Kerala High Court
Bhadra Oil Mills vs Food Safety And Standard ... on 25 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 25TH DAY OF FEBRUARY 2021/6TH PHALGUNA, 1942
WP(C).No.8408 OF 2020(A)
PETITIONER:
BHADRA OIL MILLS,
14/548A, NAYARANGADI,
KODASSERRY P.O.,
THRISSUR-680 271,
REPRESENTED BY PROPRIETOR,
SHAJU I, S/O. ITTAMAN,
AGED 44 YEARS,
CHITTIYETH HOUSE,
KODASSERRY,
THRISSUR 680 271.
BY ADV. SHRI.M.C.JOHN
RESPONDENTS:
1 FOOD SAFETY AND STANDARD AUTHORITY OF INDIA,
FDA BHAVAN,
KOTLA ROAD,
NEW DELHI 110 002,
REP. BY ITS JOINT DIRECTOR.
2 THE COMMISSIONER OF FOOD SAFETY AND
STANDARDS AUTHORITY,
GOVERNMENT OF KERALA,
THIRUVANANTHAPURAM - 695 001.
3 THE ASSISTANT COMMISSIONER OF FOOD SAFETY,
THRISSUR,
PIN-680 001.
4 THE ASSISTANT COMMISSIONER AND
DESIGNATED OFFICER, (FSSAI),
KOZHIKODE, PIN-673 001.
W.P.(C) No.8408/2020
:2:
5 THE ADJUDICATING OFFICER AND SUB
COLLECTOR, KOZHIKODE 673 001.
R1 BY ADV. SRI.SANTHAN V.NAIR
R2-5 BY SR. GOVERNMENT PLEADER, SRI.V.MANU
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 25-02-2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C) No.8408/2020
:3:
[CR]
N. NAGARESH, J.
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W.P.(C) No.8408 of 2020
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Dated this the 25th day of February, 2021
JUDGMENT
~~~~~~~~~
The petitioner, a proprietary concern running an Oil
Mill, is before this Court seeking to quash Exts.P6 and P7
orders. By Ext.P6 order, the Designated Officer under the
Food Safety and Standards Act, 2006 accorded sanction to
the Food Safety Officer, Kunnamangalam Circle to file an
application for adjudication before the Revenue Divisional
Officer and Adjudicating Officer, Kozhikode under Section
36(3)(e) of Food Safety and Standards Act, 2006 read with
Rule 3.1 of Food Safety and Standards Rules, 2011, against
the petitioner. By Ext.P7, the Adjudicating Officer and Sub
Collector of Kozhikode issued summons to the petitioner to
W.P.(C) No.8408/2020
answer to a charge in the case filed by Food Safety Officer,
Kozhikode South Circle under Section 3(1)(zx), 26(1)(2)(ii) &
49 and 51 of Food Safety and Standards Act, 2006 read with
Regulation 2.2.1:(1) of Food Safety and Standards (Food
Products Standards and Food Additives) Regulations, 2011
and Regulation 2.2.1:1 of the Food Safety and Standards
(Prohibition and Restrictions on Sales) Regulations, 2011, for
Selling Prohibited Coconut Testa Oil.
2. The petitioner is engaged in the manufacture,
packing and sale of edible oils. The petitioner holds Ext.P1
licence dated 10.09.2017 issued by the Government of
Kerala, Commissionerate of Food Safety. The licence is valid
till 09.09.2022. The 3rd respondent-Assistant Commissioner of
Food Safety came to the petitioner's Oil Mill and took samples
of Coconut Testa Oil. A notice was served on the petitioner
stating that the 2nd respondent-Commissioner of Food Safety
and Standards Authority, Kerala has issued a general order
banning the manufacture and sale of Coconut Testa Oil for a
period of one year.
W.P.(C) No.8408/2020
3. The sample taken from the Oil Mill was tested in
the Regional Analytical Laboratory, Kozhikode. The test report
stated that the sample labelled as proprietary food does not
qualify any of the standards of quality of any of the edible oil
prescribed under the Food Safety and Standards Act, 2006
and Regulations, 2011. The petitioner filed a statutory appeal
against the said test report invoking Section 46(4) of the Act
read with Rule 2.4.6 of the Rules, 2011. The petitioner also
sought a referral report. The sample was again tested by the
Referral Food Laboratory, Pune. The said Referral Laboratory
issued Ext.P2 report dated 18.09.2019. Ext.P2 stated that the
sample does not come under any regulation/standards and
cannot be treated as proprietary food.
4. The petitioner on 25.10.2018 submitted Ext.P3
application before the 1st respondent-Food Safety and
Standards Authority of India for approval of the product as
proprietary food. The 1st respondent issued Ext.P4 on
25.03.2019 granting approval to Coconut Testa Oil under
Food Safety and Standards (Approval for Non-Specified Food
W.P.(C) No.8408/2020
and Food Ingredients) Regulations, 2017. Consequently, the
Central Licensing Authority issued Ext.P5 licence to the
petitioner for manufacturing proprietary food.
5. In spite of the afore facts, the 2nd respondent-
Commissioner of Food Safety and Standards Authority, Kerala
issued Ext.P6 order dated 05.11.2019 holding that Coconut
Testa Oil will not come under the category of 'Proprietary
Food' and the petitioner is liable to be proceeded under
Section 58 of the Act, 2006. The 2 nd respondent was directed
to file an application for adjudication against the petitioner.
On the basis of Ext.P6, the 5th respondent-Adjudicating Officer
and Sub Collector initiated prosecution proceedings. As per
Ext.P7 Summons dated 07.03.2020, the 5 th respondent
required the petitioner to appear before him to answer the
charges.
6. The counsel for the petitioner argued that Ext.P1
licence was issued by the Assistant Commissioner of Food
Safety having convinced that the product Coconut Testa Oil
qualify the Food Safety Standards of edible oil prescribed
W.P.(C) No.8408/2020
under the Act, 2006. The ban on sale and manufacture of
Coconut Testa Oil for one year was without making any
studies. On the application of the petitioner, a sample of
Coconut Testa Oil was subjected to chemical analysis and the
product was approved by the 1 st respondent as proprietary
food. The petitioner was also issued with licence to
manufacture and sell Coconut Testa Oil. Exts.P6 and P7
proceedings are therefore illegal and unwarranted and liable
to be interfered with by this Court, contended the learned
counsel for the petitioner.
7. The 3rd respondent resisted the writ petition filing
counter affidavit. The 3rd respondent stated that the sample
taken from the Oil Mill was subjected to examination and it
was found that the sample did not meet the standards of the
quality of any of the edible oils prescribed under Regulation
2.3.15(1)(a) of the Food Safety and Standards (Prohibition
and Restrictions on Sales) Regulations, 2011 read with
Sections 3(1)(zx), 26(1)(2)(ii) and 49 and 51 of the Food
Safety and Standards Act, 2006.
W.P.(C) No.8408/2020
8. The 3rd respondent received the claim of the
petitioner that Coconut Testa Oil is proprietary food. The 3 rd
respondent contended that any deviation in quality
parameters of a standardised food as specified in the
Regulations made under the Food Safety and Standards Act,
2006, shall not qualify the resultant product as a proprietary
food. According to the 3rd respondent, the Coconut Testa Oil is
a deviation in quality parameters prescribed for coconut oil
and hence will not satisfy the definition of proprietary food.
9. The learned Government Pleader representing the
3rd respondent argued that when standards are prescribed for
a particular product, making a similar product with a deviation
in quality parameters and claiming it to be a proprietary food,
is impermissible under law. The Coconut Testa Oil
manufactured and sold by the petitioner is either adulterated
coconut oil or is made from substandard raw material, thereby
deviating from the prescribed quality parameters of coconut
oil.
W.P.(C) No.8408/2020
10. I have heard Sri. M.C. John, learned counsel
appearing for the petitioner, Sri. Santhan V.Nair, learned
counsel for the 1st respondent-Food Safety and Standards
Authority of India and Sri. V. Manu, learned Senior
Government Pleader appearing for respondents 2 to 5.
11. The following questions arise for consideration in
this writ petition:-
1. Whether Coconut Testa Oil is a
proprietary food or is it a deviation of coconut oil?
2. Whether Coconut Testa Oil is
mandatorily required to keep any standards
prescribed under the Food Safety and Standards
Act, 2006?
3. Whether the petitioner is liable to be
prosecuted under Section 3(1)(zx), 26(1)(2)(ii) &
49 and 51 of the Food Safety and Standards Act,
2006 read with Regulation 2.2.1:(1) of the Food
Safety Standards (Food Product Standards and
Food Additives) Regulations, 2011 and Regulation
2.3.15 (1)(a) of the Food Safety and Standards
(Prohibition and Restriction of Sales) Regulations,
2011?
The word 'Testa' indicates the protective outer covering of a
seed. It is the seed coat. Coconut Testa is the outer covering
W.P.(C) No.8408/2020
of coconut kernel. Coconut Testa is distinct from Coconut
Kernel even in the context of Plant Anatomy.
12. Clause 2.12.1 of the Food Safety and Standards
(Food Products Standards and Food Additives) Regulations,
2011 defines proprietary food. Clause 2.12.1(1) of the
Regulations, 2011 reads as follows:-
"2.12.1 : For the purpose of these regulations-
(1) Proprietary food means an article of food that
has not been standardised under these regulations, but
does not include novel foods, foods for special dietary
uses, foods for special medical purposes, functional
foods, nutraceuticals, health supplements and such other
food articles which the Central Government may notify in
this behalf:
Provided that any deviation in quality parameters of
a standardised food, as specified in the Food Safety and
Standards Regulations made under the Food Safety and
Standards Act, 2006 shall not qualify the resultant product
as a proprietary food."
13. Thus, to satisfy the definition of proprietary food, a
material:
1. must be an article of food;
2. must not be one standardised under the Food Safety
and Standards (Food Products Standards and Food
Additives) Regulations, 2011;
W.P.(C) No.8408/2020
3. must not be one notified by the Central Government
as novel foods, foods for special dietary uses, foods for
special medical purposes, functional foods, nutraceuticals,
health supplements or such other food articles and;
4. should not be any deviation in quality parameters of a
standardised food.
There is no dispute that Coconut Testa Oil is an article of
food. It is an admitted position that Coconut Testa oil has not
been standardised under the Regulations. No one has a case
that Coconut Testa Oil has been notified by the Central
Government as a novel food, food for special dietary use, food
for special medical purpose, functional food, nutraceutical or
health supplement.
14. Even then, if the Coconut Testa Oil is a 'deviation
in quality parameters of a standardised food', as specified in
the Food Safety and Standards Regulations, then Coconut
Testa Oil shall not be a proprietary food. The question,
therefore, is whether Coconut Testa Oil is a deviation in
quality parameters prescribed for Coconut Oil. Coconut
Kernel is distinct from Coconut Testa.
W.P.(C) No.8408/2020
15. Coconut Oil is produced from Coconut Kernel
whereas Coconut Testa Oil is manufactured from Coconut
Testa. The very raw materials from which Coconut Oil and
Coconut Testa Oil are manufactured, are different. Therefore,
the products, Coconut Oil and Coconut Testa Oil, are distinct
and different and by no stretch of imagination, can the
coconut testa oil be treated as a deviation in quality
parameters of coconut oil which is a standardised food.
16. There are further reasons to hold that Coconut
Testa Oil is a Proprietary Food. Clause 2.12.1(2) of the Food
Safety and Standards (Food Products Standards and Food
Additives) Regulations, 2011 reads as follows:-
"2.12.1(2): Proprietary food shall contain only
those ingredients other than additives which are either
standardised or permitted for use in the preparation of
other standardised food under these Regulations, except
the ingredients which may be specified by the Authority
from time to time.
Provided that a proprietary food may also contain
vitamins and minerals in quantities not exceeding one
RDA of the respective micronutrients."
Coconut Testa Oil is manufactured from Coconut Testa which
is a part of Copra. As per Clause 2.2.1 of the Regulations,
W.P.(C) No.8408/2020
2011, Coconut Oil is also extracted from Copra which is
obtained from Cocos Nucifera Nuts (Coconuts). Standards
are specified for Coconut Oil. Therefore, Coconut Testa Oil
satisfied the requirements of a proprietary food, mandated
under both Sub Clause (1) and Sub Clause (2) of Clause
2.12.1 of the Regulations, 2011.
17. The question then will be whether Coconut Testa
Oil is required to keep any standards prescribed under the
Act, 2006 or the rules/regulations made thereunder. As per
Sub Clause 2.12.1(4) of the Food Safety and Standards (Food
Products Standards and Food Additive) Regulations, 2011,
Proprietary Food shall comply with the microbiological
requirements as specified in Appendix B of the Regulations
and if no microbiological standards are specified for any food
or food categories in Appendix B, Proprietary Food falling
under such food categories shall not contain any pathogenic
micro-organism at a level that may render the food product
unsafe. Clause 2.12.1 also provides that the Food Business
Operator shall be fully responsible for safety of the Proprietary
W.P.(C) No.8408/2020
Food for human consumption.
18. As the Coconut Testa Oil being Proprietary Food
and the standard requirement prescribed to Proprietary Food
being one laid down in Clause 1.12.1(4) of the Regulations,
2011, the further question is whether the petitioner is liable to
be prosecuted under:
1. Section 3(1)(zx), 26(1)(2)(ii) & 49 and 51 of the Food
Safety and Standards Act, 2006:
2. Clause 2.2.1(1) of the Food Safety and Standards
(Food Products Standards and Food Additives)
Regulations, 2011:
3. Regulation 2.3.15(1)(a) of the Food Safety and
Standards (Prohibition and Restriction of Sales)
Regulations, 2011.
Section 3(1)(zx) of the Act defines "Sub-standard" and states
that an article of food shall be deemed to be substandard if it
does not meet the specified standards but not so far as to
render the article of food unsafe. Section 26(2)(ii) provides
that no Food Business Operator shall manufacture, store, sell
or distribute any article of food which is misbranded or
substandard or contain extraneous matter. Section 49 lays
W.P.(C) No.8408/2020
down general provisions relating to penalty and Section 50
stipulates quantum of penalty.
19. As the Act, 2006 and Food Safety and Standards
(Food Products Standards and Food Additives) Regulations,
2011 do not prescribe any specified standards for Coconut
Testa Oil, the product needs compliance of microbiological
standards, if any, specified in Appendix B, and in the absence
of such standards, need ensure that pathogenic
micro-organism are unsafe level. Ext.P2 Test Report does
not state that the Coconut Testa Oil sample tested by them
does suffer from non-compliance of microbiological standards
or pathogenic micro-organism levels. Therefore, the
petitioner is not liable to be prosecuted under Sections 3(1)
(zx), 26(1)(2)(ii), 49 or 51 of the Food Safety and Standards
Act, 2006.
20. Clause 2.2.1(1) of the Food Safety and Standards
(Food Products Standards and Food Additives) Regulations,
2011 defines Coconut Oil (Naryal Ka Tel) and mandates that
Coconut Oil shall confirm to the standards prescribed therein.
W.P.(C) No.8408/2020
As the Coconut Testa Oil is found to be a Proprietary Food
distinct from Coconut Oil, no prosecution can be initiated
against the petitioner based on a test report on Coconut Testa
Oil, for not confirming to the Standards prescribed for Coconut
Oil.
21. It is then to be considered whether any action of
the petitioner should invite punitive action for violation of
Regulation 2.3.15(1)(a) of the Food Safety and Standards
(Prohibition and Restrictions on Sales) Regulations, 2011.
Regulation 2.3.15 makes special provisions relating to sale of
vegetable oil and fat. Regulation 2.3.15(1) reads as follows:-
"2.3.15: Special provisions relating to sale of
vegetable oil and fat:
(1) No person shall sell or expose for sale, or
distribute, or offer for sale, or dispatch, or deliver to
any person for the purpose of sale any edible oil-
(a) Which does not conform to the standards
of quality as provided in the Food Safety and
Standards Act, 2006 (34 of 2006) and rules/regulations
made thereunder; and
(b) Which is not packed in a container,
marked and labelled in the manner as specified in
FSSAI regulations.
W.P.(C) No.8408/2020
Provided that the State Government may, in the
public interest, for reasons to be recorded in writing, in
specific circumstances and for a specific period by a
notification in the Official Gazette, exempt any edible
oil from the provisions of this Act."
The allegation against the petitioner therefore is that the
petitioner has sold/exposed for sale/distributed/offered for
sale/dispatched or delivered to any person for the purpose
sale, oil which does not conform to the standards of quality as
prescribed in the Act and the rules/regulations made
thereunder. As already found, no standard has been
prescribed for Coconut Testa Oil and Ext.P2 report does not
indicate that the sample of Coconut Testa Oil taken does not
satisfy microbiological standards or suffer from the vice of
pathogenic micro-organism at an undesired level. Therefore,
there is no reason to prosecute the petitioner for violating
Regulation 2.3.15(1)(a) of the Food Safety and Standards
(Prohibition and Restrictions on Sales) Regulations, 2011.
22. Though in his counter affidavit, the 3 rd respondent
has stated that the Coconut Testa Oil sample contravened
labelling provisions as per Regulation 2.3.1(5) of the Food
W.P.(C) No.8408/2020
Safety and Standards (Packaging and Labelling) Regulations,
2011, neither Ext.P6 nor Ext.P7 has alleged violation of the
Regulation 2.3.1(5) by the petitioner. Therefore, Exts.P6 and
P7 cannot be sustained on that ground.
23. The concern of the respondents 2 to 5 seems to be
that Oil extracted from Testa are sold by the FPOs and
consumers are buying Coconut Testa Oil on an assumption
that it is Coconut Oil. Coconut Testa is a refuse in the
manufacturing process of Virgin Coconut Oil and Coconut
Testa Oil does not share the properties of Coconut Oil. It is
true that if Coconut Testa Oil is sold as original Coconut Oil, it
will be an offence.
24. But, in the case of the petitioner, there is no
allegation that the petitioner has made any misrepresentation
in the package, label or advertisement, to the effect that what
is sold is Coconut Oil. If the respondents have such a case,
the petitioner can be proceeded against under Section 23(2).
But, the petitioner is not charged for an offence under Section
23(2) of the Act, 2006 for violation of packaging and labelling
W.P.(C) No.8408/2020
norms.
25. Perhaps, understanding the facts of the case in
legal perspective, the Food Safety and Standards Authority of
India as per letter dated 06.07.2020 has requested
respondents 2 and 3 to review the decision of the 2 nd
respondent-Commissioner of Food Safety and Standards
Authority, Government of Kerala, prohibiting sale of approved
and licensed product "Coconut Testa Oil" and the prosecution
proceedings launched consequentially. However, respondents
2 and 3 apparently have not reviewed their decision. The
request remained unheeded and the petitioner remained a
victim of bureaucratic obstinacy which prevailed over good
sense.
In the facts and circumstances of the case and in
view of the findings of this Court contained hereinabove,
Exts.P6 and P7 orders are quashed. The writ petition is
allowed as above.
Sd/-
N. NAGARESH, JUDGE
aks/12.02.2021
W.P.(C) No.8408/2020
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE LICENSE DATED
10.09.2017 ISSUED BY THE 3RD
RESPONDENT TO PETITIONER.
EXHIBIT P2 TRUE COPY OF THE CERTIFICATE OF
ANALYSIS DATED 18.09.2019 ISSUED BY
THE REFERRAL FOOD LABORATORY PUNE.
EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED
25.10.2018 FOR APPROVAL OF THE PRODUCT
SUBMITTED BY PETITIONER.
EXHIBIT P4 TRUE COPY OF THE APPROVAL DATED
25.03.2019.
EXHIBIT P5 TRUE COPY OF THE LICENSE NO.
10019041001876 DATED 29.03.2019 ISSUED
BY THE CENTRAL LICENSING AUTHORITY.
EXHIBIT P6 TRUE COPY OF THE ORDER NO.
2068/2019/ACFS (KKD), DATED 05.11.2019
BY THE DESIGNATED OFFICER KOZHIKODE.
EXHIBIT P7 TRUE COPY OF THE SUMMONS NO.M.
741/2020 DATED 07.03.2020 ISSUED BY
THE 5TH RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE LICENSE
NO.10019041001876 DATED 20/03/2020
UNDER THE FGSSA, 2006
EXHIBIT P9 TRUE COPY OF THE ORDER NO.E1-
8507/17/CFS DATED 0/12/2017 ISSUED BY
THE SECOND RESPONDENT.
EXHIBIT P10 TRUE COPY OF ANALYSIS REPORT
NO.ENV/12-17/291 DATED 26/12/2017 OF
THE ANALYST.
W.P.(C) No.8408/2020
RESPONDENTS' EXHIBITS:
ANNEXURE R1(a) TRUE COPY OF THE RENEWED LICENSE DATED
20.03.2020 ISSUED BY THE 1ST
RESPONDENT.
ANNEXURE R1(b) TRUE COPY OF THE LETTER DATED 6.7.2020
ISSUED FROM THE OFFICE OF THE 1ST
RESPONDENT TO THE 2ND RESPONDENT.
SR
