Food Safety & Standards Authority ... vs United Distributors ...
2015 Latest Caselaw 3221 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                           Date of decision: 22nd April, 2015

+                                  LPA No.659/2014

       FOOD SAFETY & STANDARDS
       AUTHORITY OF INDIA                      ..... Appellant
                   Through: Mr. Mehmood Pracha with Mr. Rudro
                            Chatterjee, Advs.

                                     Versus

       DANISCO (INDIA) PVT. LTD. & ANR.            ..... Respondents
                    Through: Mr. Sandeep Sethi, Sr. Adv. with Mr.
                              Arjun Pall, Adv. for R-1.
                              Mr. Akshay Makhija, Adv. for R-
                              2/UOI.

                                      AND

+                             LPA No.711/2014

       FOOD SAFETY & STANDARDS
       AUTHORITY OF INDIA                         ..... Appellant
                    Through: Mr. Mehmood Pracha with Mr.
                             Rudro Chatterjee, Advs.

                                     Versus

       UNITED DISTRIBUTORS
       INCORPORATION & ORS.                    ..... Respondents
                    Through: Mr. Virag Gupta, Adv. for R-1.
                             Ms. Sonia Sharma & Mr. V.C. Jha,
                             Ms. Neha Sharma, Advs. for R-3.




LPA Nos.659/2014 & 711/2014                                         Page 1 of 63
 CORAM:-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. These two intra-court appeals though against different judgments (of

the same learned Single Judge), but both concerning interpretation of the

provisions of The Food Safety and Standards Act, 2006 (FSS Act) and Rules

and Regulations made thereunder and filed at or about the same time, were

taken up together for hearing.

LPA No.659/2014.

2. This appeal is preferred against the judgment dated 13th August, 2014

in W.P.(C) No.2644/2014 filed by the respondent No.1 / writ petitioner

(respondent No.2 is Union of India). The said writ petition was filed

impugning the order of the appellant authority holding the consignment of

„Lactic Culture‟ imported by the respondent No.1 / writ petitioner to be non-

compliant with the Food Safety and Standards (Packaging and Labelling)

Regulations, 2011 (hereinafter referred to as „Packaging and Labelling

Regulations‟) and thus refusing the „No Objection Certificate‟ (NOC) to

enable the respondent No.1 / writ petitioner to have the said

consignment released from the Customs Authorities. The learned Single

Judge by the judgment impugned in this appeal held the provisions of the

Packaging and Labelling Regulations, for the reason of non-compliance

wherewith the NOC was refused, to be not applicable and hence directed the

appellant authority to issue the NOC if the consignment was otherwise found

to be in conformity with the description as available on the consignment as

well as the product description sheet provided by the respondent No.1 / writ

petitioner.

3. The respondent No.1 / writ petitioner claims to be engaged in the

business of import, distribution and sale of wide range of products that are

used by manufacturers of food and beverages, dietary supplements and pet

food. The consignment aforesaid imported by the respondent No.1 / writ

petitioner and to which these proceedings pertain was of "YO-MIX 305

LYO 50 DCU" which is a blend of defined strains of lactic acid bacteria that

is used for direct vat inoculation into milk for preparing yogurt and

fermented milk products. The said product is a freeze-dried concentrated

lactic culture comprising of lactobacillus bulgaricus and streptococcus

thermophilus, along with sucrose and maltodextrin as carriers. According to

the respondent No.1 / writ petitioner, the said product is a permitted „food

additive‟ within the meaning of The Food Safety and Standards (Food

Products Standards and Food Additives) Regulations, 2011 (hereinafter

called the Safety and Standards Regulations) and was being imported for

sale / supply to distributors and customers.

4. The appellant authority however vide letter dated 21st February, 2014

refused the NOC on the ground that „ingredients list was not mentioned on

the label‟ and thus the safety of the product could not be assessed without

knowing the mandatory labelling requirements as per the Packaging and

Labelling Regulations.

5. The respondent No.1 / writ petitioner represented that the said product

was for industrial use only and not for retail sale and thus the labelling on

the said product did not have to disclose the list of ingredients in terms of the

Packaging and Labelling Regulations. Upon the representation not meeting

with any success, the respondent No.1 / writ petitioner preferred the

statutory appeal but which also was dismissed vide communication dated

22nd April, 2014, on the same grounds and also observing that there is no

exemption under the Packaging and Labelling Regulations if the package is

meant for industrial use. The respondent No.1 / writ petitioner was thus

advised to export back the consignment to the country of origin and have it

re-labeled with a label that discloses the list of ingredients. Thereafter, the

writ petition from which this appeal arises was filed. Needless to state that

the appellant authority contested the writ petition.

6. The learned Single Judge, in the impugned judgment, has found /

observed / held:-

(i) that Section 23 of the FSS Act mandated that packaged food

products be labeled or marked in the manner prescribed by the

Packaging and Labelling Regulations;

(ii) though the expression „food products‟ is not defined under the

FSS Act but the definition of „food‟ in Section 3(1)(j) of the

FSS Act is couched in wide terms to mean any substance which

is intended for human consumption including any substance

used into the food during its manufacture, preparation or

treatment;

(iii) that the goods imported by the respondent No.1 / writ petitioner

being intended for use in preparation of yogurt, would fall

within the wide definition of expression „food‟ and its

packaging and labelling would require to be compliant with the

Packaging and Labelling Regulations;

(iv) Section 25(1)(iii) of the FSS Act prohibits import of any article

of food in contravention of the provisions of the FSS Act or any

Rule or Regulation made thereunder;

(v) that it was the admitted case of the parties that the subject

goods fall within Category 99 of Indian Food Code which

includes "substances added to food which are not for direct

consumption as food" and sub-category 99.6 whereof covers

"microorganisms and microbial preparations‟;

(vi) that it was the contention of the respondent No.1 / writ

petitioner that since the definition of „yogurt‟ in Regulation

2.1.12:1 of the Safety and Standards Regulations describes

yogurt as containing cultures of suitable lactic acid producing

harmless bacteria, which are precisely the goods in question;

the said goods are „permitted food additive‟;

(vii) that the subject goods were a food additive even as per the

definition thereof in Section 3(1)(k) of the FSS Act;

(viii) that Regulation 2.2.2:2 of the Packaging and Labelling

Regulations and on the ground of non-compliance wherewith

the appellant authority had refused to give the NOC, was

applicable in respect of „pre-packaged‟ foods;

(ix) that as per Regulation 1.2.1:8 of the Packaging and Labelling

Regulations defining „pre-packaged or pre-packed food‟ read

with Section 3(1)(f) of the FSS Act defining „consumer‟, pre-

packaged or pre-packed food means food which is ready for

sale to persons and families purchasing and receiving food in

order to meet their personal needs;

(x) that thus the products though falling under the definition of

„food‟, meant not for direct human consumption but for sale to

industrial consumers for use in manufacture of articles of food,

would be excluded from the definition in Packaging and

Labelling Regulations of pre-packaged or pre-packed food;

(xi) that thus the ground, of the subject goods being non-compliant

with Regulation 2.2.2:2 of the Packaging and Labelling

Regulations, for refusing the NOC, was bad;

(xii) that even otherwise, in the light of the Guidelines dated 23rd

March, 2012 issued by the appellant authority specifying the

labelling information for various kinds of packages of food

consignment, the consignment in question substantially

complied with the labelling requirements except that the name

and address of the importer was not printed on the package;

(xiii) that nutritional information in any event was inapplicable as the

goods in question are lactic cultures which are to be used in

manufacture of yogurt;

(xiv) that the goods in question being for industrial use, the

requirement, of logo indicating whether the goods are

„vegetarian‟ or „non-vegetarian‟, was also inapplicable;

(xv) that thus, irrespective of the non-applicability of Regulation

2.2.2:2 of the Packaging and Labelling Regulations, the

labelling of the goods in question provided sufficient

information and the respondent No.1 / writ petitioner in

addition had also furnished the detailed product description of

the goods and the composition, properties and physical /

chemical specifications as well as microbiological

specifications;

(xvi) that all the aforesaid was sufficient for the appellant authority to

test whether the goods in question conform to the description.

7. Aggrieved from the aforesaid, this appeal was preferred. Though the

same was entertained, but the interim stay sought of the judgment of the

learned Single Judge refused. The counsel for the appellant authority, on

26th September, 2014 informed that in inspection pursuant to the directions

of the learned Single Judge, the contents of the consignment were not found

to be in conformity with the description available on the package.

8. The counsel for the appellant authority before us argued:

(a) that India has become a dumping ground for unsafe food;

(b) without proper labelling, the laboratory of the appellant

authority cannot check whether the goods are what they are labeled

as;

(c) that the Packaging and Labelling Regulations are also intended

to disclose the origin of food and to enable the consumers to

make a choice;

(d) that before the FSS Act, the right to take action with respect to

"bad food" was only under the law of tort and which was a very

weak right;

(e) that the appellant authority was constituted as the regulatory

authority under the FSS Act and has the onus to protect the

interests of the consumers;

(f) that Regulation 1.2:7 of the Packaging and Labelling

Regulations defines „non-vegetarian‟ food as an article of food

which contains whole or part of any animal including birds,

fresh water or marine animals or eggs or products of any animal

origin but excluding milk or milk products as an ingredient and

Regulation 1.2:11 defines „vegetarian‟ food as any article of

food other than non-vegetarian food;

(g) that the Packaging and Labelling Regulations require the label

to disclose whether the goods are vegetarian or non-vegetarian

and the label on the subject goods does not disclose so;

(h) that Section 23 of the FSS Act providing for „packaging and

labelling of foods‟ prohibits manufacture, distribution, sale or

exposing for sale or dispatch or delivery to any agent or broker

for the purpose of sale any packaged food products which are

not marked and labelled in the manner prescribed; thus pre-

packaged or pre-packed food does not necessarily mean food

ready for sale to consumer but would also include wholesale

packages and which are defined in Regulation 1.2:12 of the

Packaging and Labelling Regulations as containing a number of

retail packages which are intended for sale, distribution or

delivery to an intermediary but not intended for sale direct to a

single consumer and commodity of food sold to intermediary in

bulk to enable such intermediary to sell, distribute or deliver

such commodity of food to the consumer in small quantities;

(i) that subject package is thus a wholesale package which requires

labelling;

(j) that the note to Regulation 1.2:8 defining „pre-packaged or pre-

packed food‟ also provides that the expression „package‟

wherever it occurs shall be construed as package containing

pre-packed food articles, again indicating that pre-packaged or

pre-packed food includes wholesale packages;

(k) that Section 3(zc) of the FSS Act defines „manufacture‟ as a

process or adoption or any treatment for conversion of

ingredients into an article of food, which includes any sub-

process, incidental or ancillary to the manufacture and Section

3(zd) defines „manufacturer‟ as a person engaged in the

business of manufacturing any article of food for sale and

includes any person who obtains such article from another

person and packs and labels it for sale; that a combined reading

of the said provisions with the definition of „consumer‟ in

Section 3(f) of the FSS Act leaves no manner of doubt that the

labelling requirements are for manufacturer of food also,

whether the said food is for direct sale to the consumer or to an

intermediary;

(l) that Regulation 2.2.2 of the Packaging and Labelling

Regulations requires inter alia the list of ingredients to be

disclosed and the said requirement cannot be obviated by

otherwise submitting the list of ingredients as the respondent

No.1 / writ petitioner had done and which has been held by the

learned Single Judge to be a sufficient compliance.

9. We had during the hearing enquired from the counsel for the appellant

authority, whether an exporter of foods to India can be expected to comply

with the provisions of FSS Act and the rules and regulations framed

thereunder, besides with the laws, rules and regulations of its own country /

place of manufacture and whether there is any corresponding obligation on

the exporter of foods from India to, besides complying with the laws, rules

and regulations of India, also comply with laws, rules and regulations of the

country to which the goods are being exported.

10. The counsel for the appellant authority drew our attention to Section

25 of the FSS Act, sub-section (1)(iii) whereof prohibits import into India

any article of foods in contravention of any of the provisions of the Act or

any rule or regulation made thereunder or any other Act and stated that there

is no similar provision for export of goods from India.

11. We further enquired from the counsel for the appellant authority,

whether not the deficiency, if any in compliance with the Packaging and

Labelling Regulations or any other applicable regulations qua the goods

imported in India, if capable of being made up, can be permitted to be made

up in India before the release of the goods, as the exporter of goods to India

cannot ordinarily be expected to be aware of Packaging and Labelling

Regulations and other such regulations of India.

12. No clear answer was forthcoming.

13. Per contra, the senior counsel for the respondent No.1 / writ petitioner

supported the judgment of the learned Single Judge.

14. We had during the hearing enquired, whether not food additive was

different from food.

15. The counsel for the appellant authority contended that if food additive

was held to be not food, nothing in the Act or the rules and regulations

framed thereunder would regulate the food additives and which will be

contrary to the provisions and spirit of the Act. Attention was also invited to

Section 19 of the Act providing that no article of food shall contain any food

additive or processing aid unless it is in accordance with the provisions of

the Act and the regulations made thereunder. On the basis thereof, it was

argued that a food additive also has to follow all the laws, rules and

regulations. It was also contended that if food additive was held to be not

food, the provisions of Section 25 of the Act with respect to import of

articles of food would also not be applicable to food additives. Similarly, it

was stated that if such a view was to be taken, the appellant authority as well

as other agencies would cease to have jurisdiction under Sections 16 & 18 of

the Act qua food additives. Attention was also invited to Regulation 2.1.12

of the Safety and Standards Regulations specifically dealing with Fermented

Milk Products and providing the parameters therefor including for Yoghurt

and it was contended that without the subject consignment / goods

complying with the Packaging and Labelling Regulations, the appellant

authority would be unable to test, whether the said parameters were met or

not. It was also argued that the respondent No.1 / writ petitioner was

hesitating to make the declaration as required by the Packaging and

Labelling Regulations, as it will in the said declaration have to declare the

harmful bacteria contained in the goods. It was yet further argued that

without declaration in terms of the Packaging and Labelling Regulations on

the consignment, no lab can carry out the requisite test.

16. The senior counsel for the respondent No.1 / writ petitioner though in

his initial argument contended that a food additive is included in the

definition of food in Section 3(1)(j) but in subsequent hearing contended that

a food additive is distinct from food. We may in this regard notice that the

contention of the respondent No.1 / writ petitioner before the learned Single

Judge was of a food additive being not food and thus the Packaging and

Labelling Regulations being not applicable to food additives. However, the

learned Single Judge appears to have not accepted the said argument and

held the Packaging and Labelling Regulations to be not applicable for the

reason of the subject goods being not pre packaged or pre packed food-ready

for sale to consumer. The learned Single Judge also held that even if the

Packaging and Labelling Regulations were applicable, the same had been

substantially complied with by the respondent no.1 / writ petitioner. It is

perhaps for this reason that the senior counsel for the respondent No.1 / writ

petitioner in the opening arguments had supported the judgment of the

learned Single Judge but subsequently reverted to the original argument.

17. The counsel for the appellant authority in rejoinder:

(a) contended that if food additive is held to be not food, the same

will negate the Act;

(b) relied on judgment dated 22nd September, 2014 of the Division

Bench of the High Court of Calcutta in MAT No.1252/2014 titled

Food Safety and Standards Authority of India Vs. Heartland

Trading Company Pvt. Ltd. holding that the deficiency in affixing

appropriate labels could not be rectified and the articles could be re-

labelled, if at all, only by their foreign manufacturer that had

originally labeled them;

(c) relied on another judgment dated 5th September, 2014 of

another Division Bench of the High Court of Calcutta in W.P.

No.472/2014 titled Authorized Officer, Food Safety and Standards

Authority of India Vs. Sarad Kumar Bohra also holding that the

name of the ingredients used in the product have to be listed at the

time of its manufacture and if such listing is not done at the time of

manufacture, the importer cannot be permitted to put the label;

(d) relied on order dated 27th August, 2014 of the Division Bench

of this Court in W.P.(C) No.3668/2013 titled Lok Jagriti Vs. Union

of India laying down that what is prohibited under the FSS Act and

the rules and regulations framed thereunder, even if permitted by

CODEX Alimentarius will still be regarded as prohibited in terms of

the law of India (we may add that CODEX Alimentarius is a

collection of internationally recognized standards, codes of practice,

guidelines and other recommendations relating to foods, food

production and food safety).

18. The senior counsel for the respondent No.1 / writ petitioner pointed

out that Heartland Trading Company Pvt. Ltd. supra was a case of edible

grade refined oil with respect whereto, specific regulations exist and not

relating to food additives and that Sarad Kumar Bohra supra was a case of

sugar confectionary which also is a food and not a food additive. It was

further contended that on the contrary, the present case is not concerned with

a pre-packed food but with a food additive and particularly described in the

Safety and Standards Regulations as a food additive and which also lay

down the parameters thereof.

19. Both counsels have also since filed written submissions and the

counsel for the appellant authority has on 12th March, 2015 also handed over

copy of the judgment dated 4th February, 2014 of the Division Bench of the

High Court of Kerala in W.A. No.1317/2014 titled Authorized Officer,

Cochin Sea Port and Airport Food Safety and Standards Authority of

India Vs. Mondelez India Food Limited holding Cocoa bean to be a food

and subject to the Act and the Regulations made thereunder.

20. The appellant authority in his written submissions is not found to have

stated anything new.

21. The respondent No.1 / writ petitioner in its written arguments has

contended that lactic acid is a food additive and not a food and thus the

Packaging and Labelling Regulations and the Guidelines dated 23rd March,

2012 are not applicable thereto.

22. On an analysis of the controversy which has unfolded and the rival

contentions, in our view the following issues arise for adjudication:-

A. What is the nature of the subject goods; whether they are a food

or a food additive;

       B.      Whether a food additive is also a food.


       C.      If the goods are a food additive, distinct from food, whether the

Packaging and Labelling Regulations are applicable thereto.

D. If the Packaging and Labelling Regulations are applicable,

whether the subject goods comply therewith.

E. Whether the deficiency if any in the imported goods complying

with Packaging and Labelling Regulations can be permitted to

be made up / cured in India.

23. As far as the first of the aforesaid issues is concerned, the subject

goods having specifically found mention in the Safety and Standards

Regulations as a food additive, there is no manner of doubt that the same is a

food additive. The counsel for the appellant authority also has really not

disputed the same but has contended that a food additive is also a food.

24. The definitions of food and food additive in Sections 3(1)(j) & (k) of

the Act are as under:

"3. Definitions:--(1) In this Act, unless the context otherwise requires--

"(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.

(k) "food additive" means any substance not normally consumed as a food by itself or used as a typical ingredient of the food, whether or not it has nutritive value, the intentional addition of which to food for a technological (including organoleptic) purpose in the manufacture, processing, preparation, treatment, packing, packaging, transport or holding of such food results, or may be reasonably expected to result (directly or indirectly), in it or its by-products becoming a component of or otherwise affecting the characteristics of such food but does not include "contaminants" or substances added to food for maintaining or improving nutritional qualities."

25. In our opinion a food additive, is distinct from, and is not a food.

26. Food, in Section 3(1)(j) is defined as "any substance, .....which is

intended for human consumption....". The definition thereafter proceeds to

provide, that food "includes primary food, genetically modified or

engineered food or food containing such ingredients, infant food, packaged

drinking water, alcoholic drinks, chewing gum, and any substance, including

water used into the food during its manufacture, preparation or

treatment....". It would thus be noticed that the definition, after providing

that food is any substance intended for human consumption, includes within

its fold certain items, some of which are also separately defined, but does not

mention a food additive.

27. Per contra, Food Additive, in Section 3(1)(k) is defined as "any

substance not normally consumed as a food itself or used as a typical

ingredient of food...." and which is intentionally added to food for

manufacturing, processing, packaging etc. of the food.

28. Substance is defined in Section 3(1)(zw) as any natural or artificial

matter, whether in solid, liquid, gaseous or vapour form.

29. Thus, while food, essentially is something intended for human

consumption, food additive, essentially is something not normally consumed

as a food itself. Though both definitions, after so providing, proceed to be

inclusive but in our understanding of the principles of Interpretation of

Statutes, the various items in the „inclusive portion‟ of the definitions will

have to satisfy the essential test.

30. Justice G.P. Singh in Principles of Statutory Interpretation, 13th

Edition (2012) has authored that a definition in the form "mean and include"

will be considered as exhaustive and will embrace only what is comprised

within the ordinary meaning of the "means" part together with what is

mentioned in the "includes" part of the definition. Reference is made to

Mahalaxmi Oil Mills Vs. State of A.P. (1989) 1 SCC 164 where tobacco

seeds which were not mentioned in the inclusive part of the definition of

tobacco as any form of tobacco were held to be not tobacco.

31. It would thus follow that non-mentioning of food additive in the

definition of food, has to be interpreted as food additive not falling within

the definition of food.

32. Supreme Court in Maruti Suzuki Ltd. Vs. Commissioner of Central

Excise, Delhi-III (2009) 9 SCC 193 was concerned with the definition in

Rule 2(G) of the CENVAT Credit Rules, 2002 of "input" as, meaning goods

used in or in relation to manufacture of final product whether contained in

the final product or not and including lubricating oils, paint, packing

material etc. It was held that the expression "goods used in or in relation to

manufacture of final products" was the crucial requirement of the definition

and anything mentioned in the inclusive part of the definition, till it also

fulfilled the requirement of the crucial part of the definition, would not fall

within the definition of "input". The legislative intention was held to be that

the inputs falling in the inclusive part of the definition must have nexus with

the crucial part of the definition. It was further held that in each case it has to

be established that input mentioned in the inclusive part is used in or in

relation to the manufacturing of the final product and that the definition has

to be read in its entirety. It was yet further held that where the definition is in

two parts namely the specific part and the inclusive part, both the parts are

required to be satisfied.

33. To the same effect are Board of Revenue Vs. A.M. Ansari (1973) 3

SCC 512 (Para 26) and The State of Himachal Pradesh Vs. Maharani Kam

Sundari MANU/HP/0062/1984 (DB) (Para 20).

34. Thus, a substance which is not normally consumed as a food by itself

or used as a typical ingredient of a food and which may be a food additive,

cannot be a food as only those substances which are intended for human

consumption can be food. Merely because a food additive may fall within

the expression "...and includes any substance......used into the food during

its manufacture, preparation or treatment" within the inclusive part of the

definition of food will not make a food additive food because a food additive

fails to satisfy the crucial part of the definition of food i.e. "intended for

human consumption". Similarly, because a food additive is added for

technological purpose in the manufacture, processing, packaging etc. of food

and becomes a component of or affects the characteristics of such food

would also not make it a food because a food additive by itself is normally

not consumed as a food.

35. That brings us to the fear expressed by the counsel for the appellant

authority, of not treating food additives as food, taking the food additives

outside the purview of the FSS Act.

36. The aforesaid argument of the counsel for the appellant authority, in

our view, is based on a complete misconception of the scheme of the Act.

37. The FSS Act, as per its Preamble has been enacted to inter alia

consolidate the laws relating to food and to regulate manufacture and storage

etc. to ensure availability of safe and wholesome food for human

consumption. Section 2 of the Act also declares it to be expedient in public

interest that the Union Government takes under its control the food industry,

as the purpose of the Act. Thereafter as aforesaid, the definitions Section 3,

besides "food", defines "food additive". The inclusion in the definitions

Section 3 of the definition of „food additive‟ is indicative of the expressions

"laws relating to food", "standards of articles of food", "regulated

manufacture....of food" and "ensure availability of safe and wholesome

food" in the preamble and "control the food industry" in Section 2, taking

within the ambit of the Act, food additives also. Section 4 of the Act

provides for establishment of the FSS Authority of India i.e. the appellant

authority herein to exercise the powers conferred on it and to perform the

functions assigned to it under the Act. Section 13, while providing for

establishment by the appellant authority of scientific panels, in Section

13(3)(a) provides for establishment of a panel on food additives, flavourings,

processing aids and materials in contact with food. Section 16(1) prescribes

the duty of the appellant authority to regulate and monitor the

manufacturing, processing and import of food so as to ensure safe and

wholesome food. The definition of food in Section 3(1)(j) is "unless the

context otherwise requires". The context in which the word food is used in

Section 16(1) takes within its ambit food additives also which are

intentionally added in the manufacture, processing etc. of food and which

thus necessarily play a vital role in ensuring safe and wholesome food.

Without regulating and monitoring food additives which go into

manufacture and processing of food, safe and wholesome food cannot be

ensured. Not only so, Section 16(2)(b) specifically provides for the appellant

authority to by Regulations specify the limits for use of food additives and

the context in which the word food is used in other clauses of Section 16(2)

would also take within its ambit food additives.

38. The appellant authority is thus clearly wrong in its assertion that

without holding food additives to be also food, it would not have authority to

regulate and monitor manufacture and processing, distribution, sale and

import of food additives. The Act, takes within its ambit, food as well as

food additives and the two being different, makes separate provisions with

respect to two. However, the context in which food is used in some of the

provisions of the Act, take within their ambit food additives also. What the

appellant authority is however wanting to do is to make the provisions of the

Act made in context of foods, applicable to food additives also and which

cannot be permitted.

39. This becomes further evident from Section 19 of the Act which

prohibits any article of food from containing food additives or processing aid

unless such food additive or processing aid is in accordance with the FSS

Act and Regulations made thereunder.

40. The expression "genetically modified or engineered food" used in the

definition of food in Section 3(1)(j) is defined in Explanation (2) to Section

22 as food composed of or containing genetically modified or engineered

organisms through modern biotechnology. Section 23 of the FSS Act and in

exercise inter alia of power whereunder the Packaging and Labelling

Regulations have been framed, prohibits sale of "any packaged food

products" which are not marked and labelled in the manner as specified by

the Regulations. A question would arise whether the said prohibition and the

power to make Regulations for packaging and labelling extends also to food

additives - whether the word food therein would also include "food

additives". The word "sale" is defined in Section 3(1)(zr) as sale of any

article of food whether by wholesale or retail for human consumption or use.

A food additive, as aforesaid is not normally for human consumption and we

are thus of the opinion that Section 23 has no application to food additives

and the power to make Regulations thereunder qua packaging and labelling

do not apply to food additives.

41. Section 25 deals with import and prohibits import into India of unsafe

or misbranded or sub-standard food and any article of food in contravention

of any provision of the Act or Rules or Regulations made thereunder. Since

the Act contains provisions with respect to food additives, it follows that the

prohibition against import into India shall be applicable to food additives

unless the same are in accordance with the provisions of the FSS Act or any

Rule or Regulation made thereunder.

42. Since the Act contains provisions with respect to food additives, the

enforcement mechanism under Chapter VII of the Act, the provision relating

to offences and penalties under Chapter IX of the Act and the adjudicatory

mechanism provided under Chapter X of the Act would be applicable to

food additives also.

43. That brings us to the third issue i.e. of the applicability of the

Packaging and Labelling Regulations to the food additives.

44. The said Regulations have been made in exercise of powers under

Section 23 of the FSS Act read with Section 92(2)(k) of the FSS Act.

Section 92(2)(k) empowers the appellant authority to make Regulations

under Section 23. We have hereinabove held that the context in which the

word food is used in Section 23, does not allow inclusion of food additives

therein. It thus follows that the Packaging and Labelling Regulations do not

apply to food additives. A reading of the Packaging and Labelling

Regulations also shows that the same can possibly have no application to

food additives. This also becomes evident from the anomalies arising from

the intent of the appellant authority to apply the said Regulations to food

additive with which we are concerned. We had during the hearing enquired

from the counsel for the appellant authority, as to how possibly for a food

additive of the nature with which we are concerned in the present case, any

information on the label thereof of nutritional value or whether it is veg. or

non-veg. can be given. The counsel though, when we enquired whether he

would classify lactic acid / lactic culture as veg. or non-veg., stated that it is

non-veg. but when we enquired, whether yogurt, for use in manufacture

whereof it is used would classify as veg. or non-veg., he was nonplused.

45. Per contra, the Safety and Standards Regulations made under Section

16 read with Section 92(2)(e) of the FSS Act, in addition to prescribing the

safety and standards of food products also specifically deal with food

additives. Chapter 2 thereof prescribes the standard of different food

products, mainly milk and milk products, fats, oils and fat emulsions, fruit

and vegetable products, cereal and cereal products, meat and meat products,

fish and fish products, sweet and confectionaries, sweetening agents, salts,

spices, condiments and retail products, beverages and certain other

proprietary foods. Chapter 3 of the said Regulations deals with food

additives and in Regulation 3.1.12 thereunder, dealing with sequestering and

buffering agents, lactic acid finds mention and use whereof is prescribed

only as an acidulant in miscellaneous foods and limited to quantities

mentioned thereunder. Appendix A of the said Regulations prescribing the

use of food additives in food products, in Table 14 thereunder listing food

additives for use in milk products, under the sub-heading acidifying agents

also lists lactic acid together with the quantities thereof which can be used in

different kinds of food, cheese, cheese spread, yoghurt, evaporated milk,

sweetened condensed milk, butter, milk fat, milk powder, cream powder, ice

cream, kulfi, casein products, whey powder, paneer. We may mention that

the maximum quantity of lactic acid that can be used in yoghurt has been left

blank.

46. It is not as if the appellant authority is prohibited from making any

other Regulations qua food additives as the one with which we are

concerned, in the present case, if the need to provide any other

restriction/limit, with respect to the same is felt. As aforesaid, Section 16 of

the FSS Act vests wide powers in the appellant authority to make

Regulations to ensure safe and wholesome food. If the appellant authority

feels that to ensure safe and wholesome food, any Regulations qua

packaging and labelling of food additives are also required to be made, the

appellant authority under Section 16 read with Section 92(2)(e) would be

entitled to do so. Not only so, Section 19 read with Section 92(2)(h) also

enables the appellant authority to make Regulations qua additives to be used

in the manufacturing of food. However the appellant authority cannot be

permitted to apply to food additives, Packaging and Labelling Regulations

made under Section 23--for food, and application whereof to food additives

would lead to ridiculous results.

47. In the light of the above, issues D and E culled out by us hereinabove

do not arise for adjudication. Therefore, without intending to return any

conclusive finding on the said aspect we may only observe that the whole

purpose of labelling is to make the persons dealing with the product aware of

the nature and character thereof. The prohibition in Section 23(1) against

the manufacturer of food products not marked and labelled in the manner

prescribed cannot possibly apply to a manufacturers of a food product

situated outside India. However, the same would apply to distribution, sale /

exposure for sale and delivery of such products in India and before which is

done, the said products would definitely be required to be labelled in the

manner prescribed. However, the responsibility for such labelling cannot be

of the foreign manufacturer of such food products and we see no bar to the

requirement of such labelling being fulfilled by the person who distributes,

sells, dispatches or delivers the said imported goods in India. In our opinion,

insistence on reshipping of the said goods to the foreign manufacturer

thereof does not serve any purpose. It would also mean, reliance being

placed on the declaration on the label by a foreigner, rather than an Indian

and which is unacceptable.

48. We thus, though for the reasons aforesaid and which are different

from the reasons which prevailed with the learned Single Judge, dismiss this

appeal and the appellant authority itself, which is the framer of the

Regulations, having misapplied the same, is burdened with costs of

Rs.20,000/-.

LPA No.711/2014

49. This appeal is preferred against the judgment dated 20 th August, 2014

in W.P.(C) No.3708/2014 preferred by the respondent No.1 / writ petitioner

(respondent No.2 is Union of India and respondent No.3 is the Additional

Commissioner of Customs). The said writ petition was filed impugning the

action of the appellant authority of holding, part of the consignment of

chocolates imported by the respondent No.1 / writ petitioner, to be non-

compliant with the Packaging and Labelling Regulations and thus refusing

the NOC to enable the respondent No.1 / writ petitioner to have the said

consignment of chocolates released from the Customs Authority. The

learned Single Judge, by the impugned judgment, directed the appellant

authority and the Customs Authorities to, after the respondent No.1 / writ

petitioner had put the requisite labels thereon, clear the said consignment,

subject to complying with other requirements.

50. The learned Single Judge, in the impugned judgment, found /

observed / held:

(i) that the respondent No.1 / writ petitioner had imported assorted

chocolates manufactured by Chocolatier Guylian N.Y.; these

chocolates which arrived at ICD, Dadri, on 3rd January, 2013, were

essentially of twenty different types;

(ii) that while four types of the said chocolates were cleared, the

appellant authority vide letter dated 5th May, 2014 refused to grant

NOC to the remaining sixteen types of chocolates on the ground that

eight types of chocolates were non-compliant with the Packaging and

Labeling Regulations for not providing the date of manufacture and

date of expiry on the label and the balance eight types were found to

be having vegetable fats and thus non-compliant with Clause 2.7.4 of

the Safety and Standards Regulations prohibiting any vegetable fat

except cocoa butter in chocolate;

(iii) that the Packaging and Labelling Regulations required the label

to indicate the date of manufacture or packaging of the commodity,

even where the „best before or use by date‟ is mentioned on the label;

(iv) that admittedly the labels on goods in question though indicated

the best before date but did not mention the date of manufacturing;

that thus the said eight types of the chocolates did indeed not comply

with the Packaging and Labelling Regulations;

(v) however, it was also the contention of the respondent No.1 /

writ petitioner that the defect was curable;

(vi) that as per the definition of label in Section 3(1)(z) of the FSS

Act, it was not necessary that a label be printed directly on the cover,

wrapper of the container but could also be attached as a sticker,

provided that the sticker conformed to Regulation 2.2.1:4 of the

Packaging and Labelling Regulations;

(vii) that the respondent No.1 / writ petitioner had furnished a

certificate from the manufacturer giving the details of the

manufacturing and the expiry dates in respect of each of the

consignment;

(viii) that thus the appellant authority could satisfy itself that the

labelling put by the respondent No.1 / writ petitioner correctly

reflected the manufacturing date on the packages;

(ix) that the purpose of providing labels could not be lost sight of--

the object of labelling the packaged products is to ensure that relevant

information regarding the product is available on the package for the

benefit of the consumers; a non-detachable sticker providing all

information would sufficiently meet this object;

(x) accordingly, the respondent No.1 / writ petitioner was permitted

to cure the defect in labelling within the customs warehouse by

affixing a non-detachable label giving all particulars as are necessary

under the Packaging and Labelling Regulations and the Customs

Authorities were directed to ensure that access to the goods was

provided to the respondent No.1 / writ petitioner to enable it to affix

the necessary labels on those goods and the appellant authority was

directed to ensure that the goods in question were cleared, once the

necessary labels had been affixed;

(xi) that the other eight types of chocolates were „filled chocolates‟

i.e. a shell made with chocolate with a filling inside;

(xii) that the chocolate shell itself did not contain any vegetable fat;

(xiii) however, vegetable fat was found in the filling and on which

basis the appellant authority had found the goods to be non-compliant

with the Safety and Standards Regulations;

(xiv) however, Regulation 2.7.4 of the Safety and Standards

Regulations indicates that in case of filled chocolates, the coating

shall be of chocolate that meets the requirement of one or more of the

chocolate types, meaning that the specification with regard to

vegetable fat has to be confined only to the chocolate shell and not to

the filling contained in the chocolate shell;

(xv) that even per Clause 2.2.2 of Codex Alimentarius Standard for

Chocolate and Chocolate Products, the centre of the chocolate is

distinct in composition from the external coating;

(xvi) that the standards prescribed for chocolate, could not be applied

to the filling therein as the filling is distinct from the outer shell;

(xvii) that the appellant authority also had accepted this view in

respect of consignments of chocolates imported by others;

(xviii) accordingly, it was directed that the said chocolates be also

cleared, subject to the respondent No.1 / writ petitioner complying

with the other requirements.

51. The appeal was entertained though no interim stay of the order of the

learned Single was granted.

52. It was the contention of the counsel for the appellant authority:

(a) that the learned Single Judge has erred in holding that the defect

in labelling could be rectified--reliance was placed on the judgments

supra of the other High Courts holding the same to be not curable;

(b) that a filled chocolate is also a chocolate and therefore should

comply with Regulation 2.7.4 of the Food Safety and Standards

Regulations;

(c) that admittedly filling in the said chocolates contain vegetable

fat in excess of the prescribed limit;

(d) that Regulation 2.7.4 supra prohibits use of vegetable fat in

excess of prescribed limit--thus, the vegetable fat in excess of the

prescribed limit cannot be permitted in the filling of the chocolate

also;

(e) that the vegetable oil / vegetable fat does not melt in human

body and is thus considered dangerous and not permitted beyond the

prescribed limit;

(f) that Chocolatier Guylian also is not putting vegetable oil even

in filling in chocolates meant for Europe and is using the same only

for chocolates meant for India.

53. The counsel for respondent No.1 / writ petitioner argued:

(I) that the appellant authority in the past had allowed

consignments of M/s Mars International India Pvt. Ltd. and M/s

Ferrero, observing that the vegetable oil was in the filling part of the

filled chocolate and the Safety and Standards Regulations and Codex

Standard were silent on the use of vegetable fat in the filling part of

the filled chocolate and had also issued a clarification dated 14 th

November, 2014 to the effect that edible vegetable oils, fats including

partially hydrogenated vegetable oils were considered as filler

material in filled chocolate;

(II) that the power of the appellant authority to issue such

clarification had been taken away by order dated 27 th August, 2014 of

the Division Bench of this Court in W.P.(C) No.3668/2013 titled Lok

Jagriti Vs. Union of India;

(III) that goods such as chocolates are perishable items and though

are required to be cleared within 24 hours but the appellant authority

delayed the release of goods;

(IV) that the alleged defect in labelling also was communicated after

five months of arrival of the consignment;

(V) that the labelling requirement arises at the time of sale, when

the goods go into the hands of the consumers and not at the time of

import;

(VI) that the appellant authority had undertaken to put suitable

stickers to comply with the requirement;

(VII) that vegetable fats have no issue of safety, as they are edible

fats commonly consumed--they are used and permitted to be used to

reduce dependency on cocoa--use of vegetable fats is also known to

improve product hardness, enhance glossiness and prolong the shelf

life of chocolates;

(VIII) that the appellant authority did not comply with the order of

the learned Single Judge, causing huge loss to the respondent No.1 /

writ petitioner as the goods expired and the respondent No.1 / writ

petitioner had to abandon the goods.

54. The counsel for the Customs contended that though the Customs

Authorities in compliance with the judgment of the learned Single Judge

were ready to release the goods but the respondent No.1 / writ petitioner did

not come forward and did not pay any duty and no NOC from the appellant

authority also was produced.

55. As would be obvious from the aforesaid, the controversy in this

appeal is twofold. The first is with respect to the curability of the defect, if

any in labelling and the second is with respect to vegetable fat.

56. As far as the first aspect is concerned, we have already in our decision

in the other appeal, though ultimately finding that the question did not arise

for adjudication therein, nevertheless expressed our view that the FSS Act

and the Regulations made thereunder cannot be binding on a foreign

manufacturer or supplier of food and considering the purpose of labelling,

the defect / deficiency in labelling in imported goods is curable. We now

confirm our said observations / findings

57. We have perused the judgment of the High Court at Calcutta, relied

upon by the appellant authority in this regard and are unable to find therein

any reason for holding, the defect in labelling to be not curable, other than

that there is no provision therefor in the Act or the Regulations.

58. We are, with respect, unable to concur.

59. The object of labelling, as per the counsel for the appellant authority

also, vis-à-vis the imported goods is to enable the appellant and other

authorities to know what the imported goods are and to, if desire to satisfy

themselves as to the veracity of the declaration on the label, carry out the

requisite tests.

60. We have wondered that if the appellant authority is willing to accept

the declaration on the label affixed by the foreign supplier / manufacturer at

the time of dispatch of goods to India, what could be the objection of the

appellant authority, in the event of the same not furnishing any other

particulars, in allowing the foreign supplier / manufacturer, before the goods

are released in India, through any of the modes of communication now

available, furnishing the said particulars. Similarly, we are unable to

understand the objection of the appellant authority to in allowing the Indian

importer of goods making up the said deficiency. No sanctity to the process

of affixing label prior to receipt in India of the goods has been explained.

Labels, in compliance of other laws viz. as to maximum retail price etc. are

in any case put in India, on the imported goods.

61. As far as the reasoning accepted by the Calcutta High Court, of there

being no provision in the FSS Act permitting making up of the deficiency, is

concerned, Section 23 which is the relevant provision, in Sub-Section (1)

thereof contains a prohibition and in Sub-Section (2) contains an obligation

in this regard. While the prohibition is on the manufacturer, distributor,

seller, retailer, dispatcher, the person making delivery, agent, broker, from

manufacturing, distributing, selling, offering for sale, dispatching delivery,

packaged food products which are not marketed or labelled in the manner

prescribed, the obligation to ensure that the labelling and packaging does not

mislead the consumer, is of the "food business operator". A "food business

operator" is defined in Section 3(1)(o) as a person by whom the business is

carried on or owned and is responsible for ensuring compliance with the

provisions of the FSS Act and the Rules and Regulations made thereunder.

As aforesaid, the FSS Act cannot and does not have extra-territorial

operation, i.e. outside India. Thus, a food business operator, in relation to

imported goods can be only a person in India who has imported the said

goods and who distributes or sells the same in India and cannot be the

foreign manufacturer or supplier or exporter of such goods. Section 25 also,

prohibits import into India of any unsafe or misbranded or substandard foods

or in contravention of the provisions of the Act or any Regulation made

thereunder. We can understand, that non-compliance of some of the

packaging regulations to ensure safety of goods may not be rectifiable as the

damage from non-compliant packaging may already have been done.

However, we fail to see the harm if any in allowing any defect / deficiency

in labelling being permitted to be made up, in respect of imported goods, in

India. We find no prohibition thereagainst in the Act or any Regulations. In

our opinion, in case of imported foods, the obligation to comply with the

provisions of the Act and the Regulations thereunder with respect to

labelling is of the food business operator in India who imports the goods or

otherwise deals with them first after their arrival in India and thus the said

obligation can be permitted to be performed in India.

62. We otherwise also see no purpose in insistence on the goods found

deficient/defective qua labelling being re-shipped to the manufacturer to

enable him to cure the said defect when such defect can be cured by him or

anyone on his behalf, across oceans, in India itself.

63. As far as the aspect of vegetable oil / vegetable fat is concerned,

Regulation 2.7.4 of the Safety and Standards Regulations, under Chapter 2

thereof titled "Food Product Standards", with respect to the chocolate, is as

under:

"2.7.4: Chocolate Chocolate means a homogeneous product obtained by an adequate process of manufacture from a mixture of one or more of the ingredients, namely, cocoa beans, cocoa nib, cocoa mass, cocoa press cake and cocoa dust (cocoa fines/powder), including fat reduced cocoa powder with or without addition of sugars, cocoa butter, milk solids including milk fat. The chocolates shall not contain any vegetable fat other than cocoa butter.

The material shall be free from rancidity or off odour, insect and fungus infestation, filth, adulterants and any harmful or injurious matter.

The chocolates shall be of the following types:--

Milk chocolates is obtained from one or more of cocoa nib, cocoa mass, cocoa press cake, cocoa powder including low-fat cocoa powder with sugar and milk solids including milk fat and cocoa butter.

Milk Covering Chocolate - as defined above, but suitable for covering purposes.

Plain Chocolate is obtained from one or more of cocoa nib, cocoa mass, cocoa press cake, cocoa powder including low fat cocoa powder with sugar and cocoa butter.

Plain Covering Chocolate-same as plain chocolate but suitable for covering purposes.

Blended Chocolate means the blend of milk and plain chocolates in varying proportions.

White chocolate is obtained from cocoa butter, milk solids, including milk fat and sugar.

Filled Chocolates means a product having an external coating of chocolate with a centre clearly distinct through its composition from the external coating, but does not include flour confectionery pastry and biscuit products. The coating shall be of chocolate that meets the requirements of one or more of the chocolate types mentioned above. The amount of chocolate component of the coating shall not be less than 25 per cent of the total mass of the finished product.

Composite Chocolate-means a product containing at least 60 per cent of chocolate by weight and edible wholesome substances such as fruits, nuts. It shall contain one or more edible wholesome substances which shall not be less than 10 per cent of the total mass of finished product:

Provided that it may contain artificial sweeteners as provided in regulation 3.1.3 and label declaration as provided under regulation 2.4.5 (24, 25, 26, 28 & 29) of Food Safety and Standards (Packaging and Labelling) Regulations, 2011:

Provided further that in addition to the ingredients mentioned above, the chocolate may contain one or more of the substances as outlined below, under different types of chocolates.

(a) edible salts.

(b) spices and condiments.

(c) permitted emulsifying and stabilizing agents.

(d) permitted sequestering and buffering agents. The product may contain food additives permitted in these regulations including Appendix A.

Chocolates shall also conform to the following standards namely:--

  Sl. Characteristics                             Requirements for
  No.

                             Milk       Milk      Plain      Plain   White    Blended
                             Chocolate   Covering       Chocolate Covering   Chocolate
                             Chocolate
  1. Total fat (on dry                 Chocolate           Chocolate
  basis)                     25         25        25       25         25       25
     per cent by weight.
    Not less than
  2. Milk fat (on dry basis) 2           2          -       -          2        -
     Per cent by weight.
     Not less than
  3. Cocoa solids (on        2.5        2.5        12       12          -     3.0
    Moisture-fee and fat
    free basis) per cent by
   weight


      Not less than
    4. Milk Solids (on        10.5      10.5      -         -         10.5     1
      Moisture-fee and fat-
      free basis) per cent
     by weight                -         -         -         -          -       9
     Not less than/not more
     than
    5. Acid insoluble ash     0.2       0.2      0.2       0.2        0.2     0.2
      (on moisture fat and
       Sugar free basis)
      per cent by weight
       Not more than
"

                                                                 (emphasis added)

64. It is clear from a plain reading of the aforesaid provision, that there is

a prohibition against chocolates containing any vegetable fat other than

cocoa butter.

65. The learned Single Judge however, relying on the description of filled

chocolates as having an external coating of chocolate with a centre clearly

distinct in composition from the external coating and from the further

prescription with respect to filled chocolate that "the coating shall be of

chocolate that meets the requirements of one or more of the chocolate types

mentioned above" has held that the prohibition against chocolate not

containing any vegetable fat/oil other than Cocoa Butter is only in the

composition of the chocolate and does not prohibit vegetable fat/oil other

than Cocoa Butter from being filled inside a chocolate shell/covering.

66. We however have the following reservations with respect to the

aforesaid interpretation by the learned Single Judge of Regulation 2.7.4

supra:

(A) The prohibition in the definition of chocolate, against the same

containing any vegetable fat/oil other than Cocoa Butter is worded in

very wide language and the expression "shall not contain.....any

vegetable fat/oil" would include within its ambit vegetable fat/oil

being contained inside the chocolate though not in the composition of

chocolate.

(B) The prescription in the description of filled chocolate is that the

coating/shell thereof shall be of chocolate that meets the requirement

of one or more of the chocolate types "mentioned above". The

chocolate types "mentioned above" are milk chocolate, milk covering

chocolate, plain chocolate, plain covering chocolate, blended

chocolate and white chocolate. The requirement in each of the said

types of chocolates is de hors the prohibition qua vegetable fat/oil

other than Cocoa Butter - the said requirements cannot dilute the

absolute prohibition against chocolates containing any vegetable

fat/oil other than Cocoa Butter but in the general

definition/description of chocolates.

(C) The language of Regulation 2.7.4 commonly understood would

be of there being a prohibition against chocolates containing vegetable

fat/oil other than Cocoa Butter--a chocolate containing vegetable

fat/oil other than Cocoa Butter, though not in its composition but

inside it would nevertheless be understood as chocolate containing

vegetable fat/oil.

(D) If consumption of vegetable fat/oil other than cocoa butter, by

the consumers of chocolate is harmful so as to require the appellant

authority to ban the same in chocolate, the said harm would still be

caused by the vegetable fat / oil filled inside the chocolate rather than

being homogeneously mixed with the other ingredients of the

chocolate in its composition.

(E) A chocolate with the filling of vegetable fat would also be sold

and marketed as chocolate only and nothing else and a

buyer/consumer thereof is likely to assume that the same in

accordance with Regulation 2.7.4 does not contain any vegetable fat

other than cocoa butter, thereby prejudicing the consumer interest.

(F) Our limited knowledge is that vegetable fat/oil are associated

with bad cholesterol and risk of coronary heart disease. Perhaps

vegetable fat/oil other than cocoa butter were prohibited in chocolates,

being considered as bad for children perceived at least in our country

as the largest consumer of chocolates, though we have strong doubts

about such perception itself.

(G) If it were to be held that the prohibition against chocolate

containing vegetable fat/oil other than Cocoa Butter does not extend

to anything contained inside a chocolate covering / shell, it would

mean that nearly anything, even non-vegetarian products, can be

„contained‟ inside the chocolate.

(H) Had the legislative intent been to exclude vegetable fat/oil other

than Cocoa Butter, only from the mixture/composition constituting

chocolate, Regulation 2.7.4 would have while defining the contents of

the mixture excluded vegetable fat other than cocoa butter therefrom

and a separate prohibition using the word "contain" would not have

been necessary.

(I) The word "contain", in Shorter Oxford Dictionary, 6th Edition

is explained as, „having in it‟, „include as a part of the content‟,

„comprise‟, „have inside itself‟ and would take within its ambit

vegetable oil filling inside the chocolate shell.

(J) The chocolate content in a filled chocolate can be as low as

25%, leaving as much as 75% to comprise of other vegetable fat

which though is not deemed good enough for being in the

homogeneous mixture comprising chocolate but is permitted to be

concealed inside chocolate, thereby misleading the consumers.

(K) In comparison, a composites chocolate, described "after" filled

chocolate, is required to have at least 60% content of chocolate and

remaining of other substances.

(L) We have not been able to fathom as to what difference it makes

whether the vegetable oils / vegetable fats other than cocoa butter are

contained in homogeneous product constituting chocolate or in a

cavity inside the said chocolate. It is not the argument that the

qualities / characteristics / effect of vegetable oil / vegetable fat other

than cocoa butter change upon being mixed with other ingredient of a

chocolate, so as to become harmful, while on itself being not harmful.

67. At the same time, our research shows:

(a) There appears to be no bar per se against the consumption of

vegetable fats / oils other than cocoa butter; if that were so, we fail to

understand as to why the consumption thereof as a filling inside a

chocolate should be barred.

(b) At least some material available on the internet indicates that the

prohibition against use of vegetable fats other than cocoa butter in

chocolate all over the world had more to do with maintaining the

quality, flavor and taste of chocolate and for the benefit of the

cultivators of the cocoa bean, than for the harmful effects of vegetable

fats, though mention at places is also made of more harmful effects of

vegetable fats other than cocoa butter.

(c) Though prior to 2nd August, 2003, the European Union had

prohibited use of vegetable fats in chocolate throughout its member

states, since August 2003, certain vegetable fats (refined and /or

fractioned) to the extent of five percent are permitted in chocolate

(d) Addition of vegetable fat other than cocoa butter, whether as a

component of chocolate mixture or as a filling inside a chocolate shell

is reported to reduce/ avoid „blooming‟ of chocolates, increase shelf

life of chocolates and add to the sheen/gloss of the chocolate; and to

solidify the chocolate, all the said factors are beneficial to the

distribution and sale of chocolate in India with its high climatic

temperatures and vast distribution network requiring long shelf life.

(e) Vegetable fats being considerably cheaper than cocoa butter,

also help reduce the price of chocolate.

(f) The High Court of Andhra Pradesh in Sanka Ravi Gopal Vs.

The State of A.P MANU/AP/1022/2011 relying upon a judgment of

the Jharkhand High Court has taken the same view as the learned

Single Judge while dealing with clause A 25.03 of Appendix B

(definitions and standards of quality) to the Prevention of Food

Adulteration Rules, 1955 with respect to chocolate and found to be

identical to Regulation 2.7.4 (Supra) and held that in standards fixed

for preparation of the filled chocolate that there was no prohibition of

the filled part of chocolate containing hydrogenated vegetable fat and

that it was only the chocolate portion which should not contain

vegetable fats. (The Prevention of Food Adulteration Act, 1954

whereunder the Prevention of Food Adulteration Rules, 1955 were

framed stand repealed vide the FSS act. It appears that the appellate

authority has merely copied the standard of chocolate from the PFA

rules supra which were drafted when all the chocolate producing

nations had prohibited the chocolates from containing vegetable fat

and without noticing the change brought about in the said nations in

the year 2003).

(g) With respect to a matter of safety standards of food items

consumed all over the country, it is expedient that the standards are

understood as the same all over the country and there is no

inconsistency.

68. We have hereinabove recorded the thoughts which come to our mind.

The subject is required to be dealt with by the experts and a body of which,

i.e. the appellant authority has been established and it is not for us to take a

final call on the matter. Though we could have in exercise of powers under

Article 226 of the Constitution of India also directed the appellant authority

to so decide but we find that section 18 of the FSS act containing the general

principles to be followed in administration of the Act, also in clause (c) of

subsection (1) thereof permits a call on a persisting uncertainty, to be taken

and in the interregnum make such arrangements as maybe appropriate. We

accordingly direct the appellant authority to in accordance with Section 18

and after considering all the relevant factors including those highlighted by

us hereinabove decide whether a filling of vegetable fat other than cocoa

butter and to what extent is permitted in filled chocolates. We deem time of

six months to be appropriate therefor. The said decision be accordingly

taken within six months of today.

69. Section 18(2) also requires the appellant authority to take into account

prevalent practices, international standards and practices. Our research

shows that the "Guidance on Cocoa and Chocolate Products Regulations,

2003" published by the Food Standards Agency of the United Kingdom, in

clause 7 thereof states that the Regulations allow the use of specified

vegetable fats other than cocoa butter upto a maximum on five percent in the

preparation of chocolate products including in filled chocolates. It thus

appears that internationally, vegetable fat other than cocoa butter, though are

permitted in chocolates including as filling in filled chocolates but only of

certain type and subject to maximum limits of 5%of the total content. The

appellate authority while taking the decision aforesaid, may consider the said

aspect also.

70. The next question which arises is of the interim arrangement to be

made till the appellant authority so takes a decision. Having given our

thought to the matter and particularly in light of:

(I) There being no per se prohibition against consumption

vegetable fats other than cocoa butter.

(II) At least two other High Courts besides the Learned Single

Judge of this Court having taken a view that prohibition against

vegetable fats in chocolates does not apply to a filling inside a

chocolate.

We are of the view that for the said period of six months, the

view taken by the Learned Single Judge in this regard be allowed to

prevail.

71. As far as the reliance by the respondent No.1 / writ petitioner on the

clearance earlier accorded to chocolates filled with vegetable fat of M/s

Mars International India Pvt. Ltd. and M/s Ferrero India Pvt. Ltd. and the

clarification issued is concerned, the same does not come in the way of the

appellant authority refusing NOC to chocolates containing vegetable oil /

vegetable fat, even as a filling, if otherwise the same is prohibited under the

Regulations. There can be no estoppel against a statute. Even otherwise, a

past mistaken view of the appellant authority cannot be held to bind the

appellant authority. Similarly, an administrative clarification issued cannot

override a statutory regulation. Supreme Court, in Vishal Properties Pvt.

Ltd. Vs. State of U.P. (2007) 11 SCC 172 has held that no Authority can be

directed to repeat the wrong illegal action done earlier and a mistake cannot

be perpetuated on the ground of discrimination and hardship. To the same

effect is, Maharishi Dayanand University Vs. Surjit Kaur (2010) 11 SCC

159. Recently in UOI Vs. Ashok Kumar Aggarwal 2013(14) SCALE 323 it

was also reiterated that an Authority cannot issue executive instructions in

contravention of statutory rules.

72. As far as the argument of the counsel for the respondent No.1 / writ

petitioner of delays is concerned, we need only to observe that we do indeed

find considerable delay on the part of the appellant authority in dealing with

the application of the respondent No.1 / writ petitioner for NOC for the

subject goods. The appellant authority ought to keep the shelf life of the

goods into consideration in this regard and cannot in its red-tapism make the

goods redundant and of no value. The appellate authority to in future deal

with such request in right earnest and without any delays. We however do

not deem it appropriate to render any conclusive finding in this regard and

leave it open to the respondent No.1 / writ petitioner to, if so desires take

appropriate action against the appellant authority for the losses, if any

caused to the appellant authority.

73. LPA No.711/2014 is accordingly partly allowed to the aforesaid

extent with no order as however as to costs.

74. SUMMARY: The length of the judgment having stretched beyond

intended, we deem it appropriate to summarise our findings as under:

A. A Food Additive, as defined in the FSS Act is distinct from

food, also as defined in the Act.

B. The FSS Act deals with food as well as Food Additive and

empowers the appellate authority to exercise specified powers with

respect to Food Additive also.

C. While some of the provisions of the FSS Act are with respect to

foods only and others are with respect to Food Additive only, yet in

context of some other provisions, food additive are included in foods.

D. Section 23 of the FSS Act titled "Packaging and Labelling of

Foods" is with respect to food only and not with respect to food

additive.

E. Axiomatically the Packaging and Labelling Regulations made

in exercise of power under Section 23 are with respect to foods only

and not applicable to food additive.

F. The appellate authority, if so deems necessary to make

Regulations concerning Food Additive, is empowered to make the

same under Sections 16 and 19.

G. However without making the Regulations to cater specifically

to the Food Additives, the appellate authority cannot apply Packaging

and Labelling Regulations meant for foods, to Food Additive, leading

to anomalous results.

H. The defect in labeling qua the imported goods are curable in

India, before the goods are released by the customs authorities.

I. The question, whether the prohibition in Regulation 2.7.4 of the

Safety and Standard Regulations against chocolates containing

vegetable fat other than cocoa butter applies also to the filling in the

filled chocolates has been referred back to the appellate authority for

taking decision in accordance with observations in the judgment,

within six months of today.

J. Till the appellate authority takes such decisions, the view taken

by the learned Single Judge and which is also found to be the view

with respect to identical standards of chocolates under the old

legislation will prevail i.e. the appellant authority will not consider

filled chocolates to be in violation of Regulation 2.7.4 of the Safety

and Standards Regulations for containing vegetable fat other than

Cocoa Butter in the filling.

K. The appellant authority is directed to henceforth process the

applications for NOC for release of imported foods/food additives

from Customs Authorities on day-to-day basis, without any delay and

having regard to the shelf life thereof.

75. LPA 659/2014 is dismissed with costs of Rs.20,000/- to the

respondent No.1 / writ petitioner.

76. LPA No.711/2014 is partly allowed in terms of above.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE APRIL 22, 2015 „gsr/bs‟