Delhi District Court
Sumit Agarwal & Ors vs . Food Safety on 18 July, 2023
IN THE COURT OF SH. HARJYOT SINGH BHALLA
ADDITIONAL SESSIONS JUDGE-04
PATIALA HOUSE COURTS, NEW DELHI
IN THE MATTER OF:
SUMIT AGARWAL & ORS VS. FOOD SAFETY
OFFICER
Cr. Rev. No. 178/2022
CNR No. DLND01-003784-2022
1. Sumit Agarwal
S/o Sh. Suresh Chand Aggarwal
M/s Shiv Store, 405/37, Joor Bagh, Tri Nagar,
Delhi-110035
R/o 608/38, Onkar Nagar,
Tri Nagar, Delhi-110035
2. Sh. Davi Sarin
M/s Sarin and Sarin
21/65B, Free Ganj, Agra
U.P.-282004
R/o 17/195, Chilli Int Road, Near Post Office,
Phulatti Bazar, Agra-282003
3. Sh. Anil Sarin
M/s Sarin and Sarin
21/65B, Free Ganj, Agra
U.P.-282004
R/o 17/195, Chilli Int Road, Near Post Office,
Phulatti Bazar, Agra-282003
4. Sh. Nitin Sarin
M/s Sarin and Sarin
Cr. Rev. No. 178/2022 Page 1 of 11
21/65B, Free Ganj, Agra
U.P.-282004
R/o 4/117/2C/1, Bagh Farzana, Agra-282002
5. M/s Sarin and Sarin
21/65B, Free Ganj, Agra, U.P.-282004
......Revisionist/Petitioners
Versus
Food Safety Officer
Department of Food Safety,
Govt. of NCT of Delhi,
8th Floor Mayur Bhawan,
Connaught Place,
New Delhi-110001
......Respondent
Date of Institution: 30.04.2022
Date of decision : 18.07.2023
ORDER (ORAL)
1. This is a revision petition directed against order of summoning dated 03.02.2022, passed by the Ld. ACMM-01, Patiala House Courts, New Delhi.
2. Submissions heard. TCR perused.
3. I have gone through the Form 5A filed alongwith the complaint before the Trial Court. The said Form 5A indicates that the labelling contains a description/ingredients of the contents of the seized article. The label indicates the pouch to be containing Tobacco flakes, spices and saffron.
Cr. Rev. No. 178/2022 Page 2 of 114. I have next noticed the report of the Food Analyst which says that the product tested positive for saffron besides nicotine. At least, 1 of these articles, namely, Zafran/saffron, can be considered as a food article. Zafran is a food article of substantial value used in cooking various dishes as well as for consumption as it is.
5. This court cannot conclude one way or the other at this stage, whether the same product was being sold as pure tobacco product or as a food article mixed with tobacco product and this contention finds support in the description of the product as contained in Form 5A filled by the Food Safety Officer, while seizing the product.
6. I have also perused that this is not a case where the product has been seized as tobacco per say but as a product ready for consumption by human which contains, in addition to tobacco, other articles which can be treated as "food".
7. If the flavoured chewing tobacco contains food ingredients like saffron alongwith tobacco, it is food within the meaning of the FSS Act.
8. The Division Bench of the Hon'ble High Court of Delhi, consisting of Hon'ble Chief Justice of Delhi and Hon'ble Mr. Justice Sh. Yashwant Varma has ruled in the case titled as Commissioner (Food Safety), GNCTD Vs. Sugandhi Snuff King Pvt. Ltd. & Ors, decided on 10.04.2023 that chewable tobacco is "food" within the meaning of FSS Act and the challenge to the notification prohibiting sale of tobacco which is flavoured, scented or mixed with any of the said additives has been upheld. The relevant portion of the said decision reads as follows:
Cr. Rev. No. 178/2022 Page 3 of 11145. In Pyarli K. Tejani, the Supreme Court significantly observed that all that may be ingested by humans would be food.
This was a case which was considering whether supari could be termed as food.
Answering that question, the Supreme Court had observed as follows:-
We now proceed to consider the bold bid made by the appellant to convince the Court that supari is not an article of food and, as such, the admixture of any sweetener cannot attract the penal provisions at all. He who runs and reads the definition in Section 2(v) of the Act will answer back that supari is food. The lexicographic learning, pharmacopic erudition, the ancient medical literature and extracts of encyclopaedias pressed before us with great industry are worthy of a more substantial submission. Indeed, learned Counsel treated us to an extensive study to make out that supari was not a food but a drug. He explained the botany of bettlenut, drew our attention to Dr Nandkarni's Indian Materia Medica, invited us to great Susruta's reference to this aromatic stimulant, in a valiant endeavour to persuade us to hold that supari was more medicinal than edible. We are here concerned with a law regulating adulteration of food which affects the common people in their millions and their health. We are dealing with a commodity which is consumed by the ordinary man in houses, hotels, marriage parties and even routinely. In the field of Cr. Rev. No. 178/2022 Page 4 of 11 legal interpretation, dictionary scholarship and precedent-based connotations cannot become a universal guide or semantic tyrant, oblivious of the social context subject of legislation and object of the law. The meaning of common words relating to common articles consumed by the common people, available commonly and contained in a statute intended to protect the community generally, must be gathered from the common sense understanding of the word. The Act defines ―food‚ very widely as covering any article used as food and every component which enters into it, and even flavouring matter and condiments. It is commonplace knowledge that the word 'food' is a very general term and applies to all that is eaten by men for nourishment and takes in subsidiaries. Is supari eaten with relish by men for taste and nourishment? It is. And so it is food. Without tarrying further on this unusual argument we hold that supari is food within the meaning of Section 2(v) of the Act....
146. The Supreme Court in R. Krishnamurthy took the principle even further to hold that as long asan article is ―generally or commonly used for human consumption , that would be sufficient to hold it to be food for the purposes of the PFA. This is evident from the following passages of that decision: -
"7. According to the definition of ―food which we have extracted above, for the purposes of the Act, Cr. Rev. No. 178/2022 Page 5 of 11 any article used as food or drink for human consumption and any article which ordinarily enters into or is used in the composition or preparation of human food is ―food . It is not necessary that it is intended for human consumption or for preparation of human food. It is also irrelevant that it is described or exhibited as intended for some other use. It is enough if the article is generally or commonly used for human consumption or in the preparation of human food. It is notorious that there are, unfortunately, in our vast country, large segments of population, who, living as they do, far beneath ordinary subsistence level, are ready to consume that which may otherwise be thought as not fit for human consumption. In order to keep body and soul together, they are often tempted to buy and use as food, articles which are adulterated and even unfit for human consumption but which are sold at inviting prices, under the pretence or without pretence that they are intended to be used for purposes other than human consumption. It is to prevent the exploitation and self- destruction of these poor, ignorant and illiterate persons that the definition of ―food is couched in such terms as not to take into account whether an article is intended for human consumption or not. In order to be ―food for the purposes of the Act, an article need not be ―fit for human consumption; it need not be Cr. Rev. No. 178/2022 Page 6 of 11 described or exhibited as intended for human consumption; it may even be otherwise described or exhibited; it need not even be necessarily intended for human consumption; it is enough if it is generally or commonly used for human consumption or in the preparation of human food. Where an article is generally or commonly not used for human consumption or in the preparation of human food but for some other purpose, notwithstanding that it may be capable of being used, on rare occasions, for human consumption or in the preparation of human food, it may be said, depending on the facts and circumstances of the case, that it is not ―food . In such a case the question whether it is intended for human consumption or in the preparation of human food may become material. But where the article is one which is generally or commonly used for human consumption or in the preparation of human food, there can be no question but that the article is ―food . Gingelly oil, mixed or not with groundnut oil or some other oil, whether described or exhibited as an article of food for human consumption or as an article for external use only is ―food within the meaning of the definition contained in Section 2(v) of the Act.
147. In any case, the death knell to the nutritional or restitutive tests as being relevant for the purposes of ascertaining the Cr. Rev. No. 178/2022 Page 7 of 11 meaning to be ascribed to food and whether pan masala or gutka would be food is Godawat itself which had clearly held that they would fall within the ambit of that expression. This Court also bears in mind the plethora of authorities starting from Khedan Lal, Manohar Lal, Dhariwal Industries, J. Anbazhagan and Sri Kamdhenu Traders which have held that chewing tobacco, pan masala and gutka are food. The Court finds no justification to differ from the views expressed therein.
148. While arriving at this conclusion, the Court also bears in mind the definition of food under the FSSA. It would be pertinent to recall that Section 3(1)(j) not only embodies an inclusive element it also specifically excludes certain articles. We also bear in mind the admitted position that while the PFA defined food to mean ―any article used as food or drink for human consumption , the FSSAI clearly attempts to confer an expansive meaning upon that expression by providing that any substance meant for human consumption would stand included. We thus find no justification to hold that pan masala, gutka or any other form of chewing tobacco which is meant for human consumption would stand excluded from the ambit of Section 3(1)(j). We are further fortified in the view that we take noting that neither pan masala, nor chewing tobacco or gutka stand excluded from Section 3(1)(j) of the FSSA. This too clearly appears to be evidence of the intent of the enactment to include not only those articles but also all others....
...154. More fundamentally, we note that the power to prohibit stands specifically conferred upon thefood safety authorities by virtue of Section 30(2)(a) of the FSSA. The Cr. Rev. No. 178/2022 Page 8 of 11 learned Judge thus clearly appears to have overlooked the fact that the principal enactment itself had conferred a power to prohibit and therefore the said power need not have been additionally spelt out in the Regulations which came to be framed under the FSSA.
155. In any case, Regulation 2.3.4 on its plain language prohibits the use of tobacco or nicotine in afood product. That prohibition is neither temporary nor one which is stipulated to operate for a particular period of time. The statutory prohibition is permanent and would thus apply to all food articles during the entire period that FSSA and Regulation 2.3.4 operates. The question therefore of the power being temporary or pro tem did not arise. As long as Regulation 2.3.4 remained on the statute book, it was incumbent upon the appellant to implement and enforce that provision and the statutory injunct which stood engrafted therein.
156. Insofar as the findings returned by the learned Judge with respect to Regulation 2.3.4 not prohibiting the use of tobacco or nicotine, this Court in the preceding parts of this decision has already found that the said observations have clearly been rendered upon the learned Judge having lost sight of the principal question which arose, namely, whether tobacco and nicotine could be permitted to be used as additives in a food article.
157. On an overall consideration of the aforesaid discussion, we find that both Section 30(2)(a) aswell as Regulation 2.3.4 embody a power to prohibit a particular food article as well as regulate the nature of additives which may be permitted to be Cr. Rev. No. 178/2022 Page 9 of 11 added in food articles. We also find that neither Section 30(2)(a) nor the validity of Regulation 2.3.4 had been questioned by the writ petitioners. Since the restraint embodied in Regulation 2.3.4 was permanent in character, the prohibitory orders could not have been held to be bound by prescriptions of time....
...30. It is significant to mention that the Hon'ble Supreme Court in Godawat Pan Masala Products I.P. Ltd. (supra) has already held that COTPA, 2003 is a special Act intended to deal with Tobacco and Tobacco products, while Prevention of Food Adulteration Act, 1954, is a general Act. In the same analogy, the FSSA, 2006 being a general Act, would yield to the provisions of the COTPA, 2003, which is a special Act. It is settled law that when a general Act is specifically passed, it is logical to presume that Parliament has not repealed or modified the former special Act, unless anything to the contrary appears from the subsequent general Act. For this proposition, we may profitably refer to the judgment of the Hon'ble Supreme Court in U.P. State Electricity Board v. Hari Shanker Jain and others - (1978) 4 SCC 16.
160. We however find ourselves unable to approve or adopt the view expressed in Dwarapudi Sivarama Reddy since it clearly fails to appreciate the backdrop in which Godawat had come to be rendered and which aspects have been duly underlined by us in the preceding parts of this decision. Significantly, in para 34 of that decision, the said High Court seeks to sustain its conclusion that pan masala and gutka cannot be construed as food on Godawat. The said observation cannot possibly be accepted to be the correct position in law Cr. Rev. No. 178/2022 Page 10 of 11 since, and as was noticed hereinabove, Godawat had categorically held pan masala to be food. The said decision in any case follows the judgment which is impugned before us in these appeals. We for all the aforesaid reasons thus find ourselves unable to agree with the decision in Dwarapudi Sivarama Reddy....
...163. That prohibition would clearly be sustainable on a conjoint reading of Section 30(2)(a) readwith Regulation 2.3.4. The prohibition this Court finds is principally aimed at giving effect to the statutory injunct contained in Regulation 2.3.4. As noticed hereinbefore, as long as that Regulation remains on the statute book, there would be a ban which would operate on gutka, pan masala with tobacco or other like commodity.
9. In view thereof, the summons issued in the present case cannot be set aside. There is nothing wrong with the order of summoning.
10. Revision petition disposed of accordingly.
11. This court appreciates the assistance rendered by the Trainee Delhi Higher Judicial Service Officer Sh. Shankar Narayan in the present case.
12. TCR be sent back.
13. Revision file be consigned to Record Room.
Dictated in the open court (Harjyot Singh Bhalla) on 18.07.2023 ASJ-04, New Delhi Cr. Rev. No. 178/2022 Page 11 of 11