Delhi High Court
Magma (India) And Anr. vs Union Of India (Uoi) And Ors. [Along With ... on 20 July, 2005
Equivalent citations: 2005(189)ELT261(DEL), 2006FAJ5
Author: Vikramajit Sen
Bench: Vikramajit Sen
JUDGMENT Vikramajit Sen, J.
1. The prayers in these Writ Petitions are for the issuance of a direction to the Central Food Laboratory (CFL) to carry out another testing of the food samples drawn by the Commissioner of Customs from import consignments. The Petitions have been vehemently opposed by learned counsel for the Central Food Laboratory (CFL) on the grounds that there is no legal provision enabling the second testing of any food sample. In the case of Magma (India) Versus Union of India WP (C) No. 10553-54/2005, this argument is in variance with the stand already taken by Central Food Laboratory which is to the effect that re-testing of food samples by the Central Food Laboratory may be carried out only on Court intervention.
2. Mr. Rishi Manchanda, learned counsel for the Petitioner, had drawn attention to Section 144 of the Customs Act, 1962 which empowers the Proper Officer at the time of the entry or clearance of any goods or at any time while such goods are being passed through the custom or, to take samples of such goods in the presence of the owner, with the purpose of their examination or testing, or for ascertaining the value thereof. In the present case this provision does not have any role to play since it is the quality of the food substance from the standpoint of human consumption which is in issue, and not the value of the consignment for imposition of customs duty.
3. The source of power of the Customs Department to draw and thereafter forward food samples for testing can be traced to Section 5 of the Prevention of Food Adulteration Act, 1954 (hereinafter after referred to as `PFA Act') which contain a prohibition on the import of certain articles of food. The next following Section empowers the Commissioner of Customs or any officer of the Government authorised by the Central Government in this behalf to detain any imported package which he suspects to contain article of food the import of which is prohibited. Such Officer is duty bound to forthwith report such detention to the Director of the Central Food Laboratory and, if required by him, forward the package or send samples of any suspected article of food found therein to the said Laboratory. The action of the Customs Department is obviously predicated on these provisions of law.
4. Section 7 of the PFA Act thereafter deals with the manufacture of articles of food. Section 8 of the PFA Act envisages the appointment of Public Analyst for carrying out testing. Section 9, 10 and 11 of the PFA Act deal with the appointment and powers of the Food Inspectors. Quite obviously, Section 5 and 6 of the PFA Act deal with the import of articles of food and the subsequent provisions deal with manufacture and sale of food articles. The distinction must immediately be drawn between the report/analysis carried out by the Central Food Laboratory (CFL) and the Public Analyst. In the case of the import of articles of food the Commissioner of Customs or any Officer of the Government authorised by the Central Government must refer a sample to the Central Food Laboratory and not to the Public Analyst. It appears that the Customs Department has not always adhered to the mandates of these provisions in that they have referred food samples either to the Public Analyst or to the Central Food Laboratory (CFL). The Government of the National Territory of Delhi, Directorate of Prevention of Food Adulteration, by its Order No. F.1(27)/2k/PFA/Eng./PF/3202-3203 dated 20.4.2004 has justifiably directed the Public Analyst not to entertain any articles for analysis of samples from the Department of Customs and Central Excise, obviously to make the inspection of food fall in line with the provisions of the PFA Act. In the case of indigenously prepared articles of food or any article of food is offered for sale, samples can be referred for analysis by the Food Inspector as well as the purchaser of any such food, but it has to forward the samples to the Public Analyst and not the Central Food Laboratory. The Proviso to Section 13(5) of the PFA Act imparting finality and conclusiveness so far as the evidentiary value of facts stated in the Certificate signed by the Director of the Central Food Laboratory not concerned with imparted articles of food. It refers to foods manufactured or offered for sale in India in respect of which prosecutory proceedings have been initiated by the Food Inspector and/or the purchaser in the course of which the samples had been forwarded to the Public Analyst and thereafter to the PFA.
5. The analysis of the provisions of the PFA Act discloses that if there is dissatisfaction with the report of the Public Analyst the Petitioner has another opportunity to prove that the food sample is not adulterated or is otherwise unfit for human consumption by having it re-tested by the Central Food Laboratory. There appears to be no justification for vesting absolute finality to the Report of the CFL only because it pertains to an import.
6. The procedure normally followed by the Customs Department is in conformity with Section 13 of the PFA Act so far as the collection of three samples is concerned. This is also in consonance with the provisions of Section 25 of the Drugs and Cosmetics Act, 1940. These statutes envisage the drawing and sealing of three samples, one of which is forwarded for analysis, the second is retained by the Authority and the third is handed back to the owner of the food articles. Even though, Section 13 would not apply to imported consignments of food articles, the drawing of these samples is salutary as it affords another opportunity of carrying out of testing and analysis.
7. Counsel for the CFL have not been able to cite any provision of law which prohibits the carrying out of a second testing of a food sample, especially where the Authority who has forwarded the first sample makes a request to do so. In my opinion, where there is no statutory power or prohibition from carrying out a second testing there is no justification in deducing that it is not permitted. In the event that the second testing is found to be favorable to the Petitioner the question that would still have to be answered is whether the first report/testing should be ignored or discounted. This burden would have to be discharged by the Petitioners. In WP (C) No. 4200/2003 dated 29th August, 2003, a Division Bench of this Court had given imprimatur to a second test being carried out.
8. The Prevention of Food Adulteration Rules, 1955 specify the functions of the Central Food Laboratory. Sub-Rule (2) thereof prescribes the territorial jurisdiction of the four laboratories in India of which the statutory duties are mentioned under the PFA Act. The Proviso to that sub-Rule delineates the territorial boundaries for the same four laboratories in respect of analysis of samples received under sub-Section (2) of Section 6 of the PFA Act, with which we are concerned in these proceedings This further adumbrates the distinction in samples drawn of indigenously manufactured food articles and/or those which are offered for sale on the one hand and consignments of food articles sought to be imported into the country on the other. Interestingly, in the former case food samples would have to be sent to Central Food Laboratory, Pune whereas in the latter case since the imports are through Delhi, the Report would have to be obtained from Central Food Laboratory, Ghaziabad.
9. It is the admitted position that whilst there is no permission there is also no prohibition for the carrying out of the second test. One must not forget that to err is human and therefore a person should be allowed an opportunity to challenge the veracity of a finding. In my opinion, therefore, since there is no statutory prohibition from carrying out a second testing, there is no justification in deducing that this is not permitted. It has been contended by learned counsel for the Petitioner that the audi alteram partem rule has been violated in that the Petitioners were not informed or given an opportunity of being heard before the Report of the Central Food Laboratory was finalised. I am unable to agree that this Rule is violated where only a analysis and report, founded of objective criteria, is prepared. If another opportunity is available to test another of the three samples drawn at the relevant time, the Petitioners can scarcely have any further grievance. Since there are four Central Food Laboratories in India, it would be in the interest of all concerned, if, on a request being made by the party concerned, the sample retained by the Customs Department is forwarded to any of the other Centres. In the event that the second testings found to be favorable to the Petitioner the question would still have to be answered by the Authority concerned whether the first Report should be ignored or discounted.
MAGMA (INDIA)
10. The facts in WP (C) No. 10553-54/2005 are that in February, 2005 the Petitioner had imported a consignment of betel-nut from Indonesia. These were fumigated as per Certificate dated February 17, 2005 issued by the Superintendent and Marine/Ship Surveyor/Stuffing/ Unstuffing Survey, Fumigation, Pest Control, Termite Control, Analytical and Testing Laboratories, Indonesia by Pt. Carsurindo Era Mandiri, Medan Office: Komp. Griya Raitur Indah Blok B No. 205 Helvetia Timur Medan 20124 G" Sumut.
11. The Ministry of Agriculture, Republic of Indonesia has also issued a Phytosanitary Certificate dated 17.2.2005. An Import Release Order dated 24.3.2005 has been issued by the Ministry of Agriculture, Govt. of India, Plant Quarantine Station, Delhi.
It appears that the Deputy Commissioner of Customs, ICD, Tughlakabad, New Delhi had forwarded a sample to the Central Food Laboratory, Ghaziabad, Respondent No. 2. Vide the letter dated 24.3.2005 the Report was unfavorble to the Petitioner as the sample was found to be free from rodent contamination and extraneous matter but showed the presence of fungal growth on some of the pieces. The opinion was that the betel-nut did not conform to the limits prescribed for insect damaged matter under Rule 48B of the PFA Rules (1955).
12. The Petitioner thereupon approached the Deputy Commissioner of Customs, ICD, Tughlakabad, New Delhi with the request that another sample may be dispatched to the PHO for testing. It was stated that the Petitioner was confident that the import was not sub-standard and the first sample may not have been sealed/packed in proper packing. This request has been turned down by the Central Food Laboratory in terms of his letter dated 13.4.2005 wherein it has taken the view that there is no provision under PFC Act, 1954 for re-testing the same sample by the Central Food Laboratory except on the directions of the Court.
MCTON TRADE LINKS
13. The facts in WP (C) No. 10699/2005 are that the Petitioner had imported 22.680 Metric Tons Vanaspati Ghee in January, 2005. The Bill of Entry was presented on 19.1.2005. It is alleged that the Commissioner of Customs collected sample in a plastic container which was later admitted to be contaminated one. The Report, however, was to the effect that the Melting Point of Vanaspati Ghee was higher than the maximum prescribed limit and also that the sample showed presence of suspended matter. The Commissioner of Customs had, therefore, requested the Central Food Laboratory to carry out a second testing which it had declined.
SURYA FOODS and AGRO LTD.
14. The facts in WP (C) No. 10928/2005 are that in February, 2005 the Petitioner had imported a consignment of Cocoa powder on Gerkens Cacao by from Holland. The Bill of Entry was presented on 28.5.2005. It was alleged that the Customs Authority collected three samples from one of the bags of the container from which one sample was sent to the Central Food Laboratory, Ghaziabad for testing, second sealed sample was given to the Petitioner and third sealed sample was retained by the Customs Authority.
The Central Food Laboratory sent his analysis Report on 16th June, 2005 to the Customs Authorities and the Report, however, was to the effect that the alkalinity of total ash was found to be 7% against the prescribed standard of not more than 6%. The Petitioner sent the second set of sealed sample to ARBRO Pharmaceuticals Ltd, 4/9, Kirti Nagar Industrial Area, New Delhi which is a Government approved Test House. The said laboratory gave its Report to the Petitioner on 24th June, 2005 in which the alka unity of the sample was found within the prescribed limit of 0.48% against the report of 7% of Central Food Laboratory, Ghaziabad. The Petitioner thereupon approached the Assistant Commissioner of Customs (Imports) with the report of ARBRO Pharmaceuticals Ltd. and requested that the third sample may be dispatched for testing. It was stated that the Petitioner was confident that the import was not sub-standard and the first sample may not have been sealed/packed in proper packing. The request for re-testing had been declined.
SRI RAGHUNATH TRADERS
15. The facts in WP (C) No. 13439/2005 are that in March, 2005 the Petitioner had imported a consignment of Red Asafetida (Red Hing) consisting of 1864 Kg. imported into India. The Bill of Entry was presented on 13.5.2004 The Assistant Commissioner (Customs) had drawn samples for testing by Public Health Officer, Central Food Laboratory. The Central Food Laboratory sent his Report on 3rd June, 2004 to Deputy Commissioner of Customs, ICD Tughlakabad and the Report, however, was to the effect that the sh Insoluble in dil. H C L was found 4.69% in the sample whereas the prescribed standard was 2.5%. The prayer in the Writ Petition is that a second testing be allowed. The Hing is in its original form and cannot be altered at this stage. It is normally marketed in a compound, by addition of starch. It is also prayed in these proceedings that the preparation may be permitted. My attention has been drawn to the noting of AO(G) wherein it has been suggested that re-testing should be carried out. The stance of the CFL, however, is that since there are no statutory provisions permitting re-testing, this was, in fact, prohibited.
16. In all these petitions a foundation has been laid to consider the carrying out of another testing of the food samples. These Writ Petitions are allowed. The Commissioner of Customs is directed to dispatch the sample retained by him or the third sample to the Central Food Laboratory, Calcutta for its analysis and Report in accordance with the provisions of law. If three samples had not been initially taken, this should be done immediately.
17. These Writ Petitions stand disposed of in the above terms. Parties to bear their respective costs.