Bombay High Court
Vijay Shantilal Chopada vs The State Of Maharashtra on 29 September, 2016
Bench: A.V.Nirgude, V.L.Achliya
(1) crwp751.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.751 OF 2016
Vijay Shantilal Chopada, .. Petitioner
Age 42 years, Occu. Business,
R/o Nimgaon - Korhale,
Taluka Rahata, Dist. Ahmednagar
Versus
1. The State of Maharashtra, .. Respondents
Through the Principal Secretary,
Food and Civil Supply Department,
Mantralaya, Mumbai 32
2. The Secretary,
2. The Director General of Police,
Maharashtra State, Mumbai
3. The Commissioner of Food and
Safety, Maharashtra State,
Mumbai
Mr. A.V. Dhakephalkar, Senior Counsel with Mr. V.D.
Sapkal with Mr. S.S. Chapalgaonkar, Advocates for
the petitioner.
Mr. A.B. Girase, Government Pleader with Mr. M.M.
Nerlikar, A.P.P. for respondents No.1 to 4
CORAM : A.V.NIRGUDE &
V.L.ACHLIYA,JJ.
RESERVED ON : 05.08.2016
PRONOUNCED ON : 29.09.2016
J U D G M E N T [PER : A.V. NIRGUDE,J.] :-
1. This petition challenges validity of two notifications of the State of Maharashtra dated 17 th July 2015 and 22nd March 2016. The petitioner is a businessman who was earlier doing business in distribution of goods manufactured by one Heera ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 ::: (2) crwp751.16 Enterprises. Heera Enterprises used to manufacture pan masala, scented supari etc. Due to the notification dated 17th July 2015 and similar notifications issued earlier, since last many years, the petitioner is unable to continue distribution of the goods referred to above. He is, thereby, deprived of his right to earn his livelihood. He is, therefore, challenging the legality of the notifications dated 17th July 2015 and also subsequent similar notification dated 15th July 2016.
2. The petitioner is also challenging another notification dated 22nd March 2016, whereby the Home Department of the State of Maharashtra directed the Police to help and join officials, appointed under the provisions of the Food and Safety Standards Act, 2006 (henceforth be referred to as "the Food Act") in stopping prohibited food articles from being sold, stored, distributed etc. in the State of Maharashtra.
3. The State of Maharashtra has opposed this petition by filing reply and sur-rejoinder.
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4. The facts leading to this petition in short can be stated as under:
5. In our country "pan" which has botanical name Piper betel (common English name Betel leaf) is consumed as a mouth freshener. It is known to Indian society for time immemorial. The ancient Ayurvedic Physicians prescribed it as medicine and it is generally consumed with number of additives such as betel nut, lime, catechu and other usual condiments. In our country, in social gatherings, betel leaf and other usual additives are served to invitees as mouth freshener etc. It is not considered a vice to consume betel leaf with betel nut and other usual additives. In our country, some consumers add chewing tobacco to betel leaf, obviously for getting intoxicated.
6. Of late, as said above, in our country, food article "ready-made pan masala" has become quite popular. We are all aware that 'ready-made pan masala' is generally sold in polythene pouches and tins. It is consumed as mouth freshner or additive ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 ::: (4) crwp751.16 to Pan(betel leaf). Term 'Pan masala' is thus quite familiar and even finds place in Food Safety Standards [Food Product Standards and Food Additives (Regulation) 2011]. These regulations are compiled and enacted in 2011 in exercise of powers conferred by Section 92 (2) (e) read with Section 16 of the Food Act.
7. At serial No.2.11.5, term 'Pan masala' is standardized as under :
"2.11.5 Pan Masala means the food generally taken as such or in conjunction with Pan, it may contain :-
Betelnut, lime, coconut, catechu, saffron, cardamom, dry fruits, mulethi, sabnermusa, other aromatic herbs and spices, sugar, glycerin, glucose, permitted natural colours, menthol and non prohibited flavours.
It shall be free from added coaltar colouring matter and any other ingredient injurious to heath.
It shall also conform to the following standards namely :-
Total ash Not more than 8.0 per cent
by weight (on dry basis)
Ash insoluble in dilute Not more than 0.5 per cent
HCL acid by weight (on dry basis)"
8. From the above description, it is clear that pan masala is now accepted as a food item and would contain betel nut, lime, coconut, catechu, cardamom etc. We are aware that even the additives are also sold as food articles. They are added even otherwise to a betel leaf before consumption as mouth freshness.::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 :::
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9. The Food Act which is consolidated law relating to food is promulgated in 2006 for the purpose of establishing Food Safety and Standards Authority of India and for laying down science based standards for articles of food. The Act also regulates manufacture, storage, distribution, sale and import of food articles so as to ensure availability of safe and wholesome food for human consumption etc. This Act repealed the well known Act by name "Prevention of Food Adulteration Act, 1954".
10. From the Statement of objects and Reasons, one would know as to why the new Act in 2006 was brought into force. Earlier, up to 2006, there was multiplicity of food laws and standards settings.
There were various enforcement agencies in respect of different sectors of food. This created confusion in the minds of consumers, traders, manufacturers and investors. After a lot of research on this subject, ultimately, the new Act of 2006 was enforced. It inter alia incorporated salient provisions of the Prevention of Food Adulteration Act, 1954 and also took into account ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 ::: (6) crwp751.16 provisions of various international laws, instrumentalities and Codex Alimentaries Commission as far as it related to food safety norms. In nutshell, the Act took care of international practices and envisaged a policy frame work. It also provided a single window to guide and regulate persons engaged in manufacture, marketing, processing, handling, transportation, import and sale of food articles.
11. The main features of the Act are as under :-
"(a) movement from multi-level and multi-departmental control to integrated line of command;
(b) integrated response to strategic issues like noval/genetically modified foods, international trade;
(c) licensing for manufacture of food products, which is presently granted by the Central Agencies under various Acts and Orders, would stand decentralised to the Commissioner of Food Safety and his officer;
(d) single reference point for all matters relating to Food Safety and Standards, regulations and enforcement;
(e) shift from mere regulatory regime to self-compliance through Food Safety Management System;
(f) responsibility on food business operators to ensure that food processed, manufactured, imported or distributed is in compliance with the domestic food laws and
(g) provision for graded penalties depending on the gravity of offence and accordingly, civil penalties for minor offences and punishment for serious violations."
12. This Act thus is comprehensive and eloberate. It intends to ensure better consumer safety etc. ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 ::: (7) crwp751.16
13. As said above, earlier to 2006, the Prevention of Food Adulteration Act, 1954 was prevalent. It was extensively used for prevention of food adulteration etc.
14. As said above, the cause of action for this petition is repeated issuance of Notification under Section 30 of the Food Act, the operative part of which reads as under :
"Therefore I, the Food Safety Commissioner, Maharashtra State, prohibit in the interest of public health, for a period of one year from 20th July 2016, the manufacture, storage, distribution or sale of tobacco and areca nut (betel nut) which is either flavoured, scented or mixed with any of the said additives, and whether going by the name or form of gutka, pan masala, flavoured/scented tobacco, flavoured/scented supari, Manufactured chewing tobacco with additives, kharra, or otherwise by whatsoever name called, whether packed or unpacked and/or sold as one product, or though packaged as separate products, sold distributed in such a manner so as to easily facilitate mixing by the consumer, for it's consumption."
15. On careful perusal of the entire Notification, one would find that the Food Safety Commissioner received information and scientific data regarding deteriorating effects on health of human being by consumption of tobacco, which is now ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 ::: (8) crwp751.16 sold in the form of 'gutka', 'pan masala', 'flavoured tobacco', 'chewing tobacco', 'flavoured supari' etc. So, utilizing the Commissioner's power under Section 30, the prohibitory order is issued every year in July.
16. The question is, whether the Food Safety Commissioner is really empowered to issue such prohibitory order every year? What exactly is the scope of his power under Section 30 for issuing prohibitory orders?
17. On careful perusal of the operating part of the Notification, we found that the prohibition is for tobacco and Areca/betel nut sold together. The order clearly mentions that these two products might be sold after flavouring, scenting and mixing with the other additives. Such mixture of tobacco and areca/betel nut would be called either 'gutka' or 'pan masala' or 'flavoured tobacco' or 'flavoured scented supari' etc. Such mixtures are prohibited by this Notification. The order also indicated that even if tobacco and areca/betel nut are packed as separate products in such a manner so that they ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 ::: (9) crwp751.16 would be easily mixed by the consumers, even such product is prohibited. In other words, this Notification has prohibited "mixture of tobacco and areca nut". We find that this notification pertains only to products, which are mixed with tobacco or products, which are ready to be mixed with tobacco.
This notification thus would not apply and prohibit a food article which would contain only areca/betel nut or areca nut mixed with additives such as catechu, lime and other flavouring material such as saffron, cardamom, dry fruits, aromatic herbs, sugar, glycerin, glucose and permitted natural colours etc. The notification clearly prohibits a mixture which contains tobacco. This conclusion is inescapable also because betel nut is allowed to be sold singly. On the other hand "Chewing tobacco" is also sold in market subject to provisions of Cigarettes Act. In view of this, apparently we find that this notification does not prohibit in State of Maharashtra manufacture, storage, distribution or sale of the pan masala, which would adhere to the standards mentioned in the Food Product Standards and Food Additives (Regulation), 2011. In other words the term 'Pan ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 ::: ( 10 ) crwp751.16 Masala' used in this notification must be understood to identify a product which contains tobacco.
18. In our view, there is misunderstanding prevalent in the state that this notification has prohibited sale and manufacture of "Pan Masala" even if it does not contain tobacco. It is clear to us that pan masala, which is in conformation of above mentioned Regulation, is not prohibited by the impugned notification.
19. Assuming that even a product, which does not contain tobacco but, is sold in the name of pan masala/flavoured supari/scented supari is included in the impugned order and prohibited, we have to find out as to whether power under Section 30 of the Food Act would empower the Commissioner to prohibit such products? In order to answer this question we must read the relevant provisions of the Food Act. We would examine first Section 30 of the Food Act. It reads as under :-
"30. Commissioner of Food Safety of the State.-
(1) The State Government shall appoint the Commissioner of Food Safety for the State for efficient implementation of food safety and standards and other requirements laid down under this Act and the rules and regulations made thereunder.::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 :::
( 11 ) crwp751.16 (2) The Commissioner of Food Safety shall perform all or any of the following functions, namely:-
(a) prohibit in the interest of public health, the manufacture, storage, distribution or sale of any article of food, either in the whole of the State or any area or part thereof for such period, not exceeding one year, as may be specified in the order notified in this behalf in the Official Gazette;
(b) carry out survey of the industrial units engaged in the manufacture or processing of food in the State to find out compliance by such units of the standards notified by the Food Authority for various articles of food;
(c) conduct or organise training programmes for the personnel of the office of the Commissioner of Food Safety and, on a wider scale, for different segments of food chain for generating awareness on food safety;
(d) ensure an efficient and uniform implementation of the standards and other requirements as specified and also ensure a high standard of objectivity, accountability, practicability, transparency and credibility;
(e) sanction prosecution for offences punishable with imprisonment under this Act;
(f) such other functions as the State Government may, in consultation with the Food Authority, prescribe.
(3) The Commissioner of Food Safety may, by Order, delegate, subject to such conditions and restrictions as may be specified in the Order, such of his powers and functions under this Act (except the power to appoint Designated Officer, Food Safety Officer and Food Analyst) as he may deem necessary or expedient to any officer subordinate to him."
20. It is clear that Section 30 of the Food Act deals with functions of the Commissioner. Sub-
section (2) of the Act gives certain powers to the Commissioner to prohibit in the "interest of public health", manufacture, storage etc. of any article of food. The question is, in the background of provisions of the parent Act, in what manner the Commissioner is able to use this apparently drastic power? The notification is in a way a "Prohibition ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 ::: ( 12 ) crwp751.16 Order".We have seen above as to what are the objectives of Food Act.
21. The word, 'prohibition order' is defined under Section 3 (zl), which reads thus :
"3. (zl) "prohibition order" means an order issued under section 33 of this Act."
22. In turn, we have also perused Section 33 of the Food Act and found that prohibition order under Section 33 of Food Act can be passed by the Court after a food business operator is convicted for an offence under the Food Act. We, thereafter, perused Section 34 of the Act, which provided that how in an emergency, a prohibition order can be passed. So, the additional power given to the Commissioner under Section 30 of the Food Act must be understood in the light of these provisions. We assume that the Commissioner possessed ample scientific data to come to the conclusion that chewing tobacco with betel nut or chewing betel nut alone is injurious to health. But whether that scientific data in itself is sufficient to issue the impugned notification? In our view it is not. Consumption of any food article can be injurious to health. The Food Act has taken ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 ::: ( 13 ) crwp751.16 care of such situation.
23. From time to time, food articles are introduced for human consumption in market and the scientists also start examining such products' safety. Section 3 (partly) and Section 18 of the Food Act laid down general principles to be followed in administration of this Act. They are as under :
(zm) "risk", in relation to any article of food, means the probability of an adverse effect on the health of consumers of such food and the severity of that effect, consequential to a food hazard".
(zn) "risk analysis", in relation to any article of food, means a process consisting of three components, i.e. risk assessment, risk management and risk communication;
(zo) "risk assessment" means a scientifically based process consisting of the following steps : (i) hazard identification, (ii) hazard characterisation, (iii) exposure assessment, and (iv) risk characterisation;
(zp) "risk communication" means the interactive exchange of information and opinions throughout the risk analysis process concerning risks, risk-related factors and risk perceptions, among risk assessors, risk managers, consumers, industry, the academic community and other interested parties, including the explanation of risk assessment findings and the basis of risk management decisions;
(zq) "risk management" means the process, distinct from risk assessment, of evaluating policy alternatives, in consultation with all interested parties considering risk assessment and other factors relevant for the protection of health of consumers and for the promotion of fair trade practices, and, if needed, selecting appropriate prevention and control options."
"18. General principles to be followed in administration of Act.-The Central Government, the State Governments, the Food Authority and other agencies, as the case may be, while implementing the provisions of this Act shall be guided by the following principles, namely:-
(1) (a) endeavour to achieve an appropriate level of protection of human life and health and the protection of consumers' interests, including fair practices in all kinds of food trade with reference to food safety standards and practices;::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 :::
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(b) carry out risk management which shall include taking into account the results of risk assessment, and other factors which in the opinion of the Food Authority are relevant to the matter under consideration and where the conditions are relevant, in order to achieve the general objectives of regulations;
(c) where in any specific circumstances, on the basis of assessment of available information, the possibility of harmful effects on health is identified but scientific uncertainty persists, provisional risk management measures necessary to ensure appropriate level of health protection may be adopted, pending further scientific information for a more comprehensive risk assessment;
(d) the measures adopted on the basis of clause (c) shall be proportionate and no more restrictive of trade than is required to achieve appropriate level of health protection, regard being had to technical and economic feasibility and other factors regarded as reasonable and proper in the matter under consideration;
(e) the measures adopted shall be reviewed within a reasonable period of time, depending on the nature of the risk to life or health being identified and the type of scientific information needed to clarify the scientific uncertainty and to conduct a more comprehensive risk assessment;
(f) in cases where there are reasonable grounds to suspect that a food may present a risk for human health, then, depending on the nature, seriousness and extent of that risk, the Food Authority and the Commissioner of Food Safety shall take appropriate steps to inform the general public of the nature of the risk to health, identifying to the fullest extent possible the food or type of food, the risk that it may present, and the measures which are taken or about to be taken to prevent, reduce or eliminate that risk; and
(g) where any food which fails to comply with food safety requirements is part of a batch, lot or consignment of food of the same class or description, it shall be presumed until the contrary is proved, that all of the food in that batch, lot or consignment fails to comply with those requirements.
(2) The Food Authority shall, while framing regulations or specifying standards under this Act-
(a) take into account-
(i) prevalent practices and conditions in the country including agricultural practices and handling, storage and transport conditions; and
(ii) international standards and practices, where international standards or practices exist or are in the process of being formulated, unless it is of opinion that taking into account of such prevalent practices and conditions or international standards or practices or any particular part thereof would not be an effective or appropriate means for securing the objectives of such regulations or where there is a scientific justification or where they would result in a different level of protection from the one determined as appropriate in the country;
(b) determine food standards on the basis of risk analysis except where it is of opinion that such analysis is not appropriate to the circumstances or the nature of ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 ::: ( 15 ) crwp751.16 the case;
(c) undertake risk assessment based on the available scientific evidence and in an independent, objective and transparent manner;
(d) ensure that there is open and transparent public consultation, directly or through representative bodies including all levels of panchayats, during the preparation, evaluation and revision of regulations, except where it is of opinion that there is an urgency concerning food safety or public health to make or amend the regulations in which case such consultation may be dispensed with: Provided that such regulations shall be in force for not more than six months.
(e) ensure protection of the interests of consumers and shall provide a basis for consumers to make informed choices in relation to the foods they consume,
(f) ensure prevention of-
(i) fraudulent, deceptive or unfair trade practices which may mislead or harm the consumer; and
(ii) unsafe or contaminated or sub-standard food.
(3) The provisions of this Act shall not apply to any farmer or fisherman or farming operations or crops or livestock or aquaculture, and supplies used or produced in farming or products of crops produced by a farmer at farm level or a fisherman in his operations.
24. Let us assume that - Pan Masala, which does not contain tobacco and which even conforms the standards laid down in regulation No.2.11.5 of the Regulations- it is found that chewing such products is also injurious to human health. Such situation is already contemplated by express provisions of this Act. The relevant provisions are sections 3 (zm), (zn), (zo), (zp) & (zq) of the Food Act. If we peruse these provisions, with reference to the scientific data collected by the Food Commissioner, Maharashtra, it is clear that the Commissioner could ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 ::: ( 16 ) crwp751.16 assume that there is risk in relation to the Article of food, which is known as Pan Masala (without Tobacco), Scented supari (without tobacco) and such other products which do not contain Tobacco. The definition of term "risk" clearly contemplates that in relation to any article of food, there could be probability of an adverse effect on health of consumer. The severity of such risk could be variable. At such stage, as per provision of Section 18, the Central Government, the State Government and the Commissioner are expected to analysis the risk.
Upon analysis of such risk, they are required to assess the risk. Thereafter, they are expected to manage the risk. Section 18 sub-section (1) of the Food Act, clearly lays down as to how these three authorities should carry out risk management.
25. When the scientific data is not sufficient to conclude that a food product is hazardous, provisional risk management measures are required to be taken. Even such measures are required to be taken within the parameters of the Food Act. Clause
(e) of S.18 (1) of the Food Act requires the authorities that if certain risk management measures ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 ::: ( 17 ) crwp751.16 are adopted in respect of a particular food item, it should be reviewed within a reasonable period of time. It should then conduct a more comprehensive risk assessment. Clause (f) contemplates a situation where there are reasonable grounds to suspect that a good item may present risk for human health.
Depending on situation, food authority and the Food Commissioner should take appropriate steps for informing the general public of the nature of risk to health.
26. In addition to this, one must also read Chapter VII of the Act which includes provisions regarding the enforcement of the Food Act. Section 29 of the Food Act provides that the food authorities and the State Food Safety Authority should monitor and verify that relevant requirements of law are fulfilled by food business operator at all stages of the business. As seen above, the Food Act by section 92 gives power to food authority to make regulations. Utilizing such powers the food authorities have already notified the standards and guidelines in relation to articles of food which are sold and distributed for human consumption. In this ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 ::: ( 18 ) crwp751.16 background one must read S.34 of the Act.
27. Section 34 of the Food Act reads as under :
"34. Emergency prohibition notices and orders. -
1. If the Designated Officer is satisfied that the health risk condition exists with respect to any food business, he may, after a notice served on the food business operator (in this Act referred to as an "emergency prohibition notice"), apply to the Commissioner of Food Safety for imposing the prohibition.
2. If the Commissioner of Food Safety is satisfied, on the application of such an officer, that the health risk condition exists with respect to any food business, he shall, by an order, impose the prohibition.
3. The Designated Officer shall not apply for an emergency prohibition order unless, at least one day before the date of the application, he has served notice on the food business operator of the business of his intention to apply for the order.
4. As soon as practicable after the making of an emergency prohibition order, the Designated Officer shall require the Food Safety Officer to -
a. serve a copy of the order on the food business operator of the business; or b. affix a copy of the order at a conspicuous place on such premises used for the purposes of that business and any person who knowingly contravenes such an order shall be guilty of an offence and shall be punishable with imprisonment for a term which may extend to two years and with fine which may extend to two lakh rupees.
5. An emergency prohibition order shall cease to have effect on the issue by the Designated Officer of a certificate to the effect that he is satisfied that the food business operator has taken sufficient measures for justifying the lifting of such order.
6. The Designated Officer shall issue a certificate under sub-section (5) within seven days of an application by the food business operator for such a certificate and on his being not satisfied, the said officer shall give notice to the food business operator within a period of ten days indicating the reasons for such decision."
28. Even, in emergent situation, this provision provided that prohibitory orders cannot be passed ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 ::: ( 19 ) crwp751.16 without issuing a prior notice to the business operator. It is, in this context also, the provision of Section 30 (2) of the Food Act is required to be understood. A procedure is prescribed under Section 34 of the Food Act, as to how a prohibition order is made by the Commissioner. Such an order should be for a limited period. If during the subsistence of such order, it is found that corrective steps are taken, such order can be withdrawn.
29. In this background one must read Section 30 clause (a) of sub-section (2) of the Food Act. Now it becomes clear that though the Commissioner of Food Safety is permitted to prohibit manufacture etc. of any article of food, within the state, the duration of such order cannot be more than one year.
The impugned notification is issued utilizing these powers. The first question is - whether such prohibitory order is permissible in the facts and circumstances and within the parameters of Section 30 (2) (a) of the Food Act? If the answer to this question is in affirmative, whether such prohibitory order can be perpetuated by issuing similar orders immediately after the expiry of one year period.
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30. On the face of it, we find that the power is required to be utilized for a limited period that too in limited area. It is a measure which is required to be taken in case of emergency. The tenor of the provision of the Act indicated that such drastic powers were not to be issued indiscriminately. As mentioned above, all along the Act has taken into account the safety of the food and taking steps for meeting the dynamic/ever changing requirements of Indian food trade and industry and international trade. In other words the Act clearly suggests that while utilizing the powers of this Act, the authorities should not cause loss to the Indian food trade and industry. By passing this sweeping order prohibiting manufacture of certain food article, year after year, there is no doubt in our minds that this would hamper the progress of Indian food trade and industry. In our view, the power given under clause (a) is required to be utilized sparingly that too in an emergency situation. For example, in a pilgrimage towns such as Pandharpur, Tuljapur etc. where lakhs of people converge on a particular day in a year, there is ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 ::: ( 21 ) crwp751.16 likelihood that the resources available in such relatively smaller towns would be insufficient to cater needs of lakhs of pilgrims/visitors. In such situation, there is possibility that purity and standard of ready-made food item/s would be neglected. The Commissioner for Food Safety might collect samples of usual food items before the festival and if it is found that certain food article manufactured by certain manufacturer is of sub-standard /contaminated/hazardous to human health, as provisional risk management measure, the Commissioner can prohibit manufacture and sale of such food article. This could be one of the examples of emergency that might erupt within the State.
There are, of course, number of other possibilities where the powers under clause (a) can be utilized.
But, it is clear from the wording of the provisions of Section 30 that for the reasons mentioned in the impugned order, the Commissioner for Food Safety is not empowered to issue such order. That too year after year. This would throttle a particular branch of food industry.
31. Similar situation arose under the ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 ::: ( 22 ) crwp751.16 provisions of the Prevention of Food Adulteration Act, 1954. This Act looked after food safety standards prior to 2006. A similar Notification was issued by the Food (Health) Authority, under section 7 (iv) of the Prevention of Food Adulteration Act, by which manufacture, sell, storage and disbursement of Pan-masala, Gutka (Pan Masala containing Tobacco) were banned for different periods. Section 7 of the Prevention of Food Adulteration Act reads as under :-
7. Duties of Public Analyst- (1) On receipt of a package containing a sample for analysis from a Food Inspector or any other person the Public Analyst or an officer authorised by him shall compare the seals on the container and the outer cover with specimen impression received separately and shall note the condition of the seals thereon:
Provided that in case sample container received by the Public Analyst is found to be in broken condition or unfit for analysis he shall within a period of seven days from the date of receipt of such sample inform the Local (Health) Authority about the same and send requisition to him for sending second part of the sample.
(2) The Public Analyst shall cause to be analysed such samples of article of food as may be sent to him by Food Inspector or by any other person under the Act.
(3) The Public Analyst shall, within a period of forty days from the date of receipt of any sample for analysis, send by registered post or by hand to the Local (Health) Authority a report of the result of such analysis in Form III:
Provided that where any such sample does not confirm to the provisions of the Act or these rules, the Public Analyst shall send by registered post or by hand four copies of such report to the said Authority:::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 :::
( 23 ) crwp751.16 Provided further that the Public Analyst shall forward a copy of such report also to the person who purchased an article of food and forwarded the same to him for analysis under Section 12 of the Act."
32. Godawat Pan Masala Products I.P. Ltd. And others challaged the validity of the prohibitory order. The case reached the Apex Court and in the wellknown judgment in the case of Godawat Pan Masala Products I.P. Ltd.
Vs. Union of India (2004) 7 S.C.C.68, the Supreme Court held that that the power given to the Food Health Authority is only pro tem power to deal with an emergent situation such as outbreak of any inflectious disease, which may due to any article of food. Such power would include power to ban for the time being the sale of such injurious article of the food. Such power is utilized for the time being and in the interest of public health. If provisions of Section 7 (iv) are not held to confer power on the authority to deal with an emergent situation, such provision would confer arbitrary powers on authority and would be procedurally unfair. This is held particularly in the face of statutory provisions under which licences were granted to the manufacturers of pan-
masala etc. Since there is provision for ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 ::: ( 24 ) crwp751.16 cancellation and suspension of such licence, without resorting to necessary procedure, imposing prohibitory orders would be arbitrary and against the provisions of Article 14 of the Constitution.
33. Learned Sr. Counsel for the petitioner asserted that by utilizing powers under section 30 (2) (a) of the Food Act, the Commissioner for Food Safety has virtually usurped legislative functions.
Imposing prohibition on manufacture etc. of a Food Article would be within the legislative competence.
The provisions of Food Act clearly provided that prohibition orders would be passed sparingly in few situations and after following due process of law.
34. In this background, the question was raised as to whether before making the impugned order, the Commissioner was required to comply with the principle of natural justice.
35. Admittedly, no hearing was given to the concerned persons who were granted licence to manufacture pan masala etc. In the judgment of the Supreme Court in the case of Olga Telis & Ors. Vs. ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 ::: ( 25 ) crwp751.16 Bombay Municipal Corporation, (1985) 3 S.C.C. 545, the Constitutional Bench of the Supreme Court had an occasion to deal with provisions of Section 314 of the Bombay Municipal corporation Act, 1988. It was held that said section 314 conferred on the Municipal Commissioner, a discretion to cause encroachment to be removed with or without notice.
The Supreme Court held that such discretion has to be exercised in a reasonable manner so as to comply with the constitutional mandate that the procedure must be fair and reasonable. The relevant observations of judgment of Olga Tellis (Supra) are as under :-
44" xxxxxxxx (the said section) confers on the Commissioner the discretion to cause an encroachment to be removed with or without notice. That discretion ha to be exercised in a reasonable manner so as to comply with the constitutional mandate that the procedure accompanying the performance of a public act must be fair and reasonable. (The Court) must lean in favour of this interpretation because it helps sustain the validity of the law"
45. "It must further be presumed that, while vesting in the Commissioner the power to act without notice, the Legislature intended that the power should be exercised sparingly and in cases of urgency which brook no delay. In all other cases, no departure from the audi alteram partem rule ('Hear the other side') could be presumed to have been intended. Section 314 is so designed as to exclude the principles of ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 ::: ( 26 ) crwp751.16 natural justice by way of exception and not as a general rule. There are situations which demand the exclusion of the rules of natural justice by reason of diverse factors like time, place the apprehended danger and so on. The ordinary rule which regulates all procedure is that persons who are likely to be affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances which warrant it. Such circumstances must be shown to exist, when so required, the burden being upon those who affirm their existence."
36. Assuming that the powers under section 30 is an example of conditional legislation, the Supreme Court in the judgment of State of T.N. Vs. K. Sabanayagam, 1998 S.C.C. 318, broadly classified three categories of conditional legislation. These are as under :-
"a. When the legislature has completed its task of enacting a statute, the entire superstructure of the legislation is ready but its future applicability to a given area is left to the subjective satisfaction of the delegate.
b. Where the delegate has to decide whether and under what circumstances a legislation, which has already come into force, is to be partially withdrawn from operation in a given area or in given cases so as not to be applicable to a given class of persons who are otherwise admittedly ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 ::: ( 27 ) crwp751.16 governed by the Act; and c. Where the exercise of conditional legislation would depend upon satisfaction of the delegate on objective facts placed by one class of persons seeking benefit of such an exercise with a view to deprive the rival class of persons, who, otherwise, might have already got statutory benefits under the Act and who are likely to lose the existing benefit, because of exercise of such a power by the delegate."
37. The Supreme Court emphasized in this judgment that in the third type of cases, the satisfaction of the delegate (Commissioner) must necessarily be based on objective considerations and it must be treated as a function which requires objective consideration of relevant factual data pressed into service by one side which could be rebutted by other, who would be adversely affected.
38. In this background we would now turn to a similar case. The Division Bench of Patna High Court recently delivered judgment in the case of M/s.Onkar Agency Vs. Safety Standard Authority of India. The facts were quite similar. The petitioners were manufacturers of Pan Masala and Gutka(Chewing tobacco).The commissioner for food safely Bihar issued a Prohibitory Order u/s 30 ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 ::: ( 28 ) crwp751.16 banning manufacture, sale, storage etc. of Pan Masala. Gutka etc. The division bench of Patna High Court held:
33. ..... the following facts emerge with respect to the issuance of prohibition orders under Section 30(a) of the Food Act.
a. Before passing of the order, there must be emergent circumstances based on objective materials that in the interest of public health, the manufacture, storage, distribution or sale of any article of food, either in the whole of the State or any area or part thereof, be prohibited;
b. The tenure of the prohibitory order has to be temporary in nature and must not exceed 1 (one) years in its entirety; now, any extension of the prohibitory order would amount to virtually and effectively making a legislation by executive flat;
c. The principle of audi alteram partem applies in exercise of powers under Section 30(a) and the aggrieved persons should be heard before continuing with the prohibition order;
and d. Since the prohibition is with reference to a food business operator, the prohibition must indicate the name of food business operator and also the brand name, if any , under which the food business is carried out.
39. The division bench after extensive discussion held that the notification issued under S.30 of the Food Act was invalid and set it aside.
::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 :::( 29 ) crwp751.16 The reasoning mentioned in this judgment and the ratio is on all fours applicable to this case.
40. There is one aspect to this petition. On perusal of the impugned Notification, we found that there could be some confusion in the mind of the Commissioner, when he referred to term "chewing tobacco". He mentioned that this term is found in item No.40 in the table under sub-regulation 2.3.1 in Food Safety Standards (Contaminants, Toxins and Residues) Regulation 2011. Since this term is found in this table, the Commissioner came to a conclusion that "chewing tobacco" is listed as a 'food' item.
He also came to a conclusion that in mixture chewing tobacco with betel nut flavoured or otherwise mixed with ingredients or otherwise would be 'food' as defined under section 3 (j) of the Food Act.
41. We have serious doubt about this conclusion. The word tobacco is not found in any other provision either of the Food Act or of regulations made thereunder (except above referred entry). Various items of food are described with standards in detail in the extensive provisions of ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 ::: ( 30 ) crwp751.16 Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011. In Chapter II Food products Standards are described in various regulations. Almost all food products such as milk, milk products, oil, oil products dry fruits, condiments etc. are mentioned in these regulations extensively and yet the word "Tobacco" is not mentioned here. It is clear that the provisions do consider Tobacco as a food product though tobacco product such as chewing tobacco, snuff, Cigarette would be consumed by humans. Despite this fact, the provisions of Food Act and Regulations ignored Tobacco and tobacco products. There is a specific purpose for avoiding tobacco and tobacco related consumables from the provisions of Food Act and Regulations. The reasons is that the legislature has already passed an Act to deal with the trade, commerce, production, supply and distribution of Cigarettes and other tobacco products by enacting the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. Term tobacco product is described in section 3 (p) of this Act, which ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 ::: ( 31 ) crwp751.16 includes, chewing tobacco, snuff, pan masala or any chewing material having tobacco as one of its ingredients, tooth powder containing tobacco. The statement of object of this Act reads as under :-
"1. Tobacco is universally regarded as one of the major public health hazards and is responsible directly or indirectly for an estimated eight lakh death annually in the country. It has also been found that treatment of tobacco related diseases and the loss of productivity caused therein cost the country almost Rs.13,500 crore annually, which more than offsets all the benefits accruing in the form of revenue and employment generated by tobacco industry. The need for a comprehensive legislation to prohibit advertising and regulation of production, supply and distribution of cigarettes and tobcco products was recommended by the Parliamentary Committee on Subordinate Legislation (Tenth Lok Sabha) and a number of points suggested by the Committee on Subordinate Legislation have been incorporated in the Bill.
2. The proposed Bill seeks to put total ban on advertising of cigarettes and other tobacco products and to prohibit sponsorship of sports and cultural events either directly or indirectly as well as sale of tobacco products to minors. It also proposes to make rules for the purpose of prescribing the contents of the specified warnings, the languages in which they wer to be displayed, as well as displaying the quantities of nicotine and tar contents of these products. For the effective implementation of the proposed legislation, provisions have been proposed for compounding minor offences and making punishments for offences by companies more stringent. The objective of the proposed enactment is to reduce the exposure of ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 ::: ( 32 ) crwp751.16 people to tobacco smoke (passive smoke) and to prevent the sale of tobacco products to minors and to protect them from becoming victims of misleading advertisement. This will result in a healthier life style and the protection of the right to life enshrined in the Constitution. The proposed legislation further seeks to implement article 47 of the Constitution which inter alia, requires the State to endeavour to improve public health of the people.
42. The preamble of this Act reads as under :-
"An Act to prohibit the advertisement of, and to provide for the regulation of trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products and for matters connected therewith or incidental thereto.
Whereas, the Resolution passed by the 39 World Health Assembly (WHO) in its th Fourteenth Plenary meeting held on the 15th May, 1986 urged the member States of WHO which have not yet done so to implement the measures to ensure that effective protection is provided to non-smokers from involuntary exposure to tobacoo smoke and to protect children and young people from being addicted to the use of tobacco;
And whereas, the 43rd World Health Assembly in its Fourteenth Plenary meeting held on the 17th May, 1990, reiterated the concerns expressed in the Resolution passed in the 39th World Health Assembly and urged Member States to consider in their tobacco control strategies plans for legislation and other effective measures for protecting their citizens with special attention to risk groups such as pregnant women and children from involuntary exposure to tobacco smoke, discourage the use of tobacco and impose progressive restrictions and take concerted action to eventually eliminate all direct and indirect ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 ::: ( 33 ) crwp751.16 advertising, promotion and sponsorship concerning tobacco;
And whereas, it is considered expedient to anact a comprehensive law on tobacco in the public interest and to protect the public health;
And whereas, it is expedient to prohibit the consumption of cigarettes and other tobacco products which are injurious to health with a view to achieving improvement of public health in general as enjoined by article 47 of the Constitution;
And whereas, it is expedient to prohibit the advertisement of, and provide for regulation of trade and commerce, production, supply and distribution of cigarettes and other tobacco products and for matters connected therewith or incidental thereto."
43. From the above exposition, it is clear that Tobacco is now regarded as one of the major public health hazards. It is also clear that the World Health Assembly in 1990 passed a resolution and suggested other effective measures for protecting citizens specially women and children from exposure to tobacco and to discourage use of tobacco. It also suggested that the countries should impose progressively restrictions on advertising and promotion concerning the tobacco. However, the accent of these provision are regulatory in nature, they by no stretch of imagination the Act ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 ::: ( 34 ) crwp751.16 prohibited manufacture of cigarettes and other tobacco products.
44. In the light of these provisions, it does not appear proper for the Commissioner for food safety to enter in the subject of tobacco and its ill-effects on human health, while describing the reasons why he had passed the impugned order. He was supposed to concentrate on food item which is described in the Regulations as pan masala and at the most he could have prohibited manufacturing of the same for a limited period. It is thus clear that the impugned order deserves to be set aside.
45. The second aspect of this petition is the Notification of Health Department. By no stretch of imagination, this notification can be said to be lawful. This notification is issued expressly for helping the officers appointed under the Food and Safety Standards Act, in implementing the impugned order passed under section 30 (2) (a) of the Food Act. Since we have held above that the notification itself is untenable in law, any action taken pursuant to such order would be null and void. For ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:44 ::: ( 35 ) crwp751.16 this reason, the second resolution dated 26.03.2016 is bad in law.
46. Even otherwise this Resolution is illegal because the Food Act and Rules and Regulations made thereunder clearly created a complete code in itself for implementing the provision of the Act. There is no suggestion given in the Act that in any situation, the Officers of the Food and Safety Act would be permitted to seek police help in implementation of the provisions. The tenor of the provision of the Food Act clearly indicates that it is bringing in a regulatory regime of self-
compliance through food safety management system.
In other words, the food business operators are put with responsibility that they process, manufacture, import and distribute food articles strictly in accordance with the Act. The Act clearly indicated that even the officers appointed under the provisions of the Act would have a conciliatory approach towards a food operators. The rigours of previous enactment, such as prevention of the Food Adulteration Act is reduced to a large extent. The Act for the first time provided civil penalties in ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:45 ::: ( 36 ) crwp751.16 case of violation of provisions of the Act and regulations. In extreme cases only the Act provides for litigation in the Court. In such scenario issuance of the Notification of 22.03.2016 appears to us derogatory to the purpose of the Food Act.
For this reason also, it deserves to be set aside.
47. In the result, the Writ Petition is allowed in terms of following order :-
(i) The Notification dated 15th July, 2016 issued by respondent No.3 is quashed and set aside.
(ii) The Government Resolution dated 22nd March, 2016 issued by Home Department, State of Maharashtra, is hereby quashed and set aside.
48. Rule made absolute in above terms. No costs.
[A.V. NIRGUDE,J.] PER : V. L. ACHLIYA, J.
1. I have perused the draft judgment in Cr. W. P. No. 751/2016 sent for approval. I respectuflly disagree with the view expressed therein impugned notifications are liable to be quashed. In my view, ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:45 ::: ( 37 ) crwp751.16 the petition cannot be finally disposed of and it requires to be reheard by listing it for admission.
2. As per the record, the writ petition was filed on 20.06.2016. It is yet to be admitted. No notice of final disposal has been issued in the matter to the respondents. In the affidavit-in- reply dt. 04.08.2016 & additional affidavits filed thereafter by respondent No. 3, it is specifically stated that admission of the petition is opposed on the grounds raised as preliminary objections. It is specifically urged to decide those objections before deciding the petition on merit. Thus, there is no consent by the respondents to decide the petition finally at admission stage. In this view, it would not be proper to finally decide the petition without considering the preliminary objections. The preliminary objections as raised by respondent No. 3 goes to the root of the matter. I am therefore of the view, same needs to be decided before touching the merits of the matter. Perusal of the judgment shows that, the preliminary objections raised as to maintainability of the petition neither considered nor findings have been recorded before touching the ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:45 ::: ( 38 ) crwp751.16 merits of the matter.
3. The respondent No. 3 has specifically raised objections to maintainability of the petition with contention that the petitioner has no locus standi to file petition and so also, the petition discloses no cause of action to file the instant petition. The respondent No. 3 has furrther objected to entertain the petition on the ground that the releifs claimed in the petition can be claimed by filing petition on civil side and writ petition filed on criminal side is not maintainable.
In my view, the objections raised are well founded.
The petitioner has not disclosed any cause of action to file petition so as to claim the reliefs i.e. to quash the impugned notifications. Neither there is any pleading nor there is any evidence to show that the petitioner was aggrieved by any action of the State Government. No case of infringement of fundamental rights of the petitioner is made out to invoke extraordinary jurisdiction under Article 226 of the Constitution of India. In this view, the petition is liable to be dismissed on the ground of maintainability itself without touching the merits ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:45 ::: ( 39 ) crwp751.16 of the matter.
4. I did find force in the submission of ld.
counsel for the respondent that the present petition cannot be entertained on criminal side. It is rightly pointed out that all the petitions, which are clubbed together and listed for hearing at Principal Seat, relating to same subject matter were filed on Civil side.
5. I did not agree with the view expressed in the judgment on various issues for the reason same runs contrary to the view taken by Division Bench of this Court (Coram: Mohit S. Shah, CJ & N. M. Jamdar) in Writ Petition No. 1631/2012 and other group of petitions involving same issues while passing order dt. 15.09.2012. The said order was challenged but not interfered by the Apex Court.
6. In my view the contention of ld. Public prosecutor that as the Hon'ble Supreme Court is seized of the matter involving similar issues in Transfer Case (Civil) No(s). 1/2010 (Central Arecanut Marketing Copn. & Ors. Versus Union of ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:45 ::: ( 40 ) crwp751.16 India) and other large group of petitions, the hearing of present petition be deferred till the Apex Court decides these matters, deserves due consideration in view of order dt. 23.09.2015 passed in the matter by the Division Bench of the Hon'ble Supreme Court (Coram : V. Gopala Gowda & Adarsh Kumar Goel, JJ.).
"ORDER These matters have been heard inter alia on 1.9.2016, 7.9.2016, 15.9.2016, 16.9.2016, 20.9.2016 and 21.9.2016. In the course of submissions by the learned counsel, it has been stated today that longer time will be required in completing the hearing as more submissions are to be made by many learned counsel representing the parties. Thus, it may not be possible to cnclude the hearing so as to enable this Bench to decide the matter within the time available.
In view of submission of the learned counsel for the parties and the learned Amicus Curiae, we direct that the matters be now listed for hearing on 9.11.2016 as first case.
'21. IT is most respectfully submitted that to circumvent the ban on the sale of gutkha, the manufacturers are selling pan masala (without tobacco) with flavoured chewing tobacco in separate sachets but often conjoint and sold together by the same vendors from the same premises, so that consumers can buy the pan masala and flavoured chewing tobacco and mix them both and consume the ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:45 ::: ( 41 ) crwp751.16 same. Hence, instead of the earlier "ready to consume mixes", chewing tobacco companies are selling gutkha in twin packs to be mixed as one"
Learned Amicus Curiae has also pointed out that this Court has not granted any stay of Regulation 2.3.4 of the Food Safety and Standards (Prohibition & Restrictions on Sales) Regulations, 2011 and the concerned authorites are duty bound to enforce the said regulation framed under Section 92 red with Section 26 of the Food Safety & Standards Act, 2006.
In view of the above, the concerned statutory authorites are directed to comply with teh above mandate of law. We also direct the Secretaries, Health Department of all the States and Union Territories to file their affidavits before the next date of hearing on the issue of total compliance of the ban imposed on manufacturing and sale of Gutkha and Pan Masala with tobacco and/or nicotine."
7. In my view, the instant petition deserves to be heard and tagged along with the group of petitions kept along with Writ Petition No. 1632 of 2012 (M/s. Dhariwal Industries & Ors. Vs. State of Maharashtra) involving identical issues fixed for hearing before Principal Seat of High Court at Bombay, in order to avoid the possibility of conflicting decision.
8. For the reasons stated above, the petition ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:45 ::: ( 42 ) crwp751.16 be placed for admission for rehearing so as to cosider and decide the preliminary issues raised by the respondents as to maintainability of the petition before deciding the petition on merit.
[V.L.ACHLIYA, J.] . Above judgment is prepared and signed by me. My learned brother Shri Justice V.L. Achliya has certain reservations, which he has expressed in his order, which shall be read as a part of the judgment. In view of difference of opinion, the Registrar (Judicial) shall take further steps.
[A.V. NIRGUDE,J.] snk/2016/ AUG16/ crwp751.16@ ::: Uploaded on - 29/09/2016 ::: Downloaded on - 05/10/2016 00:26:45 :::