Madras High Court
Rams Exim vs Deputy Director on 16 March, 2012
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16/03/2012
CORAM
THE HONOURABLE MR.JUSTICE K.CHANDRU
W.P.(MD)No.6713 of 2011
and
M.P.(MD)No.1 of 2011
Rams Exim,
rep by its Proprietor,
D.Ramasamy
S/o.Late Duraisamy
No.1,Thilagar Nagar,
Kathivakkam,
Chennai-600 057. ... Petitioner
Vs.
1.Deputy Director,
Spices Board,
No.12,Ground Floor,
Amman Koil Street,
Chidambaram Nagar (Post),
Tuticorin-628 008.
2.Assistant Director (Marketing),
Spices Board,
Ministry of Commerce and Industry
Government of India, Sugandha Bhavan,
Post box No.2277,
Palarivottam Post, Cochin-682 025.
3.The Director,
The King Institute of Preventive
Medicine & Research,
Guindy, Chennai-600 032. ...Respondents
This writ petition has been preferred under Article 226 of the
Constitution of India praying for the issue of a writ of mandamus to direct the
second respondent to draw samples from the petitioner's consignment now lying
with the CFS (Container Freight Station) Park, Tuticorin and sent them to the
third respondent, I.e., the King Institute of Preventive Medicine & Research,
Guindy, Chennai-600 032 for its analytical examination relating to 'SUDAN IV".
!For Petitioner ... Mr.S.Anbalagan
^For Respondents... Mr.Abraham Margues
for R1 and 2
:ORDER
The petitioner is the proprietor of Rams Exims at Kathivakkam, Chennai. He has come forward with this writ petition seeking for a direction to the second respondent to draw samples from the petitioner's consignment now lying with the CFS (Container Freight Station) Park, Tuticorin and sent them to the third respondent, viz., the King Institute of Preventive Medicine & Research, Guindy, Chennai-600 032 for its analytical examination relating to 'SUDAN IV'.
2. In the writ petition, notice regarding admission was granted. Pending notice, an order of interim injunction was granted for a limited period. Subsequently, the interim injunction was further extended on 27.08.2011 for a period of two weeks. On behalf of respondents 1 and 2, a counter affidavit has been filed together with typed set of papers.
3. The first respondent is a statutory body constituted and governed by the Spices Board Act, 1986 and the Rules and Regulations made thereunder. It has been constituted for the development of export of spices and control of cardamom industry. The said Board is also an international link between the Indian exporters and the importers abroad. The activities of the Spices Board includes Registration and licensing of all spice exporters and Maintenance and monitoring of quality of exports. The Spices Board started mandatory quality check in respect of Chilli Powder, products containing chilli and turmeric powder in 2003 when the European Union had issued Rapid Alert Notification on the above food products for presence of "Sudan Dye" in the consignment exported by Indian exporters to Europe. The said Sudan dye is a chemical, which is carcinogenic and injurious to health and therefore, the Spices Board has banned the export of spices containing Sudan Dye. As part of the mandatory system of quality check, samples are drawn from export consignments as per the intimation submitted by the exporter fro analysis of Sudan I, II, III & IV and also for Aflatoxin. Whenever Sudan Dye is found positive repeat analysis is carried out in the respondent's laboratory for the consistency of the results obtained. Once sample is detected with Sudan Dye, no re-sampling or re-testing are allowed. The concerned exporters are informed not to export the consignment and to destroy such consignments in the presence of Board's Official and the local Health Authorities to ensure that the contaminated products is not domestically marketed as the same is highly injurious to health of the Indian citizens.
4. Under Section 39 of the Spices Board Act, 1986, the Board has got power to make regulations for carrying out the purpose of the Act. Pursuant to the same, Spices Board (Registration of Exporters) Regulation 1989 have been framed. Under Clause 3 column (k), it is notified as follows:-
"Certificate holder shall neither contract to export nor export spices which do not conform to the quality standards in force in the country to which they are exported, the standards prescribed by the Prevention of Food Adulteration Act, 1954 (37 of 1954) and rules made thereunder and quality standards prescribed by the Board from time to time"
5. Further, Rule 23 of the Prevention of Food Adulteration Rules, 1955 specifically prohibits unauthorised addition of colouring matter. Hence, the use of Sudan Dye, which is a colouring matter is not permissible and is prohibited.
6. In paragraph 7 of the counter affidavit, it was averred as follows:- "7. The petitioner herein vide their export intimation dated 29.04.2011 had notified to the Spices Board, Regional Office, Tuticorin intimating their proposal to export the following 3 items of spices covered under their invoice No.Rams/241/07/2011-12/25.04.2011, to Jabel Ali / Dubai through their CHA, M/s.Freight Field (M) Pvt. Ltd:
1.Red Chilly Powder 14.660 MT FOB Value Rs.93.03/Kg
2.Kashmiri Red Chillies 3.090 MT FOB Value Rs.142.86/kg
3.Turmeric Powder 0.640MT FOB Value Rs.141.76/kg Accordingly, the 1st respondent entrusted the job of drawing samples from the export consignment stacked in the Diamond CFS Park, Tuticorin to its authorised agency - ATLaC; and the said agency, in turn, had drawn the samples as per the procedure laid down under EU Norms of the following quantity of spices on the very same date (i.e.29.04.2011):
1.Red Chilly Powder 3 Nos x 500 gms
2.Kashmiri Red Chillies 3 Nos x 500 gms It is pertinent to note that samples of Turmeric Powder were not drawn, as the test result of the same is not mandatory for Dubai. It is submitted that in the sampling intimation dated 29.04.2011, under Column 3, Petitioner had suppressed facts. True Copy of the sampling intimation dated 29.04.2011.
7. It was further stated out of 6 samples drawn by the first respondent, 2 samples each of red chilly powder and Kashmiri red chillies were sent to Head Office and the remaining one sample each of the above products were handed over to the petitioner on the same day. In respect of the test carried on, in paragraph 9 of the counter, it was stated as follows:- "9. ...In the present case, as the quality test for Kashmiri Red Chillies passed the parameters of Aflatoxin, a clearance certificate for export of Kashmiri Red Chilly was issued by the HO, on 09.05.2011 vide Application No.121146/11 and the same was allowed for container stuffing. However, in the case of Red Chilly Powder, the test result of the samples drawn by the Board vide Analytical Report No.HO/121146/11 dated 29.04.2011 showed presence of Sudan dye IV - 15 ug/kg, a carcinogenic dye, and consequently, the Board vide its letter No.MKT/QR/7[2]2011-12/669 dt 13.05.2011 had communicated to the petitioner that the red chilly powder in question was found to be not fit for export."
8. The contention of the petitioner that he had obtained a test report from a private laboratory viz., M/s.SGS India Pvt. Ltd., was rejected by stating that it will have no sanction under the provisions of the Board. The petitioner was also informed that the stack seal of the sampled lot should be removed and destruction should be witnessed. The contention that the petitioner is a mere exporter and does not own processing unit was also not accepted. The consignment was procured by the petitioner from its supplier M/s.Jayalakshmi Trading Corporation. The samples drawn and tested proved the presence of Sudan Dye IV and the said consignment can never be exported to UAE, equally so, if it is allowed, it is likely to be sold in the domestic market, which would be injurious to public health and hence that also cannot be allowed.
9. In the typed set filed by the respondents, test report was also enclosed along with the copy of the communication sent by the respondent Board dated 13.05.2011, by which, it was intimated as follows:-
"Analysis of the samples drawn from the consignment notified by you has shown presence of Sudan -IV as per the enclosed Analytical Report. Details of the consignment are :
Items Chillies ground Proposed Port & Jebel Ali. UAE Country of discharge Sample Drawn on 29.04.2011 Container No. Pre-Shipment Level of Sudan 15 ug/kg
- IV Detected ANALYTICAL REPORT NO. HO/121146/11 In this regard, you are directed not to export the material. You have to destroy the contaminated chillies ground after following the statutory procedure in the presence of Board's Officer/Food (Health) authorities in your region. The steps taken by you to destroy the contaminated chillies ground may be informed to the Board within 15 days from the date of receipt of this letter for deputing the officer(s) on the specified dates & time to remove the stack seal and witness the destruction of the contaminated product."
10. In the light of the stand taken by the respondents and in the absence of the petitioner having any legal or enforceable right, this Court is not inclined to entertain the writ petition. Hence, the writ petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.
svki To
1.Deputy Director, Spices Board, No.12,Ground Floor, Amman Koil Street, Chidambaram Nagar (Post), Tuticorin-628 008.
2.Assistant Director (Marketing), Spices Board, Ministry of Commerce and Industry Government of India, Sugandha Bhavan, Post box No.2277, Palarivottam Post, Cochin-682 025.
3.The Director, The King Institute of Preventive Medicine & Research, Guindy, Chennai-600 032.