Bombay High Court
Sainath Traderws & Anr vs Commissioner Of Food And Drug ... on 30 September, 2016
Bench: S.V. Gangapurwala
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6708 OF 2005
1. Sainath Traders,
through its Proprietor,
Madhavdas Dhamandas Bhojwani,
Age : 50 Years,
Guru Nanak Housing Society,
Ganpati nagar, Jalgaon.
2.
Sanjay Ramchandra Gawande,
Age : 41 Years, Occu. : Business,
R/o Kelanagar, Near Kela Factory
Road, Khamgaon, Dist. Buldhana. .. Petitioners
Versus
1. Commissioner of Food and Drug
Administration and Food (Health)
Authority, Food and Drug Administration
for State of Maharashtra.
2. Commissioner of Police,
Aurangabad Commissionerate,
Khadakeshwar, Aurangabad.
3. District Superintendent of Police,
Jalgaon District, Jalgaon.
4. District Superintendent of Police,
Ahmednagar District, Ahmednagar.
5. District Superintendent of Police,
Dhule District, Dhule.
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6. District Superintendent of Police,
Nandurbar District, Nandurbar.
7. District Superintendent of Police,
Jalna District, Jalna.
8. District Superintendent of Police,
Beed District, Beed.
9. District Superintendent of Police,
Parbhani District, Parbhani.
10.
District Superintendent of Police,
Nanded District, Nanded.
11. District Superintendent of Police,
Hingoli District, Hingoli.
12. District Superintendent of Police,
Latur District, Latur.
13. District Superintendent of Police,
Usmanabad District, Usmanabad.
14. State of Maharashtra,
through Secretary,
Government of Maharashtra,
Mantralaya, Mumbai - 32. .. Respondents
Shri Sushant V. Dixit, Advocate for Petitioners.
Ms. S. S. Raut, A.G.P. for Respondent Nos. 1 to 14.
CORAM : S. V. GANGAPURWALA AND
K. K. SONAWANE, JJ.
CLOSED FOR JUDGMENT ON : 22.07.2016
JUDGMENT PRONOUNCED ON : 30.09.2016
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ORAL JUDGMENT (Per S. V. Gangapurwala, J.) :-
. The petitioners at the relevant time were dealing with sale,
production, transportation of gutka, pan masala and similar
products sold as admixture of supari, jarda and perfume under
requisite license. The petitioner No. 1 is doing the retail business
and the petitioner No. 2 is appointed as a carrying and
forwarding agent for the State of Maharashtra of various
manufacturing units of gutka, panmasala and similar products.
Vide the present writ petition, the petitioners are assailing the
notifications/orders dated 02nd November, 2004, 29th January,
2005, 08th February, 2005 and 31st January, 2005, whereby
pursuant to the said notifications/orders directions were issued,
such as prohibiting using magnesium carbonate without
obtaining permission of the respondent No. 1, to get approval of
the respondent No. 1 on the label and composition, making non
compliance of directions in the notification a punishable offence
under the Prevention of Food Adulteration Act (for short "P. F. A.
Act"). So also directions issued to cancel the licenses for non
compliance of notifications and not to grant license for sell of
tobacco till the standards are fixed.
02. Mr. Dixit, the learned counsel for petitioners submits that,
notification dated 02.11.2004 issued under Rule 3 of the
Maharashtra Prevention of Food Adulteration Rules thereby
declaring addition of magnesium carbonate in gutka, pan masala
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as injurious to health, so also prohibiting use of magnesium
carbonate without permission of the respondent No. 1 and
directing every manufacturer to get approval of the respondent
No. 1 of the label and composition and making non compliance of
directions in the notification as punishable offence under the P.
F. A. Act and Sec.272 and 273 of the Indian Penal Code is bad in
law and ultra virus to the statute. The powers to issue said
directions vest with the Central Government U/Sec. 23(b)(f) and
(j) of the P. F. A. Act. The said authorities did not possess powers
to issue directions in the said regard. Though no standards were
fixed at the time of notification by the Central Committee, still
the respondent No. 1 held addition of magnesium carbonate as
non permissible in pan masala and gutka. The learned counsel
submits that, addition of magnesium carbonate is permissible
upto 2% in fruit powder under Rule 52 of the Prevention of Food
Adulteration Rules, 1955 (for short "P. F. A. Rules"). Pan masala
and gutka also contains fruit powder and, therefore, directions
issued by the respondent No. 1 are contrary to Rule 62 of the P. F.
A. Rules.
03. The learned counsel further submits that, even under Rule
64-C of the P. F. A. Rules, principle of carry over applies.
Supplies to anticaking agent, which are naturally found in food
products. Magnesium carbonate is naturally found in raw
material of pan masala and gutka. Addition of magnesium
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carbonate is permitted in many other food products including
infant food and is naturally found in many food products in daily
diet. As such, merely on apprehension and presumption, the
same could not have been prohibited, more particularly when no
powers vest with the respondent No. 1 to decide whether it is
harmful. The learned counsel further contends that, the
approval of the respondent No. 1 on label and composition is not
contemplated under any provision of the P. F. A. Act and Rules.
The directions in the notification are ultra virus, the powers in
this regard vest exclusively with the Central Government U/Sec.
23(d) of the P. F. A. Act. Even the provisions of the Indian Penal
Code are non cognizable and the offences are registered on the
basis of said notification.
04. Mr. Dixit, the learned counsel further submits that,
notification dated 29.01.2005 was issued directing the
subordinate officers to cancel the license of C.N.F. agents, retail
and wholesale suppliers for non compliance of the notification
dated 02.11.2004. According to the learned counsel no analysis
or scientific research is relied for holding addition of magnesium
carbonate in pan masala and gutka product causes cancer. The
directions in the notification are ultra virus as the power lies
with the Central Government U/Sec. 23 (b)(f)(g) and (l) of the P.
F. A. Act. So also the said directions are violative of Article 14
and 19(1)(g) of the Constitution of India. According to the
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learned counsel, even principles of natural justice are not
followed.
05. The learned counsel further submits that, again a further
notification was issued on 08th February, 2005, wherein
directions were given not to grant license for sale of tobacco and
pan masala products, till standards are fixed and further
directed that, action be taken for non compliance of said
directions by suspending and cancelling existing licenses. Said
directions are also ultra virus. The respondent No. 1 has no
power, but the said powers vest with the Central Government
U/Sec. 23(f)(g) and (l) of the P. F. A. Act. When standards for pan
masala and gutka products are not fixed, the said directions
could not have been issued. According to the learned counsel, the
notification dated 31.01.2005 directing to register offences for
violation of directions issued in the previous notification is also
ultra virus to powers of the respondent No. 1, as the said powers
and jurisdiction vest only with the Central Government U/Sec.
23(f)(g) and (l) of the P. F. A. Act. The learned counsel further
submits that, the impugned notifications are issued on the
pretext that, there is violation of Rule 62 of the Prevention of
Food Adulteration Rules. The learned counsel submits that, at
the relevant time the trade i. e. production, supply and
distribution of Pan Masala and Tobacco products was governed
by the Cigarettes and Other Tobacco Products (Prohibition of
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Advertisement and Regulation of Trade and Commerce,
Production, Supply and Distribution) Act 2003. When special
statute is holding the field, the respondents could not have
resorted to the provisions of the General Statute. The learned
counsel to substantiate his submissions relies on the judgment of
the Apex Court in the case of Ghodawat Pan Masala
Products I. P. Ltd. and another Vs. Union of India
and others reported in 2004(2)F.A.C. 33.
06. The learned counsel further submits that, the Director
General of Health Services P.H. (Food) had issued a letter to the
respondent No. 1 stating that addition of magnesium carbonate
was not decided and so also informed that the respondent No. 1
was not possessing the said power to approve labels and
additives. The said letter makes the position absolutely clear.
The learned counsel submits that, as the notifications are ultra
virus to the powers of the respondent No. 1, the same are illegal,
void-ab-initio and deserve to be set aside.
07. According to the learned counsel the Apex Court in the
case of Ghodawat Pan Masala Products I. P. Ltd. and
another Vs. Union of India and others referred to
supra has specifically held that the powers exercisable by the
State Government U/Sec. 24 of the P. F. A. Act can only be in the
field not occupied by Sec. 23 of the P. F. A. Act and U/Sec. 23(f)
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and (g), it is only Central Government who is authorized to
prescribe rules for prohibiting the sale or defining the conditions
of sale of any substance which may be injurious to health and the
power given to the authority is only pro ten power to deal with
emergent situation. The power of prohibiting the sale only vest
with the Central Government and the said Food (Health)
Authority has only limited power of issuing order or prohibition
for a short term while they investigate local problems and take
appropriate measures.
08. The learned counsel further submits that, the Apex Court
in it's judgment in the case of Ghodawat Pan Masala
Products I. P. Ltd. and another Vs. Union of India
and others (supra) has also discussed the scope of the source of
the power of the said authority. The powers of the said
authorities are derived from the Rules made in exercise of powers
exercised U/Sec. 24 of the P. F. A. Act and those powers are
subservient to the powers derived from the Rules U/Sec. 23 of the
P. F. A. Act. The learned counsel further submits that,
assumption of the authorities that the pan masala or gutka is res
extra commercium is wholly improper and the same has been
held by the Apex Court in the Ghodawat's judgment referred to
supra. If a particular article is prohibited or banned, same is
matter of legislative policy and must arise out of act of
legislature and not merely by notification issued by executive
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authority. The learned counsel further submits that, any
attempt to travel beyond the parameters set forth by the Central
Government cannot be upheld. Even it is a case of violation of
principles of natural justice as has been held by the Apex Court
in the said judgment. The source of power of the said Food
(Health) Authority is limited only in valid rules made in exercise
of powers of Food (Health) authority under the rules is only of
transitory nature intended to deal with local emergencies and
only for such period while said emergencies last and the power to
ban article of food or a 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 U/Sec. 23 of the P. F. A. Act. The learned counsel submits
that the Apex Court in the said judgment has specifically held
that, 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 provisions of Sec. 7(iv) of the P. F. A. Act
and Act of 2003 is a special Act it will prevail over general
enactment.
09. Ms. Raut, the learned Assistant Government Pleader for
respondent/State submits that, the Commissioner of Food and
Drugs had passed the impugned orders/notifications under the
provisions of the Prevention of Food Adulteration Act, 1954,
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Prevention of Food Adulteration Rules, 1955 and the
Maharashtra Prevention of Food Adulteration Rules, 1962.
According to the learned A. G. P. as per Part IV of the
Constitution of India under directive principles of State Policy, it
is the duty of the state authorities to prohibit the consumption of
any ingredient, which is injurious to health and to improve the
public health. Article 47 of the Constitution of India also enjoins
the duty on the state authorities to raise the level of nutrition
and standard of living of its people and the improvement of
public health as amongst its primary duties and, in particular
the State is expected to endeavour to bring about prohibition of
the consumption except for medical purposes of intoxicating
drinks and of drugs which are injurious to health.
10. The learned A. G. P. further submits that, as per Rule 62 of
the Prevention of Food Adulteration Rules, 1955 no anticaking
agent shall be used in any food except where the use of
anticaking agent is specifically permitted and the same would
not be beyond 2% either single or in combination of carbonates of
calcium and magnesium amongst other things and that too is
permissible only in table salt, onion powder, garlic powder, fruit
powder and soup powder. The learned A. G. P. submits that,
powers vest with the state authorities by virtue of Sec. 24 of the
P. F. A. Act 1954. By virtue of the powers under the said section,
the State Government after consultation with the committee is
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empowered to make rules for the purpose of giving effect to the
provisions of the Act in matters not falling within the purview of
Sec. 23 of the P. F. A. Act. Pursuant thereto the powers are
exercised by the State authorities, the Commissioner Food and
Drugs Administration, Maharashtra State and Food (Health)
Authority had been appointed U/Sec. 2(vi) of the Prevention of
the Food Adulteration Act, 1954, to exercise the powers conferred
by Rule 3 of the Maharashtra Prevention of Food Adulteration
Rules, 1962. As per Rule 3 of the Rules of 1962, the authority is
responsible for the general superintendence of the
administration and enforcement of the Act. The powers have
been given to the authority for the general administration and
the superintendence and so also enforcement of the Act. The
learned A. G. P. harps on the Appendix - B of the Prevention of
Food Adulteration Act, wherein the standards of Pan Masala
have been fixed under A-30 Pan Masala. In the said standards
laid down therein, there is no mention of use of anticaking agent.
It is further stated that, it shall be free from any ingredient
which is injurious to health. The use of magnesium carbonate is
injurious to health. According to the learned A. G. P. the
authority has issued the impugned notifications/orders in
exercise of powers vested in him and in public interest in
furtherance of implementation of the Act and the Statute. The
learned A. G. P. relies on the judgment of the Division bench of
this Court in the case of Dhariwal Industries Vs. The
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State of Maharashtra reported in 2013(1) Mh. L. J.
461 to contend that, the Division Bench of this Court has
observed that in many of the products that were seized,
magnesium carbonate was present for more than 2% and had
repealed the arguments of the petitioners therein that,
magnesium carbonate occurs naturally in tobacco and that
therefore, pan masala necessarily contains magnesium
carbonate. The said argument was specifically rejected by the
Division Bench of this Court. The learned A. G. P. further relies
on the judgment of the Division Bench of this Court in the case of
Rajiv Kumar Gupta and others Vs. The State of
Maharashtra and others reported in 2006 Cr. L. J. 581
and submits that the Division Bench in the said case has held
that, there is no bar under P. F. A. Act and Rules made
thereunder for the state authorities under the said Act to
exercise their jurisdiction to prosecute the guilty persons for the
offences under the Indian Penal Code.
11. The learned A. G. P. states that, the powers have been
properly exercised. There is no merit in the writ petition. The
same deserves to be dismissed. The learned A. G. P. further
submits that, the judgment of the Apex Court in the case of
Ghodawat Pan Masala Products I. P. Ltd. and
another Vs. Union of India and others referred by the
petitioners would not be applicable so far as challenge to the
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impugned notifications is concerned, as in the case before the
Apex Court powers were exercised by the authorities U/Sec. 7
Sub Sec. (iv) of the Prevention of Food Adulteration Act, 1954
and in the present case the powers are exercised by the
authorities under Rule 62 of the Prevention of Food Adulteration
Rules 1955. The learned A. G. P. further states that, the
respondent authorities have not banned the total product, but
have only prohibited use of magnesium carbonate as per Rule 62
of the Rules of 1955 and the same is permissible.
12. We have considered the submissions canvassed by learned
counsel for respective parties. As far as notification dated
08.02.2005 is concerned, the challenge to the same would remain
only academic, as it is not disputed and it is admitted by the
petitioners as well as respondent/state that sale of tobacco,
nicotine, pan masala and gutka has been banned in the state
since notification issued in August 2011. As such it is not
necessary to deal with the notification dated 08.02.2005. The
other notifications also would remain relevant only to the extent
of directions to register offences against the persons like
petitioners.
13. Notifications impugned in the present petition are
issued in the year 2004/2005 by the Commissioner Food and
Drugs exercising powers under the provisions of the P. F. A. Act,
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1954 and the P. F. A. Rules 1955. The petitioners are aggrieved
by the impugned notifications on the ground that the
Commissioner, Food and Drugs vide the impugned notifications
has restrained petitioners from selling the pan masala and gutka
without adding magnesium carbonate except with permission of
the Food Authority and directing to get the labels approved. So
also giving directions with regard to the printing of
precautionary warnings and further threatening to take criminal
action. The challenge is basically on the powers of the
Commissioner to issue such notifications. The petitioners have
heavily relied on the judgment of the Apex Court in the case of
Ghodawat Pan Masala Products I. P. Ltd. and
another Vs. Union of India and others referred to
supra.
14. The Apex Court in the case of Ghodawat Pan
Masala Products I. P. Ltd. and another Vs. Union
of India and others referred to supra has held as under :
"76. 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 located only
in the valid rules made in exercise of
the power under Section 24 of the Act by
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the State Government to the extent of
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 Sec.
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
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34 of 2003 being a special Act, and of
later origin, overrides the provisions
of Sec. 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
virus 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 of 19 of
the Constitution."
15. The respondents/State has relied on the judgment of the
Division Bench of this Court in the case of Dhariwal
Industries Vs. The State of Maharashtra referred to
supra. In the said case the validity of the powers and the
regulations under the Food Safety and Standards Act, 2006
(hereinafter referred as to the "Act of 2006" for the sake of
brevity) as well as statutory order of the Commissioner of Food
Safety, State of Maharashtra issued U/Sec. 30(2(a) of the Act of
2006 were challenged. The challenge was negatived by the
Division Bench of this Court. However, the notifications under
challenge in the present petition are prior to the enforcement of
the Act of 2006 and the regulations issued under the Act of 2006
and the regulations i. e. Food Safety and Standards (Prohibition
and Restriction of Sales) Regulations 2011. As the notifications
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impugned are prior to the enforcement of said Act of 2006 and
regulations, the said judgment in the case of Dhariwal
Industries Vs. The State of Maharashtra would not be
relevant for deciding the present matter. In the said judgment
the Division Bench of this Court had observed that, Food Safety
regulations have been enacted much after the Apex Court
decision in the Ghodawat's case and have in fact taken into
considerations the conclusions 4 and 5 laid down by the Apex
Court in the said judgment. In view of that, the said judgment of
the Division Bench of this Court in the case of Dhariwal
Industries Vs. The State of Maharashtra may not be
much relevant for deciding the present petition.
16. It has been held by the Apex Court in the case of
Ghodawat Pan Masala Products I. P. Ltd. and
another Vs. Union of India and others referred to
supra that, the pan masala is an article of food as defined under
the P. F. A. Act 1954 and the power of banning an article of food
or an article used as an ingredient of food on the ground of it
being injurious to health belong appropriately to the Central
Government to be exercised in accordance with rules made
U/Sec. 23 of the P.F.A. Act, 1954 and particularly sub Section
(1A)(f). It is further held by the Apex Court in the said judgment
that the State Food (Health) Authority has no power to prohibit
the manufacture for sale, storage, sale or distribution of any
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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, atleast
by exercise of the powers by the Central Government by framing
rules U/Sec. 23 of the P.F.A. Act 1954.
17. The power to make rules with regard to labels are with the
Central Government U/Sec. 23(d) of the P.F.A. Act 1954. Under
the Act and the Rules the said authorities have been entrusted
with a duty to see that the manufacture, storage or sale is in
accordance with the provisions of the Act and the Rules.
18. The State Health Authority certainly can take action as
contemplated in the Act and Rules, if the manufacture, sale or
storage is not in consonance with the provisions of the Act and
Rules. However, the Act and the Rules do not give power to the
said authority to specify the manner of labels, print or to get the
labels and print approved from it. Same would be beyond the
purview of the authority and it's power. The manner of
packaging labels is laid down U/Sec. 23 of the P.F.A. Act 1954
and the same is within the authority and purview of the Central
Government and not the State authority. The notifications in
that regard certainly cannot be sustained.
19. Vide the impugned notifications, the State Authority has
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also banned the sale of pan masala, gutka wherein magnesium
carbonate exists. It is held by the Apex Court, in Ghodawat's case
(supra) that 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. The
State authority does not have authority or source of power for
imposing such prohibition. If the Act and Rules prohibit use of a
particular anticaking agent, then the State authority certainly
has right to take action, but the State authority cannot by
notification impose restriction with the use of a particular
product in a food. The same is the domain of the Central
Government. Reliance is placed on Rule 62 of the Rules of 1955.
The State Authority can take action if Rule 62 is violated, but
certainly notification could not have been issued by a State
Authority banning a particular substance.
20. The said notifications have been issued prior to the
enforcement of Food, Safety and Standards Act, 2006 and
Regulation 2011. As such, the provisions of the Act of 2006 and
Regulations 2011 can not be invoked for serving the said
notification. Now the said notifications are only academic. As
observed above, the sale, manufacture of tobacco has been
banned in the State.
21. To conclude the state authorities could not have issued the
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impugned notifications asking the petitioners and similarly
situated persons for getting labels approved from their office. So
also could not have issued impugned notifications in the year
2005 asking the petitioners and similarly situated persons from
not adding magnesium carbonate in the pan masala/gutka. The
said impugned notifications to that extent are held to be without
authority. As these notifications are not in force now, in view of
the fact that production, sale of tobacco itself is banned, no
separate order setting them aside is necessary. However, it is
made clear that, if the provisions of the P.F.A. Act, 1954 and
Rules of 1955 are not followed, the State Authorities can take
action in accordance with law.
22. It is once again made clear that, as the notifications under
challenge were of the year 2004/2005 i. e. prior to the
enforcement of Food, Safety and Standards Act, 2006 and
Regulations of 2011, as such we have not considered the
notifications on the touch stone of provisions of Act of 2006 and
so also the judgment of this Court in Dhariwal's case (supra).
Sd/- Sd/-
[ K. K. SONAWANE, J. ] [ S. V. GANGAPURWALA, J. ]
bsb/July 16
