances which
prevent adverse effect of metals catalysing the
oxidative break-down of foods forming chelates; thus
inhibiting decolourisation, off taste and rancidity;
(ii) "Buffering agents" means materials used to
counter acidic and alkaline changes during storage
or processing steps, thus improving the flavour and
increasing the stability of foods;
1) Restrictions on the use of sequestering and
buffering agents.
Unless otherwise provided in these regulations the
sequestering and buffering agents specified in column
(1) of the Table below, may be used in the groups of
food specified in the corresponding entry in column
(2) of the said Table, in concentration not exceeding
the proportions specified in the corresponding entry
in column (3) of the said Table :"
Table
Name of Group of food Maximum
sequestering and level of use
buffering agents (parts per
million) (ppm)
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mg./kg.
......... ....... ......
8. DL Lactic acid As acidulant in Limited by
(food grade) miscellaneous food G.M.P.
9. L(+) Lactic Acid As acidulant in Limited by
(food grade) miscellaneous food G.M.P.
Pausing here, it must be noted that the column numbers
should read column No.2 instead of column No.1, column No.3
instead of column No.2 and column No.4 instead of column No.3.
The confusion arises on account of the column containing the serial
numbers also being numbered as 1 and the Regulation not having
accounted for that while referring to the column numbers.
11. The provisions of Regulation 3 relied upon by Mr.
Tulzapurkar supports the petitioner's case that lactic acid is a
permissible ingredient in sugar boiled confectionery. Firstly, it must
be noted that Regulation 3.1.1(1) permits the use of food additives in
food products as specified in the "regulations and in Appendix A".
The use of the word "and" in this regulation does not indicate that the
food additive must be stated to be permissible in food products both in
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the regulations and in Appendix A. It is sufficient if it is permitted in
either the regulations or in Appendix A. Mr. Shinde was unable to
indicate any reason to the contrary. Mr. Tulzapurkar's submission is
fortified by the proviso to Regulation 2.7.1 emphasized by us for it
expressly states that the products "may contain food additives
permitted in these Regulations including Appendix A." This makes it
clear that the permissible food additives are those permitted in the
regulation as well as in Appendix A. The use of the word "including
Appendix A" makes this clear.
12. Lactic acid is admittedly not referred to in Appendix A,
Table 13. The question is whether it is a permissible ingredient under
any of the regulations. Regulation 3.1.12 provides that unless
otherwise provided in the regulations, the sequestering and buffering
agents specified in column No.1 of the table set out therein may be
used in the groups of foods in the corresponding entries in column
No.2 of the table. Serial No.8 refers to lactic acid. The corresponding
entry in column No.3 is as acidulants in miscellaneous foods. In view
of what we have held earlier, had sugar boiled confectionery been
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specifically referred to in column 3, it would have been the end of the
matter for, in that event, it would be clear that lactic acid is a
permissible sequestering and buffering agent in sugar boiled
confectionery. The dispute arises on account of the use of the words
"miscellaneous foods" in column 3 relating to Sr. No.8 viz. lactic acid.
In the context in which it is used, we are of the opinion, that it refers
to any items of food.
The New Webster Dictionary of the English language
defines the term "miscellaneous" to mean "consisting of different
elements, types, or things intermingled; diversified; many sided". The
term "miscellaneous" in the Regulation is used without any
restriction. It does not even use the phrase "miscellaneous such as"
followed by any specific items. Absent anything to the contrary, the
word must be given its full import. If the Legislature considered lactic
acid to be a harmful ingredient in sugar boiled confectionery, it would
have taken care to exclude it. We cannot presume an error on the part
of the Legislature. The note below the Appendix indicates that where
the intention was to prohibit the use of a particular ingredient,
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including lactic acid, it was specifically so provided. The note
expressly states that DL-lactic acid and L(F) tartaric acid shall not be
added to any food meant for children below twelve months. It is
reasonable to presume that if the intention was to prohibit the use of
these ingredients for any other persons or in respect of any particular
food, it would have been so provided clearly.
14. In the affidavit in reply, the Joint Commissioner (Food),
Food & Drug Administration stated :-
"The petitioner is manufacturing the same by using
Acidulent (270) i.e. Lactic Acid as one of the
ingredient which is not permitted in the sugar boiled
confectionery. The Acidulent (270) is a Lactic Acid
(L-, D- & DL-) as per the International Numbering
system (INS) for food additives, so Lactic Acid is food
additives used in food as acidulent, buffering agents,
Neutralising agents."
It is important to note that it is admitted that lactic acid is a
food additive and is used in food as an acidulant, buffering agent,
neutralising agent. It is not the respondents case that the petitioner
used lactic acid otherwise. There is no dispute that the petitioner uses
lactic acid as a buffering agent.
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15. Mr. Tulzapurkar sought to rely upon facts to establish that
lactic acid is used world wide in such products. He also sought to rely
upon the products of various other manufacturers in this country
whose products use lactic acid. Exhibit-Q to the petition contains
details in this respect. It is indeed curious that the respondents have
not taken any action against any of the other manufacturers over the
years. They have not even indicated that they now intend taking
action against the other manufacturers. Even after taking action
against the petitioner, similar action has not been taken against any of
the other manufacturers. Similar products are freely imported in
India. No action has been taken against such imported material either.
The petitioner itself has been marketing its products for about eight
years. This is the first time that such an objection has been taken.
16. We hasten to add that this, however, would not entitle the
petitioner to any relief had we come to the conclusion that lactic acid
is not a permissible ingredient. The petitioner cannot possibly claim a
right to use a prohibited ingredient merely because action has not been
taken against other manufacturers.
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17. Mr. Shinde submitted that the words "miscellaneous
products" in the Table contained in Regulation 3.1.12 does not include
products referred to in Table 13 of Appendix A. He submitted that
sugar boiled confectionery is a standardized food item. According to
him, standardized products such as sugar boiled confectionery does
not fall within the scope of the table contained in Regulation 3.1.12.
Regulation 2.12.1 relied upon by Mr. Shinde reads as
under :
"2.12: Proprietary Food
2.12.1
1) Proprietary food means a food that has not been
standardized under these regulations
2) In addition to the provisions including labelling
requirements specified under these regulations, the
proprietary foods shall also conform to the following
requirements, namely:--
(i) the name describing as clearly as possible,
the nature or composition of food and/or category of
the food under which it falls in these regulations shall
be mentioned on the label
(ii) the proprietary food product shall comply
with all other regulatory provisions specified in these
regulations and in Appendices A and B."
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The Regulation only indicates that there is a difference
between proprietary food and standardized items of food. The
Regulation does not, however, establish Mr. Shinde's submission. For
instance, the proviso to Regulation 2.7.1 emphasized by us permits the
use of food additives permitted in the Regulation. It does not limit
this use to proprietary foods. Our attention has not been invited to any
of the provisions of the Act, Rules or Regulations which support the
contention that standardized food products do not fall within the Table
contained in Regulation 3.1.12.
19. In fact, as rightly submitted by Mr. Tulzapurkar, the Table
contained in Regulation 3.1.12 indicates the contrary as it expressly
refers even to standardized food products. For instance, Sr. No.12 of
the Table refers to processed cheese. Processed cheese is a
standardized item and is expressly dealt with in Regulation 2.1.6(2)
which opens with the words "2. Processed Cheese means the
products obtained by grinding........" Sr. No.10 in the Table also
refers to bread which is also a standardized item. Table 1 of Appendix
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A refers to a list of food additives for use in bread and biscuits. Milk
preparations are referred to in Table 14 of Appendix A.
The contention, therefore, that products / food items referred
to in the various tables in Appendix A do not fall within the ambit of
the Table contained in Regulation 3.1.12 is, therefore, not well
founded.
20. Mr. Tulzapurkar submitted that the petitioner's case is also
supported by the provisions of the Bureau of Indian Standards. The
note at the foot of Regulation 3.1.12 requires lactic acid used as an
acidulant in miscellaneouos foods to conform to the specifications laid
down by the Indian Standards Institution. The Indian Standards
Institution is now the Bureau of Indian Standards.
21. The Bureau of Indian Standards in or about October, 2004,
issued the second revision in respect of "SUGAR BOILED
CONFECTIONERY - SPECFICATIONS". Clause 1 stipulates the
scope of the second revision. It prescribes the requirements and
method of sampling and testing, inter-alia, hard-boiled sugar
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confectionery (dragees and toffees). Clause 3 mentions the essential
and the optional ingredients. Clause 3.2 lists the optional ingredients
in addition to essential ingredients specified in clause 3.1. Clause 3.2
provides that in addition to the essential ingredients specified in clause
3.1 the products may also contain any of the optional ingredients listed
therein singly or in combination. Item (x) stipulates as follows :
"(x) Acidulants, food grade, such as citric acid
(see IS 13186), malic acid (see IS 14124),
tartatric acid (see IS 14125) and lactic acid
(see IS 9971);"ig (emphasis supplied)
The Bureau of Indian Standards is a statutory body
constituted under the Bureau of Indian Standards Act, 1986. It is
difficult to accept the contention that lactic acid was a prohibited
ingredient in sugar boiled confectionery when the Bureau of Indian
Standards permitted the use of the same.
22. In addition to the above, Mr. Tulzapurkar also relied upon
the provisions of the Prevention of Food Adulteration Act, 1954 (PFA
Act) which preceded the Food Safety and Standards Act, 2006. The
PFA Act was repealed by section 97 read with Schedule 2 of the Food
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Safety and Standards Act, 2006. As pointed out by Mr. Tulzapurkar,
Rules 70, 71 and 72 of the Prevention of Food Adulteration Rules,
1955 made under the PFA Act are similar to the provisions of the said
Regulation 3.1.12 we have set out earlier. Rules 70, 71 and 72 of the
PFA Rules, 1955, read as under :-
"70. Definition of sequestering agents:- The
sequestering agents are substances which prevent
adverse effect of metals catalysing the oxidative
breakdown of foods forming chelates; thus inhibiting
decolourisation, off taste and rancidity.
71. Definition of buffering agents:- Buffering
agents are materials used to counter acidic and
alkaline changes during "storage or processing steps,
thus improving the flavour and increasing the
stability of foods.
72. Restrictions on the use of sequestering and
buffering agents :- Unless otherwise provided in
these rules the sequestering and buffering agents
specified in column (1) of the Table below, may be
used in the groups of foods specified in the
corresponding entry in column (2) of the said Table,
in concentration not exceeding the proportions
specified in the corresponding entry in column (3) of
the said Table :-
Table
Name of Group of food Maximum
sequestering and level of use
buffering agents (parts per
million) (ppm)
mg./kg.
......... ....... ......
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10. DL Lactic acid As acidulant in Limited by
(food grade) miscellaneous food G.M.P.
10A. L(+) Lactic As acidulant in Limited by
Acid (food grade) miscellaneous food G.M.P.
Note : DL Lactic acid and L(+) Tartaric acid shall
not be added to any food meant for children below 12
months. (The lactic acid shall also conform to the
specification laid down by the Indian Standards
Institution.)
The provisions of these entries in the table are identical to those
of serial Nos.8 and 9 in the Table in Regulation 3.1.12. The Note at the foot
thereof is also identical to the Note at the foot of the Table in Regulation
3.1.12.
23. The provisions of the relevant rules under the PFA Rules,
1955, are similar to the corresponding provisions under the said
regulations. It is not without significance that no action was taken by
the authorities against the petitioner or for that matter any of the
manufacturers of similar products for the use of lactic acid in them.
The petitioner has been using the same since the year 2004.
24. Rule 5 of The Prevention of Food Adulteration Rules, 1955,
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reads as under :-
" PART III
DEFINITIONS AND STANDARDS OF QUALITY
5. Standards of quality of the various articles of
food specified in [Appendices B, C and D to these
rules are as defined in those Appendices]"
Appendix B, in turn, contains the "Definitions and
Standards of Quality". Clause A.25.01 defines sugar boiled
confectionery. It provides that it may contain certain fillings. It
further provides that it may also contain the items mentioned therein.
Lactic acid is not one of them. One of the provisos states : "Provided
that it may contain food additives permitted under Table 2 of
Appendix-C of these rules." The title to Table 2 of Appendix C is :
"LIST OF FOOD ADDITIVES FOR USE IN FOODS". Lactic acid is
not mentioned in this table. This is similar to the fact that lactic acid
is not mentioned in Table 13 to Appendix A referred to in Regulation
3.1.1. of the said Regulations. However, it is obvious that the
authorities considered the use of lactic acid to be a permissible
ingredient in sugar boiled confectionery in view of Rule 72 which is
similar to Regulation 3.1.12.
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25. Mr. Tulzapurkar relied upon the judgment of a Division
Bench of this Court in Sadanand S. Varde & Ors. v. State of
Maharashtra & Ors. 2001 (1) BCR 261 [paragraphs 63 to 66], which
recognizes the principle of of contemporanea expositio.
26. We do not, however, base this judgment upon the action or
inaction on the part of the authorities in respect of similar products
which contained and continue to contain lactic acid either under the
Prevention of Food Adulteration Act, 1954 or under the Food, Safety
& Standards Act, 2006. This judgment is based upon our construction
of the provisions of the Food, Safety & Standards Act, 2006 and the
Rules and Regulations made thereunder. The provisions of the
Prevention of Food Adulteration Act, 1954 and the revision published
by the Bureau of Indian Standards are additional factors which
support this conclusion.
27. In the circumstances, the Writ Petition is disposed of by the
following order :-
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ASWPL28980.12
(i) The Writ Petition is made absolute in terms
of prayers (a) and (c).
(ii) The respondents shall return the petitioner's
stock of lactic acid and the 39 batches of the
petitioner's products which the respondents admit
contain the permissible level of colour.
(iii) Subject to any orders of the Apex Court, the
goods shall be released on 01.02.2013.
(iv) This order shall not be implemented in
respect of the goods which are the subject matter
of this Writ Petition upto and including 31 st
January, 2013.
There shall be no order as to costs.
R.Y. GANOO, J. S.J. VAZIFDAR, J.
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