Kerala High Court
Hisham Transports vs Food Safety Standards Authority Of ... on 24 June, 2025
WAs.704 & 707 of 2023 -:1:-
2025:KER:45474
"C.R"
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. NITIN JAMDAR
&
THE HONOURABLE MR. JUSTICE S. MANU
TUESDAY, THE 24TH DAY OF JUNE 2025 / 3RD ASHADHA, 1947
WA NO. 704 OF 2023
[AGAINST THE JUDGMENT DATED 22.02.2023 IN WP(C) NO.24915 OF
2022 OF HIGH COURT OF KERALA.]
APPELLANTS/PETITIONERS IN THE W.P.(C):
1 HISHAM TRANSPORTS,
15/332B VADACODE P.O. KANGARPADY
MUNDAMPALAM, ERNAKULAM, PIN - 682021.
REPRESENTED BY ITS MANAGING PARTNER UBAID M.I.
2 TRESA BINI, KUMARANCHATH HOUSE, NAZERATH ROAD,
CHEERAKADA, ALUVA, PIN - 683101.
BY ADV. SRI.PREMJIT NAGENDRAN
RESPONDENTS/RESPONDENTS IN THE W.P.(C):
1 FOOD SAFETY STANDARDS AUTHORITY OF INDIA,
FDA BHAVAN, KOTLA ROAD, NEW DELHI-110002,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER.
2 FOOD SAFETY OFFICER, KOCHI CIRCLE - 682009.
3 FOOD SAFETY OFFICER, ALUVA CIRCLE - 683585
4 ASSISTANT COMMISSIONER OF FOOD SAFETY,
(DESIGNATED OFFICER), EROOR SOUTH P.O.,
TRIPUNITHURA - 682306.
WAs.704 & 707 of 2023 -:2:-
2025:KER:45474
R1 BY ADV. SMT.CHITHRA P.GEORGE, SC,
FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA.
BY ADV. SRI.GRASHIOUS KURIAKOSE,
ADDL. DIRECTOR GENERAL OF PROSECUTION.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
24.06.2025, ALONG WITH WA. NO.707/2023, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WAs.704 & 707 of 2023 -:3:-
2025:KER:45474
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. NITIN JAMDAR
&
THE HONOURABLE MR. JUSTICE S. MANU
TUESDAY, THE 24TH DAY OF JUNE 2025 / 3RD ASHADHA, 1947
WA NO. 707 OF 2023
[AGAINST THE JUDGMENT DATED 22.02.2023 IN WP(C) NO.15880 OF
2021 OF HIGH COURT OF KERALA.]
APPELLANTS/PETITIONERS IN THE W.P.(C):
1 P.A. NIZAR, PALACHUVATTIL HOUSE,
KAKKANAD WEST P.O., COCHIN - 682030.
2 P. ABDUL AZEEZ, PALACHUVATTIL HOUSE,
KAKKANAD WEST P.O. COCHIN - 682030.
BY ADV. SRI.PREMJIT NAGENDRAN
RESPONDENTS/RESPONDENTS IN THE W.P.(C):
1 FOOD SAFETY STANDARDS AUTHORITY OF INDIA,
FDA BHAVAN, KOTLA ROAD, NEW DELHI - 110002.
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER.
2 FOOD SAFETY OFFICER, THRIKKAKARA CIRCLE.
3 ASSISTANT COMMISSIONER OF FOOD SAFETY
(DESIGNATED OFFICER), EROOR SOUTH P.O.,
TRIPUNITHURA - 682306.
R1 BY ADV. SMT.CHITHRA P.GEORGE, SC,
FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA.
WAs.704 & 707 of 2023 -:4:-
2025:KER:45474
BY ADV. SRI.GRASHIOUS KURIAKOSE,
ADDL.DIRECTOR GENERAL OF PROSECUTION.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
24.06.2025, ALONG WITH WA. NO.704/2023, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
WAs.704 & 707 of 2023 -:5:-
2025:KER:45474
"C.R"
JUDGMENT
Dated this the 24th day of June, 2025.
Nitin Jamdar, C. J.
These two appeals arise from the common order passed by the learned
Single Judge dated 22 February 2023, by which the writ petitions filed by
the Appellants/Petitioners were dismissed.
2. In W.P.(C) No.24915 of 2022, from which W.A. No.704 of 2023
arises, the Petitioners/Appellants had challenged the communications dated
30 April 2020 and 17 March 2021 issued by Respondent No.4 - the
Assistant Commissioner of Food Safety (Designated Officer), Ernakulam. In
W.P.(C) No.15880 of 2021, from which W.A. No.707 of 2023 arises, the
Petitioners/Appellants had challenged the letter dated 14 January 2021
issued by Respondent No.3 - the Assistant Commissioner of Food Safety
(Designated Officer), Ernakulam.
3. The impugned communications/notices informed the Petitioners,
who are dealing with drinking water, that as per the analysis report received
from the Food Analyst under the Food Safety and Standards (Food
Products Standards & Food Additives) Regulations, 2011 (Regulations of
2011), the drinking water supplied by them does not conform to the
prescribed standards for drinking water and is, therefore, substandard. The
Petitioners were also informed that they can file an appeal under Section
46(4) of the Food Safety and Standards Act, 2006 (Act 34 of 2006) if they
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do not agree with the analysis report and, if no appeal is filed, the matter
will be proceeded further as per Section 42 of the Act 34 of 2006. These
notices were the subject matter of challenge in the writ petitions. Both
the writ petitions were dismissed by the learned Single Judge by the
impugned judgment.
4. We have heard Mr. Premjit Nagendran, learned counsel for the
Appellants/Petitioners, Ms. Chithra P. George, learned standing counsel for
Respondent No.1 - the Food Safety and Standards Authority of India, and
Mr. Grashious Kuriakose, learned Additional Director General of
Prosecution for the State.
5. The primary contention of the Petitioners is that the Petitioners are
dealing with water which does not fall under the Regulations of 2011, and
this position is even accepted by the Respondent - State. Reliance is sought
to be placed on a communication dated 7 February 2018 issued by the
Assistant Director (Regulatory Compliance) of the Food Safety and
Standards Authority of India. It is sought to be contended that no standards
are applicable to the water supplied by the Petitioners. Even Section 26 of
the Act 34 of 2006 does not provide for any standards for the water that is
being supplied. Therefore, the Respondents have no jurisdiction to issue the
impugned notices to the Petitioners.
6. The Food Safety and Standards Authority of India (FSSAI) has filed
counter affidavit in which it is contended as follows. The standards for
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Mineral Water, Packaged Drinking Water, and Drinking Water (Purified)
are mandated under sub-regulations 2.10.7, 2.10.8, and 2.10.9, of
Regulations of 2011 respectively. The term "captive consumption" refers to
water that is extracted, stored, and/or purified for use as an ingredient in
food preparation, as well as for cleaning and washing purposes. The
Petitioners had various options for getting the sample analysed while the
samples were in the custody of the Designated Officer as per the provisions
of the Act 34 of 2006, and the Rules and Regulations made thereunder,
however, they have not taken recourse to the same. The Food Business
Operator (FBO) would have to obtain BIS Certification for the product
"Packaged Drinking Water". The Petitioners are selling drinking water as
per the licence dated 27 November 2011 and by registration certificate
dated 6 May 2022, Petitioner No.2 in W.P.(C) No.24915 of 2022 holds
"Drinking Water (Well)" licence. The Report of the Assistant
Commissioner of Food Safety showed that Coliform was detected and also
there is the presence of nitrate. Since the Petitioners are FSSAI licensees, the
registration granted to them is subject to the provisions of the Act, Rules
and Regulations which have to be complied with. Further, the Food Safety
Officers are duty-bound to carry out inspection of the food business,
drawing of the sample and sending for food analysis on the basis of the
report of the food analysts. The water being supplied by the Petitioners does
not conform to the standards prescribed for drinking water as per IS
10500:2012 of the Bureau of Indian Standards. As per the said standards,
drinking water is the water intended for human consumption for drinking
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and cooking purposes from any source and it includes water supplied by any
means for such consumption. Therefore, it is contended that the appeals are
liable to be dismissed.
7. The Respondent Authorities have not launched any prosecution
against the Petitioners and the impugned letters only called upon them for
availing the remedy of appeal as prescribed under Section 46(4) of the Act
34 of 2006. It is at this stage, the Petitioners approached the Court.
8. The Food Safety and Standards Act, 2006 (Act 34 of 2006) is an Act
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.
The term "food" is defined under Section 3(1)(j) of the Act 34 of 2006 to
mean 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). Drinking water falls within the definition of
"Food". The term "food business" is defined under Section 3(1)(n) of the
Act 34 of 2006 to mean any undertaking, whether for profit or not and
whether public or private, carrying out any of the 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.
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9. The term "food business operator" in relation to food business is
defined under Section 3(1)(o) of the Act 34 of 2006 to mean 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. "Unsafe
food" under Section 3(1)(zz) of the Act generally means an article of food
whose nature, substance or quality is so affected as to render it injurious to
health. The Petitioners are selling drinking water as per the licence dated 27
November 2011. Under Section 26 of the Act, the Food Business Operator
has certain responsibilities which include not to manufacture, store, sell or
distribute water which is unsafe or is substandard or contains extraneous
matter. Licensing and registration of food business are provided under
Section 31. Under the Act 34 of 2006, the Food Safety and Standards
(Licensing and Registration of Food Business) Regulations, 2011, are
framed for the licensing and registration of food business. The prescribed
formats for applying for registration are appended to the said Regulations.
10. In W.A. No.704 of 2023, Petitioner No.1 has applied for the grant of
licence, wherein the nature of business is referred as trade, retail, and
transportation. For Petitioner No.2, it is specified as retailer / drinking water
(well). In W.A. No.707 of 2023, Petitioner No.1 has stated the nature of
business as a distributor of well water, while Petitioner No.2 is stated as a
transporter. The Petitioners in both the writ petitions have asserted that
they have taken the registration in respect of drinking water. It is stated that
even the business is carried out in the name "drinking water supply". The
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Petitioners have registered under the Act 34 of 2006 in respect of drinking
water and having registered under the Act 34 of 2006, they are bound by
Section 26. It is, therefore, incumbent upon the Petitioners to assert the
exact nature of the water being supplied, if they contend that they do not
fall within the categories specified in the Regulations of 2011, and that no
notices can be issued to them.
11. The Standard Regulations of 2011 regulate the categories; 2.10.7 -
Mineral Water, 2.10.8 - Packaged Drinking Water, and thirdly 2.10.9 -
Drinking Water (Purified). The Regulations of 2011 classify drinking water
into three distinct categories. The first is Regulation 2.10.7, which pertains
to Mineral Water. This includes all types of Mineral Water or Natural
Mineral Water. The second category falls under Regulation 2.10.8 which
relates to Packaged Drinking Water (other than Mineral Water). The third
category is specified under Regulation 2.10.9 which deals with Drinking
Water (Purified).
12. Assuming that the Petitioners did not fall under Regulations 2.10.7
and 2.10.8 of the Regulations of 2011, then Regulation 2.10.9 would arise
for consideration. The emphasis of the Authority is on Regulation 2.10.9 of
the Regulations of 2011, which reads thus:
"2.10.9 DRINKING WATER (PURIFIED).- (1) Means
water, other than packaged drinking water and natural
mineral water which is offered or sold through water
vending machine.
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(2) Drinking water (purified) shall be clear without any
sediments, suspended particles and extraneous matter which
shall also comply with the requirements of Indian Standards,
IS:10500.
Explanation.- For the purposes of this sub-regulation,
"water vending machine" means decentralised water
purification systems that purify and dispense waters and
does not include installation intended for use of water for
captive consumption."
***
"Drinking Water (Purified)" refers to water, distinct from packaged or
natural mineral water that is sold through a water vending machine. Such
water has to be free from sediments, suspended particles and extraneous
matter, as their presence renders it unfit for consumption. The use of the
term "purified" in the context of Act 34 of 2006 does not mean that a
specific purification process is mandated. It means that the drinking water
has to meet the standard of cleanliness. "Purity" in the context of food
indicates absence of contamination or degrading particles. Thus, the term
"purified" under Regulation 2.10.9 refers to the quality of the water being
potable and devoid of contaminants, and not the method of treatment. The
plain language of Regulation 2.10.9 of the Regulations of 2011 does not
support the argument of the Petitioners that it applies only to water
subjected to a purification process.
13. Under Regulation 2.10.9, as reproduced above, the term "Drinking
Water (Purified)" refers to water that is free from any sediments, suspended
particles and extraneous matter. The Petitioners do not assert that the water
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they supply is impure or unfit for drinking, nor do they assert that it
requires additional treatment. Since they hold registration under the Act 34
of 2006, it is incumbent upon them to establish compliance with the
relevant standards. There is no specific case in the writ petitions that the
water supplied by the Petitioners is unpurified or unfit for drinking. On the
contrary, the assertion is that they supply drinking water, which by
definition, has to be fit for human consumption and free from sediments,
suspended particles and extraneous matter. Accordingly, the burden lies on
the Petitioners to establish the category of water being provided. There are
no pleadings in the petitions to suggest that, despite holding registration as
Food Business Operators dealing in drinking water, the Petitioners are
supplying water that is unpurified or unsafe. There is nothing stated in the
petitions as to why the Petitioners do not fall in the third Category 2.10.9 -
Drinking Water (Purified).
14. The argument of the Petitioners that Regulation 2.10.9 of the
Regulations of 2011 applies only to water vending machines is misplaced.
This Regulation covers water, other than packaged drinking water and
natural mineral water, which is sold through water vending machines. It is
not the case of the Petitioners that the water supplied by them is dispensed
through such machines. In view of this position, the contention of the
Petitioners that notices could not have been issued to them is untenable.
15. As stated above, having taken registration under the Act 34 of 2006
and the Regulations of 2011 as Food Business Operators, the Petitioners
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had to specifically plead regarding the nature of the water being supplied by
them and the concessions and stand of the learned Senior Government
Pleader for the State are immaterial. What matters are the provisions of the
statute and the pleadings on facts. This would also apply to the
communication dated 7 February 2018 relied upon by the Petitioners.
Even otherwise, the duties and functions of the FSSAI are listed under
Section 16 of the Act 34 of 2006, which include the duty to regulate and
monitor the manufacture, processing, distribution, sale and import of food
so as to ensure safe and wholesome food. The Regulations specify the
standards and guidelines in relation to articles of food and prescribe an
appropriate system for enforcing various standards. The general principles
of food safety to be followed are listed in Section 18 of the Act 34 of 2006,
which include making an endeavour to achieve an appropriate level of
protection of human life and health and the protection of consumer's
interests, including fair practices in all kinds of food trade with reference to
food safety standards and practices. Thus, what is material is the stand of the
FSSAI, and it has contested the matter by contending that the Petitioners
are subject to regulation.
16. The decision relied upon by the Petitioners in the case of Hindustan
Lever Ltd. v. Food Inspector and Another1 relates to the Prevention of Food
Adulteration Act, 1954, arising from criminal prosecution and not under
the Act 34 of 2006. Each enactment has a different object. The Prevention
1 (2004) 13 SCC 83
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of Food Adulteration Act, 1954 contains a penal provision, and the matters
before the Hon'ble Supreme Court arose from convictions recorded under
the said Act. The judicial approach in respect of matters arising from penal
convictions is different from those arising from a challenge to the notices
issued pointing out that substandard water is being supplied.
17. As per the reports filed in these matters, toxic substances have been
detected in the water, which is contrary to the stipulated levels. In W.A. No.
704 of 2023, the toxic substance identified is Coliform, while in W.A. No.
707 of 2023, the water has been found to be acidic with the presence of
nitrate. As per the letter dated 17 March 2021 issued by the Assistant
Commissioner of Food Safety (Designated Officer), the toxic substance of
"Coliform" content was detected at a concentration of 240 MPN/100 ml.,
whereas it should be absent as per the Act 34 of 2006 and Regulations of
2011. The potential of Hydrogen (pH) content of the tested sample was
detected as 5.1, contrary to the stipulated levels, showing that the water is
acidic and the presence of nitrite, which should otherwise be absent, making
the water unsafe. The notices impugned in the writ petitions informed the
Petitioners that if they dispute these findings, they are entitled under the
statute to have the sample analysed.
18. Under the scheme of the Food Safety and Standards Rules,
2011(Rules of 2011), the Food Business Operators have the opportunity to
put forth their case. Rule 2.4.2 of the Rules of 2011 empowers the Food
Analyst to analyse the food sample and Rule 2.4.5 confers upon the Food
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Business Operator the right to have the food analysed independently. Rule
2.4.5 of the Rules of 2011 states that in case the Food Business Operator
from whom the sample has been taken or the person whose name and
address and other particulars have been disclosed under Rule 2.5 of these
Rules, desires to have the fourth part of the same analysed, he shall request
the Food Safety Officer in writing to send the sample to any NABL
accredited/FSSAI notified laboratory for analysis under intimation to the
Designated Officer. The Food Safety Officer shall send the sample to a
NABL accredited/FSSAI notified laboratory, under intimation to the
designated Officer forthwith, in the manner prescribed under Rule 2.4.1.
19. Against the report of the Food Analyst, the Petitioners have a right of
appeal, as provided under Section 46(4) of the Act 34 of 2006. In this
context, Rule 2.4.6 of the Rules of 2011 states that when an appeal as
provided under sub-section (4) of Section 46 is preferred to the Designated
Officer by the Food Business Operator against the report of the Food
Analyst, the Designated Officer shall decide the same within thirty days
from the receipt of such appeal after considering the material placed before
him and after giving an opportunity to Food Business Operator to be heard.
20. The communications issued to the Petitioners were intended to draw
the attention of the Petitioners that the analysis report indicates that the
water supplied by them is substandard, and if they disagree, they have the
opportunity to contest the same. Even if Regulation 2.10.9 had not been
mentioned in the impugned notices, their purpose was merely to inform the
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Petitioners that the water supplied by them is found to be contaminated and
the Petitioners had an opportunity to file an appeal. Instead of filing an
appeal, the Petitioners have straightaway rushed to the Court. If there is
delay, it is the Petitioners who have contributed to the same.
21. Thus, having once taken registration as Food Business Operators
dealing with drinking water, and it not being their case that the water
supplied by them is unpurified or unfit for drinking, the Petitioners cannot
now contend that their case is not regulated by the Act 34 of 2006 and the
Regulations of 2011, and that no notice can be issued to them. If the report
of the Authorities indicates the presence of impurities and toxic substances
in the sample, the Petitioners had the remedy of questioning the sample and
also filing an appeal under the Act 34 of 2006 and the Rules of 2011. We
find no perversity in the view taken by the learned Single Judge in the
impugned judgment in dismissing the writ petitions.
22. Accordingly, the Appeals are dismissed.
Sd/-
NITIN JAMDAR,
CHIEF JUSTICE
Sd/-
S. MANU,
JUDGE
krj/-
//TRUE COPY// P.A. TO C.J.
