Bombay High Court
Mohammad Yamin Naeem Mohammad vs State Of Mah. Thr. Ps Incharge Ps ... on 9 January, 2021
Bench: S.B. Shukre, Avinash G. Gharote
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL WRIT PETITION NO.543/2020
PETITIONERS : 1. Mohammad Yamin Naeem Mohammad,
Aged-about 32 years, Occu. driver
R/o Lalbara, Tq. Billari, Jimurabad,
Sambhal, Uttar Pradesh, India.
2. Mohammad Jamshed Sakir Mohammad,
aged-about 18 years, Occu.-cleaner
R/o Lalbara, Tq. Billari, Jimurabad,
Sambhal, Uttar Pradesh, India.
3. Mohammad Sarfaras Sharif Mohammad,
Aged-Major, Occu.-Business R/o Lalbara,
Tq. Billari, Jimurabad, Sambhal,
Uttar Pradesh, India.
4. Gulshan Kumar s/o Sohna Ram Aneja,
aged about 64 years proprietor of
Gagan Cargo, having its office at 140,
Rajendra Market, near Tis Hajari
Court, Delhi, India.
...VERSUS...
RESPONDENTS : 1. The State of Maharashtra, through
Police Station incharge, Police
Station (Thane) Jaulka, Dist. Washim.
2. The Commissioner of Food Safety
Food and Drugs Administration,
Maharashtra State, Survey No.341,
Bandra Kurla Complex, Bandra (East),
Mumbai 400 051.
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2
3. The food & Safety Administration,
through Assistant Commissioner
and designated officer (Food),
Near Akashwani, Civil Lines, Akola.
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Mr. M.G. Bhangde, Sr. Advocate with Shri Ajay Somani, Advocate for petitioners
Shri S.A. Ashirgade, Addl. P.P. for respondents
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CORAM : SUNIL B. SHUKRE AND
AVINASH G. GHAROTE JJ.
Judgment reserved on : 03/12/2020
Judgment pronounced on : 09/01/2021
J U D G M E N T (PER : AVINASH G. GHAROTE, J.)
1. Rule. Rule is made returnable forthwith. Heard finally
with consent of the parties.
2. The present petition challenges the order dated
15/7/2020 (Annexure -8) issued by the respondent no.2, the Food
Safety Commissioner, Food and Drugs Administration, Maharashtra
State, passed under Section 30 (2) (a) of the Food Safety and
Standards Act, 2006 (hereinafter referred to as "the FSSA" for the
sake of brevity) to the extent it prohibits transport of banned
products such as tobacco, Pan Masala, etc. from one State to another
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through the State of Maharashtra, as being unconstitutional and
ultra vires, the powers of the said authority under the FSSA. The
petition also seeks to quash F.I.R. No.358 of 2020 (Annexure-1)
registered by the respondent no.1 for offences punishable under
Section 26 (2) (i), 26 (2) (iv), 26 (3), 59 of the FSSA and Sections
188, 272, 273 and 328 of the I.P.C.
3. The admitted position on record is that the petitioner
no.1 is the driver, petitioner no.2 is the cleaner and petitioner no.3 is
the owner of the truck bearing registration No.UP-21-CN-2323,
whereas the petitioner no.4 is the transporter. The petitioners
undertook to transport four consignments booked by M/s. Vishnu
Pan Products, Kakadkopar, Vapi-Dharampur Road, Valsad, Gujarat to
Sumati Traders, Joda (Odisha) and Santosh Traders at Post Khalari,
Angul, Odisha (Orissa). The consignments contained Vimal Pan
Masala, Jarda and scented tobacco and were to be transported from
Valsad in the State of Gujarat to Joda in the State of Orissa, under
the cover of invoices, e-way bills and lorry receipts (collectively at
Annexure-2).
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4. It is necessary to mention at the outset that the sale and
transport of Vimal Pan Masala, Jarda and scented tobacco is not
prohibited either in the State of Gujarat or in the State of Orissa as
per the submission made by the learned Senior Counsel
Mr. Bhangde, which position is admitted by Mr. Ashirgade, learned
Additional Public Prosecutor for the respondents.
5. When the truck carrying the goods, as stated above, was
passing through village Jaulka, Tahsil Malegaon, District Washim, on
3/10/2020 at about 5:00 p.m., the vehicle was stopped by officials
of the respondent no.3 and upon inspection finding that the same
contained the above goods, which were prohibited in the State of
Maharashtra, officials of the respondent no.3 detained the vehicle
and seized the same, in respect of which a panchanama is said to
have been prepared on 4/10/2020, copy of which is claimed to have
not been supplied to the petitioners.
A representation was made on 5/10/2020 to the
respondent no.1, requesting to release the truck and the goods on
account of the fact that the same was being used only for the
purpose of transiting from the State, without any response.
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On 6/10/2020, the petitioners issued a legal notice to
the respondent no.3 for releasing the goods in view of the order
dated 4/9/2019 passed in Criminal Writ Petition No.793 of 2019
(page 42), wherein in similar circumstances the Court by an interim
order, had stayed the effect and operation of the earlier notification
dated 19/7/2019, issued by the respondent no.2 herein in so far as
it related to imposing a ban on transport of vehicles, subject to
transporters producing valid documents viz. transport permit,
establishing transport of vehicles from territorial limits of State of
Maharashtra, from one State to another for its inter-State
transportation till the adjourned date, which was 3/10/2019. It is
material to note that the prohibition in the notification dated
19/7/2019, is identically worded as that contained in the
notification dated 15/7/2020. It is contended that despite this legal
notice, the vehicle or the goods in question were not released, in
light of the impugned order dated 15/7/2020, passed by respondent
no.2, whereby ban/prohibition as imposed earlier under the order
dated 19/7/2019 was extended for a further period of one year. In
this background, the F.I.R. has been registered against the
petitioners, vide F.I.R. No.358 of 2020, as indicate above.
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6. Mr. M. G. Bhangde, learned Senior Counsel for the
petitioners contends :
(a) that the order dated 15/7/2020, is without any
jurisdiction in the respondent no.2 and therefore, is ultra
vires, as the provisions of Section 30 (2) (a) of the FSSA do
not confer any power upon the respondent no.2, to prohibit
inter-State transportation of such goods.
(b) the language of Section 30 (2) (a) of the
FSSA, empowers the respondent no.2, to perform various
functions out of which, one of them is to prohibit in the
interest of public health, the manufacture, storage,
distribution or sale of any article of food, which however
does not contain the power to prohibit inter-State
transportation, as the functions exercisable under
Section 30 (2) (a) of the FSSA are within the State and not
outside and therefore the order dated 15/7/2019, is
clearly without jurisdiction as it prohibits transport of the
products inter-State, too.
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(c) that in case it is held that the respondent no.2 has
power under Section 30 (2) (a) of the FSSA to prohibit
transportation of such products, the prohibition would be
restricted to transportation within the State and not to any
inter-State transport.
(d) under Entry - 42 in List-I of the VII th Schedule of the
Constitution, inter-State trade and commerce, is a subject
which is within the domain and province of the Union of
India, and as such cannot be prohibited by the State by
enacting any law or by way of any notification or order.
(e) that Entry-26 in List-II (State List) empowers the
State to enact laws for trade and commerce within the
State, which is subject to the provisions of Entry-33 of
List-III and therefore would not permit the State to enact
any law, prohibiting inter-State transport.
(f) any law by the State prohibiting inter-State transport
would also fall foul of the mandate of Article - 19 (1) (d)
of the Constitution for which reliance is placed upon Hans
Raj Bagrecha Vs. State of Bihar and others, 1971 (1) SCC
59, (paras 2, 5, 16 to 18) to contend that the State of
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Maharashtra would not have any power to legislate in
respect of inter-State transport, in view of which the order
dated 15/7/2020, so far as it construes prohibition of inter-
State transport of the goods, would be ultra vires.
(g) in so far as F.I.R. No.358 of 2020 is concerned, the
same cannot be sustained, as no offence can be said to
have been made out under the provisions for which the
same is lodged, on the ground that there is abject violation
of the provisions of Sections 38, 42, 47 of the FSSA and so
also Rule 2.4.2 of the Food Safety and Standards Rules,
2011.
(h) In this regard our attention in invited to
Form -A under Regulation (2) of 2.3.1 of the Food Safety
and Standards (Laboratory and Sample Analysis)
Regulations, 2011, to contend that there is violation of the
same, which according to him is apparent from the perusal
of the report of the Analyst dated 25/11/2020
(Annexure - R-5/page 224).
(i) He places reliance upon :
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(i) judgment of this Court in Criminal Application
(APL) No.442/2020 (Nilesh Narayan Sanghvai Vs. State of
Maharashtra, Through Police Station Officer) dated 9/9/2020,
which goes on to hold that Section 328 of the I.P.C. would not
be attracted in a case of transportation of contraband articles
such as Gutkha, Pan Masala and scented tobacco.
(ii) Judgment in Criminal Writ Petition No.3607 of
2019 (Anand Ramdhani Chaurasia and another Vs. The
State of Maharashtra, through Public Prosecutor Office,
Mumbai) dated 13/9/2019.
(iii) Raju Laxman Pachapure Vs. The State of
Karnataka and others, 2012 (2) FAC 378 (paras 9.1 and 9.2).
(iv) Suresh Lohiya Vs. State of Maharashtra and
another, (1996) 10 SCC 397.
(v) Tej Bahadur Dube (Dead) by Lrs. Vs. Forest
Range Officer F.S. (S.W.) Hyderabad, (2003) 3 SCC 122.
(vi) Sri Jaganath Enterprises, Eluru Vasadhi Tripati
Rao Vs. The State of Andhra Pradesh, Through SHO, Pamur
P.S., (Criminal Petition No.5421 of 2019 with connected
petitions) decided on 18/12/2019.
(vii) Godawat Pan Masala Products I.P. Ltd. and
another Vs. Union of India and others, (2004) 7 SCC 68.
(viiii) Joshy K.V. and others Vs. State of Kerala, Rep.
by the Secretary to the Department of Health and Welfare,
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Government Secretariat, Thiruvananthapuram and others,
(2013) 1 KLJ 428.
(ix) M/s. Omkar Agency, through its Proprietor Vs.
The Food Safety and Standards Authority of India and
others, 2016 SCC OnLine Pat 9231.
(x) Sanjay Anjay Stores Vs. The Union of India & Ors.,
2017 SCC OnLine Cal 16323.
(xi) Hans Raj Bagrecha Vs. State of Bihar and
others, 1971 (1) SCC 59.
(xii) Sodhi Transport Co. and others Vs. State of U.P.
and others, (1986) 2 SCC 486.
(xiii) The Town Municipal Council Kalghatgi Vs. M/s.
Urmilla Kothari (1977) 1 SCC 687.
(xiv) M/s. R.M. Jaiswal Wine Shop through its
Partner Vs. State of Maharashtra Through Police Station
Officer, Police Station Warora, Criminal Writ Petition
No.232/2017, Bombay High Court, Nagpur Bench, Nagpur.
(xv) State of Assam Vs. Barak Upatyaka D.U.
Karmachari Sanstha (2009) 5 SCC 694.
(xvi) Dhariwal Industries Ltd. and another Vs. State
of Maharashtra and others, with connected petitions, 2013
(1) Mh.L.J. 461.
(xvii) Digambar s/o Rodji Wankhede Vs. State of
Maharashtra and another, 2019 (5) Mh.L.J. 119.
7. Mr. Bhangde, learned Senior Counsel thus submits that
the order dated 15/7/2020 is unsustainable in law and therefore
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needs to be declared as ultra vires and F.I.R. No.358/2020 at
Annexure-1 also needs to be quashed and set aside.
8. Mr. Ashirgade, learned Additional Public Prosecutor for
the respondents on the other hand contends :
(a) that Section 30 (2) (a) of the FSSA confers upon the
respondent no.2, the power and authority to prohibit the
manufacture, storage, distribution or sale of any article of food, in
the interest of public health, which in the opinion of the respondent
no.2 is detrimental to the interest of public health.
(b) the words, "distribution or sale" necessarily include in
them the act of transportation of goods from one place to another
and therefore, the respondent no.2 would have the power to
prohibit the transport of such goods also.
(c) the power to prohibit transport of such goods is
therefore inherently in-built, in the provisions of Section 30 (2) (a)
of the FSSA.
(d) Section 94 of the FSSA empowers the State
Government to make rules to carry out the functions and duties
assigned to the State Commissioner of Food and Safety and
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Section 94 (2) (a) of the FSSA, mandates that such rules may
provide for the matters, as enumerated in clause (f) of Sub
Section 2 of Section 30 of the FSSA, in view of which the order
dated 15/7/2020 cannot be questioned.
(e) our attention is invited to :
(i) the order on interim relief passed in Writ Petition
No.9865 of 2012 (M/s. Vishnu Pouch Packaging Private Limited Vs.
The State of Maharashtra and Ors.) by the Principal Seat on
1/2/2013, in which the prayer for interim relief for release of the
seized Gutkha was rejected (page 216 to 223).
(ii) the order on interim relief, passed in Writ
Petition (Lodging) No.2266 of 2012 (M/s. S. J.J. Exports Company
Vs. Food Safety Commissioner and others) dated 21/1/2013,
whereby the interim relief for release of Gutkha was refused.
(iii) the order dated 3/11/2020, passed in Criminal
Writ Petition No.281 of 2020 (M/s. Dharampal Premchand Ltd.
Through its General Manager Vs. State of Maharashtra and others )
by a Division Bench of this Court at Aurangabad, wherein the
challenge to the order dated 20/7/2018 issued by the Commissioner
under Food Safety and Standards Act, 2006 to prohibit
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transportation of Gutkha and similar items under Section 30 (2) (a)
of the FSSA was rejected, SLP (Civil) No.8432 of 2013, against
which came to be dismissed on 1/3/2013.
(f) the provisions of Regulation 2.3.4 and 2.1.7 of the Food
Safety and Standards (Food Products Standards and Food Additives)
Regulations, 2011, to contend that tobacco and nicotine are
prohibited to be used in any food product.
(g) the Chemical Analyzer's reported dated 25/11/2020 at
page 224 clearly indicates that the seized product contained nicotine
and therefore the offence is clearly made out.
(h) reliance is placed upon the judgment of the Bombay
High Court in the case of Dhariwal Industries Ltd. and another Vs.
State of Maharashtra and others, 2013(1) Mh.L.J. 461, holding that
the Commissioner was acting well within his powers to ensure that
manufacturer, distributors and sellers of Gutkha/Pan Masala shall
not be allowed to contravene the statutory provisions such as
Regulations 2.3.4 and 3.1.7.
(i) that the judgment in Criminal Writ Petition No.3607 of
2019 (Anand Ramdhani Chaurasia and others Vs. The State of
Maharashtra through Public Prosecutor Office, Mumbai and others )
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dated 13/9/2019, reliance upon which has been placed by
Mr. Bhangde, learned Senior Counsel for the petitioner, has been
stayed by the Hon'ble Apex Court in S.L.P. (CRI) (Diary No.8224 of
2020) on 31/8/2020.
(j) the provisions of Regulation 2.1.2 of the Food Safety
and Standards (Licensing and Registration of Food Businesses)
Regulations, 2011 read with Form-B clearly indicate that a
"transporter of food is required to obtain a licence under Section 31
(1) of the FSSA and since the petitioners do not possess such licence,
the offence against them has been rightly registered.
(k) Reliance is further placed upon :-
(i) Order dated 20/9/2018, passed by the Hon'ble Apex
Court in Criminal Appeal No.1195 of 2018 (The State of
Maharashtra and another Vs. Sayyed Hassan Sayyed Subhan and
Ors.)
(ii) Order on interim relief dated 7/9/2012 passed in
Writ Petition (L) No.2278 of 2012 (M/s Shivam Agency through its
Sole Proprietor Vs. State of Maharashtra through Ministry of Health
& Ors.).
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(iii) Order dated 16/10/2018 passed in Criminal
Application No.4968 of 2016 (Zahir Ibrahim Panja and others Vs.
The State of Maharashtra and another) dismissing the application
for quashing the F.I.R. under Sections 273, 188, 328, 34 of I.P.C., and
Sections 30 (2) (A), 26 (2) (iv), 27 (1), 3 (1) (zz) (v) and 59 of the
FSSA.
9. As pointed out above from the submissions of the
learned Counsels for both sides and from the averments as made in
para 2 of the reply dated 19/11/2020, of the respondent no.2 it is
not disputed that the Gutkha and Pan Masala were being
transported from Gujarat to Orissa via jurisdiction of the respondent
no.1 in the State of Maharashtra, and we propose to consider the
matter in light of the above factually admitted position.
10. For the sake of ready reference, Entry-42 List-I,
Entry-26 List-II and Entry-33 List-III of the same Schedule to the
Constitution and certain provisions of the FSSA, being material are
reproduced below:-
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"Relevant entries in the seventh Schedule to the
Constitution of India.
List I -Entry 42- Inter-State trade and commerce
List II- Entry 26- Trade and commerce within the
State subject to the provisions of entry 33 of List III.
List III- Entry 33- Trade and commerce in, and the
production, supply and distribution of,--
(a) -----
(b) foodstuffs, including edible oilseeds and oils."
It would be useful to refer to some of the relevant
provisions of the Food Safety and Standards Act, 2006 :
"3 (e) "Commissioner of Food Safety" means the
Commissioner of Food Safety appointed under section 30;
3 (n) "food business" means any undertaking,
whether for profit or not and whether public or private,
carrying out any of the activities related to any stage of
manufacture, processing, packaging, storage,
transportation, distribution of food, import and includes
food services, catering services, sale of food or food
ingredients;
3 (o) "food business operator" in relation to food
business means a person by whom the business is carried
on or owned and is responsible for ensuring the
compliance of this Act, rules and regulations made
thereunder."
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11. For the purposes of the present petition, it is not
necessary for us to consider, whether the goods in question, fall
within the definition of 'food' as defined in Section 3(j) or whether
the petitioners are doing 'food business' as defined in Section 3(n) or
whether the petitioners are falling within the expression 'food
business operator as defined in Section 3(o) of the FSSA, as these
issues have already been considered and decided by a co-ordinate
Bench of this Court in the case of Dhariwal Industries Limited
(supra), upon which reliance has been placed by Mr. Ashirgade,
learned Additional Public Prosecutor. In Dhariwal Industries Limited
(supra) while considering the definition of 'food', as occurring in
Section 3(j) of the FSSA, in the context of Gutkha and Pan Masala, it
was held as under :
"Similarly gutka containing tobacco may be
chewed for some time and then thrown out. Even if it
does not enter into the digestive system, it would be
covered by the definition of "food" which is in the widest
possible terms. The definition of "food" under section
2(v) of the PFA Act was narrower than the definition of
food under Food Safety Act, still the Supreme Court in
Ghodawat case held that pan masala and gutka were
"food" within the meaning of PFA Act."
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While considering the validity of the order dated
19/7/2012 passed by the Commissioner of Food Safety imposing a
ban on Gutkha and Pan Masala in exercise of the powers u/s 30(2)
(s) of FSSA, the Court held as under :
"The Food Safety Commissioner, State of
Maharashtra was, thus, acting well within his powers to
ensure that manufacturers, distributors and sellers of gutka
and pan masala shall not be allowed to contravene the
statutory provisions contained in 2011 Regulations, such as
Regulation 2.3.4, 3.1.7 and 2.11.5. We, therefore, do not
find any substance in the petitioners' submission that the
impugned order dated 19 July 2012 was beyond the
authority of the Food Safety Commissioner of the State of
Maharashtra."
While considering the issue as to which legislation
occupies the field, it was held as under :
"30A. Having examined the scheme of PFA Act,
1954, Cigarettes Act, 2003 and the Food Safety Act, 2006
and 2011 Regulations framed thereunder, which were laid
before Parliament and not modified and having regard to
the fact that Food Safety Act, 2006 is a later Act and a
comprehensive legislation on food safety and contains a
non-obstante clause in section 89 thereof, we are of the
prima facie view that in the field of safety and standards of
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food (which includes gutka, pan masala and supari) the
Food Safety Act, 2006 occupies the entire field."
As regards the contention whether there was any
violation of Article 19(1)(g) read with Article 19(6) 32, the Court
held as under :
"39. We are unable to appreciate the above contentions
because the Supreme Court had no occasion to consider the
provisions of the Food Safety Act, 2006 and the Regulations
subsequently made by the Food Authority of India in the
year 2011 in exercise of the powers under sections 16 and
92 of the Food Safety Act, 2006. The impugned Regulations
have been made by the Food Authority of India after
consultation with the Central Government, after previous
publication and the Regulations have been laid before each
House of Parliament but no modification of the regulations
has been made by the Parliament. We are, therefore, of the
prima facie view that the Regulations have to be treated not
merely as having force of law, but also as a part of the Food
Safety Act, 2006 itself.
40. As regards the petitioners' contention that since
chewing tobacco with 100% tobacco is not banned, total
ban on gutka having 6 to 7% tobacco is unreasonable,
learned counsel for the respondents and in particular
learned Advocate General have pointed out on facts that in
case of chewing tobacco, the taste is bitter and, therefore,
people ordinarily do not take chewing tobacco on a large
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scale, unlike gutka where the petitioners and other
manufacturers add sweetening additives to make tobacco
palatable. It is because of this sweetening additives which
contain magnesium carbonate and other ingredients
injurious to health that a large number of school children,
college students and adults get addicted to gutka and pan
masala.
41. As regards law on the subject, the following principle
laid down by the Constitution Bench of the Supreme Court
in Sakhawat Ali v. State of Orissa, AIR 1955 SC 166
(para10) is a complete answer:-
"The simple answer to this contention is that
legislation enacted for the achievement of a
particular object or purpose need not be all
embracing. It is for the Legislature to determine
what categories it would embrace within the
scope of legislation and merely because certain
categories which would stand on the same footing
as those which are covered by the legislation are
left out would not render legislation which has
been enacted in any manner discriminatory and
violative of the fundamental right guaranteed by
Article 14 of the Constitution."
The Statutory Regulations of 2011 made by the Food
Authority of India in consultation with the Central
Government and after prior publication, which are not
modified or nullified by Parliament which have to be
treated as a part of the Act, cannot, therefore, be faulted for
banning use of tobacco, nicotine or magnesium carbonate
in manufacture of gutka on the ground that chewing or
consumption of tobacco with cent percent tobacco is not
banned.
42. We also find considerable substance in the submission
of the learned Advocate General that the State has the
power to prohibit trades which are injurious to health and
welfare of the public. A reasonable restriction as
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contemplated under Article 19(1)(g) read with clause (6)
may require prohibition if it is in the public interest. In
Cooverjee B. Bharucha v. Execise Commissioner and the
Chief Commissioner, Ajmer and others, AIR 1954 SC 220
(Para 7), the Supreme Court made the following
observations:-
"(7) Article 19(1)(g) of the Constitution
guarantees that all citizens have the right to
practise any profession or to carry on any
occupation or trade or business, and Cl.(6) of
the article authorises legislation which imposes
reasonable restrictions on this right in the
interests of the general public. It was not
disputed that in order to determine the
reasonableness of the restriction regard must be
had to the nature of the business and the
conditions prevailing in that trade. It is obvious
that these factors must differ from trade to trade
and no hard and fast rules concerning all trades
can be laid down. It can also not be denied that
the State has the power to prohibit trades which
are illegal or immoral or injurious to the health
and welfare of the public.
Laws prohibiting trades in noxious or
dangerous goods or trafficking in women cannot
be held to be illegal as enacting a prohibition
and not a mere regulation. The nature of the
business is, therefore, an important element in
deciding the reasonableness of the restrictions.
The right of every citizen to pursue any lawful
trade or business is obviously subject to such
reasonable conditions as may be deemed by the
governing authority of the country essential to
the safety, health, peace, order and morals of the
community. Some occupations by the noise made
in their pursuit, some by the odours they
engender, and some by the dangers
accompanying them, require regulations as to
the locality in which they may be conducted.
Some, by the dangerous character of the articles
used, manufactured or sold, require also special
qualifications in the parties permitted to use,
manufacture or sell them.
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....................
This is in this position an assumption of a
fact which does not exist, that when the liquors
are taken in excess the injuries are confined to
the party offending. The injury, it is true, first
falls upon him in his health, which the habit
undermines, in his morals, which it weakens,
and in the self-absement which it creates. But as
it leads to neglect of business and waste of
property and general demoralisation, it affects
those who are immediately connected with and
dependent upon him. By the general
concurrence of opinion of every civilized and
Chirstan community, there are few sources of
crime and misery to society equal to the dram
shop, where intoxicating liquors, in small
quantities, to be drunk at the time are sold
indiscriminately to all parties applying.
................
The police power of the State is fully
competent to regulate the business- to mitigate
its evils or to suppress it entirely. There is no
inherent right in a citizen to thus sell
intoxicating liquors by retail; it is not a privilege
of a citizen of the State or or a citizen of the
United States. As it is a business attended with
danger to the community, it may, as already said,
be entirely prohibited or be permitted under
such conditions as will limit to the utmost its
evils. The manner and extent of regulation rest
in the discretion of the governing authority. That
authority may vest in such officers as it may
deem proper the power of passing upon
applications for permission to carry it on, and to
issue licences for that purpose. It is a matter of
legislative will only."
These observations have our entire concurrence and
they completely negative the contention raised on behalf of
the petitioner."
43. We find considerable substance in the submission of
the learned Advocate General as well as the learned
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Additional Solicitor General that the width of prohibition
depends on the facts and circumstances of the trade.
Complete prohibition is justified because less drastic course
is not practical. When 98% of the samples of gutka and pan
masala were found having injurious ingredients, it is not
possible for the State Government to post inspectors outside
each school to prevent sale of pan masala and gutka to
school children or to inspect and test each batch of pan
masala to find out whether it forms part of 98% or the
remaining 2%.
44. In a catena of decisions, the Supreme Court has held
that the Court should take into account not only the
material on record but should also take judicial notice of
circumstances including the widespread illiteracy and
practicability of enforcement measures. In Pyarali K. Tejani
v. Mahadeo Ramchandra Dange and others, AIR 1974 SC
228, a Constitution Bench of the Supreme Court dealt with
the contravention of the provisions of Prevention of Food
Adulteration Act, 1954 in relation to supari. After holding
that supari was covered by the definition of food under
section 2(v) of the PFA Act, the Supreme Court made the
following pertinent observations in paras 14 and 15:-
"14. Even on cyclamates, the toxic degree is not
too clear. There is considerable controversy both
in the United States and the United Kingdom
about a total ban on cyclamates but there is a
growing volume of opinion that its use has
caused bladder tumour when massive doses are
fed on rats. In India also scientific opinion is
sharply divided on the harmful consequences of
cyclamates. However, in the United States and
the United Kingdom in Japan and other
countries there is a ban on this substance and
the Indian official view seems to be that without
more information on the mechanism of bladder
cancer induction in rats by the cyclmate-
saccharin mixture we have to follow the example
of the United States. No risks can be taken
where millions of people and their lives are
involved and cancer being a sure killer does not
admit of bio-chemical gamble or medical
speculation, particularly when the Indian
people, by and large, are less health-conscious
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and informed than Americans and Britons.
15. Such being the facts, it is not the judicial
function to enter the thicket of research
controversy or scientific dispute where
Parliament has entrusted the Central
Government with the power, and therefore the
duty, of protecting public health against
potential hazards and the Central Government,
after consultation with a high-powered technical
body, has prohibited the use of saccharin and
cyclmates. The fact that for a long these
substances were allowed is no argument against
the reasonableness of their later ban; for human
knowledge advances and what was regarded as
innocuous once is later discovered to be
deleterious. In no view can the discretion of the
government, exercised after listening to the
technical counselling of the Central Committee,
be castigated as arbitrary and capricious or as
unreasonable. So long as the exercise of power is
not smeared by bad faith, influenced by
extraneous considerations, uninformed by
relevant factors, and is within the limits of
reasonableness it becomes out of bounds for
judicial re-evaluation. Where expertise of a
complex nature is expected of the State in
framing rules, the exercise of that power not
demonstrated as arbitrary must be presumed to
be valid as a reasonable restriction on the
fundamental right of the citizen and judicial
review must halt at the frontiers. The court
cannot reweigh and substitute its notion of
expedient solution. Constitutionality not
chemistry, abuse not error, is our concern and
the executive has not transgressed limits at all
here. Within the wide judge-proof areas of policy
and judgment open to the government, if they
make mistakes, correction is not in court but
elsewhere. That is the comity of constitutional
jurisdictions in our jurisprudence. We cannot
evolve a judicial policy on medical issues or food
additives and should refuse to invalidate Rules
44(g) and 47 on the mystic maybes and happy
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hopefuls held up before us by the appellant."
(emphasis supplied)
45. In Srinivas Enterprises v. Union of India, (1980) 4
SCC 507, a Constitution Bench of the Supreme Court was
dealing with the challenge to the Prize Chits and Money
Circulation Schemes (Banning) Act, 1978. While upholding
the constitutional validity of the Act, the Supreme Court
also dealt with the contention that some of the prize chits
schemes were innocuous and they were not required to be
banned. The Supreme Court repelled that contention in the
following words:
"12. The twin requirements of Article 19(6) are:
(a) the reasonableness of the restriction upon
the fundamental right to trade, and (b) the
measure of the reasonableness being the
compelling need to promote the interest of the
general public. Public interest, of course, there
is. But the controversy rages round the
compulsive necessity to extinguish the prize chit
enterprises altogether as distinguished from
handcuffing them with severe conditions geared
to protection of public interest......
13. We may not be taken to mean that every
prize chit promoter is a bloodsucker. Indeed,
Shri Venugopal persuasively presented the case
of his client to make us feel that responsible
business was being done by the petitioner.
Maybe. But when a general evil is sought to be
suppressed, some martyrs may have to suffer for
the legislature cannot easily make meticulous
exceptions and has to proceed on broad
categorisations, not singular individualisations."
(emphasis supplied)
In respect of the competence of the Food Safety
Authority to pass the order in the teeth of Article 301 to 304 of the
Constitution, it was held as under :
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"The impugned statutory order dated 19 July 2012
does not create economic barriers and/or pockets the
barriers would have been created by permitting
manufacture, etc. of gutka and pan masala within the State
of Maharashtra and restricting import of gutka and pan
masala from other States into the State of Maharashtra. On
the contrary, the statutory order imposes prohibition on
manufacture, storage, distribution and sale of gutka and
pan masala irrespective of the fact whether they are
manufactured within or outside the State of Maharashtra.
----------
54. The Supreme Court has thus, clearly held that Articles
301 to 304 are enacted to remove economic barriers on the
free flow of trade, commerce and intercourse within the
territory of India. Hence, the said provisions can be invoked
only when a State Legislation or the exercise of State
Government creates economic barriers which impede the
free flow of trade and commerce and intercourse. When the
State authority has passed a statutory order which requires
the subordinate authorities to implement the statutory
regulations made by the Food Authority of India and when
the Food Safety Commissioner in exercise of the powers
conferred upon him by Parliament issues an order which has
the effect of directing his subordinates to implement
statutory regulations made by the Food Authority of India in
exercise of powers conferred by the Parliament in the same
enactment, (which Regulations were laid before each House
of Parliament and no modification was made by Parliament)
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and as a result the petitioners manufacturing pan masala or
gutka in violation of the said statutory regulations are
prohibited from manufacturing, storing, distributing or
selling gutka or pan masala within the State of Maharashtra,
it cannot be said that any restriction is imposed on the free
flow of trade, commerce and intercourse within the territory
of India, which is not authorised by Parliament."
We are in complete agreement with what has been
stated by the learned Division Bench of this Court in Dhariwal
Industries Limited (supra), and even though the Court was
considering the question of grant of interim relief and we are aware
that an interim order which does not finally and conclusively decide
an issue cannot be a precedent [State of Assam / Barak Upatyaka
D.U. Karmachari Sanstha (2009) 5 SCC 694 ] however, what has
been stated in Dhariwal Industries Limited (supra) while refusing
interim relief, delineates the position of law extant and applicable, in
the arena, as the Court has exposited and considered the position of
law, in answering the questions as raised before it on the touchstones
of the provisions and the precedents as applicable. We are in
complete agreement with the enunciation and exposition of the legal
position as stated in Dhariwal Industries Limited (supra). The
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judgment in Godawat Pan Masala Products / UOI, (2004) 7 SCC 68
relied upon by Mr. Bhangde, learned Senior Counsel for the
petitioners, has also been duly considered therein.
12. Though Mr. Bhangde, learned Senior Counsel for the
petitioners did not point out that the above common order dated
15/9/2012, has been carried to the Hon'ble Apex Court, however,
the same has been done by M/s. MSS Food Processors by way of SLP
(C) No.028716/2012, (who was the petitioner in W.P. No.8800/2012
before the High Court which was decided by the common order
dated 15/9/2012), which has been admitted on 14/2/2017 and
tagged with petitions raising similar issues. It does not however
appear that any stay to the order dated 15/9/2012, has been
granted as the official website of the Apex Court, does not depict so.
That apart, when Mr. Bhangde, learned Senior Counsel,
expressly contends that there has been violation of the provisions of
FSSA and the regulations framed thereunder, then such a plea can
only be considered upon an admission, that FSSA and the
regulations framed thereunder apply to such products and to the
present matter. However, in spite of the above, saying that we fully
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agree with the reasoning given by the Court in Dhariwal Industries
Limited (supra) is not enough. We also have to consider the matter
on its own merits and to give our own reasons as to why the decision
which we will be rendering is correct, by analyzing and applying the
law, as we understand it to be, to the facts of the present case, which
we now proceed to do.
13. In the present matter, admittedly, it is the case specific
of both the parties that the goods in question were only being
transported from one State to another and were detained during
transit in the State of Maharashtra. The consideration is limited to
the question as to whether the respondent no.2, had the authority to
prohibit inter-State transport of such goods under the powers as
conferred upon him by virtue of Section 30 (2) (a) of the FSSA, as
the answer to all other questions raised depends upon the fate of
this question.
14. Though the FSSA is a Central Statute, however, under
the powers as conferred under Section 30 (1) of the FSSA the State
Government is empowered to appoint the Commissioner of Food
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Safety for the State. The purpose of such an appointment is for the
efficient implementation of food safety and standards and other
requirements laid down under the FSSA and the regulations made
thereunder.
15. Section 30 (2) of the FSSA empowers the Commissioner
of Food Safety, so appointed under Section 30(1) for the State, to
perform any or all of the functions as are enumerated in clause (a)
to (f) therein. We are here concerned with clause (a) of Section 30
(2). This clause (a) empowers the Commissioner of Food Safety to
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 part thereof, for a period, not exceeding one year.
16. Though the contention of Mr Bhangde, learned Senior
Counsel for the petitioners that the word 'transportation' is not used
in Section 30(2)(a) of the FSSA, appears on the face of it to be
correct, however, the act of distribution as indicated by use of the
word 'distribution', as used in Section 30(2)(a) of the FSSA cannot
be complete without transportation and therefore the word
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'transportation' will have to be held to be included in the word
'distribution' as occurring in Section 30 (2)(a) of the FSSA, as
distribution would include transportation of the goods from one
place to another. Therefore, contention of Mr. Bhangde, learned
Senior Counsel for the petitioners, therefore will have to be rejected.
17. The next contention of Mr. Bhangde, learned Senior
Counsel for the petitioners, that Section 30(1) and Section 30(2) (a)
of the FSSA, does not empower the Commissioner of Food Safety to
prohibit inter-State transport, is required to be looked into in light of
the language used in the said provisions. He places heavy reliance
upon :
(a) Hans Raj Bagrecha Vs. State of Bihar and others, 1971 (1)
SCC 59 which holds thus :
"18. The power of the State Legislature is restricted to
legislate in respect of intra-State transactions of sale and
purchase and to matters ancillary or incidental thereto: it
has no power to legislate for levy of tax on sales and
purchase in the course of inter-State transactions. The
power conferred by Section 42 authorising the imposition
of restriction on transport or movement of goods may only
be exercised in respect of transactions which facilitate levy,
collection and recovery of tax on transactions of intra-State
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sale or purchase. When Rule 31-B seeks to prohibit
transport of goods to any place outside the State of Bihar
unless a certificate is obtained from the appropriate
authority, it seeks to prohibit transport of goods pursuant to
transactions which may not even be to the nature of sale or
purchase transactions; in any case it restricts transport
pursuant to transactions which are in the course of inter-
State trade and commerce. The operation of the rule is not
restricted only to transactions in the course of intra-State
trade and commerce. The rule authorises restrictions on
inter-State transactions and is on that account
unauthorised. For the same reasons the notification issued
on December 26, 1967, must be regarded as also
unauthorised."
(b) Further reliance is placed on Sodhi Transport Co. (supra)
in which challenge was posed to the provisions of Sections 28 and
28-B of the U.P. Sales Tax Act, 1948 and Rule 87 of the U.P. Sales Tax
Rules 1948 (as introduced in 1974) whereby provisions were made
for the establishment of check posts and barriers and requirement of
a transit pass for transit of goods through the State, making it
mandatory to produce the transit pass at the point of exit from the
State, failure to do which invited a presumption that the goods were
sold in the State, thereby making it liable to sales tax. While
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rebutting the contention that this resulted in enacting a law
preventing inter-State transport, the Apex Court held that the
provisions were enacted to ensure that a person who had brought
the goods inside the State and who had made a declaration that the
goods were brought into the State for the purposes of carrying them
outside the State, should actually take them outside the State and
thus did not constitute a prohibition for free inter-State transport.
(c) Reliance is also placed upon The Town Municipal
Council, Kalghatgi (supra) in which while construing the expression
"any article or animal brought into the municipal limits for the
purpose of immediate exportation" as occurring in Section 124 of
the Karnataka Municipalities Act, 1964 (hereinafter referred to as
"the Act") read with Rule 26 of the Karnataka Municipalities
Taxation Rules, 1965, it was held that they imply processes of
"importing into" and "exporting from" the municipal limits of goods
or animals and are indicative of an element of repose and rest of the
goods within the municipal limits and the expressions "brought into"
and "immediate exportation" do not comprehend within their sweep
the continuous process of transit of goods, by vehicles which merely
use the State Highways passing through the areas which lie within
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the municipal limits and that in the case under consideration, the
iron ore was carried in the trucks of the respondent which merely
passed through the areas which lie within the municipal limits and
was not unloaded and reloaded at any place within the municipal
area and as such, the important element of repose and rest which
the words "brought into the municipal limits for the purpose of
immediate exportation" imply was absent.
There cannot be any quarrel with the proposition that
the State would not have a right to levy any tax on the goods which
are merely transiting through the State and are not being offloaded
for sale in the State, which in substance, would mean a right for use
of the roads within the State for the purposes of inter-State
transportation. As stated above, the power of the State Government
under Section 30(1) of the FSSA to appoint the Commissioner of
Food Safety is for the State, which would indicate the geographical
area of the State.
18. The expression 'for the State' as occurring in Section 30
(1) and 'either in the whole of the State or any area or part thereof'
as occurring in section 30(2)(a) of the FSSA, further fortifies the
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position that the powers of the Commissioner of Food Safety are
State-centric and not beyond. Had it not been so, it was open for the
Parliament to say so and to confer such power upon the Food Safety
Authority under Section 16 of the FSSA or to create a separate
authority for that purpose, having power to exercise such
jurisdiction throughout the Country.
19. It is thus apparent that the domain or jurisdiction of the
Commissioner of Food Safety is within the State and any prohibition
as to manufacture, storage, distribution or sale, imposed by the
Commissioner of Food Safety by exercise of his powers under
Section 30(2)(a) of the FSSA has to be operative within the State or
such lesser area as may be notified.
20. Article 246 (2) & (3) of the Constitution empowers the
legislature of any State to make laws for the State or any part
thereof, subject to clause (1) and (2) of Article 246. Entry-42 in
List I - Union List of the seventh Schedule [Article 246(1)] relates to
Inter - State trade and commerce. Entry-26 in List II - State List of
the seventh Schedule [Article 246(2)] relates to trade and commerce
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within the State, subject to the provision of Entry-33 of List III.
Entry-33(b) of List III - concurrent list of the seventh Schedule
[Article 246(3)] relates to trade and commerce in, and the
production, supply and distribution of foodstuffs.
21. The contention of Mr. Bhangde, learned Senior Counsel
for the petitioners that by virtue of the impugned order, dated
15/7/2020, the State has usurped the power of the Union by making
a law prohibiting inter-State trade and commerce, which is solely
within the domain of the Union, is not correct. This is so for the
reason, that the FSSA is a Central Statute enacted by the Parliament
and by virtue of Section 30(1) of the FSSA, certain powers have
been delegated to the State and it is under these powers, that the
Commissioner for Food Safety has been appointed to perform
functions as listed in Section 30(2) (a) to (f) of the FSSA. Thus, any
Notification issued by the Commissioner of Food Safety, is directly
relatable to the exercise of the powers under the FSSA and is not an
independent power exercised by the State by enacting / passing any
law/legislation in respect of the subjects in Entry-26 List II or
Entry- 33 List III of the seventh schedule to the constitution.
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22. We have already stated that the domain or jurisdiction
of the Commissioner of Food Safety is within the State and thus the
impugned order dated 15/7/2020 will have to be read as not
creating or imposing any ban on any inter-State transport of goods.
This would however not mean that the Authorities, empowered to
enforce the prohibition as contained in the Order dated 15/7/2020,
would in any way, be restrained from ensuring that the prohibition
as imposed, is enforced. In this context, it would not be out of place
to mention here, that the order dated 15/7/2020, records that since
2012, the manufacturing, production and transportation of the
prohibited food articles, in the State was literally nil, even then the
prohibited food articles were found available in small shops,
godowns, distributors, suppliers, wholesalers, retailers across the
market in the entire State. In spite of continuous action being taken,
still such supply and distribution continues, which is under the guise
of inter-State transport. In the last year the department had taken
action on 1118 vehicles, who were transporting prohibited food
articles under the guise of inter-State transport. It is axiomatic that
such vehicles under the guise of inter-State transport dump the
goods in the State of Maharashtra, where they are prohibited, which
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are then sold in the black market. It is a further matter of common
knowledge, that in spite of the prohibition imposed, tobacco, Gutkha
and tobacco-laced Pan Masala are easily available in the market and
one of the source for such availability, is obviously dumping of such
goods/material under the guise of inter-State transport.
23. The case in hand is one such example. The place of
origin of the goods, is Kakadkoper, Vapi-Dharampur Road, Valsad in
the State of Gujarat. The destinations are (a) Joda and (b) Post
Khalari, District Angul, both in Odisha (Orissa). The place where the
truck was detained is village Jaulka, Tahsil Malegaon, District
Washim. The straight and perhaps the easiest route from the place of
origin to the place of destination, would be through National
Highway No. 8, from Valsad to Surat and thereafter through
National Highway No. 6, via Maharashtra, Chhattisgarh to Bargarh,
in Odisha and then down to Angul via National Highway No. 42.
The route could also be, considering the prohibition in Maharashtra,
so planned as to totally avoid the State altogether, which would be
to Madhya Pradesh and Chhattisgarh. However, the fact that the
truck was found in Malegaon, District Washim, which is not even on
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the National Highway No. 6, would naturally raise a presumption
that the goods may have been destined to be offloaded some place
in Maharashtra, though the destination on paper be otherwise.
Though inter-State transport would be permissible, the State
Authorities would be within their rights, to seize the goods, which
are prohibited within the State, so as to ensure that they are not
offloaded in the State under the guise of inter-State transport, with a
view to enforce the prohibition within the State and curb black
marketing of such goods within the State. Nothing prevents the
transporters to plan a route, which avoids the State where the goods
are prohibited. An alternate route, at the most, may increase the cost
of transportation, but would save them from the clutches of
prohibition. Thus, we do not find any illegality in the seizure of the
vehicles, carrying the prohibited goods, which was way off the
easiest route of transport.
24. We are not in agreement with Sanjay Anjay Stores
(supra) upon which reliance has been placed by Mr. Bhangde,
learned Senior Counsel for the petitioners, which holds that tobacco
and tobacco products do not fall within the definition of 'food', as
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occurring in Section 3(j) of the FSSA, as the same gives a restrictive
meaning to the word 'food', which is not permissible in light of the
wider and comprehensive meaning given to the word in the
definition. Section 3(j) of the FSSA, defines 'food' as under :
"3 (j) "Food" means any substance, whether processed,
partially processed or unprocessed, which is intended for
human consumption and includes primary food to the
extent defined in clause (zk), genetically modified or
engineered food or food containing such ingredients, infant
food, packaged drinking water, alcoholic drink, chewing
gum, and any substance, including water used into the food
during its manufacture, preparation or treatment but does
not include any animal feed, live animals unless they are
prepared or processed for placing on the market for human
consumption, plants, prior to harvesting, drugs and
medicinal products, cosmetics, narcotic or psychotropic
substances.
Provided that the Central Government may declare,
by notification in the Official Gazette, any other article as
food for the purposes of this Act having regards to its use,
nature, substance or quality;
(y) "ingredient" means any substance, including a food
additive used in the manufacture or preparation of food and
present in the final product, possibly in a modified form;
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(zk) "primary food" means an article of food, being a
produce of agriculture or horticulture or animal husbandry
and dairying or aquaculture in its natural form, resulting
from the growing, raising, cultivation, picking, harvesting,
collection or catching in the hands of a person other than a
farmer or fisherman."
The above definitions, clearly indicate that the
provisions of the FSSA, do not intend to put any restrictive
definition on the word 'food', rather it is otherwise, as indicated by
use of the expressions 'means any substance', 'containing such
ingredients', and widest possible scope and ambit has been been
given to the word. It is also material to note that the definition of
'food', does not in any manner make it dependent upon its
nutritional value nor that such substance can be consumed or
digested in the stomach. No such position is reflected from a plain
reading of the word 'food' as defined in Section 3(j). This is clearly
fortified from the fact that even chewing gum, has been included in
the definition of the word 'food'. It is axiomatic, that chewing gum is
not ingested but is only chewed for the juices/ flavor it is laced with
and then thrown out. Same is the case with tobacco and tobacco
products, including Pan Masala, which are used for the juices they
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generate, in conjunction with saliva in the mouth, when chewed,
which juices are ingested and the residue, thrown out. Thus no
distinction could have been made in Sanjay Anjay Stores (supra) on
the basis of nutritional value or ingestion, as the same is absent in
Section 3(j) of the FSSA itself. Sri Jaganath Enterprises (supra),
which also takes a view that tobacco and tobacco products are not
included in the definition of the word 'food', as defined in
Section 3(j) of the FSSA and that COPTA holds the field, placing
reliance upon Sanjay Anjay Stores (supra) is of no assistance to the
petitioners, for the reasons stated above. In so far as applicability of
COPTA is considered, the issue is being discussed hereinafter.
25. Mr. Bhangde learned Senior Counsel for the petitioners
has also relied upon Omkar Agency (supra) which is also based
upon the finding that tobacco is not ''food'', as defined in Section 3(j)
of the FSSA and it is the Cigarettes and other Tobacco products
(Prohibition of Advertisement and Regulation of Trade and
Commerce Production, Supply and Distribution) Act, 2003 ('COPTA'
hereinafter) which holds the field. It is material to note that the
premise in Omkar Agency (supra) that for the exercise of the powers
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under Section 30(2)(a) of the FSSA, the report of the Designated
Officer appointed under Section 36 of the FSSA is mandatory, is not
borne out by the language of Section 30 of the FSSA. Section 30 of
the FSSA nowhere stipulates that the powers under Section 30(2)
(a) to (f) can be exercised by the Food Safety Commissioner, only
upon receipt of a report by the Designated Officer appointed under
Section 36 of the FSSA and not otherwise. To appreciate this
position, it is necessary to look into the functions to be performed by
a Designated Officer. Section 36 of the FSSA, reads thus :
"36. Designated Officer - The Commissioner of Food Safety
shall, by order, appoint the Designated Officer, who shall
not be below the rank of a Sub-Divisional Officer, to be
in-charge of food safety administration in such area as may
be specified by regulations.
(2) There shall be a Designated Officer for each district.
(3) The functions to be performed by the Designated
Officer shall be as follows, namely :--
(a) to issue or cancel licence of food business
operators;
(b) to prohibit the sale of any article of food which is
in contravention of the provisions of this Act and rules and
regulations made thereunder;
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(c) to receive report and samples of article of foods
from Food Safety Officer under his jurisdiction and get
them analysed;
(d) to make recommendations to the Commissioner
of Food Safety for sanction to launch prosecutions in case
of contraventions punishable with imprisonment;
(e) to sanction or launch prosecutions in cases of
contraventions punishable with fine;
(f) to maintain record of all inspections made by
Food Safety Officers and action taken by them in the
performance of their duties;
(g) to get investigated any complaint which may be
made in writing in respect of any contravention of the
provisions of this Act and the rules and regulations made
thereunder;
(h) to investigate any complaint which may be made
in writing against the Food Safety Officer;
(i) to perform such other duties as may be entrusted
by the Commissioner of Food Safety."
26. Apart from Section 36(3) (a) to (i), the Designated
Officer, also exercises powers under Section 31(3) and (4), Sections
32, 33(4) and 34 of the FSSA. These powers however are
independent of the powers to be exercised by the Commissioner of
Food Safety as appointed under Section 30(1) of the FSSA who
exercises powers under Section 30(2) (a) to (f). For the sake of
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ready reference, provisions of Section 30 of the FSSA are reproduced
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.
(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;
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(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."
27. It would thus be apparent that the powers to be
exercised by the Commissioner of Food Safety under Section 30(2)
(a) of the FSSA are not dependent upon the Designated Officer,
submitting any report to him, but are capable of being exercised
independently. This is so for the reason that a 'Designated officer',
appointed under Section 36 of the FSSA is for a District as is
apparent from a plain reading of Section 36(2) of the FSSA, and
exercises powers under Section 31(3) and (4), Sections 32, 33(4)
and 34 of the FSSA within the territorial limits of the District for
which such Designated Officer is appointed and not beyond,
whereas the powers exercisable under Section 30(2)(a) of the FSSA
Cri. WP 543 of 2020.odt
by the Commissioner of Food Safety are for the entire State. It is also
axiomatic that any report as to any health risk, as defined in
Section 3 (zm) of the FSSA as contemplated by Section 34 (1) of the
FSSA by the Designated Officer, would be restricted to the District
for which such Officer is appointed and not for the entire State. It
would be further material to note that the impugned order dated
15/7/2020, nowhere indicates that the same has been passed, based
upon any report by the Designated Officer. On the contrary, the
order, is based upon various research and medical reports, scientific
studies conducted both within and outside the Country, as a perusal
of the same would indicate.
28. Thus, the judgment in Omkar Agency (supra), which
takes into consideration the provisions of Sections 3 (zm), 24 and 36
of the FSSA, for putting fetters upon the powers of the
Commissioner for Food Safety under Section 30 (2) (a) of the FSSA,
is not according to us, within the four corners of the law as
applicable. That apart, though not pointed out, Omkar Agency
(supra) has already been challenged before the Hon'ble Apex Court
in SLP (C) No.032155 of 2016, filed on 5/9/2016, and has been
Cri. WP 543 of 2020.odt
tagged with SLP (C) No.30090 of 2016 and other matters pending
before the Hon'ble Apex Court, wherein the provisions of the FSSA
are under consideration.
29. Reliance upon Suresh Lohiya (supra) by Mr. Bhangde,
learned Senior Counsel for the petitioners is also of no assistance to
the petitioners. In Suresh Lohiya (supra) the Court while considering
the word 'forest produce', in the Forest Act, 1927, held that a forest
produce (bamboo) which is changed into a commercially new and
distinct article ceases to be a forest produce and also held that the
Court cannot read something which is not in the provision. In the
instant matter, as already discussed, the definition of 'Food', as
occurring in Section 3(j) of the FSSA, is not a restrictive one but is of
wide amplitude, and itself takes into its compass, tobacco and
tobacco products, and therefore the Court is not reading something
which is not there in the definition. Similar proposition is also found
in Tej Bahadur Dube (supra) where relying upon Suresh Lohiya
(supra), it was held that sandalwood pieces obtained after
conversion of original sandalwood to certain shapes meant for being
used as handles, were held not to require transit permit, which was
Cri. WP 543 of 2020.odt
required for transportation of sandalwood.
30. A lot has been said about COPTA, holding the field as
against the FSSA. In this regard, it is material to note, that COPTA
was enacted on 18/5/2003, in which Section 3 (p) defines "tobacco
products" to mean the products specified in the schedule. The
schedule at Serial No.8, specifies Pan Masala or any chewing
material having tobacco as one of its ingredients (by whatever
named called) and at Serial No.8 specifies Gutkha. To understand
basic difference between the provisions of COPTA and FSSA, it is
necessary to consider what is contemplated by Sections 5, 6 and 7 of
COPTA, which for ready reference are reproduced as under :-
"5. Prohibition of advertisement of cigarettes and other
tobacco products.-
(1) No person engaged in, or purported to be engaged in
the production, supply or distribution of cigarettes or any
other tobacco products shall advertise and no person having
control over a medium shall cause to be advertised
cigarettes or any other tobacco products through that
medium and no person shall take part in any advertisement
which directly or indirectly suggests or promotes the use or
consumption of cigarettes or any other tobacco products.
Cri. WP 543 of 2020.odt
(2) No person, for any direct or indirect pecuniary benefit,
shall-
(a) display, cause to display, or permit or authorise to
display any advertisement of cigarettes or any other tobacco
product; or
(b) sell or cause to sell, or permit or authorise to sell
a film or video tape containing advertisement of cigarettes
or any other tobacco product; or
(c) distribute, cause to distribute, or permit or
authorise to distribute to the public any leaflet, hand-bill or
document which is or which contains an advertisement of
cigarettes or any other tobacco product; or
(d) erect, exhibit, fix or retain upon or over any land,
building, wall, hoarding, frame, post or structure or upon or
in any vehicle or shall display in any manner whatsoever in
any place any advertisement of cigarettes or any other
tobacco product:
Provided that this sub-section shall not apply in
relation to-
(a) an advertisement of cigarettes or any other
tobacco product in or on a package containing cigarettes or
any other tobacco product;
(b) advertisement of cigarettes or any other tobacco
product which is displayed at the entrance or inside a
warehouse or a shop where cigarettes and any other
tobacco products are offered for distribution or sale.
(3) No person, shall, under a contract or otherwise promote
or agree to promote the use or consumption of-
Cri. WP 543 of 2020.odt
(a) cigarettes or any other tobacco product; or
(b) any trade mark or brand name of cigarettes or
any other tobacco product in exchange for a sponsorship,
gift, prize or scholarship given or agreed to be given by
another person.
6. Prohibition on sale of cigarette or other tobacco
products to a person below the age of eighteen years and in
particular area.-No person shall sell, offer for sale, or
permit sale of, cigarette or any other tobacco product- (a)
to any person who is under eighteen years of age, and (b)
in an area within a radius of one hundred yards of any
educational institution.
7. Restrictions on trade and commerce in, and production,
supply and distribution of cigarettes and other tobacco
products.-
(1) No person shall, directly or indirectly, produce, supply
or distribute cigarettes or any other tobacco products unless
every package of cigarettes or any other tobacco products
produced, supplied or distributed by him bears thereon, or
on its label [such specified warning including a pictorial
warning as may be prescribed.]
(2) No person shall carry on trade or commerce in
cigarettes or any other tobacco products unless every
package of cigarettes or any other tobacco products sold,
supplied or distributed by him bears thereon, or on its label,
the specified warning.
(3) No person shall import cigarettes or any other tobacco
products for distribution or supply for a valuable
consideration or for sale in India unless every package of
Cri. WP 543 of 2020.odt
cigarettes or any other tobacco products so imported by him
bears thereon, or on its label, the specified warning.
(4) The specified warning shall appear on not less than one
of the largest panels of the package in which cigarettes or
any other tobacco products have been packed for
distribution, sale or supply for a valuable consideration.
(5) No person shall, directly or indirectly, produce, supply
or distribute cigarettes or any other tobacco products unless
every package of cigarettes or any other tobacco products
produced, supplied or distributed by him indicates thereon,
or on its label, the nicotine and tar contents on each
cigarette or as the case may be on other tobacco products
along with the maximum permissible limits thereof:
Provided that the nicotine and tar contents shall not
exceed the maximum permissible quantity thereof as may
be prescribed by rules made under this Act."
It would thus be apparent that Section 5 deals with
prohibition of advertisement of cigarettes and other tobacco
products; Section 6 deals with prohibition on sale to person below
the age of 18 years and in particular area; Section 7 deals with
restrictions on trade and commerce in, production, supply and
distribution of cigarettes and other products, unless every package
bears the specified warning; Section 8 provides the manner in which
specified warning shall be made; Section 9 provides the language of
Cri. WP 543 of 2020.odt
the warning; Section 10 provides size of letters and figures of the
warning; Section 11 provides the testing laboratory for nicotine and
tar contents; Section 13 provides for the power to seize, whereas
Section 14 provides for confiscation; Section 15 speaks of an option
to pay cost in lieu of confiscation; Section 17 provides for
adjudication; Section 18 provides for an opportunity based upon the
principles of natural justice; Section 18 provides for an appeal. The
other provisions provide for punishment and forfeiture. What is
material to be noted is that COPTA has not been given any
overriding effect upon any other law, holding the field or which may
be enacted. The regulatory mechanism in COPTA is restricted to
ensuring that the sale, storage, distribution, of cigarettes and other
tobacco products is not without the warning label and is to persons
above the restricted age and to discourage the use of tobacco.
COPTA does not deal with the long term effects of smoking and
consumption of tobacco and other products on the health of citizens.
31. As against this, the FSSA is a more comprehensive Act,
dealing with the larger issue of Safety and Standards of Food in the
country and in view of Regulation 2.3.4, prohibiting use of tobacco
Cri. WP 543 of 2020.odt
and nicotine as ingredients in any food products in the Food Safety
and Standards (Prohibition and Restrictions On Sales) Regulations,
2011; by including Pan Masala in Regulation 2.11.5, Anti-caking
agents in Regulation 3.1.7 in the Food Safety and Standards (Food
Products Standards and Food Additives) Regulations, 2011, has
included tobacco and tobacco products, including Gutkha and Pan
Masala within the definition of food as enumerated in Section 3 (j)
of the FSSA.
32. In fact, in Raju Laxman Pachapure (supra) itself, relied
upon by Mr. Bhangde, learned Senior Counsel for the petitioners, the
Court, while considering the provisions of the Prevention of Food
Adulteration Act, 1954, the harbinger of the FSSA, in juxtaposition
with those of COPTA, placing reliance upon the judgment in
Godawat Pan Masala (supra) noticed the difference between the two
enactments, as under :
"25. It is true the Apex Court in Godawat Pan Masala's
case held that mere traces of magnesium carbonate formed
during consumption of product along with lime cannot be
banned, but in the instant case anticaking agent viz.,
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magnesium carbonate is not found during consumption but
the analytical report discloses that magnesium carbonate is
contained in the very sample which, in our considered
opinion may be either externally added or present in the
raw materials. Whatsoever the case may be, the report
discloses that there is usage of anticaking agent viz.,
magnesium carbonate in the food article in question namely
gutka. That apart Supreme Court in the very same decision
held that the provisions of PFA Rules framed and directions
issued thereunder cannot be said as not applicable merely
because licence is contemplated for manufacture of gutka
under the Cigarettes and other Tobacco Products
(Prohibition of Trade and Commerce, Production, Supply
and Distribution) Act, 2003. The PFA Act was legislated for
the prevention of adulteration of food whereas Cigarettes
and other Tobacco Products (Prohibition of Trade and
Commerce, Production, Supply and Distribution) Act, 2003
is intended to prohibit advertising and to regulate the trade
and as such there is no conflict between the legislative
objects between the two enactments."
(emphasis supplied)
33. Section 89 of the FSSA being material is reproduced as
under : -
"89. Overriding effect of this Act over all other food related
laws.- The provisions of this Act shall have effect
notwithstanding anything inconsistent therewith contained in
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any other law for the time being in force or in any instrument
having effect by virtue of any law other than this Act."
(emphasis supplied)
It is thus material to note that Section 89 of the FSSA,
gives the provisions of the FSSA, an overriding effect on all other
food related laws. Once it is held that tobacco and other products,
fall within the definition of food as enumerated in Section 3 (j) of
the FSSA, the overriding effect of Section 89 of the FSSA, would
make the FSSA hold the field instead of COPTA. Joshy K.V.; Omkar
Agency and Sanjay Anjay Stores (supra), which take a contrary view,
according to us, do not lay down the correct law.
34. R.M. Jaiswal Wine Shop (supra) relied upon by Mr.
Bhangde, learned Senior Counsel for the petitioners was a matter
under Maharashtra Country Liquor Rules, 1973 and did not deal
with an issue of inter-State transport and is therefore of no
assistance to the petitioners. The judgment of the Full Bench in
Digambar Rodji Wankhede (supra), upon which reliance is placed by
Mr. Bhangde, learned Senior Counsel for the petitioners, was on a
Cri. WP 543 of 2020.odt
reference as to the question whether mere non-mention of a
particular provision of an order or order issued under Section 3 of
the Essential Commodities Act, 1955, was in itself sufficient to quash
and set aside and FIR registered for the offence punishable under
Section 7 read with Section 3 of the said Act, so as to stop further
investigation into the matter, which had been answered in the
negative and it was held that the State would be entitled to
demonstrate before a Court that in order issued under Section 3 of
the Essential Commodities Act, 1955, indeed exists and that there
was a contravention of clauses thereof, leading to offence under
Section 7 of the Essential Commodities Act, 1955, is also of no
assistance to the case of the petitioners, as the same is on a different
footing altogether.
35. That takes us to the next contention of Mr. Bhangde,
learned Senior Counsel for the petitioners, that there has been
violation of the provisions of Sections 38, 42 & 47 of the FSSA and
Rule 2.4.2 of the Rules of 2011. Section 38 of the FSSA relates to the
powers of the Food Safety Officer, as appointed under Section 37 of
the FSSA. These powers inter-alia, also provide for the sampling and
Cri. WP 543 of 2020.odt
seizure of the food article and sending the same for analysis. The
stress laid is upon clause (c) of sub-section (1) of Section 38 of the
FSSA, that the food article upon seizure and sampling has to be kept
in the safe custody of the "Food Business Operator" and therefore it
was necessary for the goods in question to be given into the custody
of the petitioners. The contention is as fallacious as it can be, for the
reason that neither of the petitioners fall within the definition of
"Food Business Operator" as defined in Section 3(o) of the FSSA.
Admittedly, the petitioner nos. 1 & 2 are the Driver and Cleaner
respectively of the truck, petitioner no. 3 is the owner and the
petitioner no. 4 is the transporter. The very fact that the pleas which
would be available only to a "Food Business Operator", under the
provisions of the FSSA and regulations framed thereunder are being
raised by the petitioners, who by any stretch of imagination, cannot
be termed as food business operators, indicates something sinister in
the matter. It is material to note that "Food Business Operator" is not
coming forth to allege that the custody of the goods be given to it,
rather the persons undertaking transport of the goods are raising
this plea, which clearly is not tenable at the behest of the petitioners.
Cri. WP 543 of 2020.odt
36. The report of the Food Analyst, dated 25/11/2020, has
been placed on record by the respondents and it certifies that, on an
Analysis of the samples send to him, the same contained magnesium
carbonate (Mg Ca CO3) and nicotine, which are prohibited as per
the impugned order dated 15/7/2020 and also as per Regulation
2.3.4 of the Food Safety and Standards (Prohibition and Restrictions
on Sales) Regulations, 2011. The contention that the analysis report,
is not in form VII-A of the Food Safety and Standards (Laboratory
and Sample Analysis) Regulations, 2011 or is lacking in any detail /
particular or that the procedure as laid down in Sections 42 & 47 of
the FSSA and Rule 2.4.2 of the FSS Rules, 2011 have not been
followed and therefore the FIR needs to be quashed, is too
premature at this stage. A plea of violation of procedure, will have to
be tested on the anvil of the documents and evidence, which could
be done only at the stage of trial and not at the present stage, as the
charge-sheet in the instant matter is yet to be filed. It is axiomatic to
state that, this Court while considering a plea for quashing of an FIR
raised in a petition under Article 226 read with section 482 Cr.P.C. is
not entitled to go into the merits of the matter, but has only to be
satisfied that, on a plain reading of the FIR, no case could be made
Cri. WP 543 of 2020.odt
out for registration of the offences which are alleged. Quashing an
FIR would not be permissible where an in depth probe is required.
The matter then has to be left to be taken up by the Appropriate
Courts, after the entire investigation is complete and the charge-
sheet is filed.
37. Mr. Bhangde, learned Senior Counsel also attacks the
charging of the petitioners of offences under the Indian Penal Code,
namely, those under Sections 188, 272, 273 and 328 of the I.P.C. In
respect of his contention that the petitioners could not have been
charged with by an offence under Section 328 of I.P.C. he contends
that the ingredients thereof as are required to be fulfilled by the
requirements as spelt out from the language of Section 328 of I.P.C.
have not been made out. To buttress his submission he has relied
upon Anand Ramdhani Chaurasia (supra) and Nilesh Narayan
Sanghvai (supra). Anand Ramdhani Chaurasia (supra) was a case for
quashing the offence under Section 328 of I.P.C., wherein, on the facts
of the case, it was held that since the FIR did not disclose the
ingredients of Section 328 of I.P.C., the same was quashed. It is,
however, worthwhile to note, though not disclosed by Mr. Bhangde,
Cri. WP 543 of 2020.odt
learned Senior Counsel appearing for the petitioners, but as
contended by Shri Ashirgade, learned Additional Public Prosecutor,
that the judgment in Anand Ramdhani Chaurasia (supra), was stayed
by the Apex Court in S.L.P. (Cri) No.004101/2020, which was filed on
28/2/2020 and registered on 1/9/2020, by an order dated
31/8/2020. In Nilesh Narayan Sanghvai (supra) the issue involved,
was that, though the contraband articles such as Gutkha, Pan Masala,
scented tobacco were found in the vehicle of the applicant, the offence
under Section 328 of I.P.C. was not attracted, and the FIR registered
for the said offence was sought to be quashed under Section 482
Cr.P.C. The Court relying upon the judgment in the case of Anand
Ramdhani Chaurasia (supra), held that mere transportation, without
any further action, on an apprehension that the contraband goods
would be sold in the market and would be bought and consumed by a
person, was too far fetched a consequence of an act of
"administering", or "causing to be taken" and mere transportation
could not be construed as an attempt to commit an offence under
Section 328 of I.P.C. and had quashed the FIR in respect of the offence
under Section 328 of I.P.C. alone. The Court in Nilesh Narayan
Sanghvai (supra), which was decided on 9/9/2020, it clearly appears,
Cri. WP 543 of 2020.odt
was not informed that the judgment in Anand Ramdhani Chaurasia
(supra), which was being relied upon, stood stayed by an order dated
31/8/2020, by the hon'ble Apex Court. It is needless to state here that
when a Counsel places reliance upon a judgment of the High Court, it
is the solemn and obligatory duty of the Counsel, to the Court, to
inform the position as to whether the judgment was carried to the
Apex Court, and if so, the fate of the same, as on the date of deciding
of the matter by the High Court. It is not permissible for a Counsel, to
merely place reliance upon a judgment in support of his case and to
leave it to the Court, to make efforts to ascertain whether any
challenge was laid to it, before the Apex Court and to ascertain the
fate of such a challenge. The Counsel would be failing in his duty both
as a Counsel and as an officer of the Court, if he does so, as by citing
the judgment, he is calling upon the Court, to not only to assume its
correctness, but is also inviting the Court to place reliance upon what
has been stated therein and render judgment in consonance thereof,
that too on a premise that the same had attained finality, in absence of
any further challenge.
38. That there is an order as contemplated by Section 188 of
Cri. WP 543 of 2020.odt
I.P.C. cannot be controverted in light of the impugned order dated
15/7/2020. The Chemical Analyser's report indicates the presence of
magnesium carbonate and nicotine in the seized goods (Section 272
of I.P.C.), both of which are prohibited and are also indicative causes
of cancer. The word 'noxious', means harmful (Webster), harmful to
health, injurious, unwholesome, corruptive (Blacks law dictionary) or
repugnant to human use. It cannot be disputed that both magnesium
carbonate and nicotine are harmful to human health (see : hazardous
properties and toxicity of both) (Section 273 of I.P.C.). The only
question is whether the goods were sold, offered or exposed for sale,
as food (Section 273 of I.P.C.) or were administered with an intent to
cause hurt (Section 328 of I.P.C.). Obviously, due to the various studies
made, the advertisements as issued by the Government, the films
shown in Cinema halls, regarding the harmful effects of tobacco and
tobacco products, it no longer can be said that any person, would now
be oblivious as to the harmful effects of tobacco and tobacco products.
In spite of knowing about the harmful effects, if a person transports
such products, from one place to another, could it be said that such
person, was unaware that the same was not for sale ? The word 'sale',
would be applicable to a manufacturer, distributor, dealer, retailer or
Cri. WP 543 of 2020.odt
the shop-keeper, each of whom, performs the activity of sale, well
knowing that such sale would be for human consumption. Instead of
using the easier and shortest route from the point of origin to the
point of destination, the use of a circuitous route, would entitle the
authorities to draw an adverse inference, that the goods were
intended for sale within the State, through which they were being
transported and the case was not that of an inter-State transport. Too
technical a meaning to the language of the relevant sections, may not
be called for, considering the changing situation. The law is not static,
but is a live concept, keeping in pace with the changes in the society
as well as evolving technology. To fetter the law, to its literal sense or
meaning, would not be apt, rather, such an approach would sound its
death knell. The Courts must also be alive to such changes and apply
the law, accordingly.
39. As already observed by us earlier, we find that the matter
is at a very nascent stage and a case for quashing the FIR, has not
been made out. The matter needs further in depth probe, which is not
permissible in our writ jurisdiction of under the powers as conferred
upon us by virtue of Section 482 Cr. P.C.
Cri. WP 543 of 2020.odt
40. The petition is therefore partly allowed in the following terms :
(A) The impugned order dated 15/7/2020, is held to be
within the competence and jurisdiction of the Food Safety
Commissioner under the powers as conferred upon him, by the
provisions of Section 30(2)(a) of the Food Safety and Standards Act,
2006.
(B) The impugned order dated 15/7/2020, is held to be
operative and effective for the purpose of prohibiting transport of the
goods prohibited, within the State of Maharashtra and not to any
inter-State transport of such goods.
(C) This would however not mean that the Authorities,
empowered to enforce the prohibition as contained in the order dated
15/7/2020, would in any way, be restrained from ensuring that the
prohibition as imposed is enforced, and for this purpose would be
entitled to use all powers as conferred upon them under the Food
Safety and Standards Act, 2006 and the Rules, Regulations made
thereunder and the Notifications issued in exercise of the powers
conferred upon the Authorities, appointed under it.
(D) Though inter-State transport would be permissible, the
State Authorities would be within their rights, to seize the goods,
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which are prohibited within the State, so as to ensure that they are not
offloaded in the State under the guise of inter-State transport, with a
view to enforce the prohibition within the State and curb black
marketing of such goods within the State.
(E) The prayer for quashing FIR No.358/2020, is hereby
rejected.
Rule is made absolute in the aforesaid terms. Considering
the circumstances, there shall be no order as to costs.
(AVINASH G. GHAROTE, J.) (SUNIL B. SHUKRE, J.)
wadkar
Digitally signed
by Shailendra
Shailendra Wadkar
Wadkar Date:
2021.01.09
16:35:52 +0530
