Bombay High Court

Vijay Shantilal Chopada vs The State Of Maharashtra on 29 September, 2016

Bench: A.V. Nirgude

                                     (1)                  crwp751.16

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                         BENCH AT AURANGABAD

                  CRIMINAL WRIT PETITION NO.751 OF 2016
     




                                                                       
    Vijay Shantilal Chopada,                          .. Petitioner
    Age 42 years, Occu. Business,




                                               
    R/o Nimgaon - Korhale,
    Taluka Rahata, Dist. Ahmednagar

                    Versus




                                              
    1.      The State of Maharashtra,       .. Respondents
            Through the Principal Secretary,
            Food and Civil Supply Department,
            Mantralaya, Mumbai 32




                                          
    2.      The Secretary,   
    2.      The Director General of Police,
            Maharashtra State, Mumbai
                            
    3.      The Commissioner of Food and
            Safety, Maharashtra State,
            Mumbai
      


    Mr. A.V. Dhakephalkar, Senior Counsel with Mr. V.D. 
    Sapkal with Mr. S.S. Chapalgaonkar, Advocates for 
   



    the petitioner.
    Mr. A.B. Girase, Government Pleader with Mr. M.M. 
    Nerlikar, A.P.P. for respondents No.1 to 4





                                      CORAM    :      A.V.NIRGUDE &
                                                      V.L.ACHLIYA,JJ.

                                RESERVED ON    :      05.08.2016
                              PRONOUNCED ON    :      29.09.2016

J U D G M E N T [PER : A.V. NIRGUDE,J.] :-

1. This petition challenges validity of two

notifications of the State of Maharashtra dated 17 th

July 2015 and 22nd March 2016. The petitioner is a

businessman who was earlier doing business in

distribution of goods manufactured by one Heera

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Enterprises. Heera Enterprises used to manufacture

pan masala, scented supari etc. Due to the

notification dated 17th July 2015 and similar

notifications issued earlier, since last many years,

the petitioner is unable to continue distribution of

the goods referred to above. He is, thereby,

deprived of his right to earn his livelihood. He is,

therefore, challenging the legality of the

notifications dated 17th July 2015 and also

subsequent similar notification dated 15th July

2016.

2. The petitioner is also challenging another

notification dated 22nd March 2016, whereby the Home

Department of the State of Maharashtra directed the

Police to help and join officials, appointed under

the provisions of the Food and Safety Standards Act,

2006 (henceforth be referred to as "the Food Act")

in stopping prohibited food articles from being

sold, stored, distributed etc. in the State of

Maharashtra.

3. The State of Maharashtra has opposed this

petition by filing reply and sur-rejoinder.

(3) crwp751.16

4. The facts leading to this petition in short

can be stated as under:

5. In our country "pan" which has botanical

name Piper betel (common English name Betel leaf) is

consumed as a mouth freshener. It is known to

Indian society for time immemorial. The ancient

Ayurvedic Physicians prescribed it as medicine and

it is generally consumed with number of additives

such as betel nut, lime, catechu and other usual

condiments. In our country, in social gatherings,

betel leaf and other usual additives are served to

invitees as mouth freshener etc. It is not

considered a vice to consume betel leaf with betel

nut and other usual additives. In our country, some

consumers add chewing tobacco to betel leaf,

obviously for getting intoxicated.

6. Of late, as said above, in our country, food

article "ready-made pan masala" has become quite

popular. We are all aware that 'ready-made pan

masala' is generally sold in polythene pouches and

tins. It is consumed as mouth freshner or additive

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to Pan(betel leaf). Term 'Pan masala' is thus quite

familiar and even finds place in Food Safety

Standards [Food Product Standards and Food Additives

(Regulation) 2011]. These regulations are compiled

and enacted in 2011 in exercise of powers conferred

by Section 92 (2) (e) read with Section 16 of the

Food Act.

7. At serial No.2.11.5, term 'Pan masala' is

standardized as under :

"2.11.5 Pan Masala means the food generally taken as such or in conjunction with Pan, it may contain :-

Betelnut, lime, coconut, catechu, saffron, cardamom, dry fruits, mulethi, sabnermusa, other aromatic herbs and spices, sugar, glycerin, glucose, permitted natural colours, menthol and non prohibited flavours.

It shall be free from added coaltar colouring matter and any other ingredient injurious to heath.

It shall also conform to the following standards namely :-

                    Total ash                  Not more than 8.0 per cent
                                               by weight (on dry basis)





                    Ash insoluble in dilute    Not more than 0.5 per cent
                    HCL acid                   by weight (on dry basis)"

8. From the above description, it is clear

that pan masala is now accepted as a food item and

would contain betel nut, lime, coconut, catechu,

cardamom etc. We are aware that even the additives

are also sold as food articles. They are added even

otherwise to a betel leaf before consumption as

mouth freshness.

(5) crwp751.16

9. The Food Act which is consolidated law

relating to food is promulgated in 2006 for the

purpose of establishing Food Safety and Standards

Authority of India and for laying down science based

standards for articles of food. The Act also

regulates manufacture, storage, distribution, sale

and import of food articles so as to ensure

availability of safe and wholesome food for human

consumption etc. This Act repealed the well known

Act by name "Prevention of Food Adulteration Act,

1954".

10. From the Statement of objects and Reasons,

one would know as to why the new Act in 2006 was

brought into force. Earlier, up to 2006, there was

multiplicity of food laws and standards settings.

There were various enforcement agencies in respect

of different sectors of food. This created

confusion in the minds of consumers, traders,

manufacturers and investors. After a lot of

research on this subject, ultimately, the new Act of

2006 was enforced. It inter alia incorporated

salient provisions of the Prevention of Food

Adulteration Act, 1954 and also took into account

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provisions of various international laws,

instrumentalities and Codex Alimentaries Commission

as far as it related to food safety norms. In

nutshell, the Act took care of international

practices and envisaged a policy frame work. It

also provided a single window to guide and regulate

persons engaged in manufacture, marketing,

processing, handling, transportation, import and

sale of food articles.

11. The main features of the Act are as under :-

"(a) movement from multi-level and multi-departmental control to integrated line of command;

(b) integrated response to strategic issues like noval/genetically modified foods, international trade;

(c) licensing for manufacture of food products, which is

presently granted by the Central Agencies under various Acts and Orders, would stand decentralised to the Commissioner of Food Safety and his officer;

(d) single reference point for all matters relating to Food Safety and Standards, regulations and enforcement;

(e) shift from mere regulatory regime to self-compliance through Food Safety Management System;

(f) responsibility on food business operators to ensure that food processed, manufactured, imported or distributed is in compliance with the domestic food laws and

(g) provision for graded penalties depending on the gravity of offence and accordingly, civil penalties for minor offences and punishment for serious violations."

12. This Act thus is comprehensive and

eloberate. It intends to ensure better consumer

safety etc.

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13. As said above, earlier to 2006, the

Prevention of Food Adulteration Act, 1954 was

prevalent. It was extensively used for prevention

of food adulteration etc.

14. As said above, the cause of action for this

petition is repeated issuance of Notification under

Section 30 of the Food Act, the operative part of

which reads as under :

"Therefore I, the Food Safety Commissioner, Maharashtra State, prohibit in the interest of public health, for a period of one year from 20th July 2016, the manufacture, storage, distribution or sale of tobacco and areca nut

(betel nut) which is either flavoured, scented or mixed with any of the said additives, and whether going by the

name or form of gutka, pan masala, flavoured/scented tobacco, flavoured/scented supari, Manufactured chewing tobacco with additives, kharra, or otherwise by

whatsoever name called, whether packed or unpacked and/or sold as one product, or though packaged as separate products, sold distributed in such a manner so as to easily facilitate mixing by the consumer, for it's consumption."

15. On careful perusal of the entire

Notification, one would find that the Food Safety

Commissioner received information and scientific

data regarding deteriorating effects on health of

human being by consumption of tobacco, which is now

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sold in the form of 'gutka', 'pan masala',

'flavoured tobacco', 'chewing tobacco', 'flavoured

supari' etc. So, utilizing the Commissioner's power

under Section 30, the prohibitory order is issued

every year in July.

16. The question is, whether the Food Safety

Commissioner is really empowered to issue such

prohibitory order every year? What exactly is the

scope of his power under Section 30 for issuing

prohibitory orders?

17. On careful perusal of the operating part of

the Notification, we found that the prohibition is

for tobacco and Areca/betel nut sold together. The

order clearly mentions that these two products might

be sold after flavouring, scenting and mixing with

the other additives. Such mixture of tobacco and

areca/betel nut would be called either 'gutka' or

'pan masala' or 'flavoured tobacco' or 'flavoured

scented supari' etc. Such mixtures are prohibited by

this Notification. The order also indicated that

even if tobacco and areca/betel nut are packed as

separate products in such a manner so that they

(9) crwp751.16

would be easily mixed by the consumers, even such

product is prohibited. In other words, this

Notification has prohibited "mixture of tobacco and

areca nut". We find that this notification pertains

only to products, which are mixed with tobacco or

products, which are ready to be mixed with tobacco.

This notification thus would not apply and prohibit

a food article which would contain only areca/betel

nut or areca nut mixed with additives such as

catechu, lime and other flavouring material such as

saffron, cardamom, dry fruits, aromatic herbs,

sugar, glycerin, glucose and permitted natural

colours etc. The notification clearly prohibits a

mixture which contains tobacco. This conclusion is

inescapable also because betel nut is allowed to be

sold singly. On the other hand "Chewing tobacco" is

also sold in market subject to provisions of

Cigarettes Act. In view of this,

apparently we find that this notification does not

prohibit in State of Maharashtra manufacture,

storage, distribution or sale of the pan masala,

which would adhere to the standards mentioned in the

Food Product Standards and Food Additives

(Regulation), 2011. In other words the term 'Pan

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Masala' used in this notification must be understood

to identify a product which contains tobacco.

18. In our view, there is misunderstanding

prevalent in the state that this notification has

prohibited sale and manufacture of "Pan Masala" even

if it does not contain tobacco. It is clear to us

that pan masala, which is in conformation of above

mentioned Regulation, is not prohibited by the

impugned notification.

19. Assuming that even a product, which does

not contain tobacco but, is sold in the name of pan

masala/flavoured supari/scented supari is included

in the impugned order and prohibited, we have to

find out as to whether power under Section 30 of

the Food Act would empower the Commissioner to

prohibit such products? In order to answer this

question we must read the relevant provisions of the

Food Act. We would examine first Section 30 of the

Food Act. It reads as under :-

"30. Commissioner of Food Safety of the State.-

(1) The State Government shall appoint the Commissioner of Food Safety for the State for efficient implementation of food safety and standards and other requirements laid down under this Act and the rules and regulations made thereunder.

( 11 ) crwp751.16

(2) The Commissioner of Food Safety shall perform all or any of the following functions, namely:-

(a) prohibit in the interest of public health, the manufacture, storage, distribution or sale of any article of food, either in the whole of the

State or any area or part thereof for such period, not exceeding one year, as may be specified in the order notified in this behalf in the Official Gazette;

(b) carry out survey of the industrial units engaged in the manufacture or processing of food in the State to find out compliance by such units of the standards notified by the Food Authority for various articles of food;

(c) conduct or organise training programmes for the personnel of the office of the Commissioner of Food Safety and, on a wider scale, for different segments of food chain for generating awareness on food safety;

(d) ensure an efficient and uniform implementation of the

standards and other requirements as specified and also ensure a high standard of objectivity, accountability,

practicability, transparency and credibility;

(e) sanction prosecution for offences punishable with imprisonment under this Act;

(f) such other functions as the State Government may, in consultation with the Food Authority, prescribe.

(3) The Commissioner of Food Safety may, by Order, delegate, subject to such conditions and restrictions as

may be specified in the Order, such of his powers and functions under this Act (except the power to appoint Designated Officer, Food Safety Officer and Food Analyst)

as he may deem necessary or expedient to any officer subordinate to him."

20. It is clear that Section 30 of the Food Act

deals with functions of the Commissioner. Sub-

section (2) of the Act gives certain powers to the

Commissioner to prohibit in the "interest of public

health", manufacture, storage etc. of any article of

food. The question is, in the background of

provisions of the parent Act, in what manner the

Commissioner is able to use this apparently drastic

power? The notification is in a way a "Prohibition

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Order".We have seen above as to what are the

objectives of Food Act.

21. The word, 'prohibition order' is defined

under Section 3 (zl), which reads thus :

"3. (zl) "prohibition order" means an order issued under

section 33 of this Act."

22. In turn, we have also perused Section 33 of

the Food Act and found that prohibition order under

Section 33 of Food Act can be passed by the Court

after a food business operator is convicted for an

offence under the Food Act. We, thereafter, perused

Section 34 of the Act, which provided that how in an

emergency, a prohibition order can be passed. So,

the additional power given to the Commissioner under

Section 30 of the Food Act must be understood in the

light of these provisions. We assume that the

Commissioner possessed ample scientific data to come

to the conclusion that chewing tobacco with betel

nut or chewing betel nut alone is injurious to

health. But whether that scientific data in itself

is sufficient to issue the impugned notification? In

our view it is not. Consumption of any food article

can be injurious to health. The Food Act has taken

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care of such situation.

23. From time to time, food articles are

introduced for human consumption in market and the

scientists also start examining such products'

safety. Section 3 (partly) and Section 18 of the

Food Act laid down general principles to be followed

in administration of this Act. They are as under :

(zm) "risk", in relation to any article of food, means the probability of an adverse effect on the health of consumers of such food and the severity of that effect,

consequential to a food hazard".

(zn) "risk analysis", in relation to any article of food, means a process consisting of three components, i.e. risk

assessment, risk management and risk communication;

(zo) "risk assessment" means a scientifically based process consisting of the following steps : (i) hazard identification, (ii) hazard characterisation, (iii) exposure assessment, and (iv) risk characterisation;

(zp) "risk communication" means the interactive exchange

of information and opinions throughout the risk analysis process concerning risks, risk-related factors and risk perceptions, among risk assessors, risk managers, consumers, industry, the academic community and other interested parties, including the explanation of risk assessment findings and the basis of risk management

decisions;

(zq) "risk management" means the process, distinct from risk assessment, of evaluating policy alternatives, in consultation with all interested parties considering risk assessment and other factors relevant for the protection

of health of consumers and for the promotion of fair trade practices, and, if needed, selecting appropriate prevention and control options."

"18. General principles to be followed in administration of Act.-The Central Government, the State Governments, the Food Authority and other agencies, as the case may be, while implementing the provisions of this Act shall be guided by the following principles, namely:-

(1) (a) endeavour to achieve an appropriate level of protection of human life and health and the protection of consumers' interests, including fair practices in all kinds of food trade with reference to food safety standards and practices;

( 14 ) crwp751.16

(b) carry out risk management which shall include taking into account the results of risk assessment, and other factors which in the opinion of the Food Authority are relevant to the matter under consideration and where the conditions are relevant, in order to achieve the general objectives of regulations;

(c) where in any specific circumstances, on the basis of assessment of available information, the possibility of harmful effects on health is

identified but scientific uncertainty persists, provisional risk management measures necessary to ensure appropriate level of health protection may be adopted, pending further scientific information for a more comprehensive risk assessment;

(d) the measures adopted on the basis of clause (c) shall be proportionate and no more restrictive of trade than is required to

achieve appropriate level of health protection, regard being had to technical and economic feasibility and other factors regarded as reasonable and proper in the matter under consideration;

(e) the measures adopted shall be reviewed within a reasonable period of time, depending on the nature of the

risk to life or health being identified and the type of scientific information needed to clarify the scientific uncertainty and to conduct a more comprehensive risk

assessment;

(f) in cases where there are reasonable grounds to suspect that a food may present a risk for human health, then, depending on the

nature, seriousness and extent of that risk, the Food Authority and the Commissioner of Food Safety shall take appropriate steps to inform the general public of the nature of the risk to health, identifying to the fullest extent possible the food or type of food, the risk that it may present, and the measures which are taken or about to be taken to prevent, reduce or eliminate that risk; and

(g) where any food which fails to comply with food safety requirements is part of a batch, lot or consignment of food of the same class or description, it shall be

presumed until the contrary is proved, that all of the food in that batch, lot or consignment fails to comply with those requirements.

(2) The Food Authority shall, while framing regulations

or specifying standards under this Act-

(a) take into account-

(i) prevalent practices and conditions in the country including agricultural practices and handling, storage and transport conditions; and

(ii) international standards and practices, where international standards or practices exist or are in the process of being formulated, unless it is of opinion that taking into account of such prevalent practices and conditions or international standards or practices or any particular part thereof would not be an effective or appropriate means for securing the objectives of such regulations or where there is a scientific justification or where they would result in a different level of protection from the one determined as appropriate in the country;

(b) determine food standards on the basis of risk analysis except where it is of opinion that such analysis is not appropriate to the circumstances or the nature of

( 15 ) crwp751.16

the case;

(c) undertake risk assessment based on the available scientific evidence and in an independent, objective and transparent manner;

(d) ensure that there is open and transparent public consultation, directly or through representative bodies including all levels of panchayats, during the

preparation, evaluation and revision of regulations, except where it is of opinion that there is an urgency concerning food safety or public health to make or amend the regulations in which case such consultation may be dispensed with: Provided that such regulations shall be in force for not more than six months.

(e) ensure protection of the interests of consumers and shall provide a basis for consumers to make informed choices in relation to the foods they consume,

(f) ensure prevention of-

(i) fraudulent, deceptive or unfair trade practices which may mislead or harm the consumer; and

(ii) unsafe or contaminated or sub-standard food.

(3) The provisions of this Act shall not apply to any

farmer or fisherman or farming operations or crops or livestock or aquaculture, and supplies used or produced in farming or products of crops produced by a farmer at farm level or a fisherman in his operations.

24. Let us assume that - Pan Masala, which does

not contain tobacco and which even conforms the

standards laid down in regulation No.2.11.5 of the

Regulations- it is found that chewing such products

is also injurious to human health. Such situation is

already contemplated by express provisions of this

Act. The relevant provisions are sections 3 (zm),

(zn), (zo), (zp) & (zq) of the Food Act. If we

peruse these provisions, with reference to the

scientific data collected by the Food Commissioner,

Maharashtra, it is clear that the Commissioner could

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assume that there is risk in relation to the Article

of food, which is known as Pan Masala (without

Tobacco), Scented supari (without tobacco) and such

other products which do not contain Tobacco. The

definition of term "risk" clearly contemplates that

in relation to any article of food, there could be

probability of an adverse effect on health of

consumer. The severity of such risk could be

variable. At such stage, as per provision of Section

18, the Central Government, the State Government and

the Commissioner are expected to analysis the risk.

Upon analysis of such risk, they are required to

assess the risk. Thereafter, they are expected to

manage the risk. Section 18 sub-section (1) of the

Food Act, clearly lays down as to how these three

authorities should carry out risk management.

25. When the scientific data is not sufficient

to conclude that a food product is hazardous,

provisional risk management measures are required to

be taken. Even such measures are required to be

taken within the parameters of the Food Act. Clause

(e) of S.18 (1) of the Food Act requires the

authorities that if certain risk management measures

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are adopted in respect of a particular food item, it

should be reviewed within a reasonable period of

time. It should then conduct a more comprehensive

risk assessment. Clause (f) contemplates a situation

where there are reasonable grounds to suspect that a

good item may present risk for human health.

Depending on situation, food authority and the Food

Commissioner should take appropriate steps for

informing the general public of the nature of risk

to health.

26. In addition to this, one must also read

Chapter VII of the Act which includes provisions

regarding the enforcement of the Food Act. Section

29 of the Food Act provides that the food

authorities and the State Food Safety Authority

should monitor and verify that relevant requirements

of law are fulfilled by food business operator at

all stages of the business. As seen above, the Food

Act by section 92 gives power to food authority to

make regulations. Utilizing such powers the food

authorities have already notified the standards and

guidelines in relation to articles of food which are

sold and distributed for human consumption. In this

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background one must read S.34 of the Act.

27. Section 34 of the Food Act reads as under :

"34. Emergency prohibition notices and orders. -

1. If the Designated Officer is satisfied that the health risk condition exists with respect to any food business, he may, after a notice served on the food business operator (in this Act referred to as an "emergency prohibition notice"), apply to the

Commissioner of Food Safety for imposing the prohibition.

2. If the Commissioner of Food Safety is satisfied, on the application of such an officer, that the health risk condition exists with respect to any food business, he shall, by an order, impose the prohibition.

3. The Designated Officer shall not apply for an

emergency prohibition order unless, at least one day before the date of the application, he has served notice on the food business operator of the business of his intention to apply for the order.

4. As soon as practicable after the making of an emergency prohibition order, the Designated Officer shall require the Food Safety Officer to -

a. serve a copy of the order on the food business

operator of the business; or

b. affix a copy of the order at a conspicuous place

on such premises used for the purposes of that business and any person who knowingly contravenes such an order shall be guilty of an offence and shall be punishable with imprisonment for a term which may extend to two years and with fine which

may extend to two lakh rupees.

5. An emergency prohibition order shall cease to have effect on the issue by the Designated Officer of a certificate to the effect that he is satisfied that the food business operator has taken sufficient measures for justifying the lifting of such order.

6. The Designated Officer shall issue a certificate under sub-section (5) within seven days of an application by the food business operator for such a certificate and on his being not satisfied, the said officer shall give notice to the food business operator within a period of ten days indicating the reasons for such decision."

28. Even, in emergent situation, this provision

provided that prohibitory orders cannot be passed

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without issuing a prior notice to the business

operator. It is, in this context also, the provision

of Section 30 (2) of the Food Act is required to be

understood. A procedure is prescribed under Section

34 of the Food Act, as to how a prohibition order is

made by the Commissioner. Such an order should be

for a limited period. If during the subsistence of

such order, it is found that corrective steps are

taken, such order can be withdrawn.

29. In this background one must read Section 30

clause (a) of sub-section (2) of the Food Act. Now

it becomes clear that though the Commissioner of

Food Safety is permitted to prohibit manufacture

etc. of any article of food, within the state, the

duration of such order cannot be more than one year.

The impugned notification is issued utilizing these

powers. The first question is - whether such

prohibitory order is permissible in the facts and

circumstances and within the parameters of Section

30 (2) (a) of the Food Act? If the answer to this

question is in affirmative, whether such prohibitory

order can be perpetuated by issuing similar orders

immediately after the expiry of one year period.

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30. On the face of it, we find that the power

is required to be utilized for a limited period that

too in limited area. It is a measure which is

required to be taken in case of emergency. The

tenor of the provision of the Act indicated that

such drastic powers were not to be issued

indiscriminately. As mentioned above, all along the

Act has taken into account the safety of the food

and taking steps for meeting the dynamic/ever

changing requirements of Indian food trade and

industry and international trade. In other words the

Act clearly suggests that while utilizing the powers

of this Act, the authorities should not cause loss

to the Indian food trade and industry. By passing

this sweeping order prohibiting manufacture of

certain food article, year after year, there is no

doubt in our minds that this would hamper the

progress of Indian food trade and industry. In our

view, the power given under clause (a) is required

to be utilized sparingly that too in an emergency

situation. For example, in a pilgrimage towns such

as Pandharpur, Tuljapur etc. where lakhs of people

converge on a particular day in a year, there is

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likelihood that the resources available in such

relatively smaller towns would be insufficient to

cater needs of lakhs of pilgrims/visitors. In such

situation, there is possibility that purity and

standard of ready-made food item/s would be

neglected. The Commissioner for Food Safety might

collect samples of usual food items before the

festival and if it is found that certain food

article manufactured by certain manufacturer is of

sub-standard /contaminated/hazardous to human

health, as provisional risk management measure, the

Commissioner can prohibit manufacture and sale of

such food article. This could be one of the examples

of emergency that might erupt within the State.

There are, of course, number of other possibilities

where the powers under clause (a) can be utilized.

But, it is clear from the wording of the provisions

of Section 30 that for the reasons mentioned in the

impugned order, the Commissioner for Food Safety is

not empowered to issue such order. That too year

after year. This would throttle a particular

branch of food industry.

31. Similar situation arose under the

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provisions of the Prevention of Food Adulteration

Act, 1954. This Act looked after food safety

standards prior to 2006. A similar Notification was

issued by the Food (Health) Authority, under section

7 (iv) of the Prevention of Food Adulteration Act,

by which manufacture, sell, storage and disbursement

of Pan-masala, Gutka (Pan Masala containing Tobacco)

were banned for different periods. Section 7 of the

Prevention of Food Adulteration Act reads as

under :-

7. Duties of Public Analyst- (1) On receipt of a package containing a sample for analysis from a

Food Inspector or any other person the Public Analyst or an officer authorised by him shall compare the seals on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon:

Provided that in case sample container

received by the Public Analyst is found to be in broken condition or unfit for analysis he shall within a period of seven days from the date of receipt of such sample inform the Local (Health) Authority about the same and send requisition to

him for sending second part of the sample.

(2) The Public Analyst shall cause to be analysed such samples of article of food as may be sent to him by Food Inspector or by any other person under the Act.

(3) The Public Analyst shall, within a period of forty days from the date of receipt of any sample for analysis, send by registered post or by hand to the Local (Health) Authority a report of the result of such analysis in Form III:

Provided that where any such sample does not confirm to the provisions of the Act or these rules, the Public Analyst shall send by registered post or by hand four copies of such report to the said Authority:

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Provided further that the Public Analyst shall forward a copy of such report also to the person who purchased an article of food and forwarded the same to him for analysis under Section 12 of the Act."

32. Godawat Pan Masala Products I.P. Ltd. And

others challaged the validity of the prohibitory

order. The case reached the Apex Court and in the

wellknown judgment in the case of Godawat Pan Masala

Products I.P. Ltd.

Vs.

Union of India (2004) 7

S.C.C.68, the Supreme Court held that that the power

given to the Food Health Authority is only pro tem

power to deal with an emergent situation such as

outbreak of any inflectious disease, which may due

to any article of food. Such power would include

power to ban for the time being the sale of such

injurious article of the food. Such power is

utilized for the time being and in the interest of

public health. If provisions of Section 7 (iv) are

not held to confer power on the authority to deal

with an emergent situation, such provision would

confer arbitrary powers on authority and would be

procedurally unfair. This is held particularly in

the face of statutory provisions under which

licences were granted to the manufacturers of pan-

masala etc. Since there is provision for

( 24 ) crwp751.16

cancellation and suspension of such licence, without

resorting to necessary procedure, imposing

prohibitory orders would be arbitrary and against

the provisions of Article 14 of the Constitution.

33. Learned Sr. Counsel for the petitioner

asserted that by utilizing powers under section 30

(2) (a) of the Food Act, the Commissioner for Food

Safety has virtually usurped legislative functions.

Imposing prohibition on manufacture etc. of a Food

Article would be within the legislative competence.

The provisions of Food Act clearly provided that

prohibition orders would be passed sparingly in few

situations and after following due process of law.

34. In this background, the question was raised

as to whether before making the impugned order, the

Commissioner was required to comply with the

principle of natural justice.

35. Admittedly, no hearing was given to the

concerned persons who were granted licence to

manufacture pan masala etc. In the judgment of the

Supreme Court in the case of Olga Telis & Ors. Vs.

( 25 ) crwp751.16

Bombay Municipal Corporation, (1985) 3 S.C.C. 545,

the Constitutional Bench of the Supreme Court had an

occasion to deal with provisions of Section 314 of

the Bombay Municipal corporation Act, 1988. It was

held that said section 314 conferred on the

Municipal Commissioner, a discretion to cause

encroachment to be removed with or without notice.

The Supreme Court held that such discretion has to

be exercised in a reasonable manner so as to comply

with the constitutional mandate that the procedure

must be fair and reasonable. The relevant

observations of judgment of Olga Tellis (Supra) are

as under :-

44" xxxxxxxx (the said section) confers on the Commissioner the discretion to cause an

encroachment to be removed with or without notice. That discretion ha to be exercised in a reasonable manner so as to comply with the constitutional mandate that the

procedure accompanying the performance of a public act must be fair and reasonable. (The Court) must lean in favour of this interpretation because it helps sustain the validity of the law"

45. "It must further be presumed that, while vesting in the Commissioner the power to act without notice, the Legislature intended that the power should be exercised sparingly and in cases of urgency which brook no delay. In all other cases, no departure from the audi alteram partem rule ('Hear the other side') could be presumed to have been intended. Section 314 is so designed as to exclude the principles of

( 26 ) crwp751.16

natural justice by way of exception and not as a general rule. There are situations which demand the exclusion of the rules of natural justice by reason of diverse factors like time, place the apprehended

danger and so on. The ordinary rule which regulates all procedure is that persons who

are likely to be affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively, depending

upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in

circumstances which warrant it. Such circumstances must be shown to exist, when

so required, the burden being upon those who affirm their existence."

36. Assuming that the powers under section 30

is an example of conditional legislation, the

Supreme Court in the judgment of State of T.N. Vs.

K. Sabanayagam, 1998 S.C.C. 318, broadly classified

three categories of conditional legislation. These

are as under :-

"a. When the legislature has completed its task of enacting a statute, the entire superstructure of the legislation is ready

but its future applicability to a given area is left to the subjective satisfaction of the delegate.

b. Where the delegate has to decide whether and under what circumstances a legislation, which has already come into force, is to be partially withdrawn from operation in a given area or in given cases so as not to be applicable to a given class of persons who are otherwise admittedly

( 27 ) crwp751.16

governed by the Act; and

c. Where the exercise of conditional legislation would depend upon satisfaction of the delegate on objective facts placed

by one class of persons seeking benefit of such an exercise with a view to deprive the

rival class of persons, who, otherwise, might have already got statutory benefits under the Act and who are likely to lose the existing benefit, because of exercise of such a power by the delegate."

37. The Supreme Court emphasized in this

judgment that in the third type of cases, the

satisfaction of the delegate (Commissioner) must

necessarily be based on objective considerations and

it must be treated as a function which requires

objective consideration of relevant factual data

pressed into service by one side which could be

rebutted by other, who would be adversely affected.

38. In this background we would now turn to a

similar case. The Division Bench of Patna High

Court recently delivered judgment in the case of

M/s.Onkar Agency Vs. Safety Standard Authority of

India. The facts were quite similar. The

petitioners were manufacturers of Pan Masala and

Gutka(Chewing tobacco).The commissioner for food

safely Bihar issued a Prohibitory Order u/s 30

( 28 ) crwp751.16

banning manufacture, sale, storage etc. of Pan

Masala. Gutka etc. The division bench of Patna High

Court held:

33. ..... the following facts emerge

with respect to the issuance of prohibition orders under Section 30(a) of the Food Act.

a. Before passing of the order, there must be emergent circumstances

based on objective materials that in the interest of public health, the manufacture, storage, distribution or sale of any article of food, either in

the whole of the State or any area or part thereof, be prohibited;

b. The tenure of the prohibitory order has to be temporary in nature

and must not exceed 1 (one) years in its entirety; now, any extension of the prohibitory order would amount to virtually and effectively making a legislation by executive flat;

c. The principle of audi alteram

partem applies in exercise of powers under Section 30(a) and the aggrieved persons should be heard before continuing with the prohibition order;





                             and

                             d.         Since the prohibition is with

reference to a food business operator, the prohibition must indicate the name

of food business operator and also the brand name, if any , under which the food business is carried out.

39. The division bench after extensive

discussion held that the notification issued under

S.30 of the Food Act was invalid and set it aside.

( 29 ) crwp751.16

The reasoning mentioned in this judgment and the

ratio is on all fours applicable to this case.

40. There is one aspect to this petition. On

perusal of the impugned Notification, we found that

there could be some confusion in the mind of the

Commissioner, when he referred to term "chewing

tobacco". He mentioned that this term is found in

item No.40 in the table under sub-regulation 2.3.1

in Food Safety Standards (Contaminants, Toxins and

Residues) Regulation 2011. Since this term is found

in this table, the Commissioner came to a conclusion

that "chewing tobacco" is listed as a 'food' item.

He also came to a conclusion that in mixture chewing

tobacco with betel nut flavoured or otherwise mixed

with ingredients or otherwise would be 'food' as

defined under section 3 (j) of the Food Act.

41. We have serious doubt about this

conclusion. The word tobacco is not found in any

other provision either of the Food Act or of

regulations made thereunder (except above referred

entry). Various items of food are described with

standards in detail in the extensive provisions of

( 30 ) crwp751.16

Food Safety and Standards (Food Products Standards

and Food Additives) Regulations, 2011. In Chapter

II Food products Standards are described in various

regulations. Almost all food products such as milk,

milk products, oil, oil products dry fruits,

condiments etc. are mentioned in these regulations

extensively and yet the word "Tobacco" is not

mentioned here. It is clear that the provisions do

consider Tobacco as a food product though tobacco

product such as chewing tobacco, snuff, Cigarette

would be consumed by humans. Despite this fact, the

provisions of Food Act and Regulations ignored

Tobacco and tobacco products. There is a specific

purpose for avoiding tobacco and tobacco related

consumables from the provisions of Food Act and

Regulations. The reasons is that the legislature

has already passed an Act to deal with the trade,

commerce, production, supply and distribution of

Cigarettes and other tobacco products by enacting

the Cigarettes and Other Tobacco Products

(Prohibition of Advertisement and Regulation of

Trade and Commerce, Production, Supply and

Distribution) Act, 2003. Term tobacco product is

described in section 3 (p) of this Act, which

( 31 ) crwp751.16

includes, chewing tobacco, snuff, pan masala or any

chewing material having tobacco as one of its

ingredients, tooth powder containing tobacco. The

statement of object of this Act reads as under :-

"1. Tobacco is universally regarded as one of the major public health hazards and is responsible directly or indirectly for an estimated eight lakh death annually in

the country. It has also been found that treatment of tobacco related diseases and the loss of productivity caused therein cost the country almost Rs.13,500 crore

annually, which more than offsets all the benefits accruing in the form of revenue

and employment generated by tobacco industry. The need for a comprehensive legislation to prohibit advertising and

regulation of production, supply and distribution of cigarettes and tobcco products was recommended by the Parliamentary Committee on Subordinate Legislation (Tenth Lok Sabha) and a number

of points suggested by the Committee on Subordinate Legislation have been

incorporated in the Bill.

2. The proposed Bill seeks to put total ban on advertising of cigarettes and

other tobacco products and to prohibit sponsorship of sports and cultural events either directly or indirectly as well as sale of tobacco products to minors. It also proposes to make rules for the purpose of

prescribing the contents of the specified warnings, the languages in which they wer to be displayed, as well as displaying the quantities of nicotine and tar contents of these products. For the effective implementation of the proposed legislation, provisions have been proposed for compounding minor offences and making punishments for offences by companies more stringent. The objective of the proposed enactment is to reduce the exposure of

( 32 ) crwp751.16

people to tobacco smoke (passive smoke) and to prevent the sale of tobacco products to minors and to protect them from becoming victims of misleading advertisement. This will result in a healthier life style and

the protection of the right to life enshrined in the Constitution. The proposed

legislation further seeks to implement article 47 of the Constitution which inter alia, requires the State to endeavour to improve public health of the people.

42. The preamble of this Act reads as under :-

"An Act to prohibit the advertisement of, and to provide for the

regulation of trade and commerce in, and production, supply and distribution of,

cigarettes and other tobacco products and for matters connected therewith or incidental thereto.

Whereas, the Resolution passed by the 39 World Health Assembly (WHO) in its th

Fourteenth Plenary meeting held on the 15th

May, 1986 urged the member States of WHO which have not yet done so to implement the

measures to ensure that effective protection is provided to non-smokers from involuntary exposure to tobacoo smoke and to protect children and young people from

being addicted to the use of tobacco;

And whereas, the 43rd World Health Assembly in its Fourteenth Plenary meeting held on the 17th May, 1990, reiterated the concerns expressed in the Resolution passed

in the 39th World Health Assembly and urged Member States to consider in their tobacco control strategies plans for legislation and other effective measures for protecting their citizens with special attention to risk groups such as pregnant women and children from involuntary exposure to tobacco smoke, discourage the use of tobacco and impose progressive restrictions and take concerted action to eventually eliminate all direct and indirect

( 33 ) crwp751.16

advertising, promotion and sponsorship concerning tobacco;

And whereas, it is considered expedient to anact a comprehensive law on

tobacco in the public interest and to protect the public health;

And whereas, it is expedient to prohibit the consumption of cigarettes and other tobacco products which are injurious to health with a view to achieving

improvement of public health in general as enjoined by article 47 of the Constitution;

And whereas, it is expedient to

prohibit the advertisement of, and provide for regulation of trade and commerce,

production, supply and distribution of cigarettes and other tobacco products and for matters connected therewith or

incidental thereto."

43. From the above exposition, it is clear that

Tobacco is now regarded as one of the major public

health hazards. It is also clear that the World

Health Assembly in 1990 passed a resolution and

suggested other effective measures for protecting

citizens specially women and children from exposure

to tobacco and to discourage use of tobacco. It

also suggested that the countries should impose

progressively restrictions on advertising and

promotion concerning the tobacco. However, the

accent of these provision are regulatory in nature,

they by no stretch of imagination the Act

( 34 ) crwp751.16

prohibited manufacture of cigarettes and other

tobacco products.

44. In the light of these provisions, it does

not appear proper for the Commissioner for food

safety to enter in the subject of tobacco and its

ill-effects on human health, while describing the

reasons why he had passed the impugned order. He

was supposed to concentrate on food item which is

described in the Regulations as pan masala and at

the most he could have prohibited manufacturing of

the same for a limited period. It is thus clear

that the impugned order deserves to be set aside.

45. The second aspect of this petition is the

Notification of Health Department. By no stretch of

imagination, this notification can be said to be

lawful. This notification is issued expressly for

helping the officers appointed under the Food and

Safety Standards Act, in implementing the impugned

order passed under section 30 (2) (a) of the Food

Act. Since we have held above that the notification

itself is untenable in law, any action taken

pursuant to such order would be null and void. For

( 35 ) crwp751.16

this reason, the second resolution dated 26.03.2016

is bad in law.

46. Even otherwise this Resolution is illegal

because the Food Act and Rules and Regulations made

thereunder clearly created a complete code in itself

for implementing the provision of the Act. There is

no suggestion given in the Act that in any

situation, the Officers of the Food and Safety Act

would be permitted to seek police help in

implementation of the provisions. The tenor of the

provision of the Food Act clearly indicates that it

is bringing in a regulatory regime of self-

compliance through food safety management system.

In other words, the food business operators are put

with responsibility that they process, manufacture,

import and distribute food articles strictly in

accordance with the Act. The Act clearly indicated

that even the officers appointed under the

provisions of the Act would have a conciliatory

approach towards a food operators. The rigours of

previous enactment, such as prevention of the Food

Adulteration Act is reduced to a large extent. The

Act for the first time provided civil penalties in

( 36 ) crwp751.16

case of violation of provisions of the Act and

regulations. In extreme cases only the Act provides

for litigation in the Court. In such scenario

issuance of the Notification of 22.03.2016 appears

to us derogatory to the purpose of the Food Act.

For this reason also, it deserves to be set aside.

47. In the result, the Writ Petition is allowed

in terms of following order :-

(i) The Notification dated 15th July, 2016

issued by respondent No.3 is quashed and set aside.

(ii) The Government Resolution dated 22nd

March, 2016 issued by Home Department, State of Maharashtra, is hereby quashed and

set aside.

48. Rule made absolute in above terms. No

costs.

[A.V. NIRGUDE,J.]

PER : V. L. ACHLIYA, J.

1. I have perused the draft judgment in Cr. W.

P. No. 751/2016 sent for approval. I respectuflly

disagree with the view expressed therein impugned

notifications are liable to be quashed. In my view,

( 37 ) crwp751.16

the petition cannot be finally disposed of and it

requires to be reheard by listing it for admission.

2. As per the record, the writ petition was

filed on 20.06.2016. It is yet to be admitted. No

notice of final disposal has been issued in the

matter to the respondents. In the affidavit-in-

reply dt. 04.08.2016 & additional affidavits filed

thereafter by respondent No. 3, it is specifically

stated that admission of the petition is opposed on

the grounds raised as preliminary objections. It is

specifically urged to decide those objections before

deciding the petition on merit. Thus, there is no

consent by the respondents to decide the petition

finally at admission stage. In this view, it would

not be proper to finally decide the petition without

considering the preliminary objections. The

preliminary objections as raised by respondent No. 3

goes to the root of the matter. I am therefore of

the view, same needs to be decided before touching

the merits of the matter. Perusal of the judgment

shows that, the preliminary objections raised as to

maintainability of the petition neither considered

nor findings have been recorded before touching the

( 38 ) crwp751.16

merits of the matter.

3. The respondent No. 3 has specifically

raised objections to maintainability of the petition

with contention that the petitioner has no locus

standi to file petition and so also, the petition

discloses no cause of action to file the instant

petition. The respondent No. 3 has furrther

objected to entertain the petition on the ground

that the releifs claimed in the petition can be

claimed by filing petition on civil side and writ

petition filed on criminal side is not maintainable.

In my view, the objections raised are well founded.

The petitioner has not disclosed any cause of action

to file petition so as to claim the reliefs i.e. to

quash the impugned notifications. Neither there is

any pleading nor there is any evidence to show that

the petitioner was aggrieved by any action of the

State Government. No case of infringement of

fundamental rights of the petitioner is made out to

invoke extraordinary jurisdiction under Article 226

of the Constitution of India. In this view, the

petition is liable to be dismissed on the ground of

maintainability itself without touching the merits

( 39 ) crwp751.16

of the matter.

4. I did find force in the submission of ld.

counsel for the respondent that the present petition

cannot be entertained on criminal side. It is

rightly pointed out that all the petitions, which

are clubbed together and listed for hearing at

Principal Seat, relating to same subject matter were

filed on Civil side.

5. I did not agree with the view expressed in

the judgment on various issues for the reason same

runs contrary to the view taken by Division Bench of

this Court (Coram: Mohit S. Shah, CJ & N. M. Jamdar)

in Writ Petition No. 1631/2012 and other group of

petitions involving same issues while passing order

dt. 15.09.2012. The said order was challenged but

not interfered by the Apex Court.

6. In my view the contention of ld. Public

prosecutor that as the Hon'ble Supreme Court is

seized of the matter involving similar issues in

Transfer Case (Civil) No(s). 1/2010 (Central

Arecanut Marketing Copn. & Ors. Versus Union of

( 40 ) crwp751.16

India) and other large group of petitions, the

hearing of present petition be deferred till the

Apex Court decides these matters, deserves due

consideration in view of order dt. 23.09.2015 passed

in the matter by the Division Bench of the Hon'ble

Supreme Court (Coram : V. Gopala Gowda & Adarsh

Kumar Goel, JJ.).

"ORDER These matters have been heard inter

alia on 1.9.2016, 7.9.2016, 15.9.2016, 16.9.2016, 20.9.2016 and 21.9.2016. In

the course of submissions by the learned counsel, it has been stated today that longer time will be required

in completing the hearing as more submissions are to be made by many learned counsel representing the parties. Thus, it may not be possible to cnclude the hearing so as to enable

this Bench to decide the matter within the time available.

In view of submission of the learned counsel for the parties and the learned Amicus Curiae, we direct that the

matters be now listed for hearing on 9.11.2016 as first case.

'21. IT is most respectfully submitted that to circumvent

the ban on the sale of gutkha, the manufacturers are selling pan masala (without tobacco) with flavoured chewing tobacco in separate sachets but often conjoint and sold together by the same vendors from the same premises, so that consumers can buy the pan masala and flavoured chewing tobacco and mix them both and consume the

( 41 ) crwp751.16

same. Hence, instead of the earlier "ready to consume mixes", chewing tobacco companies are selling gutkha in twin packs to be mixed as one"

Learned Amicus Curiae has also pointed

out that this Court has not granted any stay of Regulation 2.3.4 of the Food Safety and Standards (Prohibition & Restrictions on Sales) Regulations, 2011 and the concerned authorites are

duty bound to enforce the said regulation framed under Section 92 red with Section 26 of the Food Safety & Standards Act, 2006.

In view of the above, the concerned

statutory authorites are directed to comply with teh above mandate of law. We also direct the Secretaries, Health

Department of all the States and Union Territories to file their affidavits before the next date of hearing on the issue of total compliance of the ban imposed on manufacturing and sale of

Gutkha and Pan Masala with tobacco and/or nicotine."

7. In my view, the instant petition deserves

to be heard and tagged along with the group of

petitions kept along with Writ Petition No. 1632 of

2012 (M/s. Dhariwal Industries & Ors. Vs. State of

Maharashtra) involving identical issues fixed for

hearing before Principal Seat of High Court at

Bombay, in order to avoid the possibility of

conflicting decision.

8. For the reasons stated above, the petition

( 42 ) crwp751.16

be placed for admission for rehearing so as to

cosider and decide the preliminary issues raised by