Madras High Court
Amway India Enterprises Private ... vs The District Revenue Officer on 23 January, 2018
W.P.(MD)Nos.1635 and 1640 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 23.04.2024
DELIVERED ON : 11.06.2024
CORAM
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
W.P.(MD)Nos.1635 and 1640 of 2021
and
W.M.P.(MD)Nos.1383, 1387, 4188 and 4191 of 2021
W.P.(MD)No.1635 of 2021:
Amway India Enterprises Private Limited,
having its Registered Office at
Ground Floor, Elegance Tower,
Plot No.8,
Non-Hierarchical Commercial Centre,
Jasola,
New Delhi-110025
and having another office at
New door NO.58, Old Door No.97,
Q Block, Plot No.3701, Third Avenue,
Anna Nagar, Chennai 600 040,
represented by its Nominee/Authorised Signatory,
Parthasarathy Govindasamy. ... Petitioner
Vs.
1. The District Revenue Officer,
Tiruchirapalli District,
Tiruchirapalli Collectorate,
Tiruchirapalli – 620 001.
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W.P.(MD)Nos.1635 and 1640 of 2021
2. The Food Safety Officer,
Office of the Deputy Director of Health Services,
Near Jamal Mohammed College,
Race Course Road,
Tiruchirapalli – 620 020. ... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of
India, for issuance of a Writ of Certiorarified Mandamus to call for the
records relating to the Adjudication Proceedings No.DRO/DO/33/2018
before the first respondent ie., Tiruchirapalli District Revenue Officer
(DRO Trichy), consequent to a complaint dated 23.01.2018 filed by the
second respondent, quash the same as illegal, arbitrary and devoid of
merit and consequently restrain the respondents from initiating action
against the petitioner consequent to Food Analyst Report dated
11.12.2017 vide No.ACT 949/2017-18, R.No.5901/G2/2017.
W.P.(MD)No.1640 of 2021:
Parthasarathy Govindasamy ... Petitioner
Vs.
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W.P.(MD)Nos.1635 and 1640 of 2021
1. The District Revenue Officer,
Tiruchirapalli District,
Tiruchirapalli Collectorate,
Tiruchirapalli – 620 001.
2. The Food Safety Officer,
Office of the Deputy Director of Health Services,
Near Jamal Mohammed College,
Race Course Road,
Tiruchirapalli – 620 020. ... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of
India, for issuance of a Writ of Certiorarified Mandamus to call for the
records relating to the Adjudication Proceedings No.DRO/DO/33/2018
before the first respondent ie., Tiruchirapalli District Revenue Officer
(DRO Trichy), consequent to a complaint dated 23.01.2018 filed by the
second respondent, quash the same as illegal, arbitrary and devoid of
merit and consequently restrain the respondents from initiating action
against the petitioner consequent to Food Analyst Report dated
11.12.2017 vide No.ACT 949/2017-18, R.No.5901/G2/2017.
For Petitioner
in both petitions : Mr.Raguvaran Gopalan
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W.P.(MD)Nos.1635 and 1640 of 2021
For Respondents
in both petitions : Mr.A.K.Manikkam
Special Government Pleader
for R.1
: No Appearance for R.2
COMMON \]ORDER
Both the Writ Petitions are directed against the adjudication
proceedings No.DRO/DO/33/2018 before the first respondent,
consequent to a complaint dated 23.01.2018 filed by the second
respondent and for directions to the respondents not to initiate any action
against the petitioner consequent to Food Analyst Report dated
11.12.2017.
2. The petitioner in W.P.(MD)No.1635 of 2021 is a company
engaged in the business of manufacturing and trade of cosmetics, health
supplements, nutraceutical and other products. The petitioner in W.P.
(MD)No.1640 of 2021 is the authorised signatory of Amway India
Enterprises Private Ltd., and is a party to the adjudication proceedings
pending before the first respondent.
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3. The case of the prosecution is that on 25.09.2017 at about
11.30a.m., the second respondent had inspected the food business
operator Amway distributor shop and lifted food sample of nutrilite, all
plant protein powder and sent to Food Analysis Laboratory, Guindy for
analysis, that the Food Analyst after analysis has declared the sample as
misbranded and substandard, vide his report dated 11.12.2017, that the
second respondent, after getting necessary sanction from the Designated
Officer, Tiruchirapalli, has filed a complaint before the first respondent
under Sections 51, 52(1) of the Food Safety and Standards Act, 2006
against the company Amway India Enterprises Private Limited and its
nominees including the petitioner in W.P.(MD)No.1640 of 2021.
Pending adjudication proceedings, the said Company and its authorised
signatory Parthasarathy Govindasamy have filed the present revision
petitions challenging the adjudication proceedings pending before the
first respondent which came to be initiated by the second respondent.
4. At the time of admission of the above two writ petitions, this
Court vide order dated 29.01.2021 has granted an order of interim stay.
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When the interim order was in force, the first respondent has passed an
order dated 30.01.2021 imposing penalty on all the accused including the
writ petitioners herein. The writ petitioners have filed applications in
W.M.P.(MD)No.4188 of 2021 in W.P.(MD)No.1635 of 2021 and
W.M.P.(MD)No.4191 of 2021 in W.P.(MD)No.1640 of 2021 seeking
stay for the operation of the order dated 30.01.2021 passed by the first
respondent. A learned Judge of this Court, by observing that the present
order of penalty, in view of the stay granted by the learned Single Judge
of this Court in W.M.P.(MD)Nos.1383 and 1387 of 2021 in W.P.
(MD)Nos.1635 and 1640 of 2021, is prima facie unsustainable and
granted an order of interim stay.
5. The main contention of the writ petitioner is that the Food
Safety and Standards Authority of India has issued the Food Safety and
Standards (Health Supplements, Nutraceuticals, Food for Special Dietary
Use, Food for Special Medical Purpose, Functional Food and Novel
Food) Regulations 2016 came into force only on 01.01.2018, that the
second respondent has taken sample on 25.09.2017, that the Food
Analyst has sent his report on 11.12.2017, much before the Rules came
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into force and that therefore, the question of any violation of
Nutraceutical Regulations prior to 01.01.2018 does not arise at all.
6. The learned Counsel for the writ petitioners would submit that
the adjudication proceedings have been instituted without application of
mind and in an arbitrary manner as there can be no question of violation
of the Nutraceutical Regulations on 25.09.2017, when the sample was
taken and on 11.12.2017 when the Food Analyst gave his report as the
Nutraceutical Regulations were required to be complied with only from
01.01.2018, that there can be no penalty for the alleged violation of a law
which is yet to come into force and was therefore, inapplicable at the
time of the alleged contravention, that the petitioner has not committed
any violation as per the Food Safety and Standards (Packaging &
Labelling) Regulation, 2011 and that therefore, the petitioners are
constrained to file the above writ petitions.
7. The learned Special Government Pleader would mainly contend
that the FSSAI had issued the food safety and standards (Health
supplements, Nutraceutical, food for special dietary use, food for special
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W.P.(MD)Nos.1635 and 1640 of 2021
medical purpose, functional food and novel food) Regulations, 2016, that
subsequently FSSAI had issued an order dated 24.11.2016 directing the
operation of nutraceutical regulation came into effect on 24.11.2016, that
all the food business operators have to follow the regulations in a strict
manner and that the lifting of nutraceutical food sample and food
analysis report prior to 01.01.2018 is clearly sustainable and that since
the said regulations were in place, the objections raised by the writ
petitioners cannot be sustained.
8. No doubt, as rightly pointed out by the learned Special
Government Pleader, the FSSAI had issued an order dated 24.11.2016
and the same is extracted hereunder:
“Gazette publication of final regulations would take some
more time as the regulations are being translated in
Hindi. Considering that the regulations are final, the
FSSAI had made the above regulations (as enclosed)
operational with immediate effect (ie., 24.11.2016) in
order to facilitate food business”.
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9. The learned Special Government Pleader would submit that
since the regulations came into force from 24.11.2016 itself and as the
sample was taken on 25.09.2017 and the Food Analyst report was
received on 11.12.2017, the prosecution initiated by the second
respondent is perfectly in order.
10. It is pertinent to note that the Food Safety and Standards
(Health Supplements, Nutraceuticals, Food for Special Dietary Use, Food
for Special Medical Purpose, Functional Food and Novel Food)
Regulations 2016 came to be published in the official Gazette on
01.01.2018 and the regulation No.2 of the said Regulations, 2016 reads
as follows:
“They shall come into force on the date of their publication
in the Official Gazette and Food Business Operator shall
comply with all the provisions of these regulations by 1st
January 2018. “
11. Though FSSAI had made the above regulations operational
from 24.11.2016, the same can be considered as recommendatory in
nature, but not mandatory. The respondents have not shown any Rule or
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Regulations to the effect that the regulations are binding on all the stake
holders and in violation of any of the provisions of the regulations would
attract penal consequences. But on the other hand, as already pointed
out, in Regulation No.2, it has been specifically stated that the food
business operator shall comply with all the provisions of the above
regulations from 01.01.2018.
12. As rightly contended by the learned Counsel for the writ
petitioners, since the regulations came into force only from 01.01.2018,
collection of sample, sending of the same to the Food Analysis
Laboratory and getting the report from the Food Analyst and the
consequent prosecution initiated by the second respondent, by no stretch
of imagination can be considered as proper and legal.
13. It is necessary to refer Article 20(1) of the Indian Constitution:
“No person shall be convicted of any offence except for violation
of a law in force at the time of the commission of the act charged
as an offence, nor be subjected to a penalty greater than that
which might have been inflicted under the law in force at the time
of the commission of the offence.”
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14. Ex post facto law is derived from Latin words. Ex post facto
which means “out of the aftermath”. It is a law that has a retrospective
consequence on any act committed, which is not prohibited by law,
before the enactment of a preceding law. Article 20(1) of the Indian
Constitution is divided into two parts and according to the first part, no
person is to be convicted for an offence, except for an act that is illegal
or prohibited by the already enacted law at the time of commission of
that particular act. A law which is enacted after the commission of the
act means that the act which is done before the enactment of that law,
which was not an offence earlier can be criminalised by an ex post facto
law. But Article 20(1) of the Indian Constitution will safeguard the
individual's interest and will not make the person liable for conviction
under it. Admittedly, it is not the case of the respondents that the
regulations was given retrospective effect.
15. Considering the above, this Court has no hesitation to hold that
the impugned prosecution which was initiated before the Regulations
2006 came into force on 01.01.2018 cannot be sustained legally.
Consequently, this Court concludes that the impugned prosecutions are
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liable to be quashed. The learned Special Government Pleader's
contention that the first respondent was not aware of the interim order
passed on 29.01.2021, the order passed by the first respondent dated
30.01.2021 cannot be found fault with, cannot be accepted for the simple
reason that the said order came to be passed when the interim order was
in force. Since this Court decides that the impugned prosecution itself
cannot legally be sustained, the consequent action of passing orders on
30.01.2021 cannot also legally be sustained.
16. In the result, both the Writ Petitions are allowed and the
impugned prosecution dated 23.01.2018 and the order passed by the first
respondent dated 30.01.2021 are quashed. Consequently, the connected
Miscellaneous Petitions are closed. There shall be no order as to costs.
11.06.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
SSL
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W.P.(MD)Nos.1635 and 1640 of 2021
To
1. The District Revenue Officer,
Tiruchirapalli District,
Tiruchirapalli Collectorate,
Tiruchirapalli – 620 001.
2. The Food Safety Officer,
Office of the Deputy Director of Health Services,
Near Jamal Mohammed College,
Race Course Road,
Tiruchirapalli – 620 020.
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K.MURALI SHANKAR,J.
SSL PRE-DELIVERY ORDER MADE IN W.P.(MD)Nos.1635 and 1640 of 2021 and W.M.P.(MD)Nos.1383, 1387, 4188 and 4191 of 2021 11.06.2024 14/14 https://www.mhc.tn.gov.in/judis