M/S Itc Limited vs Food Safety Inspector
2021 Latest Caselaw 2932 Kant

                            1


           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

         DATED THIS THE 23RD DAY OF JULY, 2021

                         BEFORE

     THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR

     WRIT PETITION NO.207484/2015 (GM-RES)


BETWEEN:

M/s. ITC Limited
No.37, Jawaharlal Nehru Road
Kolkata - 700071
Through its authorized representative
Shri Murali Ganesan
Vice President - Finance, Foods Business
Division, ITC Limited, At No.18, Banaswadi
Main Road, Maruthiseva Nagar
Bengalore - 560005
                                             ... Petitioner

(By Sri Uday Holla, Senior Advocate for
Sri Shivashankar H. Manur, Advocate)


AND:

1.     Food Safety Inspector
       Department of the Food Safety
       And Standards, Vijayapura
       Vijayapura District-586101

2.     Designated Officer
       Department of the Food Safety
       And Standards, Vijayapura
                                      2


      Vijayapura District-586101
                                                       ... Respondents

(By Sri Gururaj V. Hasilkar, HCGP)


      This Writ Petition is filed under Article 226 of the
Constitution of India read with Section 482 of Cr.P.C.
praying    to   issue     a   writ   of   certiorari   or   any   other
appropriate writ or order or direction quashing the order
dated 25.11.2015 passed in C.C.No.307/037/226/2015-16
on   the    file     of   Additional      District   Magistrate   cum
Adjudicating Authority, Vijayapura (Annexure-A) and issue
any other appropriate writ, order or direction as this Court
may deem fit.


      This writ petition having been heard and reserved for
Orders on 15.07.2021, coming on for 'Pronouncement of
Orders' this day, the Court made the following:


                              ORDER

The petitioner has filed this petition under Article

226 of the Constitution of India read with Section 482

of Cr.P.C. for quashing the order dated 25.11.2015

passed in C.C.No.307/037/226/2015-16 on the file of

Additional District Magistrate cum Adjudicating

Authority, Vijayapura.

2. The factual matrix leading to the case are

that the petitioner is a Company within the meaning of

Companies Act, 2013 and is manufacturing and

marketing several variants products including

Sunfeast Yippee Noodles viz., Classic Masala, Magic

Masala and Chinese Masala. It is alleged that accused

No.1 was a distributor of the food packets

manufactured by the present petitioner. It is also

alleged that on 11.06.2015, the complainant has

suspected that Sunfeast Yippee Noodles Magic Masala

is adulterated and thereafter he has approached

accused No.1 and purchased a packet by issuing Form

No.V-A for Rs.376.01 paisa and obtained a receipt. It

is alleged that thereafter a mahazar was also drawn at

the spot. Subsequently, one sample was sent to

Divisional Food Laboratory at Belgaum and on

23.06.2015, the report of the Chemical Expert was

received, wherein, it is submitted that it is

'misbranded'. Thereafter, on 10.08.2015, the

complainant has issued notice to accused No.1

seeking details of the owner and storer of the

misbranded products and the said information was

provided on 17.07.2015. It is alleged that on

10.08.2015, the complainant has reported to accused

No.1 that he can get tested the second sample out of

four samples to any other lab and get it tested by

paying requisite necessary fees as per Rule 2.4.(6) of

the Food Safety and Standards Rules, 2011.

However, accused No.1 has reported that he is not

interested in this regard and thereafter a prosecution

was made before a Designated Officer i.e., Additional

District Commissioner/Magistrate, Vijayapur. The

present petitioner was accused No.3 and he has filed

objections contending that the complaint copy was not

furnished to him and no reasons were given by the

Food Analyst as to what is the reason for holding

sample as 'misbranded'. Further, it is also alleged

that before taking sample, he was not given any

notice and it was not collected in his presence. The

sanction was also challenged and further it is alleged

that the Food Analyst Report itself discloses that it

complied all the requirements and without verification,

the prosecution was made. However, the Designated

Officer has rejected the said grounds by holding that

the product is misbranded as per the Regulation

No.2.2.1(3) of Food Safety and Standards (Packaging

and Labelling) Rules, 2011 and hence imposed fine of

Rs.50,000/- on accused No.1 while imposed fine of

Rs.3,00,000/- on accused Nos.2 to 4 by order dated

25.11.2015. This order is being challenged in this writ

petition.

3. Heard the arguments advanced by the

learned Senior counsel for the petitioner and the

learned High Court Government Pleader for the

respondents - State. Perused the records.

4. The learned Senior counsel for the

petitioner would submit that there is no evidence to

show that the product is misbranded as the report of

the Food Analyst produced at Annexure-E discloses

that it complied all the requirements and the Food

Analyst has directed the Designated Officer to get

tested the sample for MSG as there is no facility in the

Divisional Food Laboratory and directed the

Designated Officer to get it tested through NABL

accredited or referral laboratory. He would further

submit that without getting it tested, the prosecution

itself is illegal and hence submits that the orders

passed by the Food Safety and Standards Authority

dated 31.03.2016 and dated 29.09.2018 were not

followed to ascertain that in fact there were added

MSG in the product. He would also invited the

attention of the Court that even in normal ingredients,

presence of MSG cannot be ruled out and hence

directions were issued to physically inspect the

premises to ascertain whether MSG was added or not,

but, in the instant case, the same was not done and

hence, prosecuting the present petitioner as the

product is 'misbranded' itself is against the law. He

would further contend that there is no proper sanction

and though he had got a proper remedy to challenge

the same before the Tribunal under Section 70 of the

Food Safety and Standards Act, 2006 (hereinafter

referred to as 'Act'), the Tribunal is not yet constituted

and hence without any alternative, he is required to

approach this Court. Hence, he has sought for

quashing of the impugned order.

5. Per contra, the learned High Court

Government Pleader has contended that the product is

misbranded as on the product there is a reference that

MSG was not added, which is evident from Annexure-

B and the petitioner has not attempted to get the

second sample to be analyzed through NABL

accredited or referral laboratory and hence the

prosecution is just and proper. Accordingly, he would

seek for rejection of the petition.

6. Having heard the arguments and perusing

the records, it is evident that the dispute is confined

only to a small aspect regarding 'No MSG added' has

been quoted on the packaging label. Admittedly, the

sample is collected by the Food Analyst Officer from

accused No.1 suspecting that it is adulterated.

Further, the sample was sent to Divisional Food

Laboratory, Belgaum Division, Belgaum and the report

was submitted in Form-B. The report reads as under:

"FORM B Report of the Food Analyst (Refer Regulation (ii) of 2.3.1.)

Report No.: DFL/BGM/FSSA/443/2015

Certified that I Shri.B.LINGAPPA duly appointed under the provisions of Food Safety and Standards Act, 2006 (34 of 2006), for Vijayapur-Dist received from F.S.O, Vijayapur Tq a sample of magic masala bearing Code number and Serial Number: 307/037/226/2015, dtd : 11/06/2015 of Designated Officer of Vijayapur-Dist area* on 17/06/2015 for analysis.

The condition of seals on the container and the outer covering on receipt was as follows : Seals were intact and found correct.

I found the sample to be Noodles falling under Regulation No.2.12 of Food Safety and Standards (Food Products and Food additive) Regulations, 2011. The sample **was in a condition fit for analysis and has been analysed on 19/06/2015 to 23/06/2015 and the result of its analysis is given below/** was not in a condition fit for analysis for the reasons given below :-

Reasons : ................................................................................

Analysis report

1 Sample Description magic masala 2 Physical Appearance Satisfactory 3 Label Sunfeast YiPPee magic Masala noodles

i) Pkd : 17 May 15, ii) B.No.BQ31, iii) B.B : 9 months from manufacture iv) No Added MSG v) Mfd by : ITC Limited, plot No.D-1, MIDC, Ranjangoan, Taluka Shirur, Dist Pune - 412220.

Sl.   Quality                Name     of     Result   Results
no.   Characteristics        the Method               Prescribed
                             of the test              Standards as per
                             used                     (a) Food Safety
                                                      and       Standards
                                                      (Food      Products
                                                      and            Food
                                                      additive)
                                                      Regulations, 2011
                                                      (b) AS per label
                                                      declaration      for
                                                      proprietary food
                                                      (c)      As      per
                                                      provisions of the
                                                      Act,    rules   and
                                                      regulations      for
                                                      both the above.
1     Extraneous matter         DGHS       Not        Should     not    be
                                           detected   present
2     Added colour             DGHS        Not        Should     not    be
                                           detected   present
3     Presence        of        DGHS       Not        Should     not    be
      vegetable fat                        detected   present
4     Presence of animal        DGHS       Not        Should     not    be
      fat                                  detected   present
5     Total ash                 DGHS       0.52%      Not    more     than
                                                      1.0%
6     Ash insoluable    in      DGHS       0.041%     Not    more     than
      Dil.HC1                                         0.1%
7     Nitrogen                  DGHS       1.80%      Not less than 1.7%

Opinion:- The sample conforms to the standards as per above parameters, but it is branded as per rule 2.2.1(3) of rule 2.2 of FSSA (packaging & labeling) rules 2011.

*Note : Due to non availability of the facility test for lead and flavor enhances (MSG) could not be performed. It is suggested to get the sample analysed for the same, from NABL accredited or referral laboratory.

Signed this 23rd day of June 2015.

Chief Food Analyst Divisional Food Laboratory, Belgaum Division, Belgaum"

7. Hence, it is evident that the opinion of the

Chief Food Analyst discloses that the sample conforms

to the standards as per the above parameters.

However, the Food Analyst stated that it is

misbranded as per Rule 2.2.1(3) of Rule 2.2 of FSSA

(Packaging and Lebelling) Rules, 2011. Very

interestingly, he has also specifically directed that

since there was no facility in the laboratory to test for

lead and flavor enhancers (MSG), it could get the

sample analyzed from NABL accredited or referral

laboratory. It is important to note here that the Chief

Food Analyst has analyzed the sample and due to non

availability of the facility test for lead and flavor

enhancers, he directed to get the sample analyzed for

the same from NABL accredited or referral laboratory.

But, admittedly, the Designated Officer has not get it

tested from NABL accredited or referral laboratory

and only on the basis of the report of the Food

Analyst, he has prosecuted the petitioner on the

ground of non addition of MSG. The entire

prosecution is based upon the Food Analyst Report

and issue is only regarding mentioning 'no MSG

added' on the label. But, it is to be noted here that

there is no evidence to show that in fact MSG was

added.

8. Misbranding is defined under Section 3(zf)

of the Act. Further, it is also important to note here

that the notification issued by the Director

(Enforcement), Food Safety and Standards Authority

of India dated 31.03.2016. The paragraph Nos.2 and

3 of the said notification reads as under:

"2. It is widely known that Glutamate is naturally found in several common foods such as milk, spices, wheat, vegetables, etc. MSG is the sodium salt of Glutamic acid and one of the many forms of glutamate. Presently, there is no

analytical method to determine whether MSG was added to the product during its manufacture or was naturally present in the product. This can however be checked through inspection of the manufacturing premises.

3. To prevent, both, avoidable harassment/prosecution of Food Business Operators (FBOs) as well as to ensure that consumers are facilitated to exercise informed choices in respect of what they eat, proceedings may be launched against FBOs only when the labels state "No MSG" or "No added MSG" and MSG is actually found in the impugned foodstuff.

Commissioners of Food Safety are advised that specific enforcement/prosecution may not be launched against the manufacturers of Noodles/Pasta on account of presence of MSG/Glutamic Acid unless it is ascertained by the department that Monosodium Glutamate flavour enhancer (INS E-621) was deliberately added during the course of

manufacture without required declaration on the label as indicated in Para 1 above."

(Underlined by me)

9. Hence, it is evident that the glutamate is

naturally found in several common foods such as milk,

spices, wheat, vegetables, etc., and MSG is the

sodium salt of glutamic acid and one of the many

forms of glutamate. It is further observed that there

is no analytical method to determine whether MSG

was added to the product during its manufacture or

was naturally present in the product. It is specifically

observed that this can however be checked through

inspection of the manufacturing premises. Further, it

is also observed that no prosecution can be launched

against the manufacturers of Noodles/Pasta on

account of presence of MSG/Glutamic Acid unless it is

ascertained by the department that Monosodium

Glutamate flavor enhancer (INS E-621) was

deliberately added during the course of manufacture

without required declaration on the label as indicated

above. Further, a clarification notification was also

issued dated 29.09.2018, wherein, in paragraph Nos.3

and 4, it is observed as under:

"3. Thus adjudication proceedings launched against any FBO for the offence of 'mis-branding' due to a claim of "No MSG"/"No added MSG", on the label without determining whether MSG was added during the manufacturing process would be inconsistent with the orders issued by the FSSAI.

4. Commissioners of Food Safety, States/UTs are, therefore, advised that wherever adjudication proceedings have been initiated against FBOs for the presence of the claim "No MSG/No added MSG" without ascertaining the stage at which the MSG was added to the product need to be examined and action taken in

terms of FSSAI's Orders dated 31st March, 2016."

(Underlined by me)

10. The clarification notification was issued by

the Joint Director holding that adjudication

proceedings launched against any FBO for the offence

of 'misbranding' due to a claim of "No MSG/No added

MSG" on the label without determining whether MSG

was added during the manufacturing process would be

inconsistent with the orders issued by the FSSAI.

Hence, it is evident that without ascertaining the

addition of MSG during manufacturing process, the

prosecution cannot be initiated. It is also evident that

MSG is commonly available in several common foods

such as milk, spices, wheat, vegetables, etc. and

there is no analytical method to determine whether

MSG was added to the product during its manufacture

or it was naturally present in the product. Hence, the

directions were issued that it can be done only by

inspection of the manufacturing unit to ascertain that

MSG was added during the course of manufacture.

Admittedly, in the instant case, no visit to

manufacturing unit is conducted and only on the test

of the report of Food Analyst, the prosecution is made.

The orders dated 31.03.2016 and 29.09.2018 specify

that such prosecution is inconsistent with the order of

FSSAI (Food Safety and Standards Authority of India).

Hence, the prosecution itself is illegal.

11. In this context, the learned Senior counsel

for the petitioner has placed reliance on a decision of

the High Court of Madhya Pradesh reported in 2018

(1) Crimes 150 (M.P.) in the case of I.T.C. Limited

vs. State of M.P. and Ors. The facts and

circumstances in the said reported decision and in the

present case are one and the same and there is also

the prosecution was made on the ground that

packaging material contains 'no MSG added'. This

issue was dealt in detail and it is also held that the

prosecution was improper. A similar view is also

taken in the following decisions relied upon by the

learned counsel for the petitioner and matter was

clarified further:

x Nestle India Limited vs. The Food Safety and

Standards Authority of India and Ors. [2015

(6) ABR 74] by the High Court of Bombay

x C.L.Yadav and Anr. Vs. State of Madhya

Pradesh and Anr. [2007 (2) MPHT 360] by the

High Court of Madhya Pradesh.

x Municipal Corporation of Delhi vs. Kacheroo Mal

[(1976) 1 SCC 412].

x State of Kerala and Others vs. Kurian Abraham

(P) Ltd., and Another [(2008) 3 SCC 582].

x State of Tamil Nadu and Anr. Vs. India Cements

Ltd. And Anr. [2011 (185) ECR (GST) 0106

(SC)].

x Karnataka Rare Earth and Another vs. Senior

Geologist, Department of Mines & Geology and

Another [(2004) 2 SCC 783].

12. Hence the prosecution in the present case

itself is misconceived and unwarranted, without

ascertaining whether MSG was added during the

course of manufacture of the products, as no

inspection was made in the manufacturing unit by the

complainant.

13. Much arguments have been also advanced

regarding sanction, but, the impugned judgment

discloses that there was a sanction and it does not

have any relevancy in this regard and even if there is

a sanction, it was without application of mind.

However, it is also evident that subsequently 'no

added MSG' printed as per Annexure-B was removed

and it is evident from Annexure-G. It was there in

Annexure-B and it was subsequently removed as per

Annexure-G. Further, media report at Annexure-F

discloses that MSG information was dropped from the

product. Under these circumstances, the entire

prosecution was misconceived and the complainant

could have directed petitioner to remove the printing

of MSG, but, he proceeded to prosecute and imposed

fine, which is unwarranted. The complainant has not

ascertained regarding actual adding MSG at the time

of manufacture of products by inspection and without

ascertaining as per the order of FSSAI that MSG was

added at the time of manufacture by physical

inspection of the manufacturing premises, prosecution

is bad under law. Hence, the petition needs to be

allowed and accordingly, I proceed to pass the

following:

ORDER

The petition is allowed. The impugned order

passed by the Additional District Magistrate cum

Adjudicating Authority in C.C.No.307/037/226/2015-

16 dated 25.11.2015 stands quashed.

Sd/-

JUDGE

Srt