Kerala High Court
Kerala Bottled Water Manufacturers ... vs Ministry Of Health And Family Welfare on 17 February, 2017
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
THURSDAY, THE 7TH DAY OF DECEMBER 2017/16TH AGRAHAYANA, 1939
WP(C).No. 31449 of 2016 (E)
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PETITIONER(S):
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KERALA BOTTLED WATER MANUFACTURERS ASSOCIATION(KBWA)
EASTERN CORPORATE, 1ST FLOOR, 37/137 A,
NH BYPASS, EDAPALLY,COCHIN-682024, KERALA,
REP. BY ITS PRESIDENT MR. M.E.MOHAMED.
BY ADVS.SRI.JOY THATTIL ITTOOP
SRI.BIJISH B.TOM
SMT.NEVIS CASSANDRA L CAXTON LORETTA
SRI.JACOB TOMLIN VARGHESE
RESPONDENT(S):
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1. MINISTRY OF HEALTH AND FAMILY WELFARE,
DEPARTMENT OF HEALTH AND FAMILY WELFARE, C WING,
NIRMAN BHAVAN, NEW DELHI-110011, REP. BY ITS SECRETARY.
2. MINISTRY OF CONSUMER AFFAIRS,
FOOD AND PUBLIC DISTRIBUTION,
DEPARTMENT OF CONSUMER AFFAIRS,
KRISHI BHAWAN, NEW DELHI-110001,
REP. BY ITS SECRETARY.
3. UNION OF INDIA,
REP. BY ITS SECRETARY, MINISTRY OF HEALTH AND
FAMILY WELFARE,
C WING, NIRMAN BHAVAN, NEW DELHI-110011
4. STATE OF KERALA,
REP. BY ITS SECRETARY, MINISTRY OF HEALTH AND
FAMILY WELFARE,
ROOM NO. 655, THIRD FLOOR, SOUTH BLOCK, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
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WP(C).No. 31449 of 2016 (E)
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5. FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA (FSSAI),
OFFICE OF COMMISSIONER OF FOOD SAFETY, THYCAUD P.O.,
THIRUVANANTHAPURAM-695014, REP. BY ITS COMMISSIONER.
6. BUREAU OF INDIAN STANDARDS (BIS),
BRANCH OFFICE 'VANKARATH TOWERS', 2ND FLOOR,
N.H.BYE-PASS ROAD, SIGNAL JUNCTION, PALARIVATTOM,
COCHIN-682024, REP. BY ITS SCIENTIST (F & HEAD)
7. KOCHI MUNICIPAL CORPORATION,
CORPORATION OFFICE, PARK AVENUE, ERNAKULAM,
COCHIN-682011, REP. BY ITS SECRETARY.
8. MALAPPURAM MUNICIPALITY,
MALAPPURAM MUNICIPAL OFFICE, NEAR BUS STAND,
KOTTAPPADI P.O., MALAPPURAM-676505,
REP. BY ITS SECRETARY.
9. 'SRK WATER',
100 FEET ROAD, PUTHUR, PALAKKAD-678001,
REP. BY ITS PROPRIETOR.
* 10. 'DKC AQUA',
OPPOSITE TO WATER TANK (KULAM),
NEAR SOORYAGROUP OFFICE, KUNNATHURMEDU,
PALAKKAD-678013, REP BY ITS PROPRIETOR. [DELETED]
11. 'CLOUD WATER'
VAZHAKKADAVU ROAD, BEHIND MEDICAL COLLEGE,
MANAPPULLIKAVU, PALAKKAD-678013,
REP. BY ITS PROPRIETOR.
* 12. 'RIZWA PURE WATER',
D.NO. 12/142, MANCHIRA, CHITTUR, PALAKKAD-678101,
REP. BY ITS PROPRIETOR. [DELETED]
13. 'GREEN WATER',
NEAR COLLECTORATE, KOTTAYAM-686002,
REP. BY ITS PROPRIETOR.
* 14. 'CRYSTAL AQUA',
PARAYIL BUILDING, KALATHIPADI, KANJIKUZHY,
KOTTAYAM-686004, REP.BY ITS PROPRIETOR. [DELETED]
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WP(C).No. 31449 of 2016 (E)
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* 15. 'BLUE GOLD',
KADUVAKULAM, KOTTAYAM-686012, REP. BY IT PROPRIETOR.
[DELETED][RESPONDENTS R10, R12, R14 AND R15 ARE DELETED
FROM THE PARTY ARRAYAS PER ORDER DATED 17.02.2017
IN IA 20089/16.]
* 16. 'GANGOTRI',
NEEVEDYAM GROUP OF MANUFACTURES, CHURAL, MATHEEL,
PAYYANNUR P.O., KANNUR-670307, REP.BY ITS PROPRIETOR.
(DELETED).
* R10, R12,R14 & R15 DELETED FROM THE PARTY ARRAY AS PER
ORDER DATED 17/2/107 IN I.A.NO.20083/2016.
*R16 DELETED FROM THE PARTY ARRAY AS PER ORDER
DATED 29/5/2017 IN IA.NO.3204/2017.
R1 TO R3 BY SRI.N.NAGARESH, A.S.G OF INDIA
R1 TO R3 BY ADV. SRI.GIRISH KUMAR.V., CGC
R4 & R5 BY GOVERNMENT PLEADER SRI.S.KANNAN
BY SRI.PAUL JACOB, SC
R6 BY ADV. SRI.MANOJ RAMASWAMY
R7 BY ADVS. SRI.JIBU P.THOMAS,SC
SRI.P.K.SOYUZ,SC
R8 BY ADV. SRI.E.S.M.KABEER,SC
R9 BY ADV. SRI.JACOB SEBASTIAN
R11 BY ADV. SRI.MAHESH V.MENON
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 01-11-2017, THE COURT ON 07.12.2017, DELIVERED THE
FOLLOWING:
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WP(C).No. 31449 of 2016 (E)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBIT P1 THE TRUE COPY OF THE LETTER DATED 22-12-2012 ISSUED BY
THE PETITIONER TO THE 5TH RESPONDENT.
EXHIBIT P2 THE TRUE COPY OF THE LETTER DTD. 30-10-2013 ISSUED BY THE
PETITIONER TO THE 5TH RESPONDENT.
EXHIBIT P3 THE TRUE COPY OF THE LETTER DTD 31-10-2015 ISSUED BY THE
PETITIONER TO THE 5TH RESPONDENT.
EXHIBIT P4 THE TRUE COPY OF THE LETTER DTD 17-06-2016 ISSUED BY THE
PETITIONER TO THE 5TH RESPONDENT.
EXHIBIT P5 THE TRUE COPY OF THE LETTER DTD 22-06-2016 ISSUED BY THE
PETITIONER TO THE 6TH RESPONDENT.
RESPONDENT(S)' EXHIBITS
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EXHIBIT R9(A):- A TRUE COPY OF THE LICENSE ISSUED BY TH 5TH
RESPONDENT TO THE 9TH RESPONDENT.
EXHIBIT R11(A):- TRUE COPY OF LICENSE ISSUED BY THE DESIGNATED
OFFICER/CENTRAL LICENSING AUTHORITY ,FOOD SAFETY
AND STANDARDS AUTHORITY OF INDIA, SOUTH REGIONAL
OFFICE, CHENNAI TO THE 11TH RESPONDENT.
/TRUE COPY/
PS TO JUDGE
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ANU SIVARAMAN, J.
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W.P.(C).No.31449 of 2016
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Dated this the 7th day of December, 2017
JUDGMENT
1.This writ petition is filed by the Kerala Bottled Water Manufacturers Association seeking the following reliefs:-
(1)To issue a writ of Mandamus or other writ, direction to the 5th and 6th respondents to implement the provisions of the Bureau of Indian Standards Act, Food Safety and Standards Act 2006 and Food Safety and Standards (Prohibition and Restrictions on sales) Regulations 2011 as regards 'Packaged Drinking Water' in letter and spirit. (2)To issue a Writ of Mandamus or other appropriate writ, direction or order directing the 5th and 6th respondents to prevent the manufacture and sale of packaged drinking water that do not adhere to the legal requirements and standards prescribed and mandated by the provisions of Bureau of Indian Standards Act, Food Safety and Standards Act 2006 and Food Safety and Standards (Prohibition and Restrictions on sales) Regulations, 2011;
(3)To issue a writ of Mandamus or other appropriate writ, direction or order directing the 5th and 6th respondents to officially notify the status of all defaulting manufactures and to cancel the licences of all defaulting manufactures who do not comply with the licence and certification requirements as per the prescribed statutes and standards. (4)To issue a Writ of Mandamus or other appropriate writ, direction or order directing the 5th and 6th respondents to initiate criminal proceedings against all illegal manufactures of packaged drinking water who are operating in the State."
W.P.(C).No.31449/16 2
2.The petitioner contends that all manufactures of the commodity 'bottled drinking water' are liable to take a registration under the Food Safety and Standards Act, 2006, (hereinafter referred to as 'the Act' for short) and also to obtain a BIS Certification for the manufacture and marketing of the said commodity. Relying on the provisions of the Act, the Bureau of Indian Standards Act, 1986 and the various Regulations made thereunder, it is contended that the persons who do not have registration and the certification as required are liable to be interdicted from manufacturing, marketing or selling packaged drinking water.
3.A counter affidavit has been filed on behalf of respondents 1 and 2 contending as follows:-
"Regulation 2.10.8 of Food Safety and Standards(Food Products Standards and Food Additives) Regulations of 2011 reads as follows:-
"Packaged drinking water (other than Mineral water):- means water derived from surface water or underground water or sea water which is subjected to herein under specified treatments, namely, decantation, filteration, combination of filteration, aerations, filteration with membrane filter depth filter, cartridge filter, activated carbon filteration, de-mineralisation, re-mineralisation, reverse osmosis and packed W.P.(C).No.31449/16 3 after disinfecting the water to a level that shall not lead to any harmful contamination in the drinking water by means of chemical agents or physical methods to reduce the number of microorganisms to a level beyond scientifically accepted level for food safety or its suitability:
Provided that sea water, before being subjected to the above treatments, shall be subjected to desalination and related processes. The related packaging and labelling requirements are provided in regulation 2.1.2, 2.2.1 and 2.4.5 of Food Safety and Standards (Packaging and Labeling) Regulations, 2011.
It shall conform to the following standards namely:
Sl.No. Characteristic Requirements
(1) (2) (3)
(1) Colour not more than 2 Hazen Units/ True Colour Units
(2) Odour Agreeable
(3) TasteAgreeable
(4) Turbidity Not more than 2 nephelometric turbidity unit (NTU)
(5) Total Dissolved Solids Not more than 500 mg/litre
(6) pH 6.5-8.5
(7) Nitrates (as NO3) Not more than 45 mg/litre
(8) Nitrites (as NO2) Not more than 0.02 mg/litre
(9) Sulphide (as H2S) Not more than 0.05 mg/litre
(10) Mineral Oil Absent
(11) Phenolic compounds Absent
(as C6H5OH)
(12) Manganese (as Mn) Not more than 0.1 mg/litre
(13) Copper (as Cu) Not more than 0.05 mg/litre
(14) Zinc (as Zn) Not more than 5 mg/litre
(15) Fluoride (as F) Not more than 1.0 mg/litre
(16) Barium (as Ba) Not more than 1.0 mg/litre
(17) Antimony (as Sb) Not more than 0.005 mg/litre
(18) Nickel (as Ni) Not more than 0.02 mg/litre
(19) Borate (as B) Not more than 5 mg/litre
(20) Anionic surface active agents (as MBAS) Not more than 0.2 mg/litre
(21) Silver (as Ag) Not more than 0.01 mg/litre
(22) Chlorides (as Cl) Not more than 200 mg/litre
(23) Sulphate (as SO4) Not more than 200 mg/litre
(24) Magnesium (as Mg) Not more than 30 mg/litre
(25) Calcium (as Ca) Not more than 75 mg/litre
(26) Sodium (as Na) Not more than 200 mg/litre
(27) Alkalinity (as HCO3) Not more than 200 mg/litre
(28) Arsenic (as As) Not more than 0.05 mg/litre
(29) Cadmium (as CD) Not more than 0.01 mg/litre
W.P.(C).No.31449/16
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(30) Cyanide (as CN) Absent
(31) Chromium (as Cr) Not more than 0.05 mg/litre
(32) Mercury (as Hg) Not more than 0.001 mg/litre
(33) Lead (as Pb) Not more than 0.01 mg/litre
(34) Selenium (as Se) Not more than 0.01 mg/litre
(35) Iron (as Fe) Not more than 0.1 mg/litre
(36) Poly nuclear aromatic Hydrocarbons Not detectable
(37) Polychlorinated biphenyle (PCB) Not detectable
(38) Aluminium (as Al) Not more than 0.03 mg/litre
(39) Residual free chlorine Not more than 0.2 mg/litre
(40) (i) Pesticide residues considered individually - Not more than 0.0001 mg/ litre
(The analysis shall be conducted by using Internationally established test methods meeting the residue limits specified herein).
(ii) Total pesticide residue -- Not more than 0.0005 mg/litre.
(The analysis shall be conducted by Using Internationally established test methods meeting the residue limits specified herein).
(41) "Alpha" activity Not more than 0.1 picocurie/Litre (Bq)
(42) "Beta" activity Not more than 1 Bacquerel/Litre (Bq)
(43) Yeast and mould counts 1 x 250 ml. Absent
(44) Salmonella and Shigella Absent
1 x 250 ml
(45) E.Coli or thermotolerant bacteria Absent
1 x 250 ml
(46) Coliform bacteria 1 x 250 ml Absent
(47) Faecal streptococci and Absent
Staphylococusaureus
1 x 250 ml
(48) Pseudomonas aeruginosa
1 x 50 ml Absent
(49) Sulphite reducing anaerobes
1x 50 Absent
(50) Vibrio cholera and
V. parahaemolyticus
1 x 250 ml Absent
(51) Aerobic Microbial Count The total viable colony count shall not exceed 100 per ml
at 200C to 220C in 72 h on agar- agar or on agar - gelatin mixture, and 20 per ml at 370C in 24 h on agar-agar.
Going by Regulation 2.3.14 (17) of Food Safety and Standards (Prohibition and Restriction on Sales) Regulations of 2011 " No person shall manufacture, sell or exhibit for sale packaged drinking water except under the Bureau of Indian Standards Certification mark."
W.P.(C).No.31449/16 5
4.Counter affidavits have been filed by the party respondents as well. However, on the legal question of the necessity of registration under the Act as well as an BIS certification for the manufacture and marketing of packaged drinking water, none of the respondents have brought to my notice any provision which permits the manufacture and sale of packaged drinking water except under due BIS certification.
5.In the above view of the matter, the prayers made in this writ petition are only to be allowed. It is declared that only persons having proper registration can manufacture packaged drinking water and the said product can be sold only with proper certification by the Bureau of Indian Standards. The respondents shall take immediate steps to enforce the said provisions of law. The writ petition is ordered accordingly.
Sd/-
Anu Sivaraman, Judge sj