Andhra HC (Pre-Telangana)
Krishna Foods And Acqua Minerals vs Government Of India, Ministry Of Health ... on 30 September, 2004
Equivalent citations: 2004(6)ALD338, 2004(6)ALT4
Bench: B. Sudershan Reddy, K.C. Bhanu
ORDER
B. Sudershan Reddy and K.C. Bhanu, JJ.
1. This batch of writ petitions may be disposed of by a common order since the question that arises for consideration in all these matters is one and the same.
2. The writ petitioners claim to be Small Scale Industries manufacturing 'mineral water'. They are aggrieved by the amendments made to the Prevention of Food Adulteration Rules, 1955, whereunder the 'packaged drinking water' (other than natural mineral water) (IS-14543) is brought under the compulsory Bureau of Indian Standards Certification Mark with effect from 29-3-2001. The amended rules prohibit manufacture, sale or exhibit for sale 'packaged drinking water' and 'mineral water' except under the Bureau of Indian Standards Certification mark.
3. The 1st respondent herein made amendment to the Prevention of Food Adulteration Rules, 1955, (for short 'PFA Rules') amending Rules 42 and 49 of the Rules by inserting Clause -14 to Sub-rule [zzz] to Rule 42, the labeling of every package of drinking water has to be provided as 'Packaged Drinking Water.'
4. Likewise Clause 28 is newly inserted to Rule 49 which is to the following effect :
"No person shall manufacture, sell or exhibit for sale packaged drinking water except under the Bureau of Indian Standards Certification Mark."
5. Likewise in Appendix - B after Item A-32 new Item is inserted as A-33 defining the 'packaged drinking water (other than mineral water).'
6. The sum and substance of the amendments to the PFA Rules, is that 'packaged drinking water' is brought within the purview of the provisions of the Prevention of Food Adulteration Act, 1954 (for short 'PFA Act'). The case of the petitioners is that 'water' is not 'food' within the meaning of the provisions of the PFA Act and in fact it is specifically excluded from the definition of 'Food' as defined under Section 2(v) of the PFA Act. That unless necessary amendments are made to the provisions of the PFA Act itself, the rule making authority cannot included water as an item of 'food' for the purposes of the PFA Act. Since water is expressly excluded from the definition of 'food', the rule making authority cannot be permitted to bring the water within the purview of the. provisions of the PFA Act by making necessary amendments to the PFA Rules. It was also contended that the rule making authority did not follow the procedure prescribed under the provisions of the PFA Act before the rules, were promulgated. It was also contended that as per Rule 7(7) of the Bureau of Indian Standards Rules, 1987 (for short 'BIS Rules'), it is optional for the industries to get the Bureau of Indian Standards Certification.
7. It was also contended that the procedure prescribed for making compulsory use of standard mark for articles and process to certain schedule industries was not followed by the respondents before making applicable to 'packaged drinking water'. Section 14 of the Bureau of Indian Standards Act, 1986 (for short 'BIS Act'), enables the Government to notify any article or process of any schedule industry requiring it to conform to the Indian Standards; and direct the use of standard mark under a licence as compulsory but only after consulting the Bureau. The Central Government in the instant case did not consult the Bureau of Indian Standards in making 'mineral water/packaged drinking water' to get compulsory certification from Bureau of Indian Standards, and in the absence of the same, the petitioners cannot be compelled to apply for and obtain Bureau of Indian Standards Certificate. These are the two issues raised in the writ petitions.
8. A detailed counter-affidavit has been filed by the Director of Ministry of Health and Family Welfare, Government of India, in which it is inter alia stated that the Government of India in exercise of the powers vested under Sub-section (1) of Section 23 of the PFA Act, gave its intent to lay down specifications for "packaged drinking water" by issuing Draft Rules vide GSR 85(E), dated 3-2-2000, inviting comments from the public, trade and industry; many objections/suggestions on the draft rules were received and duly considered and only thereafter final notification vide GSR 760(E), dated 29-9-2000, laying down quality standards and other specifications in respect of the 'packaged drinking water' were issued. The said rules "The Prevention of Food Adulteration (7th Amendment) Rules, 2000" came into force with effect from 29-3-2001 after giving a clear period of six months time to the trade and industry for adoption of the said rules.
9. That on the recommendations of the Central Committee for Food Standards, a statutory Committee constituted under Section 3 of the PFA Act, it was decided to amend and upgrade the standards of 'Natural Mineral Water' also in the public interest and also to align it with international standards and accordingly issued notification for the purpose for the general information of the public and trade/industry vide GSR 808(E), dated 10-12-1999. After giving due considerations to the objections/suggestions received on the draft notification, the necessary amendments were made to the PFA Rules, whereby quality standards of all kinds of 'natural mineral water' were amended.
10. That as per the Amendment Rules, the 'natural mineral water' and 'packaged drinking water' is now required to be sold only under the mandatory Bureau of Indian Standards certification. The procedure was laid down purely in public interest in order to ensure that the manufacturing process complies with the standards/ specifications laid down by the Bureau of Indian Standards and the product answers the quality and hygienic requirements.
11. It is explained in the counter-affidavit that it is only 'plain water', which is excluded from the definition of 'Food' but not 'processed or packaged drinking water' or 'natural mineral water'. Both 'mineral water' and 'packaged drinking water' have been categorized as 'food' internationally by the Codex Alimentarius, a body connected to the Food and Agricultural Organisation and World Health Organisation of the United Nations in the joint FAO/ WHO Food Standards Programme. While the 'natural mineral water' was already covered under the ambit of the provisions of the PFA Act, the 'packaged drinking water' has now been defined under it.
12. Now we shall proceed to examine the submissions made by the learned Counsel for the petitioners and as well as the learned Central Government Standing Counsel.
13. Section 2(v) of the PFA Act defines 'food' thereby meaning any article used as 'food' or 'drink' for human consumption other than drugs and water.
14. The whole of the submission that 'water' which is fit for human consumption is excluded from the purview of the provisions of the PFA Act and therefore no rules could be framed in that regard is required to be examined in the light of Section 2(v)(c) of the PFA Act.
15. Section 2(v)(c) reads as follows :
'Food' means any article used as 'food' or 'drink' for human consumption other than drugs and water and includes - any other article which the Central Government may, having regard to its use, nature, substance or quality, declare, by notification in the Official Gazette, as food for the purpose of this Act.
16. That a plain reading of Section 2(v)(c) makes it abundantly clear that the Parliament itself had authorized the Central Government to include and declare by notification in Official Gazette any article which is not otherwise defined in the Act as 'food' for the purposes of the PFA Act. The only limitation imposed upon the Central Government is that it shall have due regard to the use, nature, substance or quality of the article for the purposes of notifying it as article of 'food'.
17. The Ministry of Health and Family Welfare (Department of Health) vide notification dated 12-3-2001 in exercise of the powers conferred by Sub-clause (c) of Clause (v) of Section 2 of the PFA Act, having regard to its use, nature, substance and quality, declared 'packaged drinking water' as 'food' for the purposes of the said Act. The said notification so issued by the Central Government is not challenged, and, in our considered opinion, cannot be challenged on whatever grounds. The same has obviously been issued by the Central Government in public interest and to ensure 'packaged drinking water' to be in conformity with the standards fixed by the Food and Agricultural Organisation and World Health Organisation of the United Nations.
18. One aspect that is required to be noticed is that petitioners are not the manufactures of 'mineral water' as explained in the counter-affidavit filed by the Bureau of Indian Standards, the product manufactured by the petitioners does not qualify to be called as 'mineral water'. It is loosely styled as 'mineral water' by the manufacturers but concededly what they are manufacturing and selling is 'packaged drinking water'.
19. The PFA Rules, prescribe the standards of quality of various food articles specified in Appendix-B to the Rules as are defined in that Appendix.
20. Part-DC of the PFA Rules provides conditions for sale and licence. Rule 49(1) which forms part of Part-IX of the PFA Rules mandates that every utensil or container used for manufacturing, preparing or containing any food or ingredient of food intended for sale shall be kept at all times in good order and repair and in a clean and sanitary condition.
21. Sub-rule (28) of Rule 49 mandates that no person shall manufacture, sell or exhibit for sale packaged drinking water except under the Bureau of Indian Standards Certification Mark.
22. Sub-rule (29) of Rule 49 mandates that no person shall manufacture, sell or exhibit for sale 'mineral water' except under the Bureau of Indian Standard Certification Mark.
23. It is thus clear that Sub-rules (28) and (29) of Rule 49 prohibit the manufacturing, sale or exhibition for sale of 'packaged drinking water' as well as 'mineral water' except under the Bureau of Indian Standards certification mark.
24. A-32 of Appendix-B defines 'mineral water' which includes all kinds of 'mineral water' or 'natural mineral water' by whatever name it is called and sold. It takes note of the face that 'natural mineral water' is water clearly distinguished from ordinary drinking water, because of the reasons stated therein.
25. A-33 of Appendix-B defines "packaged drinking water' (other than mineral water) means water derived from any source of potable water which is subjected to treatments, namely, decantation, Alteration, combination of filteration, aerations, filteration with membrane filter, depth filter, cartridge filter, activated carbon filteration, demineralization, remineralisation reverse osmosis and packed. It may be disinfected by to a level that will not lead to harmful contamination in the drinking water. It may be disinfected by means of chemical agents and/or physical method of the number of micro-organism to a level that does not compromise food safety or suitability." It prescribed the standards to be followed.
26. It is thus clear that water, which is excluded from the definition of 'food' in Section 2(v) of the PFA Act, is ordinary water, which is clearly distinguishable from all kinds of 'mineral water' or 'natural water' and 'packaged drinking water' which may derive from any source of potable water subjected to treatments etc. Therefore, the notification issued by the Central Government dated 29-3-2001 declaring 'packaged drinking water' as 'food' for the purposes of provisions of the PFA Act, in no manner amounts to amending the provisions of the PFA Act as contended by the learned Counsel for the petitioners. The article of 'packaged drinking water' is added as an additional item as 'food' for the purposes of the PFA Act in view of its nature and substance etc. The 'packaged drinking water' as defined hereinabove is comprehensive in its term, which takes into account the water that, is being manufactured and processed by the petitioners' companies. The impugned amendments, in our considered opinion, cannot be characterised as arbitrary, capricious, unreasonable and unjust as complained by the petitioners.
27. We have already noted that requisite procedure has been followed by the Central Government before notifying the Rules. The objections and suggestions that were received have been taken into consideration before the Rules were made notified.
28. The question of providing opportunity to each of the manufacture/ petitioner does not arise. Rule making power is Legislative in its character and putting the individuals on notice is not the requirement in law.
29. Then we shall consider the submissions based on the provisions of Bureau of Indian Standards Act and the Rules made thereunder.
30. The Bureau of Indian Standards Act, 1986 (Act 63 of 1986) is an Act to provide for establishment of a Bureau for the harmonious development of the activities of standardisation, marking and quality certification of goods and for matters connected therewith or incidental thereto.
31. Section 2(g) of the BIS Act defines "Indian Standard" "means the standard (including any tentative or provisional standard) established and published by the Bureau, in relation to any article or process indicative of the quality and specification of such article or process and includes-
"(i) any standard recognized by the Bureau under Clause (b) of Section 10; and
(ii) any standard established and published, or recognized, by the Indian Standards Institution and which is in force immediately before the date of establishment of the Bureau;"
32. Section 3 of the BIS Act authorises the Government by notification in the Official Gazette to establish a Bureau to be called the Bureau of Indian Standards for the purposes of the Act.
33. Section 14 of the BIS Act enables the Central Government by an order to notify any article or process of any scheduled industry to be in conformity with Indian Standards; and direct the use of the standard mark under the licence as compulsory on such article or process.
34. Explanation to Section 14 of the BIS Act says that for the purposes of the section, the expression "scheduled industry" shall have the meaning assigned to it in the Industries (Developmental and Regulation) Act, 1951 (Act 65 of 1951).
35. The contention that since the petitioners' industries are not the scheduled industries, there can be no compulsion to use the standard mark is totally misconceived.
36. That Section 14 of the BIS Act speaks of a specific situation where the Central Government may in its opinion in public interest direct any article or process of any scheduled industry also to be in conformity with the Indian Standards and thereby direct the use of Standard Mark under a licence as compulsory of such article or process. The submissions, as if, the whole of the Act itself applies only to the articles or process of scheduled industries alone, misconceived.
37. The definition of 'article' in Section 2(a) of the BIS Act "means (as respects standardisation and marking) any substance, artificial or natural, or partly artificial or partly cultural, whether raw or partly or wholly processed or manufactured;"
38. That a reading of Section 2(a) together with 2(g) of the BIS Act makes it abundantly clear that the requirement of use of standard mark for article and process is not confined to articles or process manufactured or produced by the scheduled industry alone. The requirement of previous consultation with the Bureau by the Central Government as is required under Section 14 of the Act is only with reference to the article or process of the scheduled industry and not with regard to other articles.
39. Rule 7 of the BIS Rules, deals with powers and functions of the Bureau and Promotion of Indian Standards.
40. Sub-rule (7)(a) of Rule 7 provides for procedure to be employed in establishing Indian Standards.
41. Sub-rule (7)(b) of Rule 7 declares that the Indian Standards are voluntary and available to the public. Their implementation depend on adoption by concerned parties. "However, an Indian Standard becomes binding, if it is stipulated in a contract or referred to in a Legislation or made mandatory by specific orders of the Government".
42. It is thus clear, the Indian Standards which are otherwise voluntary and available to public can be made as a binding requirement by any Legislation or by specific orders of the Government making it a mandatory requirement.
43. Sub-rules (28) and (29) of Rule 49 of the PFA Rules which are couched in mandatory form prohibit manufacture, sale or exhibition for sale of 'packaged drinking water' and 'mineral water' except under the Bureau of Indian Standard certification mark. Thus, there is a clear legal requirement making the Bureau of Indian Standard certification mark compulsory for manufacture, sale or exhibition for sale of 'packaged drinking water' and 'mineral water'. Even an order of the Central Government could have been enough for making the Indian Standard as a binding requirement.
44. The expression "in a Legislation" employed in Sub-rule (7)(b) of Rule 7 of the BIS Rules obviously means "any Legislation"; it is not confined to the provisions of the BIS Act and the Rules made thereunder. It only means that it may be made compulsory by any Legislation validity enacted or Rules made under such Legislation. Sub-rules (28) and (29) of Rule 49 of PFA Rules are validly made which prohibit manufacture, sale or exhibition for sale of 'packaged drinking water' without Bureau of Indian Standards certification mark. Rules make obtaining of the certification mark as mandatory requirement.
45. The only question that remains to be considered is whether the revised rates of marking fee with effect from 1-4-2001 suffers from any arbitrariness?
46. The Bureau of Indian Standards is an autonomous body working under the Aegis, Ministry of Consumer Affairs and Public Distribution. It is a self-sustaining one and the fee prescribed is to meet the operational costs for testing the samples drawn from the factory or market, inspection charges, administrative and supervisory charges. In the absence of any foundation in the pleadings as to how the fee charged is excessive or arbitrary, it would not be possible for this Court to accept the contentions to hold the fee charged as excessive. The contention is devoid of merit.
47. In the result, we find no merit in any of the submissions made by and on behalf of the petitioners.
48. The writ petitions are devoid of any merit and they are accordingly dismissed without any order as to costs.