Jharkhand High Court
Dharampal Satyapal Limited vs The Union Of India Through ... on 28 August, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 3346 of 2022
1. Dharampal Satyapal Limited, a company registered under the
Companies Act, 1956, having registered office at 98, Okhla Industrial
Estate, Phase-3, New Delhi-110020, P.O./P.S. Okhla, District-New
Delhi through its Director Mr. Pawan Kumar Goyal, male, aged about
54 years, S/o. Late Shri Ram, R/o. I-1/33,Jai Mata Gali, Phase-1,
Budh Vihar, Sultanpuri, C-Block, N.W. Delhi, P.O. Sultanpuri, P.S.
Vijay Vihar, District New Delhi-110086.
2. Sri Pawan Kumar Goyal, male, aged about 54 years, Director,
Dharampal Satyapal Limited, resident of I-1/33, Jai Mata Gali Phase-
1, Budh Vihar, Sultanpur, C-Block, N.W. Delhi, P.O. Sultanpuri, P.S.
Vijay Vihar, District New Delhi-110086.
... ... ... Petitioners
Versus
1. The Union of India through Secretary, Ministry of Health and Family
Welfare, Government of India, Nirmal Bhawan, P.O. Nirmal Bhawan,
P.S. Central Secretariat, District Central Delhi, New Delhi 110011.
2. The State of Jharkhand through the Chief Secretary, Government of
Jharkhand, having its office at 1st Floor, Project Building, Dhurwa,
P.O. and P.S. Dhurwa Town, District Ranchi, Jharkhand.
3. The Additional Chief Secretary cum State Food Safety
Commissioner, Department of Health and Family Welfare,
Government of Jharkhand, having its Registered Office at Nepal
House, Doranda, P.O. & P.S. Doranda, Town and District Ranchi,
Jharkhand.
4. The Director General of Police, Jharkhand Police Head Quarters,
Dhurwa, P.O. and P.S. Dhurwa, District Ranchi 834004.
... ... ... Respondents
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CORAM: SRI SANJAYA KUMAR MISHRA, C.J.
SRI ANANDA SEN, J.
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For the Petitioners: Mr. Vivek Kohli, Sr. Advocate
M/s. Sanjai Pathak, Indrajit Sinha, Aashish
Kaushik, Anjali Sinha, Advocates
For the UOI: Mr. Anil Kumar, Addl. S.G.I.
Mr. Vikash Kumar, C.G.C.
For the State: Mr. Jai Prakash, A.A.G.-1A
Ms. Omiya Anusha, A.C. to A.A.G.-1A
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Reserved on: 12.07.2023 Pronounced on: 28.08.2023
Per S. K. Mishra, C.J.
1) By filing this writ petition, the petitioners, being a private limited
company registered under the provisions of the Companies Act, 1956
and another being its Director, have prayed to issue a declaration that
Section 30(2)(a) of the Food Safety and Standards Act, 2006
(hereinafter referred to as 'the FSS Act" for brevity), is ultra vires of the
said Act and suffers from vice of excessive delegation as it confers an
independent source of legislation and power of policy decision upon the
Commissioner of Food safety and empowers him to prohibit completely,
without issuing any show-cause notice, the Trade and Commerce and
other allied activities in the food products permanently which is contrary
to the substantive provisions of the aforesaid Act.
The petitioners also seek a declaration that that the
impugned provision, as mentioned above, is in the teeth of the
constitutional prohibition as contained in Article 13(2) of the Constitution
of India, 1950 and is also violative of constitutional guarantee regarding
right of freedom of Trade and Commerce in the territory of India under
Article 301, Part XIII of the Constitution of India, 1950.
The petitioners further pray a consequential declaration that
the notification dated 03.06.2022 as unconstitutional, unenforceable and
illegal and to issue a writ certiorari quashing the said notification being
contrary to the law laid down by the Hon'ble Supreme Court in the case
of Godawat Pan Masala Products I.P. Ltd. and another vs. Union of
India and others, (2004) 7 SCC 68, and also being ultra vires of the
FSS Act, for not issuing any show-cause notice to the parties effected,
before taking a decision on such an issue. Other similar prayers have
been made by the petitioners.
2) On 23.08.2006, the Food Safety and Standards Act, 2006 was
enacted by the Parliament and it came into force on 1st August, 2011.
The Ministry of Health and Family Welfare in exercise of powers
conferred under Clause (e) of sub-section (2) of Section 92 read with
Section 16 of the FSS Act, enacted the Food Safety and Standards
(Food Products and Food Additives) Regulations, 2011. On
15.08.2011 of the Jharkhand Food Safety and Standards Rules, 2000
came into force. On 05.09.2016, a notification amending Food Safety
and Standards (Food Products and Food Additives) Regulations, 2011,
was issued. On 18.01.2017, Food Safety and Standards (Food Recall
Procedure) Regulation, 2017 was enacted. In the meantime, the Goods
and Services Tax (Compensation to States) Act, 2017, was enacted. On
08.05.2020, the State Government vide Notification No.16/Khadya
(Vividh)-12-06/2017-84(16) imposed prohibition on manufacture,
storage, distribution of sale of Rajnigandha Pan Masala along with 10
other brands of Pan Masala for one year. Vide Notification No.93(16)
issued on 28.05.2021, the said prohibition was extended for one year on
the said Pan Masala along with 10 other brands of Pan Masala. On
03.06.2022 again by virtue of impugned notification, the said prohibition
on the aforesaid Pan Masala along with 10 other brands was extended
for one year. Hence, this writ application was filed by the petitioners
seeking the aforesaid reliefs.
3) At the outset, Mr. Jai Prakash, learned A.A.G.-1A, appearing for
the State of Jharkhand, would submit that the writ application has
become infructuous as the last date of the said notification has come to
an end on 30thof June, 2023. However, we are of the opinion that the
aforesaid notification did not only prohibit the sale of the aforesaid Pan
Masala but it also by virtue of the provisions contained in the FSS Act
made the storage, productions, sale, etc of the aforesaid Pan Masala a
criminal offence and, therefore, by virtue of the operation of the three
identical notifications for three consecutive years, criminal liability as
well as civil liability has already arisen which cannot be said to have
become infructuous because of the afflux of time in completion of the
outer limit of the notification. Hence, we took up the case on merits for
adjudication.
4) The petitioners claim that the Commissioner of Food Safety has
issued three consecutive prohibitory orders/notifications on 08.05.2020,
28.05.2021 and 03.06.2022 under Section 30(2)(a) of the FSS Act
imposing prohibition of Rajnigandha Pan Masala and some other
brands of Pan Masala. The duration for these prohibitions was for one
year from the date of notifications. All these three prohibitory orders
were passed on identical ground that Magnesium Carbonate was
detected in some samples of Rajnigandha and other brands of Pan
Masala analyzed in the State Food Testing Laboratory in 2019-20.
5) Being aggrieved by the three consecutive prohibitory orders and
the coercive action taken by the police and Food Safety Department
against the standardized food products, the petitioners approached this
Court.
6) The petitioners claim that those prohibitory orders were illegal,
arbitrary and non est, as the FSS Act does not treat Magnesium
Carbonate as injurious to health. It is the positive case of the petitioners
that Magnesium Carbonate is not per se injurious to health. It is a
permitted additive in all the items of Food according to the Goods
Manufacturing Practices (GMP). The USFDA recognizes that
Magnesium Carbonate meets the specifications of foods chemicals
Codex. It is used as an anti-caking and free flow agent; flour treating
agent; a lubricant and release agent; a nutrient supplement; pH control
agent; and a processing aid. Under the Food Safety and Standards
(Food Products and Food Additives) Regulations, 2011, a list of food
additives with International Numbering System (INS) is given and
Magnesium Carbonate is mentioned under Appendix B, after Table 7 at
serial number 362 (list sorted by INS number) and 267 (list sorted
alphabetically) as a recognized acidity regulator, anti-caking agent and
colour retention agent.
There is no objective material on record to show that due to
consumption of Rajnigandha Pan Masala, any "adverse public health
situation" had arisen in Jharkhand or any area thereof. The term "public
health" cannot be interpreted subjectively according to the personal
whims of Food Commissioner of the State.
7) The FSS Act or the regulations framed thereunder do not forbid
presence of Magnesium Carbonate in Pan Masala. Despite repeated
questions by the Court, the learned Senior Counsel for the petitioners
would argue in course of hearing of the case that the respondents could
not point out any provision from the FSS Act which forbids presence of
Magnesium Carbonate in Pan Masala. It is also submitted by the
petitioners that Food Additives are defined under Section 3(k) and their
uses are permitted according to Section 19 of the FSS Act. Food Safety
and Standards (Food Products and Food Additives) Regulation, 2011
as amended from time to time contains relevant provisions which
provide a different covenant and Pan Masala does not prohibit presence
of Magnesium Carbonate. Regulation 3.1.1(1) under Chapter 3 deals
with Food additives which says that the food additives listed herein
are recognized as suitable for use in foods, safe and technologically
justified. Regulation 3.1.1(2) provides for foods in which additives may
be used. Regulation 3.1.1(3) provides for foods in which additives may
not be used. Regulation 3.1.1(8) defines GMP. It is further submitted
before us that the regulation contains GMP Table provisions for all food
categories which lays that the food additives as indicated herein may
be used in all food categories except those categories listed in the
Annex to GMP list under the conditions of GMP as outlined in 3.1(8).
Magnesium Carbonate is specifically mentioned in the Table of food
additives. Annex to GMP table specify food categories where GMP
table shall not apply. Pan Masala is not mentioned thereunder.
Additionally, learned Senior Counsel for the petitioners would submit
that the statutory procedure for collection of samples and analysis
thereof by accredited laboratories was not followed in 2019-20. Section
43 of the FSS Act prescribes accredited food laboratory for analysis of
samples by the food analysts under the Act. Section 46(4) provides right
of appeal against the report of Food Analyst. Section 47 prescribes
procedure for sampling and analysis. The alleged analysis reports of
Rajnigandha pertaining to the period 2019-20 were not placed on record
by the respondents and the respondents failed to show compliance of
Sections 43, 46 and 47 of the FSS Act. The State Food Laboratory was
not accredited as per Section 43 during 2019-20. The learned Senior
Counsel would further submit that if a statute provides for a thing to be
done in a particular manner, it has to be done in that manner alone. The
learned Senior Counsel would further submit that the respondents
suppressed the analysis report of duly accredited National Food
Laboratory, Kolkata (NLF) which reported that Magnesium Carbonate
was found absent in Rajnigandha Pan Masala. Samples of Rajnigandha
Pan Masala were sent on behalf of the respondent Nos.2 and 3 to NFL.
The analysis reports of NFL dated 02.11.2021 and 13.05.2022 reported
test for Magnesium Carbonate as negative, which are available at
pages 21 & 22 of I.A. No.4235 of 2023. Despite these reports, the
prohibition order was extended in 2021 and 2022. The learned Senior
Counsel would further submit that the counter affidavit dated 08.09.2022
filed by the respondent Nos.2 and 3 also suppressed this material
evidence. The learned Senior Counsel for the petitioners would further
submit that the respondents cannot be permitted to depart from the
reason mentioned in the impugned prohibition orders by supplying
different material and improving upon the facts from other jurisdiction in
the counter affidavit. It is submitted that prohibition against Rajnigandha
Pan Masala was imposed only on the ground that Magnesium
Carbonate was detected in some samples thereof in 2019-20 and
presence of Magnesium Carbonate in Pan Masala contravenes the
provisions of the FSS Regulations, 2011. Scientific research was also
mentioned in the impugned prohibition orders although nothing was
produced on record by the State. In the counter affidavit filed by the
respondents, some unverified reports from other jurisdictions were
relied upon to support the impugned notifications.
In this connection, the learned Senior Counsel has relied
upon several judgments which shall be dealt with later on while we
given opinion on the issues under litigation. The learned Senior Counsel
would also submit that exercise of power under Section 30(2)(a) of the
FSS Act lays down the powers and functions to be performed by the
Commissioner of Food Safety, but it does not provide any guideline or
procedure to exercise such function or powers by the administrative
officer. It is, therefore, submitted that unless a reasonable procedure
consistent with principles of natural justice or some other guiding
principles for exercise of functions of prohibition is found within the
scheme of the FSS Act, Section 30(2)(a) would become unconstitutional
for conferring arbitrary and uncanalised power upon an administrative
authority. Section 34 of the FSS Act provides for a procedure consistent
with the principles of natural justice for exercise of function under
Section 30(2)(a) of the FSS Act. Section 34 lays down the procedure of
satisfaction required to be arrived at by the designated officer before
submitting a report to the Commissioner of Food Safety. If Section
30(2)(a) is interpreted as an independent power of prohibition without
giving any opportunity of hearing to the affected party/parties, as
submitted by the State, it is liable to be declared unconstitutional.
Relying upon the reported case of A.N. Parasuraman and Ors Vs.
State of Tamil Nadu, (1989) 4 SCC 683, the learned Senior Counsel
appearing for the petitioners would submit that function under Section
30(2)(a) of the Act can be delegated to the junior officers under Section
30(3) of the Act. Thus, it implies that the function of under Section
30(2)(a) cannot be construed to be a power to announce a policy of
prohibition. Ultimately, the learned Senior Counsel for the petitioners
would submit that the issuance of notice prohibiting storage, sale,
production, etc of the Pan Masala in question is a colourable exercise of
function under Section 30(2)(a) of the Act by the respondents and,
therefore, it is being a selective prohibition against a few brands of Pan
Masala is on non-existent ground, creates a "policy arbitrage" in favour
of the other brands. Therefore, the learned Senior Counsel prays for
reliefs as mentioned above.
8) The respondents in this case took a plea that in the financial year
2019-20, owing to detection of Magnesium Carbonate in 11 brands of
Pan Masala, pursuant to the collection, testing and analysis of 41
samples of Pan Masala from different districts of the State of Jharkhand,
the manufacturing, storage, distribution or sale of the said 11 Pan
Masalas has been prohibited in the public interest, vide, notifications of
the years2020, 2021 and 2022 as has been described in the preceding
paragraphs. The respondents claim that Rajnigandha Pan Masala was
found to contain Magnesium Carbonate on testing in Maharashtra in
2005 vide Rajiv Kumar Gupta and others Versus State of
Maharashtra, 2006 CriLJ 581. It was also found to contain nicotine on
testing by CTRI Lab even more than pure tobacco products in Ankur
Gutkha Vs. Indian Asthma Care Society & Others, (2011 SCC
OnLine SC 1612). The Government of Maharashtra between the years
2003 and 2011 collected 1173 samples of different brands of Pan
Masala and on testing 1153 samples was found to contain Magnesium
Carbonate including products manufactured by the petitioners. In this
connection, Maharashtra Notification dated 18.07.2013 is relied upon.
Rajnigandha Pan Masala was found to contain Magnesium Carbonate
as carnosine colour on testing in Uttarakhand in the year 2017.
Rajnigandha Pan Masala collected from different districts of Bihar were
found to contain Magnesium Carbonate as an ingredient. It was also
found to contain nicotine in National Tobacco Testing Laboratory (NITL),
NOIDA (UP). The consistent presence of Magnesium Carbonate is in
contravention of FSS Act and Regulation 2.11.5 of the Food Safety and
Standards (Food Products and Food Additives) Regulations, 2011 and
Regulation 2.3.4 of the Food Safety and Standards (Prohibition and
Restrictions on Sales) Regulations, 2011. It is also stated that
Magnesium Carbonate is not specified as an ingredient of Pan
Masala. The Hon'ble Supreme Court in the case of Central Areca-
nut Marketing Corporation and others Versus Union of India
and others [T.C.C. No.01 of 2010, leading case in the batch of
several petition including S.L.P. No.16308 of 2007] passed an
order recording and directing that Secretaries, health Department
of all the States and Union Territories for issuance of total
compliance of the ban imposed on manufacturing and sale of
Gutkha and Pan Masala with Tobacco and/or nicotine. Relying
upon the observations made by the Hon'ble Supreme Court in
Centre for Public Interest Litigation Versus Union of India and
others, (2013) 16 SCC 279, vide judgment dated 22.10.2013, the
learned counsel for the respondents would further submit that any
food article which is hazardous or injurious to public health is a
potential danger to the fundamental right to life guaranteed under
Article 21 of the Constitution of India. Mr. Anil Kumar, learned Addl.
Solicitor General of India appearing for the respondent-Union of
India, would submit that a paramount duty is cast on the States
and its authorities to achieve an appropriate level of protection to
human life and health which is a fundamental right guaranteed to
the citizens under Article 21 read with Article 47 of the Constitution
of India. Therefore, it is submitted that the writ application should
be dismissed.
9) On the basis of the pleadings raised as enumerated above, the
following are the mixed questions of law and facts in this case:-
(i) Whether the Commissioner of Food Safety in exercise of
powers under Section 30(2)(a) of the Food Safety and
Standards Act, 2006 can take a decision which is contrary
to the specific provision of the Parent Act and Regulations
made thereunder?
(ii) Whether an order under Section 30(2)(a) of section 34 of
the FSS Act should precede by notice to show cause
contemplating such an action?
(iii) Whether the action of completion prohibition on
manufacture, sale, transport, distribution of any brand for
an indefinite period is contemplated under any of the
provisions of the FSS Act, 2006?
(iv) Whether the permission under the relevant Regulation with
regard to Magnesium Carbonate to be used as food
additive leads to a natural corollary that the same is not
injurious to health?
(v) Whether the Commissioner, Food Safety can base any
prohibitory order for indefinite period on account of an ex
parte collection of samples and food collected in the years
2019 and 2020?
(vi) Whether the issuance of prohibitory orders on year to year
basis for the third time in succession by the Commissioner
of Food Safety amounts to a fraud upon the Statute and
amounts to colourable exercise of powers?
10) At the very outset, we note here that petitioner No.1 in this case is
a Company and, therefore, the provisions of Section 179 of the
Companies Act, 2013 corresponding to Section 213 of the Companies
Act, 1956 should be complied with. This is to say that before filing a writ
application, a resolution of the Board is necessary. But the Orissa High
Court in M/s. Jindal Steel & Power Limited & another Vs. State of
Orissa and others (Writ Petition No.6068 of 2009, dated 02.11.2020),
authored by one of us, namely, S.K. Mishra, J., has held that it is a
curable defect. In this case, while the matter was taken up in the first
instance, this issue should have been noted by the Court, but, instead,
this Court directed for filing of counter affidavit and, thereafter, pleadings
have been exchanged. Supplementary pleading has also been given.
So, at this stage, dismissing the writ application only for non-compliance
of the curable will defeat the interest of justice. Hence, we are not
inclined to hold that the writ application as laid is not proper.
11) Dealing with the questions framed by us at paragraph 10, we
propose to take up question Nos. (i), (ii) and (iii).
At the outset, the learned Senior Counsel for the petitioners
would submit that the absolute power, as propounded by the learned
Senior Counsel for the respondents, on the Commissioner of Food is
excessive delegation of power and, therefore, unconstitutional, has to
be considered on its own merits.
In course of hearing, Mr. Anil Kumar, the learned Additional
Solicitor General of India appearing for the Union of India, has,
however, defending the provisions of the FSS Act, especially Section
30(2)(a) thereof, would submit that the Act itself contains safeguards for
the use of the powers.
12) For the convenience of understanding the various provisions in
the light of the argument advanced, this Court takes note of the
preamble of the Act which provides that the FSS Act is being enacted to
consolidate the laws relating to food and to establish the Food Safety
and Standards Authority of India for laying down science based
standards for articles of food and to regulate their manufacture, storage,
distribution, sale and import, to ensure availability of safe and
wholesome food for human consumption and for matters connected
therewith or incidental thereto.
13) Clause 5 of the Statement of Object and Reasons provides that
the Bill incorporates the salient features of the Prevention of Food
Adulteration Act, 1954 (37 of 1954) and is based on international
legislations, instrumentalities and Codex Alimentaries Commission
(which related to Food Safety norms). In a nutshell, it is further provided
that the Bill takes care of international practices and envisages an
overreaching policy framework and provision of a single window to
guide and regulate persons engaged in manufacture, marketing,
processing, handling, transportation, import and sale of food. The main
features of the Bill are, (a) movement from multi-level and multi-
department control to integrated line-up; (b) Integrated response to
strategic issues like Novel/genetically modified foods, international
trade; (c) licensing for manufacture of food products which is presently
granted by the Central Agency under the various Acts and Orders,
would de-centralize to the Commissioner of Food Safety and its
Officers; (d) single reference point for all matters relating to food safety
and standards, regulations and enforcement; (e) seek from the near
regulatory regime to self compliance to food safety management
system; (f) responsibility on food business operators to ensure that food
processed, manufactured, imported or distributed in compliance with the
domestic food laws; and (g) provision for graded penalties depending on
the gravity of the offence and accordingly civil penalties for minor
offences and punishment for serious violations.
14) Chapter VII of the FSS Act provides for enforcement of the Act,
which is relevant for the purpose of this particular litigation.
Section 29 provides for the authorities responsible for the
enforcement of the Act. Section 30 provides for appointment of the
Commissioner of Food Safety of the State. Section 31 provides for
licensing and registration of food business. Section 32 provides for
improvement notices. Section 33 provides for prohibition mainly on
conviction of a food business operator on orders passed by the Courts.
Section 34 provides for emergency prohibition notices and orders.
Section 35 provides notification for food poisoning. Section 36 provides
that 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 a may
be specified and duties and functions have been laid down. Food Safety
and powers of Food Safety Officer have been provided in Sections 37
and 38 of the Act respectively. Liability of Food Safety Officer in certain
cases has also been provided in Section 39. Section 40 provides that
the purchaser may have the food analysed and the procedures thereof
and Section 41 provides for the power of search, seizure, investigation,
prosecution and procedure thereof. Section 42 provides for launching of
prosecution.
15) Three words/expressions appear in different Sections are -
"food", "food business" and "Designated Officer", for which we have to
refer to Section 2 for the definition thereof.
16) "Food" has been defined under Section 3(1)(j) of the Act which
reads as follows:-
"(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.
17) "Food additive" has also been defined under Section 3(1)(k) of
the Act which reads as follows:-
(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;
18) Section 3(1)(n) of the Act defines "food business" to be any
undertaking, whether for profit or not and whether public or private,
carrying out any 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.
19) Section 30 provides for appointment of Commissioner of Food
Safety and the duties to be performed by him. It reads as follows:-
"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;
(e) sanction prosecution for offences punishable with
imprisonment under this Act;
(f) such other functions as the State Government may, in
consultation with the Food Authority, prescribe.
(3) The Commissioner of Food Safety may, by Order, delegate,
subject to such conditions and restrictions as may be specified in
the Order, such of his powers and functions under this Act
(except the power to appoint Designated Officer, Food Safety
Officer and Food Analyst) as he may deem necessary or
expedient to any officer subordinate to him."
20) We take note of the fact that Section 30(2)(a) of the FSS Act
provides that the Commissioner of Food Safety shall perform all or any
of the factions, namely, prohibit in the interest of public health, the
manufacture, storage, distribution or sale of an 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.
21) The "Designated Officer" as appointed by the Commissioner of
Food Safety has power to make a report to the Commissioner.
22) Section 34(1) of the FSS Act provides that if the Designated
Officer is satisfied that the health risk condition exists with respect to
any food business, he may, after a notice served on the food business
operator (in this Act referred to as an "emergency prohibition notice"),
apply to the Commissioner of Food Safety for imposing the prohibition.
Sub-section (2) provides that if the Commissioner of Food Safety is
satisfied, on the application of such an officer, that the health risk
condition exists with respect to any food business, he shall, by an order,
impose the prohibition. Sub-section (3) further provides that the
Designated Officer shall not apply for an emergency prohibition order
unless, at least one day before the date of application, he has served
notice on the food business operator of the business of his intention to
apply for the order. Sub-section (4) provides that as soon as practicable
after the making of an emergency prohibition order, the Designated
Officer shall require the Food Safety Officer to - (a) serve a copy of the
order on the food business operator of the business; or (b) affix a copy
of the order at a conspicuous place on such premises used for the
purposes of that business; any person who knowingly contravenes such
an order shall be guilty of an offence and shall be punishable with
imprisonment for a term which may extend to two years and with fine
which may extend to two lakh rupees. Sub-section (5) provides that an
emergency prohibition order shall cease to have effect on the issue by
the Designated Officer of a certificate to the effect that he is satisfied
that the food business operator has taken sufficient measures for
justifying the lifting of such order. Sub-section (6) provides that the
Designated Officer shall issue a certificate under sub-section (5) within
seven days of an application by the food business operator for such a
certificate and on his being not satisfied, the said officer shall give notice
to the food business operator within a period of ten days indicating the
reasons for such decision. This clause empowers the Commissioner of
the Food Safety to serve emergency prohibition notices and orders to
the food business operator if the Designated Officer is satisfied that the
health risk condition with respect to any food business and on an
application made by him to the Commissioner of the Food Safety for
imposing the appropriate prohibition. The Designated Officer shall not
apply for an emergency prohibition order unless at least one day before
the date of application, he has served notice on the food business
operator of the business of his intention to apply for the order. Any
person who knowingly contravenes such an order shall be guilty of an
offence and shall be punishable with imprisonment as described above
and emergency prohibition order shall cease to have effect on the issue
by the Designated Officer of a certificate to the effect that he is satisfied
that the food business operator has taken sufficient measures justifying
lifting of such order (reference has been made to the notes and clauses
appearing in the Act itself).
23) It is apparent that if Section 30(2)(a) of the FSS Act is taken in
isolation with the other provisions of the Act, then the Commissioner of
Food Safety has been delegated absolute power to ban any article of
the food for such a period not exceeding one year. However, a
purposive interpretation of the definition of "food", "business of food",
"designated officer", etc reveals that the Act has certain built-in
safeguards for imposition of a prohibitory order.
24) Thus, it is clear that the Commissioner of Food Safety, Section
30(3) of the FSS Act may, by order, delegate, subject to such conditions
and restrictions as may be specified in the Order, such of his powers
and functions under the Act (except the power to appoint Designated
Officer) as he may deem necessary or expedient to any officer
subordinate to him. Thus, it is clear that the Commissioner of Food
Safety cannot act without a specific request made on this behalf by the
Designated Officer. The Designated Officer cannot recommend or make
an application to the Commissioner of Food Safety without issuing a
notice to the concerned food business operator. Though, "food
business" has been defined separately, we are of the considered
opinion that these two definitions are complimentary to each other
rather than being contrary to each other. Once an article is considered
to be included in the definition of food, then, any transaction therein
being manufacture, sale, storage, transportation, processing, etc shall
be meant to be food business and a 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. Thus, it is clear that the power
conferred upon the Commissioner of Food Safety is not excessive
delegation if not unbridled. In other words, we may add that the powers
conferred on the Commissioner of Food Safety have certain built-in
safeguards in it, so that an order is not passed in a whimsical manner.
In this connection, we take into consideration the judgment passed by
the High Court of Patna in the case of Omkar Agency v. The Food
Safety and Standards Authority of India, being the lead case,
reported in 2016 SCC Online Pat 9231. Dealing with the similar
questions, the Patna High Court has held that necessarily when the
Preamble of the Act states that science based standardization would be
adopted in laying down standards of food, the Commissioner, while
exercising powers under Section 30, must be in possession of objective
materials that the food, sought to be prohibited, does not conform to the
standards as prescribed by the Regulations. It is necessary, therefore,
to analyze the various provisions of the Food Act to ascertain the
standardization process. Section 3(zl) of the Act defines "prohibition
order" to mean an order issued under Section 33 of the Food Act.
Section 33 reveals that prohibition orders can be passed by the Courts,
when a food business operator is convicted. It lays down the general
rule regarding prohibition. The High Court of Patna in paragraph 19 of
the aforesaid judgment further observes that an exception to Section 34
of the Food Act, which provides for emergency prohibition order, has
been incorporated. It provides that if the Designated Officer is satisfied
that health risk exists with respect to any food business, he may, after a
notice served on the food business operator (referred to in the Food Act
as an "emergency prohibition notice"), apply to the Commissioner of
Food Safety for imposing the prohibition. Section 34(2) further provides
that if the Commissioner of Food Safety is satisfied, on the application
of such an officer, that the health risk condition exists with respect to
any food business, he shall, by an order, impose the prohibition. In
paragraph 20 of the judgment, the Patna High Court has held that
Section 30(2)(a) has to be understood in the light of Section 34. As a
result, a prohibition order can be issued by the Commissioner of Food
Safety only when a report is laid down by the Designated Officer that
the health risk condition exists with respect to any food business. With
respect to any food product, since there may be numerous brands, it is
equally necessary of the Designated Officer and also the Commissioner
of Food Safety to specify, which particular brand is to be prohibited.
While dealing with the question whether before making an order under
Section 30, the Commissioner is required to comply with the principles
of natural justice, the Patna High Court has referred to the reported
case of Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC
545, wherein the Constitution Bench of Hon'ble Supreme had the
occasion to deal with the provisions of Section 314 of the Bombay
Municipal Corporation Act, 1888. It was held by the Hon'ble Supreme
Court that Section 314 confers on the Commissioner the discretion to
cause an encroachment to be removed with or without notice. That
discretion has to be exercised in a reasonable manner so as to comply
with the constitutional mandate that the procedure, accompanying the
performance of a public act, must be fair and reasonable. The Court
must lean in favour of this interpretation, because it helps sustain the
validity of the law. It was further held, in Olga Tellis (supra), that it must
be presumed that, while vesting the Commissioner with the power to act
without notice, the Legislature intended that the power should be
exercised sparingly and, in cases of urgency, which brook no delay. In
all other cases, no departure from the audi alteram partem rule could be
presumed to have been intended. On the provisions of Section 314, the
Hon'ble Supreme Court further held in Olga Tellis (supra) that it is so
designed as to exclude the principles of natural justice by way of
exception and not as a general rule. There are situations, which
demand exclusion of the rules of natural justice by reason of diverse
factors like time, place, the apprehended danger and so on. The
ordinary rule, which regulates all procedure, is that persons, who are
likely to be affected by the proposed action, must be afforded an
opportunity of being heard as to why that action should not be taken.
The hearing may be given individually or collectively depending upon
the facts of each situation. A departure from this fundamental rule of
natural justice may be presumed to have been intended by the
Legislature only in circumstances, which warrant it. Such circumstances
must be shown to exist, when so required, the burden being upon those,
who affirm their existence.
25) Thus, it is clear that the argument advance by the learned Senior
Counsel appearing for the petitioners that a delegation of unbridled
power on the Commissioner of Food Safety is erroneous on the face of
it and on that count itself, the Court cannot come to the conclusion that
it is ultra vires of the Constitution of being excessive delegation.
26) We are, on the other hand, of the opinion that the powers
conferred under Section 30(2)(a) of the FSS Act has to be read
inconformity with other provisions of the Act, especially, Chapter VII.
Special reference to the procedures laid down under Section 34 of the
said Act. "Emergency prohibition notices and orders" has to be
understood in the light of the expression appearing as "xxx xxx for
such period, not exceeding one year, as may be specified xxx xxx" in
Section 30(2)(a) of the FSS Act. Thus, we are of the further opinion that
not only there are safeguards in the Act itself for exercise of powers
conferred upon the Commissioner of Food Safety, but also this power
should be exercised after following the principle of audi alteram partem
or the principles of natural justice. Before passing any order, an
application filed by the Designated Officer, the Food Commissioner
should also consider the case of the party affected and should take into
consideration the case put forth by them.
27) In the present litigation, it is not the case of the respondents that
the Designated Officer made an application to the Food Commissioner
and on the basis of the same, the Food Commissioner has passed the
order. On the other hand, it is apparent that certain reports were placed
before the Food Commissioner and on the basis of the reports that
there was presence of Magnesium Carbonate in the Pan Masala in
question, the Commissioner has come to the conclusion that it is
injurious to health of its consumption and that emergency prohibition
order was passed under Section 30(2)(a) of the FSS Act. It may be
noted that there is no finding on the part of the Commissioner of Food
Safety that an emergent situation appears and it leaves no time for
following the principles of natural justice, especially when such an order
has been passed on three different occasions for three consecutive
years. In the meantime, the petitioners could have been asked to show
cause or put forth his case regarding presence of Magnesium
Carbonate and permitted additive as an anti-caking agent in the food
safety regulations, etc. Thus, this Court is of the opinion that there has
been a colourable exercise of powers by the respondents, especially
respondent No.1 and, in exercise of such powers, an erroneous order,
which is not sustainable under law, has been passed.
28) Coming to the question of presence of Magnesium Carbonate in
the Pan Masala, it is not disputed that it is a duly recognized and
permitted food additive worldwide and also the regime of FSS Act. The
Regulation 3.1 of the Food Safety and Standards (Food Products and
Food Additives) Regulations, 2011, provides that food additives listed
therein are recognized as suitable for use in food and are safe.
Regulation 3.1.1(2) mentions the food additives may be used.
Regulation 3.1.1(3) mentions the food in which additives may not be
used. Annexure 1 to Appendix A of the Regulations contains GMP
Table Provisions for all food categories. Therefore, Magnesium
Carbonate is permitted in all items according to Good Manufacturing
Practices (GMP) unless other expressly prohibited or prescribed. The
respondents have not pointed out any provision from the Act or
Regulations which prohibits presence of Magnesium Carbonate in Pan
Masala.
29) "Pan Masala" is defined under Regulation 2.11.5 of the Food
Safety and Standards (Food Products and Food Additives)
Regulations, 2011 that It may contain inter alia Betelnut, lime, catechu,
cardamom, etc. and sugar, glucose, etc.
30) Appendix A provides for GMP Table Provisions for all food
categories. It provides that the additives mentioned in the Table from
Serial No.260 in which Acetic acid has been mentioned as indicated
may be used in all food categories except those categories listed in
Annexure to GMP Table List under the conditions of Good
Manufacturing Practice. Serial No.504(ii) lists Magnesium hydroxide
carbonate. The same Appendix A provides and Annex to GMP Table
and categorizes for individual food items where GMP Table does not
apply. It lists from Serial No.1 i.e. Category No.1.1.1 to Serial No.86
Category No.14.2.3.3. A very careful examination of the said Annex of
inapplicability of the GMP, we find that it does not contain a mention of
Pan Masala. Mainly it contains food items like milk, fish, eggs, fruits,
vegetables, fruit juices, vegetable juices, etc and repeated examination
of the said Annex to the GMP Table reveals that Pan Masala as a
category of food is not included in the said list. Thus, the decision of the
respondents holding that this presence of Magnesium Carbonate in
certain samples of Pan Masala will not make itself prohibited under the
regime of the new FSS Act which is improved and more comprehensive
legislation that the Prevention of Food Adulteration Act, 1954.
31) Learned Senior Counsel for the petitioners would also lay
emphasis on the ground of prohibition and termed it contrary to the
materials on record. The petitioner No.1 received RTI reply dated
26.10.2022 from the office of Designated Officer, Sadar, Ranchi. Two
analysis reports on the said Pan Masala were annexed to the reply. The
analysis reports supplied under the Right to Information Act, 2005
reveals that at the instance of the State of Jharkhand, analysis of the
Rajnigandha Pan Masala has been done twice in the National Food
Regulatory, Kolkata and reports dated 02.11.2021 and 13.05.2022 were
received by respondent Nos.2 and 3. Presence of Magnesium
Carbonate was reported as "Nil" in both the samples of Rajnigandha
Pan Masala.
32) It is pertinent to mention that these two test reports were available
with the respondents before issuing the 3rd prohibition order dated
03.06.2022, but they did not act upon the same and even they did not
reveal about the same in their counter affidavit. It is, therefore, clear that
continuation of the 2nd notification dated 28.05.2021 and the impugned
3rdnotification dated 03.06.2022 are absolutely without any basis after
the aforementioned analysis reports and, hence, unfounded and
baseless. The respondents despite being in possession of the said test
reports from a duly recognized/accredited referral food laboratory as per
Section 3(p), deliberately and actively suppressed the same and did not
bring the same on record.
33) In course of hearing, learned Senior Counsel appearing for the
State would submit that 11 brands of Pan Masala have been prohibited
in the interest of public health by three consecutive notifications for
three years. It is also submitted that the matter is res integra before the
Hon'ble Supreme Court in Central Areca-nut Marketing
Corporation and others vs. Union of India and others [Transfer
Case (C) No. 1 of 2010]and, hence, this petition is not maintainable.
However, we are of the opinion that since no order of stay has been
issued prohibiting this Court from entertaining writ application by the
Hon'ble Supreme Court, there is no justification in not deciding the case
and keep it pending for an unspecified period of time. It is further
submitted that Rajnigandha Pan Masala was found to contain
Magnesium Carbonate on testing in Maharashtra in 2005 vide Rajiv
Kumar Gupta and others Versus State of Maharashtra, 2006 CriLJ
581, it was also found to contain nicotine testing by CTRI Lab, even
more than pure tobacco products in Ankul Gutkha Vs. Indian Asthma
Care Society and others (S.L.P. No.16308/2007). The State of
Maharashtra has collected different samples of different brands of Pan
Masala and the samples were containing Magnesium Carbonate,
including products manufactured by the petitioners. It is further stated
that it is containing nicotine and that it is false to mention in its
advertisement that no nicotine is contained in the product.
34) Learned Senior Counsel for the State would further submit that
the Hon'ble Supreme Court in the case of Central Areca-nut
Marketing Corporation (supra) has passed an order recording
and directing to Secretaries, Health Department of all the States
and the Union Territories to file affidavits on the issue of total
compliance of ban imposed on manufacturing and sale of Gutkha
and Pan Masala with tobacco and/or nicotine.
35) This has to be understood carefully. The Hon'ble Supreme
Court has directed banning on manufacturing and selling of
"Gutkha and Pan Masala" with "tobacco and/or nicotine". The
Hon'ble Supreme Court did not pass any order on complete ban of
Pan Masala when it is manufactured or stored, transported or
consumed or sold for consumption, but does not contain any
tobacco or nicotine. The learned Senior Counsel for the State
would also submit that the Pan Masala containing Magnesium
Carbonate leads to acute hyper magnesia, cardiac arrests and
other related diseases and, therefore, Bombay High Court in
Sanket Food Products Private Limited Vs. Union of India and
others, decided in the year 2011, held that Magnesium Carbonate
is injurious to health. However, as we have seen from the Good
Manufacturing Practices as Appendix A to Regulations of 2011,
Magnesium Carbonate is considered to be a permissible additive
product as anti-caking agent.
36) Moreover, it is seen that the respondents have taken a decision to
ban certain Pan Masalas as on three consecutive years by three
consecutive notifications to that effect on the ground that it contained
Magnesium Carbonate. From the aforesaid analysis, we are of the
opinion that presence of Magnesium Carbonate itself does not make a
food article prohibited. An attempt has been made by the learned Senior
Counsel appearing for the State-respondents that nicotine was found in
certain laboratory analysis. However, it is not the case of the
respondents that the Pan Masala in question does have any nicotine or
tobacco in it. In fact, it is the consistent case of the petitioners that the
said Pan Masala does not have any tobacco or nicotine in it. A report to
that effect is also annexed in the supplementary affidavit whereby the
State Government was in know of the fact that the Central Food
Laboratory, Kolkata has come to the conclusion it does not contain
nicotine, but they did choose not to act upon it and passed orders in
clear ignorance of scientific proven facts. Further, the order of
prohibition under challenge, was passed not because of presence of
any nicotine. So the State Government cannot supplement a fresh
ground by filing counter affidavit, which was not the basis of the
impugned prohibition notification.
37) Thus, on the aforesaid analysis of the entire facts, we are of the
opinion that the orders passed by Commissioner of Food Safety, State
of Jharkhand is not only illegal, but also based on insufficient and
inappropriate data and require to be quashed.
38) Mr. Jai Prakash, learned A.A.G.-1A appearing of the State, would
submit that since the period has already lapsed, there is no need to
quash the notifications. However, we are of the firm opinion that if due
to issuance of the notification, criminal investigation and prosecution
has been launched against certain persons, it cannot be said that after
lapse of the period of notification, the same cannot be quashed. The
adverse consequence of the notification remains. Such consequence
can only be undone by quashing the notifications which are illegal. In
fact, a Public Interest Litigation is pending before us in which a
petitioner has sought for a direction from this Court to enforce the three
notifications and register F.I.R., conduct effective investigation, expedite
the trial, etc, and therefore, allowing all the three notifications to stand,
would not attract civil consequences but also perpetuate criminal cases
against persons who cannot be held guilty for violation of an order which
is clearly illegal and unsustainable.
39) In the result, this writ petition is allowed. The notifications dated
08.05.2020, 28.05.2021 and 03.06.2022, qua the brand of the petitioner,
are hereby quashed with retrospective effect from the dates of their
issue.
40) However, there shall be no orders as costs.
41) Pending Interlocutory Applications, if any, stand disposed of.
42) Urgent Certified copies as per rules.
(Sanjaya Kumar Mishra, C.J.)
Ananda Sen, J. I agree.
(Ananda Sen, J.)
A.F.R.
Manoj/-
