Kerala High Court
Agro Tech Foods Limited vs State Of Kerala on 2 March, 2020
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941
WP(C).No.30481 OF 2014(I)
PETITIONER:
AGRO TECH FOODS LIMITED,
A COMPANY EXISTING UNDER THE PROVISIONS OF THE
COMPANIES ACT,2013 HAVING ITS REGISTERED OFFICE AT
31,SAROJINI DEVI ROAD,SECUNDERABAD 500 003 THROUGH
ITS AUTHORIZED SIGNATORY MR. PHANI K MANGIPUDI,
COMPANY SECRETARY & MANAGER LEGAL
BY ADVS.
SRI.MADHU RADHAKRISHNAN
SRI.M.D.JOSEPH
SRI.NELSON JOSEPH
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY,MINISTRY OF
FOOD AND CIVIL SUPPLIES CONSUMER PROTECTION &
REGISTRATION, THIRUVANANTHAPURAM, KERALA
2 CONTROLLER OF LEGAL METROLOGY (WEIGHTS MEASRURES)
GOVERNMENT OF KERALA, VIKAS BHAVAN
THIRUVANANTHAPURAM, KERALA 695 033
3 SENIOR INSPECTOR, LEGAL METROLOGY,
THODUPUZHA P.O,IDUKKI 685 584
KERALA.
R1 BY GOVERNMENT PLEADER
SMT K.M.RESHMI,GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
02.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.30481 OF 2014(I)
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JUDGMENT
Dated this the 2nd day of March 2020 This writ petition is filed seeking the following reliefs:
"A. Issue a Writ of Certiorari or any other appropriate writ, order or direction calling for the records and quashing the Impugned notices dated 01.08.2014 and 18.10.2014 (Exhibit P-2) issued by Respondent No.3;
2. Heard the learned counsel for the petitioner and the learned Government Pleader appearing for the respondents.
3. It is submitted by the learned counsel for the petitioner that the petitioner is inter alia engaged in the manufacture of diverse food items and that one such product of the petitioner is Peanut Butter under a registered trade mark. It is stated that notices were issued to the petitioner-company by Ext.P2 in terms of the second schedule to the Legal Metrology Act, 2009 (for short LM Act) read with 2(5) of the Legal Metrology ( Packaged Commodities ) Rules 2011(for short 'LMPC' Rules), stating that the Un-canned packages of butter can be sold only its standard weights and since the Peanut Butter sold by the WP(C).No.30481 OF 2014(I) ..3..
petitioner in sealed bottles is nothing but un-canned package of butter, it has to confirm to the mandates of Rule 5 of 'LMPC' Rules.
4. The petitioner had submitted Ext.P4 reply. In the reply, it is stated that the product concerned is not butter and that since the 2nd schedule to the LMPC Rules makes reference only to "un-canned packages of butter and margarine" and since Peanut Butter is neither butter nor margarine, the proposed action is completely unsustainable. It is further contended that since the product is a food article, a reference to the Food Safety and Standards Act, 2006 (FSS) which defines the term "butter" is appropriate. It is stated that butter has been defined in the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 as fatty products derived exclusively from milk of Cow and/or Buffalo or its products. It is stated that since there is no contention that the product of the petitioner is butter or contains any milk or milk derivatives, the action taken against the said food product is completely untenable.
5. A counter affidavit has been placed on record by the 2 nd respondent. It is stated therein that the respondents has proposed to WP(C).No.30481 OF 2014(I) ..4..
initiate prosecution against the petitioner under Sec.36 of the LM Act on the ground that peanut butter stored in sealed plastic bottle is un-canned packaged butter. It is stated that the 2nd schedule to the LMPC Rules does not classify the names of specific products and the classification is based on usage, type and nature of products. It is stated that neither un- canned package nor Peanut Butter is defined any where in the LM Act or in the LMPC Rules. It is stated that the FSS Act, 2006 and the LM Act, 2009 are separate special enactments and the definition in one cannot be imputed to the other.
6. I have considered the contentions advanced on either side. Sec.36 of the LM Act provides for penalty for packing, selling etc. of pre
- packaged commodity which does not confirm to the declarations of the package as provided in the Act. In the instant case, Ext.P2 notices were issued to the petitioner. It does not contain any allegation that the products sold by the petitioner as peanut butter are sold in contravention of the declarations contained in the packages. The notices proceed on the basis that the petitioner has declared that the product contains no milk or milk derivatives and that the declaration is incorrect since the WP(C).No.30481 OF 2014(I) ..5..
product is Peanut Butter. It appears to be the case of the respondent that Peanut Butter contains butter and therefore the declaration of the package is incorrect.
7. The learned counsel for the petitioner submits that Sec.36 of LM Act would be applicable only in a case where there is a finding as to any violation by the petitioner with regard to the product and the declaration provided in the package. It is submitted that Peanut Butter is a distinct and separate commodity and that the name of the product as "Peanut Butter", cannot be determinative of its contents. It is contended that the product is a proprietary food contains no butter or milk derivatives and is constituted almost entirely of peanuts or groundnuts with added sweeteners and edible oils. The provisions of the FSS (Food Products Standards and Food Additives) Amendment Regulations 2016 is relied onto show that Peanut Butter contains no butter.
8. On a consideration of the contention advanced, I find that in the instant case, there is no finding to the effect that the product contains any milk or milk derivatives. In the absence of such a contention and in view of the specific provisions of the LM Act and Rule 5 of the LMPC WP(C).No.30481 OF 2014(I) ..6..
Rules, I fail to see how prosecution as provided to Sec.36(2) of the LM Act would be liable to be initated as against the petitioner. The learned counsel for the petitioner also brought to my notice the notifications later issued in the year 2017 under the Food Standard Regulations 2011, which included Peanut Butter as meaning cohesive, comminuted food product prepared from clean, sound, shelled peanuts or groundnuts by grinding roasted mature kernels from which the seed coats have been removed and which may contain sugar, liquid glucose and edible oils and fats permitted in the regulations.
9. It is submitted that in view of the fact that there is no standard packaging for Peanut Butter prescribed at the relevant time, the proposal to initiate prosecution against the petitioner under Sec.36 of the LM Act would be incompetent. Having considered the contentions advanced, I find that the contention in Ext.P2 notice as also in the counter affidavit is only to the effect that the petitioner had been selling Peanut Butter in violation of the declarations contained on the packages. However, such a finding is not supported by any material. In the above view of the matter, I am of the opinion that the notices as impugned are WP(C).No.30481 OF 2014(I) ..7..
unsustainable in view of the provisions of law as they stood as on the date when Ext.P2 notices were issued. In above view of the matter, the writ petition is liable to be allowed. Ext.P2 notices are set aside.
This writ petition is ordered accordingly.
Sd/-
ANU SIVARAMAN JUDGE PR/2.03.2020 WP(C).No.30481 OF 2014(I) ..8..
APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE BOARD RESOLUTION DATED 22-4-2014 EXHIBIT P2 TRUE COPY OF THE NOTICES DATED 18-10- 2014 AND 1-8-2014 EXHIBIT P3 TRUE COPY OF THE ORDER DATED 9-10-2013 GRANTING CONTINUANCE OF STAY OF PROCEEDINGS AND ADMISSION OF THE PETITIONS EXHIBIT P4 TRUE COPY OF THE REPLY DATED 14-08- 2014
EXHIBIT P5 TRUE COPY OF THE LABEL OF SUNDROP
PEANUT BUTTER