Kerala High Court
Shabeer Enterprises vs Union Of India on 3 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
TUESDAY, THE 3RD DAY OF AUGUST 2021 / 12TH SRAVANA, 1943
WP(C) NO. 11153 OF 2014
PETITIONER:
SHABEER ENTERPRISES
7/299, KUMARANELLOOR P.O., WADAKKANCHERRY,
TRISSUR DT. PIN: 680 590,
REP. BY PROP: A.H.MOHAMMED.
BY ADVS.
SRI.C.K.KARUNAKARAN
SMT.T.P.LEKSHMI VARMA
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY THE SECRETARY, MINISTRY OF HEALTH &
FAMILY WELFARE GOVERNMENT OF INDIA,
NEW DELHI -100 110.
2 AUTHORISED OFFICER
COCHIN SEAPORT AND AIRPORT FOOD SAFETY AND STANDARDS
AUTHORITY OF INDIA,
MINISTRY OF HEALTH AND FAMILY WELFARE,
GOVERNMENT OF INDIA, 1ST FLOOR, MARINE BUILDING,
NORTH END, WELLINGDON ISLAND, COCHIN - 682 009.
3 COMMISSIONER OF CUSTOMS
CUSTOM HOUSE, WELLINGDON ISLAND, COCHIN - 682 009.
BY ADVS.SRI.P.PARAMESWARAN NAIR,ASG OF INDIA
SRI. SUMIT BABBAR
SHRI.SANTHAN V. NAIR, SC, FOOD SAFETY AND STANDARDS
AUTHORITY OF INDIA
SRI.PAUL JACOB
SRI.I.K.RAJU
SANTHAN V NAIR , SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 11153 OF 2014
-2-
JUDGMENT
This writ petition has been filed seeking the following reliefs:-
"a. To issue a writ of mandamus or such other appropriate
writ, order or direction commanding the 3 rd Respondent to
release the consignment covered by Exhibit P1 Bill of entry
and similar consignments of the Petitioner without insisting
on the condition that the raw Betel Nuts should obtain NOC
from 2nd Respondent before being permitted to be cleared
for home consumption.
b. To declare that raw Betel Nuts imported by the Petitioner
do not constitute food or article of food and also that the
provisions of FSS Act are not applicable to such goods.
c. To direct the Respondents to forthwith release the
imported consignments of the Petitioner without subjecting
it to tests under FSS Act.
d. To direct the 2nd and 3rd Respondents to bear the liability
of demurrage incurred on the Petitioner's imported goods
as a consequence of the illegal detention.
e. To grant costs of these proceedings to the Petitioner.
f.To grant such other appropriate reliefs in the nature of
writs, orders or directions that this Hon'ble Court may
deem fit and proper to grant on the facts and in the
circumstances of the case."
2. The learned counsel for the petitioner submits that the issue
arising for consideration in this writ petition has already been adjudicated
by the Division Bench of this Court through Ext.P3 judgment dated
04.01.2007. It is further submitted that similar issue was also considered
by this Court in Haripriya Traders v. Union of India [2014 (4)
KHC 576], wherein it was held as follows:-
"5. I am unable to accept the arguments advanced by the
petitioners that betel nuts cannot be considered as "food". The
definition of "food" is expansive in S.3(j) which includes any
type of substance whether processed or unprocessed, which
ultimately is intended for human consumption would attract
the meaning of food within Clause (j) of S.3. The meaning of
food do not depend upon immediate or proximate use of the
substance for human consumption. The only criteria to
WP(C) NO. 11153 OF 2014
determine a substance is food or not is whether the substance
is intended for human consumption or not. The ultimate
purpose must be for human consumption. Therefore, any
substance which is intended for human consumption would
fall within the definition of food as defined under the FSS Act.
6. Next question is whether FSS Act provides standard
for betel nuts. There is no specific standards prescribed for
betel nuts under the Food Safety and Standards (Food
Products Standards and Food Additives) Regulations, 2011
(hereinafter referred to as the "FSS Regulations"). According
to the Food Safety and Standards Authority, betel nuts fall
within the category of "nuts and raisins" as prescribed under
Regulation 2.3.47, particularly, in the class of dry fruits and
nuts mentioned in sub-clause 5. The reference of sub-clause
(5) in Regulation 2.3.47 clearly points out what are the types
of food that fall into the above category. Those are categories
o food articles immediately used for human consumption.
Merely because nuts are mentioned in sub-regulation (5) that
will not bring betel nut within that meaning. The intention is
very clear. The intention is to classify certain types of nuts
used for immediate human consumption. This is obvious
from classification of dry fruits and nuts. That means the
nuts must be in the nature of dry fruits."
Regarding the issue as to whether betel nuts can fall within the category of
'nuts and raisins' in the Food Safety and Standards (Food Products
Standards and Food Additives) Regulations, 2011, it was held as follows:-
"Thus in the light of the above, betel nuts are of heterogeneous
class from dry fruits and nuts. This Court is of the view that
the standards prescribed in sub-clause (5) of Regulation
2.3.47 of the FSS Regulations for fruits and nuts have no
application for betel nuts which by very nature, form a
different class."
3. However in the facts of the present case it is noticed that, this
Court had passed an interim order on 22.04.2014, which reads as follows:-
"Admit.
The learned Assistant Solicitor General takes notice for R1.
Adv.Paul Jacob, learned Standing Counsel takes notice for R2.
Notice to R3.
The imported goods under Ext.P1 bill of entry shall be
WP(C) NO. 11153 OF 2014
allowed to be cleared for home consumption without insisting on an
NOC by 2nd respondent under the Food Safety and Standards Act,
2006 of course subject to compliance of other statutory conditions."
It is submitted by counsel on either side that pursuant to the interim
order, the goods have been released without a NOC from the 2 nd
respondent under the Food Safety and Standards Act, 2006. That being
the position, this writ petition is closed in the light of the interim order
dated 22.04.2014, making it clear that any future import will abide by the
conditions specified by this Court in Ext.P3 judgment and the judgment in
Haripriya Traders(supra).
GOPINATH P.
JUDGE
acd
WP(C) NO. 11153 OF 2014
APPENDIX OF WP(C) 11153/2014
PETITIONER EXHIBITS
EXT.P1: TRUE COPY OF BILL NO.5153897 DATED
9/4/2014 FILED WITH THE 3RD RESPONDENT.
EXT.P2: TRUE COPIES OF THE INVOICE DATED
24/3/2014, THE FUMIGATION CERTIFICATE
DATED 22/3/2014 AND THE PHYTO-SANITARY
CERTIFICATE DATED 24/3/2014.
EXT.P3: TRUE COPY OF THE JUDGMENT OF A DIVISION
BENCH OF THIS HON'BLE DATED 4/1/2007 IN
W.A NO.2179 OF 2006.
EXT.P4: TRUE COPY OF INTERIM ORDER DATED
4/11/2013 PASSED IN WPC NO.26214 OF 2013.
RESPONDENTS' EXHIBITS : NIL
