Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Jurisdiction Case No.2185 of 2013 In Civil Writ Jurisdiction Case No. 3784 of 2013 ====================================================== 1. The Union of India through the Chief Commissioner of Customs (P) Patna Zone, 4th Floor, Central Revenue Building, Birchand Patel Path, Patna 2. The Commissioner of Customs (P), Patna Zone, 4th Floor, Central Revenue Building, Birchand Patel Path, Patna. 3. The Assistant Commissioner, Customs, Forbesganj Division, District- Forbesganj, Bihar. 4. The Superintendent of Customs, Forbesganj Division, District- Forbesganj, Bihar. .... .... Petitioners Versus 1. Salsar Transport Company through its Proprietor Ganesh Mishra S/O Late Krishna Kumar Mishra Resident of Shiv Nagar, Unnaw, P.S- Unnaw, District- Unnaw (U.P) 2. Yamuna Trading Company, situated at Matun Para, P.O- Dhupguri, P.S- Dhupguri, District- Jalpaigiuri, West Bengal, through its Proprietor Rajesh Singh S/O Sri J.S. Singh Resident Of Matun Para Ward No. 10, P.S- Dhupguri, District- Jalpaiguri, West Bengal. .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mrs. Nivedita Nirvikar, Sr.Standing Counsel with Mrs.Archana Sinha & Mr.Vikash Kumar Pankaj, Advocates For the Respondent/s : Mr. Prabhat Ranjan, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA ORAL ORDER 4 24-07-2013 Heard learned counsel for the petitioner Union of India and learned counsel for the respondents. This application has been filed for modification of the order dated 4.3.2012 passed in CWJC No.3784 of 2013 which was disposed of on agreement of the parties with a direction to release the betel nuts and the vehicle of the petitioner in terms of Patna High Court MJC No.2185 of 2013 (4) dt.24-07-2013 2 the order dated 17.1.2013 passed in CWJC No.317 of 2012 after due verification in terms of Section 110A of the Customs Act and after fixing a reasonable value for Bank Guarantee to be produced by the petitioners in that regard. The further direction was that the provisional release would take place within a period of two weeks from the filing of the application for the same, if the same had not already been filed. It is the stand of the petitioner Customs Department that the samples of the betel nuts in question were sent for analysis to the Central Food Laboratory, Kolkata (Extension Centre, Raxaul) and the analysis report dated 19.2.2013 was issued stating that the betel nuts are adulterated and with fungal growth. Reliance has also been placed on the analysis report dated 19.3.2013 of M/s. Arecanut Research & Development Foundation, Mangalore which had concluded that “Yeast, mould growth & Infestation are found in the sample of the said goods and hence not acceptable for human consumption” and that “the said sample has been found to be of Indonesian origin”. Reliance has been placed under Section 7 of the Prevention of Food Adulteration Act, 1954 to show that “supari” (betel nuts) is an item of food for which reliance has also been placed on a decision of the Supreme Court in the case of Pyarali
Legal Reasoning
Patna High Court MJC No.2185 of 2013 (4) dt.24-07-2013 3 K.Tejani vs. Mahadeo Ramchandra Dange and others : AIR 1974 SC 228. Learned Central Government Counsel has also sought to point out that the object of the Act was to ensure availability of food, safe and wholesome articles for human consumption as
Legal Reasoning
stated in the preamble of the Act. Learned counsel in this regard cites the decision of the Apex Court in the case of Dineshchandra Jamnadas Gandhi vs. State of Gujarat and another :AIR 1989 SC 1011 in which referring to the provisions of the Prevention of Food Adulteration Act it was held that the object and purpose of the Act are to eliminate the danger to human life from the sale of unwholesome articles of food and it was enacted to curb the widespread evil of food adulteration and is a legislative measure for social defence. It is the further stand of learned counsel for the petitioners that betel nuts not having been enumerated under any provisions of the Food Safety and Standards(Food Products Standards and Food Additives) Regulations, 2011 it is “Proprietary food” as stated in Regulation 2.12 of the said Regulations which is in the following terms : “2.12.1: (1) PROPRIETARY FOOD means a food that has not been standardized under these regulations. (2) In addition to the provisions including Patna High Court MJC No.2185 of 2013 (4) dt.24-07-2013 4 requirements labeling these regulations, the proprietary foods shall also conform to the following requirements, namely:- specified under (i) the name describing as clearly as possible, the nature or composition of food and/or category of the food under which it falls in these regulations shall be mentioned on the label; (ii) the proprietary food product shall comply with all other regulatory provisions specified in these regulations and in Appendices A and B.” In this regard learned counsel has placed reliance upon the opinion of the CFL, Kolkata which shows that “the sample of Split Betel Nut (Proprietary Food) is found adulterated in respect of tests mentioned above”. Learned counsel for the respondents, who were petitioners in the writ petition, on the other hand, points out various shortcomings and fallacies in the analysis reports sought to be relied upon by learned counsel for the petitioners. It is submitted that the opinion regarding the betel nuts being found adulterated is not supported by the actual findings and data obtained as a result of the examination. Learned counsel submits that the term “adulterant” has been defined in Section 3(1)(a) of the Food Safety and Standards Act, 2006 to mean any material which is or could be employed for making the food unsafe or sub- standard, mis-branded or containing extraneous matter. It is submitted that there is nothing in the report to show that any Patna High Court MJC No.2185 of 2013 (4) dt.24-07-2013 5 adulterant was found in the sample and thus the conclusion regarding adulteration is completely off the mark. It is submitted that the only part of the report which is adverse to some extent is the statement that Insect Damaged Betel Nut (By Count) was to the extent of 12.80% but that is merely a damage to some of the betel nuts and not any adulteration of the same. It is the further stand of learned counsel that even the samples have not been sent to the CFL in accordance with the provisions of Section 47 of the Act read with Rule 2.4 of the Food Safety and Standards Rules, 2011. It is submitted that both the Act and the Rules have made it clear that the samples should be drawn after giving notice in writing for the same and in the presence of the person and it is to be divided in four parts and marked and sealed or fastened up each part in such a manner as its nature permits and the signature or thumb impression of the person from whom the sample has been taken is to be put in such place and in such manner as may be prescribed by the Central Government and in case where such person refuses to sign or put his thumb impression, the Food Safety Officer shall call upon one or more witnesses and take his signature or thumb impression in lieu of the signature or thumb impression of such person. Learned counsel also submits that in terms of the said provisions the Patna High Court MJC No.2185 of 2013 (4) dt.24-07-2013 6 samples are to be divided in four parts, two of which have to be sent to the Designated Officer and one of the other two has to be sent for analysis to the Food Analyst under intimation to the Designated Officer and the remaining part may be sent for analysis to an accredited laboratory, if so required by the food business operator. It is further submitted that in case there is any discrepancy in the reports the food business operator has a further right to request the designated officer to send it to a referral laboratory for analysis whose decision is to be final. Learned counsel for the respondents submits that none of these safeguards were followed while samples were sent for analysis to CFL and therefore the report ought to be rejected on this count itself. So far as the report of Arecanut Research & Development Foundation is concerned, learned counsel submits that the same has no legal value as despite specific pleadings in this regard by the respondents nothing has been brought on the record to show that they have been authorized in terms of the provisions of the Act and the Rules to give any such report which has binding legal value under the provisions of the Act and Rules. The most important submission of learned counsel for the respondents is, however, that the betel nuts which were being sent from Dhuppur in Jalpaiguri district of West Bengal to New Patna High Court MJC No.2185 of 2013 (4) dt.24-07-2013 7 Delhi was not being offered for sale at a stage in which samples could have been taken out and subject to analysis under the provisions of Food Safety and Analysis Rules and Regulations. It is submitted that betel nuts are raw materials which require sufficient processing to be done and only thereafter they would be packaged in terms of the provisions of the Food Safety and Standards (Packaging and Labelling) Regulations, 2011 for being put up for sale. In this regard learned counsel relies upon the provisions of Regulations 2.4 (31) which provides that every package of supari and advertisement relating thereto shall carry the warning in conspicuous and bold print, namely, “Chewing of Supari is injurious to health”. It is submitted by learned counsel that that stage had not arisen at all as the supari was being carried for delivery to the processors and manufacturers for products of Pan Masala, etc. which contains supari. It is thus submitted that any sample of supari could have been taken only at the stage when they were being put up for sale for consumption by the public in terms of the Food Safety and Standards (Packaging and Labelling) Regulations, 2011 and not before that stage. In this regard learned counsel submits that it is at the final stage in the form of supari when it would become a proprietary food and would have to conform at that stage to the packaging and Patna High Court MJC No.2185 of 2013 (4) dt.24-07-2013 8 labelling regulations as also other regulations which may be attracted under the Food Safety and Standards Act, 2006. I have considered the submissions of learned counsels for the parties. On a consideration of the various provisions it is evident that betel nut or supari has not been enumerated under the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011. Thus as per the submission of learned counsel for the petitioners it would be a proprietary food that has not been standardized under the said Regulations. It would thus be required to follow the labelling requirements specified under the Regulations and must also conform to the requirement of describing as clearly as possible the nature and composition of food, the category in which it falls in the said Regulations and also comply with all other regulatory provisions. It is further clear that supari has to be sold in a package in terms of the Food Safety and Standards (Packaging and Labelling) Regulations, 2011 and such packaging is required to carry the statutory warning that “chewing of supari is injurious to health”. The same will also have to comply with the Food Safety and Standards (Contaminants, Toxins and Residues) Regulations, 2011 which lays down the limits for such contaminants in different food articles. However, the stage for such sample, etc. Patna High Court MJC No.2185 of 2013 (4) dt.24-07-2013 9 can only arise after the processing has been made of the raw supari by processing units or in case it is used as an ingredient of produces like Pan Masala, etc. by testing of such food products. That stage had not come into existence when the sample was sent by the Customs authorities to the CFL, Kolkata (Extension Centre, Raxaul) for analysis as the same had not yet been put up for sale for human consumption and required various processing to be done before it was fit for the same. From the materials placed on the record by learned counsels for the parties I am also of the view that the sample has not been drawn in accordance with the provisions of Section 47 and Rule 2.4 of the Food Safety and Standards Act and Rules. So far as the reliance on the report by M/s. Arecanut Research & Development Foundation, Mangalore is concerned, the petitioners have totally failed to bring on record any material to show that it is an accredited laboratory by a competent authority under the Act and Rules. Hence no legal liability can flow from the report of such an institution. I may here also point out that at a subsequent stage the petitioners have sought to rely upon the definition of “unsafe food” as contained in Section 3(1)(zz) of the Act, particularly of sub clause (ix) thereof stating that it would include article having Patna High Court MJC No.2185 of 2013 (4) dt.24-07-2013 10 been infected or infested with worms, weevils or insects. The said definition by itself does not mean anything as in fact standards with respect to weevils, etc. are to be found with respect to different food articles in the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 itself including general standards whether in the context of food grains or of different other vegetable products, etc. It is thus evident that it is not open to the petitioners to straightaway rely upon Section 3(1)(zz)(ix) of the Act without any reference to the standards laid down in the different Regulations. I am in agreement with the submission of learned counsel for the respondents that the case regarding samples being found adulterated is not borne out from the actual data obtained from the analysis as there is no reference to any adulterant in the course of such analysis. Moreover, I find that the prescribed standards column has not been filled up which would be the relevant point for consideration of the different data obtained from the examination of the sample of betel nut by the laboratory. Be that as it may, it is evident that the stage for taking out sample for its analysis had not yet come when the same was being transported for delivery to the processing unit for its processing by the respondents. Patna High Court MJC No.2185 of 2013 (4) dt.24-07-2013 11 Thus, on a consideration of the aforesaid facts and circumstances and the submissions of learned counsels for the parties, I am of the view that no modification is required to be made in the order dated 4.3.2013 passed in CWJC No.3784 of 2013. The modification application is, accordingly, rejected. The petitioners are directed to comply with the order passed in the writ petition in its own terms. (Ramesh Kumar Datta, J) spal/-