Bombay High Court
Ahmedabad-382 210 Through Its Partner ... vs Union Of India on 7 December, 2011
Author: P.B. Majmudar
Bench: P.B. Majmudar, Mridula Bhatkar
KPP -1- WP Nos. 1355, 1803 & 1857 of 2011
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1355 OF 2011
M/s. Vishnu Packaging, a Partnership firm )
registered under the Indian Partnership Act, 1932, having )
its office at 49 & 50, Mahagujarat Estate, Village Moraiya )
Ahmedabad-382 210 through its partner Mr. Manoj Kumar )
Srivastava )...Petitioners
versus
1. Union of India, through Joint Secretary, )
Ministry of Health & Family Welfare, New Delhi
2. The Secretary, Foods & Drugs Administration
)
)
Department, Mantralaya, Mumbai-400 032 )
3. The Joint Commissioner, Food & Drugs Administration, )
Greater Mumbai, Mumbai-400 051 )
4. The Joint Commissioner (K.D.), )
Food & Drugs Administration (MS), Thane )...Respondents
WITH
WRIT PETITION NO. 1803 OF 2011
1. M/s. Kaipan Panmasala Private Limited, )
a Proprietorship concern, having its office at 10-A, )
Sector-D, Govindpura Industrial Area, Bhopal )
Govindapura, Bhopal, Madhya Pradesh-462 023 )
2. M/s. Shree Hanuman Tobacco, a Proprietorship )
concern, having its office at H. No. B/2, Sakinaka )
Industrial Market, A.G.L. Road, Sakinaka, )
Mumbai-400 072 )..Petitioners
versus
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KPP -2- WP Nos. 1355, 1803 & 1857 of 2011
1. Union of India, through Joint Secretary, )
Ministry of Health & Family Welfare, New Delhi )
through Minister of Law & Justice, Aayakar Bhavan )
Annexe, 2nd floor, New Marine Lines, Mumbai-400 020 )
2. The Secretary, Foods and Drug Administration )
Department, Mantralaya, Mumbai )
3. Commissioner, Food & Drug Administration, )
Maharashtra State (Respondent Nos. 2, 3 & 4 to be )
served through Government Pleader, High Court (O.S), )
Bombay. )..Respondents
WITH
WRIT PETITION NO. 1857 OF 2011
1. M/s. Shreenath Enterprises, a Proprietorship concern )
having its office at J-180 & 181, Phase-II, Marudhar )
Industrial Area, Basni, Jodhpur Krishi Upaj Mandi, )
Jodhpur, Rajasthan-342 005 )
2. M/s. M.D. Sales, a Proprietorship concern, having )
its office at Sai Siddhi Chawl, Lenin Nagar, Near Royal )
Challenge, Off. Eastern Express Highway, )
Dist. Thane-400 604 )
versus
1. Union of India, through Joint Secretary, )
Ministry of Health & Family Welfare, New Delhi )
through Minister of Law & Justice, Aayakar Bhavan )
Annexe, 2nd floor, New Marine Lines, Mumbai-400 020 )
2. The Secretary, Foods and Drug Administration )
Department, Mantralaya, Mumbai )
3. Commissioner, Food & Drug Administration, )
Maharashtra State (Respondent Nos. 2, 3 & 4 to be )
served through Government Pleader, High Court (O.S), )
Bombay. )..Respondents
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KPP -3- WP Nos. 1355, 1803 & 1857 of 2011
Mr. A. Hidayatullah, Senior Advocate, with Mr. R.F. Totla, Ms. Shailaja
Hidayatullah, Mr. Ricab Chand and Mr. Durgesh Khanapurkar, instructed by
M/s. India Law Alliance, for the petitioners in Writ Petition No. 1355 of 2011.
Mrs. Veena Thadani for the petitioners in Writ Petition Nos. 1803 & 1857 of
2011.
Ms. S.I. Shah for the Union of India in Writ Petition No. 1355 of 2011.
Mr. Rajiv Chavan with Ms. Rutuja Ambekar and Mr. Vinod Joshi for the Union of
India in Writ Petition No. 1803 of 2011.
Mr. Rajiv Chavan with Ms. Hina Shah for the Union of India in Writ Petition No.
1857 of 2011.
In all matters: Mr. D.A. Nalawade, Government Pleader, with Ms. G.R. Shastri,
Assistant Government Pleader, for the State.
CORAM: P.B. MAJMUDAR &
MRS. MRIDULA BHATKAR,
JJ.
DATE: DECEMBER 07, 2011.
ORAL JUDGMENT: (Per P.B. Majmudar, J.)
Since common point is involved in all these matters, for the sake of convenience, they are being disposed of by this common judgment. The point involved in Writ Petition No. 1355 of 2011 is taken as a basis for the purpose of deciding all these matters. Mr. Hidayatullah, learned Senior Counsel, has advanced arguments in Writ Petition No. 1355 of 2011. The learned counsel appearing for the petitioners in other matters has adopted the argument of Mr. Hidayatullah.
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2. So far as Writ Petition No. 1355 of 2011 is concerned, the petitioners are manufacturers of pan masala, gutka and other allied items. The petitioners appointed dealers and vendors/pan shop owners who sell the products manufactured by the petitioners. The grievance of the petitioners is that the respondents have collected samples of the products in purported exercise of powers under Rule 12 of the Prevention of Food Adulteration Rules, 1955 (hereinafter "the Rules"). According to the petitioners, they have appointed consignment agents and have entered into consignment agreements with such consignment agents. As per the consignment agreement, the petitioners would send the products to the consignment agent for sale and the goods lying with the consignment agent in the consignment account would continue to vest in the manufacturer i.e. the petitioners till it was sold. It is the case of the petitioners that on the basis of the consignment agreement dated 1st April, 2010, the petitioners forwarded the products to one M/s. Shakir Forwarding Services, Bhivandi for onward carriage to the dealers in Mumbai.
In the purported exercise of powers under the Prevention of Food Adulteration Act, 1954 (hereinafter "the PFA Act") and the Rules framed thereunder, respondent No. 4 took samples for the purpose of finding out as to whether the article in question is adulterated or not. A notice was also issued under Section 14-A of the said PFA Act to M/s. M. Shakir Forwarding Services. According to the petitioners, on 11th June, 2011, respondent No.3 purported to seize a consignment of goods belonging to the petitioners from one Shailesh Shivprasad ::: Downloaded on - 09/06/2013 17:59:08 ::: KPP -5- WP Nos. 1355, 1803 & 1857 of 2011 Gupta, who is another consignment agent of the petitioners. Similar seizure also took place from another consignment agent of the petitioners viz. Milan Dhansukhlal Supariwala and the seizure was effected by respondent No.3. The initiation of launching prosecution is under challenge at the instance of the petitioners on the ground that prior to the year 2003, the manufacture of gutka and pan masala containing tobacco was governed by the provisions of the said PFA Act and the said Rules. However, in the year 2003, the Union of India came with a legislation viz. The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of trade and Commerce, Production, Supply and Distribution) Act, 2003 (hereinafter "the Tobacco Act, 2003). The Tobacco Act, 2003 deals with cigarette, cigar, cheroots, beedis, cigarette, tobacco, pipe tobacco, hookah tobacco, chewing gutka, snuff, pan masala or any other chewing material containing tobacco as one of its ingredients (by whatever name called) gutka and tooth powder containing tobacco. According to the petitioners, in view of the enactment of Tobacco Act, 2003, all the aforesaid products which contain tobacco are taken out from the purview of the said PFA Act and the said Rules and put under the purview and administration of the Tobacco Act, 2003.
3. The principal grievance on the part of the petitioners is that since special enactment has been enacted by the Parliament dealing with tobacco and tobacco products, the said PFA Act is not applicable. The action on the part of ::: Downloaded on - 09/06/2013 17:59:08 ::: KPP -6- WP Nos. 1355, 1803 & 1857 of 2011 the respondents regarding seizing the material of the petitioners and launching prosecution on the ground that it violates the said PFA Act and the said Rules is without authority of law as, according to the petitioners, the said PFA Act has no application and, therefore, the said Rules framed under the said PFA Act has also no application. In view thereof, the initiation of proceedings against the petitioners in this behalf i.e. under the said PFA Act and the said Rules is without authority of law. It is prayed that an appropriate writ, order or direction may be issued for quashing all actions taken by the respondents under the said PFA Act, the said Rules and under the Maharashtra Prevention of Food Adulteration Rules, 1962 (hereinafter "the Rules of 1962") in so far as they relate to the tobacco products scheduled under the Tobacco Act, 2003 as being ultra vires the powers under the said PFA Act, the said Rules and the Rules of 1962 as the same is in conflict with Tobacco Act, 2003 and, therefore, the same are unconstitutional, ultra vires, illegal and null and void. It is also prayed that the respondents may be restrained from proceeding further in any manner under the said PFA Act, under the said Rules and under the said Rules of 1962 in so far as it relates to the tobacco products scheduled under the Tobacco Act, 2003 are concerned. It is also prayed that the respondents may be directed to withdraw all the proceedings initiated under the said PFA Act, the said Rules and the Rules of 1962. It is further prayed that the respondents may be directed not to initiate any punitive/penal/criminal action in any manner whatsoever against the petitioners and/or their servants, agents, retailers, employees, ::: Downloaded on - 09/06/2013 17:59:08 ::: KPP -7- WP Nos. 1355, 1803 & 1857 of 2011 dealers, etc. under the provisions of the said PFA Act, the said Rules and the Rules of 1962. The cause of action for filing these proceedings is obviously because the respondents initiated proceedings against the petitioners under the said PFA Act and the said Rules in connection with the subject matter i.e. gutka/pan masala.
4. On behalf of the petitioners, strong reliance has been placed by the learned counsel on the decision of the Supreme Court in the case of Godawat Pan Masala Products I.P. Ltd. and another vs. Union of India and others 1. Relying on the said judgment, it is argued by Mr. Hidayatullah that when Tobacco Act, 2003 is a complete code in itself and which is a special legislation dealing with the said products, the general law framed earlier i.e. the said PFA Act and the said Rules has no application so far as tobacco products are concerned. It is submitted that in view of the special enactment, the said PFA Act and the said Rules are no longer held applicable so far as the said products are concerned. It is submitted that in view of the same, the Rules framed by the State of Maharashtra has no application and if these are in conflict with the Tobacco Act, the same may be struck down being without authority of law and the same may be treated as unconstitutional. It is further submitted by Mr. Hidayatullah that if any proceedings are required to be initiated, the same is permissible only under the Tobacco Act, 2003 and in view of the judgment of the Supreme Court in Godawat's case (supra), the Officers of the State of Maharashtra functioning 1 (2004) 7 SCC 68 ::: Downloaded on - 09/06/2013 17:59:08 ::: KPP -8- WP Nos. 1355, 1803 & 1857 of 2011 under the said PFA Act and the said Rules cannot take any sample of gutka/pan masala and the said action is, therefore, without any authority of law and the proceedings initiated on the said basis be set aside. In the alternative Mr. Hidayatullah submitted that, assuming that the said PFA Act and the said Rules are applicable, then also no standard is prescribed regarding gutka/pan masala under the said PFA Act and the said Rules. The respondent Nos. 3 and 4 cannot launch prosecution especially when no standard is prescribed for gutka/pan masala and, therefore, one cannot say that it is misbranded or adulterated gutka. In order to substantiate his say, the learned counsel has relied upon the decision of the single Judge of the Gujarat High Court in the case of State of Gujarat vs. Bhuvneshwar Satyaprasad Mishra and others decided on 8th October, 2010. On the aforesaid premises it is argued by Mr. Hidayatullah that the proceedings initiated by the respondents under the said PFA Act and the said Rules, therefore, are required to be struck down and this Court may hold that since the Tobacco Act is a complete Code, the said PFA Act and the said Rules have no application in any manner. In order to substantiate his say, Mr. Hidayatullah has relied upon the provisions of the Tobacco Act, 2003.
5. The instant petitions are opposed on behalf of the respondents by the learned Assistant Government Pleader and the learned counsel appearing for the Union of India. Ms. Shastri, learned Assistant Government Pleader (AGP), ::: Downloaded on - 09/06/2013 17:59:08 ::: KPP -9- WP Nos. 1355, 1803 & 1857 of 2011 has submitted that the State Officers are entitled to adopt proceedings under the said PFA Act and the said Rules and the Godawat judgment has no application worth the name. It is submitted by her that under Section 23 of the said PFA Act, the Central Government is empowered to frame rules to carry out the provisions of the said PFA Act. It is submitted that if any prohibited article is used in the preparation of gutka, the same can be treated as misbranded food and, therefore, prosecution can be launched. It is submitted by her that the gutka is a proprietary food as per Rule 37-A of the said Rules and, therefore, if it is in violation of the prescribed standard under Rule 5 of the said Rules, the State is entitled to initiate proceedings under the said PFA Act. It is submitted that both the enactments function in different fields altogether i.e. Tobacco Act, 2003 and the said PFA Act and that it has no overriding effect qua the said PFA Act and the said Rules. It is submitted that there is no inconsistency with Tobacco Act, 2003 in any manner so far as the said PFA Act and the said Rules are concerned. It is submitted by her that Respondent Nos. 2 to 4 have not taken any action under Rule 44-J of the said Rules but the action is taken under Section 7 (i) (v) of the said PFA Act and Rule 62 of the said Rules. It is submitted that the Supreme Court in the case of Godawat was not concerned with adulteration aspect at all nor was there any question of selling adulterated article of gutka or pan masala. It is submitted that there is no provision in the Tobacco Act, 2003 that notwithstanding anything contained in any other law, the Tobacco Act, 2003 will be applicable in connection with even adulterated ::: Downloaded on - 09/06/2013 17:59:08 ::: KPP -10- WP Nos. 1355, 1803 & 1857 of 2011 food articles.
6. In rejoinder, Mr. Hidayatullah has argued that the Supreme Court in Godawat's case clearly stated that the Tobacco Act, 2003 has an overriding effect. It is submitted that even otherwise the presence of magnesium carbonate in gutka cannot be said to be dangerous and it cannot be injurious to health. It is, therefore, argued by Mr. Hidayatullah that the proceedings under the said Rules, therefore, may be struck down by issuing appropriate writ, order or direction under Article 226 of the Constitution of India.
7. We have heard the learned counsel appearing for the parties at great length and have also gone through the provisions of the said PFA Act, the said Rules, the Tobacco Act, 2003 and the Rules of 1962.
8. The principal question which is required to be decided in these writ petitions is as to whether the action taken by the State Officers i.e. Respondent Nos. 2 to 4 is without any authority of law and as to whether the provisions of the said PFA Act and the said Rules are still sustainable and maintainable in view of the judgment of the Supreme Court in Godawat's case (supra). So far as Union of India is concerned, Ms. Shah, the learned counsel has supported the arguments canvassed by Mrs. Shastri and, according to her, the Union of India is also of the opinion that the said PFA Act and the said Rules are still applicable ::: Downloaded on - 09/06/2013 17:59:08 ::: KPP -11- WP Nos. 1355, 1803 & 1857 of 2011 in its full swing as Tobacco Act, 2003 cannot be said to have an overriding effect so far as any article of food which is found to be adultered is concerned.
During the course of hearing, the learned Assistant Government Pleader submitted that even otherwise the the said PFA Act and the said Rules are now repealed by new Act viz. the Food Safety and Standards Act, 2006, though, according to her proceedings initiated under the said PFA Act and under the said Rules are saved. It is required to be noted that it is not the case of the petitioners that by virtue of the repealed Act and the Rules, steps taken by the Respondents are not sustainable. However, the said aspect was highlighted by the respondents in the reply, the petitioners tried to argue about saving clause but during the course of hearing, the learned counsel for the petitioners states that since this point is not raised in the petition, the petitioners are not challenging the aforesaid aspect as to whether in view of the enactment of the Food and Safety and Standards Act, 2006, the proceedings initiated by respondent Nos. 2 to 4 are maintainable or not. In view of the said statement of Mr. Hidayatullah, it is not necessary for us to examine the said point as the said point is kept open for consideration in case such point is taken up by any of the petitioners in future. The petitioners therefore restrict their argument only regarding applicability of the said PFA Act and the said Rules in view of the Supreme Court judgment in Godawat's case as well as on the ground that since no standard is prescribed for gutka, whether respondent Nos. 2 to 4 are entitled to initiate prosecution against the petitioners in connection with gutka/pan ::: Downloaded on - 09/06/2013 17:59:08 ::: KPP -12- WP Nos. 1355, 1803 & 1857 of 2011 masala products.
9. Since the basis of the argument of the petitioners is on the judgment of the Supreme Court in Godawat's case (supra), this Court is required to consider as to whether the said judgment is applicable so far as the proceedings initiated by respondent Nos. 2 to 4 in connection with the alleged seizure are concerned and whether if a particular product is found to be adulterated one, whether the Officers of the State Government are empowered to take appropriate proceedings under the said PFA Act and the said Rules. So far as Godawat's case is concerned, the States of Maharashtra and Goa issued notifications under Section 7 (iv) of the said PFA Act. Section 7 of the said PFA Act reads thus:
"7. Prohibitions of manufacture, sale, etc. of certain articles of food.- No person shall himself or by any person on his behalf manufacture for sale or store, sell or distribute -
(i) any adulterated food;
(ii) any misbranded food;
(iii)any article of food for the sale of which a license is prescribed, except in accordance with the conditions of the license;
(iv)any article of food the sale of which is for the time being prohibited by the Food (Health) Authority in the interest of public health;
(v) any article of food in contravention of any other provision of this Act or of any rule made thereunder; or
(vi)any adulterant.
Explanation._ For the purposes of this section, a person shall be deemed to store any adulterated food or misbranded food or any article of food referred to in clause (iii) or clause (iv) or clause (v) if he stores such food for the manufacture therefrom of any article ::: Downloaded on - 09/06/2013 17:59:08 ::: KPP -13- WP Nos. 1355, 1803 & 1857 of 2011 of food for sale. "
10. A challenge was made on behalf certain pan masala manufacturers on the ground that no notification could have been issued under Section 7 of the said PFA Act in view of the enactment of Tobacco Act, 2003. In the proceedings which were before the Supreme Court, the validity of the notifications issued by the Food (Health) Authorities under Section 7 (iv) of the said PFA Act by which the manufacture, sale, storage and distribution of pan masala and gutka (pan masala containing tobacco) was banned was under challenge. In the aforesaid case, a ban was imposed for a period of five years by the notification issued by the State Government meaning thereby that in the State of Maharashtra as well as in Goa, by notification issued under Section 7 (iv) of the said PFA Act, the sale of gutka and pan masala was prohibited for a period of five years with effect from the dates mentioned therein. The said notification was issued in the interest of public health. This Court as well as the Andhra Pradesh High Court upheld the validity of notification which was the subject matter before the Supreme Court. The ultimate conclusion of the Supreme Court is finding place in paragraph 77 of the judgment which reads as under:
"77. As a result of the discussions, we are of the view that:
1. Section 7(iv) of the Act is not an independent source of power for the state authority;
2. The source of power of the state Food (Health) Authority is ::: Downloaded on - 09/06/2013 17:59:08 ::: KPP -14- WP Nos. 1355, 1803 & 1857 of 2011 located located only in the valid rules made in exercise of the power under Section 24 of the Act by the State Government, to the extent permitted thereunder;
3. The power of the Food (Health) Authority under the rules is only of transitory nature and intended to deal with local emergencies and can last only for short period while such emergency lasts;
4. The power of banning an article of food or an article used as ingredient of food, on the ground that it is injurious to health, belongs appropriately to the Central Government to be exercised in accordance with the rules made under Section 23 of the Act, particularly, sub-section (1A)(f).
5. The state Food (Health) Authority has no power to prohibit the manufacture for sale, storage, sale or distribution of any article,whether used as an article or adjunct thereto or not used as food. Such a power can only arise as a result of wider policy decision and emanate from Parliamentary legislation or, at least, by exercise of the powers by the Central Government by framing rules under Section 23 of the Act;
6. The provisions of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 are directly in conflict with the provisions of Section 7(iv) of the Prevention of Food Adulteration Act, 1954. The former Act is a special Act intended to deal with tobacco and tobacco products particularly, while the latter enactment is a general enactment.
Thus, the Act 34 of 2003 being a special Act, and of later origin, overrides the provisions of Section 7(iv) of the Prevention of Food Adulteration Act, 1954 with regard to the power to prohibit the sale or manufacture of tobacco products which are listed in the Schedule to the Act 34 of 2003;
7. The impugned notifications are ultra vires the Act and, hence, bad in law;
8. The impugned notifications are unconstitutional and void as abridging the fundamental rights of the appellants guaranteed under Articles 14 and 19 of the Constitution."
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11. In view of the said conclusion, it is clear that Section 7 (iv) of the said PFA Act is not an independent source of power for the State authorities and the power available with the State Food (Health) authority under the Rules is only of transitory nature and intended to deal with local emergent situations. It is, therefore, held that the power of banning an article of food on the ground that it is injurious to health belongs to Central Government and it is only the Central Government which can prohibit such article by exercising powers under Section 23 of the said PFA Act. It was accordingly held that the notifications issued are contrary to law and that the State agency had no power to ban the sale of any food article except in case of emergency. Mr. Hidayatullah has vehemently argued that as per the conclusion in para 77 of the said judgment, the provisions of the Tobacco Act, 2003 are directly in conflict with the provisions of Section 7 of the said PFA Act. The former Act is a special Act intended to deal with tobacco and tobacco products while the latter enactment is a general enactment. Thus the Tobacco Act, 2003 being a special Act overrides the provisions of Section 7 of the said PFA Act with regard to the power to prohibit the sale or manufacture of tobacco products which are listed in the schedule to the Tobacco Act, 2003. Mr. Hidayatullah strongly relying on the said conclusion of the Supreme Court argued that since Tobacco Act, 2003 is a special Act and is a subsequently enacted legislation, it will have an overriding effect in all respects and that may include even the question of adulteration of food article. It is argued by Mr. Hidayatullah that it is for the ::: Downloaded on - 09/06/2013 17:59:08 ::: KPP -16- WP Nos. 1355, 1803 & 1857 of 2011 Parliament to consider as to whether a specific provision is required to be inserted in the Tobacco Act dealing with adulteration of such food articles which are covered under the said PFA Act and if the Act is silent on that basis, the State authority cannot be allowed to function under the said PFA Act and the said Rules by treating any particular article which is covered under the Tobacco Act, 2003. It is submitted by Mr. Hidayatullah that even assuming that in a given case gutka is misbranded or adulterated which may be treated as an offence under the said PFA Act, yet since the said PFA Act will have no application, no proceedings can be initiated against the manufacturers of such gutka or pan masala. It is submitted by him that since Tobacco Act, 2003 is a complete Code and since it has an overriding effect over the said PFA Act and the said Rules and same being a special Act, the proceedings initiated by Respondent Nos. 2 to 4 are required to be quashed and set aside.
12. In order to appreciate the argument of Mr. Hidayatullah, reference is required to the made to the various provisions of the said PFA Act and the said Rules. Section 2 (i) of the said PFA Act deals with 'adulterant' means any material which is or could be employed for the purposes of adulteration.
Section 23 (l) of the said PFA Act prescribes prohibiting or regulating the manufacture, transport or sale of any article known to be used as an adulterant of food. At this stage, reference may be made to Section 23 of the said PFA Act and the same reads as under:
::: Downloaded on - 09/06/2013 17:59:08 :::KPP -17- WP Nos. 1355, 1803 & 1857 of 2011 "23. Power of the Central Government to make rules.- (1) The Central Government may, after consultation with the Committee and after previous publication by notification in the Official Gazette, make rules to carry out the provisions of this Act.
Provided that consultation with the Committee may be dispensed with if the Central Government is of the opinion that circumstances have arisen which render it necessary to make rules without such consultation, but, in such a case, the Committee shall be consulted within six months of the making of the rules and the Central Government shall take into consideration any suggestions which the Committee may make in relation to the amendment of the said rules.] (1-A) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-
(a)specifying the articles of food or classes of food for the import of which a license is required and prescribing the form and conditions of such license, the authority empowered to issue the same, the fees payable therefor, the deposit of any sum as security for the performance of the conditions of the license and the circumstances under which such license or security may be cancelled or forfeited;
(b)defining the standards of quality for, and fixing the limits of variability permissible in respect of, any article of food;
(c)laying down special provisions for imposing rigorous control over the production, distribution and sale of any article or class of articles of food which the Central Government may, by notification in the Official Gazette,specify in this behalf including registration of the premises where they are manufactured, maintenance of the premises in a sanitary condition and maintenance of the healthy state of human beings associated with the production, distribution and sale of such article or class of articles;::: Downloaded on - 09/06/2013 17:59:08 :::
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(d)restricting the packing and labelling of any article of food and the design of any such package or label with a view to preventing the public or the purchaser being deceived or misled as to the character, quality or quantity of the article or to preventing adulteration;
(e)defining the qualifications, powers and duties of food inspectors and public analysts;
[(ee) defining the laboratories where samples of articles of food or adulterants may be analysed by public analysts under this Act;
(f)prohibiting the sale or defining the conditions of sale of any substance which may be injurious to health when used as food or restricting in any manner its use as an ingredient in the manufacture of any article of food or regulating by the issue of licenses the manufacture or sale of any article of food;
(g)defining the conditions of sale or conditions for license of sale of any article of food in the interest of public health;
(h) specifying the manner in which containers for samples of food purchased for analysis shall be sealed up or fastened up;
(hh) defining the methods of analysis;
(i)specifying a list of permissible preservatives, other than common salt and sugar, which alone shall be used in preserved fruits, vegetables or their products or any other article of food as well as the maximum amounts of each preservative;
(j)specifying the colouring matter and the maximum quantities thereof which may be used in any article of food;
(k)providing for the exemption from this Act or of any requirements contained therein and subject to such conditions, if any, as may be specified, of any article or class of articles of food;
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(l) prohibiting or regulating the manufacture, transport or sale of any article known to be used as an adulterant of food;
(m)prohibiting or regulating--
(i)the addition of any water, or other diluent or adulterant to any article of food;
(ii)the abstraction of any ingredient from any article of food;
(iii)the sale of any article of food to which such addition or from which such abstraction has been made or which has been otherwise artificially treated;
(iv)the mixing of two or more articles of food which are similar in nature or appearance;
(n)providing for the destruction of such articles of food as are not in accordance with the provisions of this Act or of the rules made there under.....".
Rules have been framed under the said PFA Act. Rule 23 of the said Rules defines the addition of a colouring matter to any article of food except as specifically permitted by these Rules is prohibited. Rule 37-A states manufacture of proprietary food and the same reads thus:
"37-A. Manufacture of proprietary food.- (i) Proprietary food means a food which has not been standardised under the Prevention of Food Adulteration Rules, 1955.
(2) In addition to the provisions including labelling requirements specified under these rules, the proprietary foods ::: Downloaded on - 09/06/2013 17:59:08 ::: KPP -20- WP Nos. 1355, 1803 & 1857 of 2011 shall also conform to the following requirements, namely:_
(a) the name of the food and category under which it falls in these rules shall be mentioned on the label;
(b) The proprietary food product shall comply with all other regulatory provisions specified in these rules and in Appendixes."
Rule 44-J of the said Rules defines that tobacco and nicotine shall not be used as ingredients in any food products. Reference is also required to be made to Rule 62 of the said Rules which reads thus:
" 62. Restriction on use of anticaking agents._ No anticaking agents shall be used in any food except where the use of anticaking agents is specifically permitted.
Provided that table salt, onion powder, garlic powder, fruit powder and soup powder may contain the following anticaking agents in quantities not exceeding 2.0 per cent, either singly or in combination, namely:-
(1) carbonates of calcium and magnesium; (2) phosphates of calcium and magnesium;
(3) silicates of calcium, magnesium, aluminium or sodium or silicon dioxide;
(4) myristates, palmitates or stearates of aluminium, ammonium, calcium, potassium or sodium;
Provided further that calcium, potassium or sodium ferrocyanide may be used as crystal modifiers and anticaking agent in common salt, iodised salt and iron fortified salt in quantity not exceeding 10 mg./kg. Singly or in combination expressed as ferrocyanide."
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13. Considering the aforesaid Rules, it is clear that if any article of food is misbranded or is found to be adulterated, remedial measures are provided under the aforesaid Rules framed under the said PFA Act. It is required to be noted that in so far as Tobacco Act, 2003 is concerned, it nowhere deals with any situation by which if any article of food is found to be adulterated, what action can be taken against the manufacturers. The Tobacco Act, 2003 does not deal with the situation where tobacco products such as pan masala or gutka are found to be adulterated or misbranded. In view of the same, we fail to understand as to how it can ever be said that there is a conflict between Tobacco Act, 2003 and the said PFA Act, in so far as dealing with adulterated food article i.e. gutka/pan masala is concerned. In so far as the judgment of the Supreme Court in the case of Godawat (supra) is concerned, as pointed out earlier, notification under Section 7 (iv) was issued prohibiting manufacture and sale of gutka and pan masala for a period of five years on the ground that it is injurious to health. The matter before the Supreme Court was in connection with the validity of the said notification on the ground that in view of the provisions under the Tobacco Act, 2003 which prescribes sale of tobacco on certain conditions and since the Tobacco Act deals with regulating the sale of tobacco, no notification under Section 7 (iv) of the said PFA Act could have been issued.
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14. Considering the issue involved in the matter, it has been held by the Supreme Court that Tobacco Act, 2003 being subsequently enacted special law, it will govern the field so far as manufacture and sale of tobacco products are concerned with certain restrictions provided under the Tobacco Act i.e. it should not be sold to minor persons below 18 years old. In our view, considering the judgment of the Supreme Court, it is not possible for us to accept the say of Mr. Hidayatullah that even in a given case if the article is misbranded or adulterated or even may contain dangerous substance, yet such manufacturer or producer may go scot-free, as there is no provision in the Tobacco Act, 2003 dealing with adulteration of an article. If the Tobacco Act, 2003 deals with such a situation by taking care of adulterated gutka/pan masala, naturally, in view of the subsequent special legislation, one can say that impliedly it will have no application dealing with adulteration of gutka/pan masala is concerned. But the factual aspect in this case is totally different as there is no provision in the Tobacco Act dealing with adulteration of gutka or pan masala. If that is so, we fail to understand as to why adulterated gutka/pan masala cannot be dealt with under the said PFA Act and rules framed thereunder. The Supreme Court in the aforesaid case has considered ban on sale of gutka/pan masala for a period of five years which was found to be without any authority of law. At this stage, it is also required to be noted that in paragraph 77 of the said judgment of the Supreme Court, in sub-para (6) it has been clearly provided by the Supreme Court that the provisions of the Tobacco Act, 2003 are directly in conflict with ::: Downloaded on - 09/06/2013 17:59:08 ::: KPP -23- WP Nos. 1355, 1803 & 1857 of 2011 the provisions of Section 7 (iv) of the said PFA Act. Therefore, in the aforesaid judgment, the Supreme Court has considered only in connection with Section 7
(iv) of the said PFA Act. In sub-para (5) of para 77 it has also been held that the State authority has no power to prohibit the manufacture for sale, storage, sale or distribution of any article, whether used as an article or adjunct thereto or not used as food. The Supreme Court, therefore, has clearly held that such a power can only arise as a result of wider policy decision and emanate from parliamentary legislation or, at least, exercise of the powers by the Central Government by framing rules under Section 23 of the said PFA Act. If submission of Mr. Hidayatullah is accepted, then even no such Rules can be framed under Section 23 of the said PFA Act. However, the Supreme Court has in terms stated that such decision can be taken by the Central Government by framing appropriate Rule under Section 23 of the said PFA Act. The Supreme Court has, therefore, only set aside the notifications issued by the State Governments on the ground that the State had no jurisdiction to issue such notification prohibiting sale or manufacture of such article under Section 7 (iv) of the Act. Considering the said aspect, it is not possible for us to accept the argument of Mr. Hidayatullah that even in a case where the gutka or pan masala is found to be adulterated or misbranded, then no steps can be taken by the concerned agency under the Rules framed under the provisions of the said PFA Act. As pointed out earlier, if any provision is contained under the Tobacco Act, 2003 or Rules, if any, framed prescribing taking care of such a situation i.e. ::: Downloaded on - 09/06/2013 17:59:08 ::: KPP -24- WP Nos. 1355, 1803 & 1857 of 2011 dealing with the adulterated article or food, then naturally the provisions of the said subsequently enacted law is to prevail over the said PFA Act and the said Rules but that is not the fact situation so far as adulterated gutka or pan masala is concerned as the Tobacco Act, 2003 nowhere deals with the said aspect. In view of the same it can never be said that there is conflict between the Tobacco Act, 2003 and the said PFA Act. It is required to be noted that the Tobacco Act, 2003 nowhere provides any overriding effect in any manner whatsoever in connection with tobacco products. So far as Tobacco Act, 2003 is concerned, it deals with in the field of regulating the manufacture and sale of tobacco and prescribing certain conditions such as giving statutory warning, not to sell the said product to a minor, or sell the same in nearby school area, etc. The interpretation put forward by Mr. Hidayatullah, therefore, in our view cannot be accepted which may allow the manufacturer or producer of gutka to sell the said article freely even if it contains dangerous and harmful substance. Considering the same, we are of the view that it cannot be said that the respondent Nos. 2 to 4 have no authority to inspect the gutka material and to send the same for laboratory checking to find out whether it is misbranded or adulterated article or not. The judgment of the Supreme Court in the case of Godawat (supra) has no application so far as adulterated gutka or pan masala is concerned. The said judgment is in connection with prohibiting sale or manufacture of pan masala or gutka. Even otherwise, as stated earlier, the Supreme Court itself has clearly mentioned in the concluding sub-para (5) of para 77 that such prohibition ::: Downloaded on - 09/06/2013 17:59:08 ::: KPP -25- WP Nos. 1355, 1803 & 1857 of 2011 regarding manufacture or sale of such tobacco products can be imposed by exercising powers by the Central Government by framing appropriate Rules under Section 23 of the said PFA Act meaning thereby that the provisions of Section 23 of the said PFA Act are not given a go-by in spite of the enactment of Tobacco Act, 2003. Considering the said aspect, the first submission made by Mr. Hidayatullah in this behalf is required to be rejected.
15. It was next submitted by Mr. Hidayatullah that since no standard is prescribed under the said PFA Act regarding gutka, the intended action of the respondents in launching prosecution is not maintainable. In order to substantiate his say, he has relied upon the unreported judgment of the learned single Judge of the Gujarat High Court in the case of State of Gujarat (supra). So far as the aforesaid case is concerned, it arose from the criminal proceedings initiated by the State in connection with gutka. The Magistrate discharged the accused on the ground that no standard is prescribed for such gutka and, therefore, prosecution launched against the accused is required to be discharged.
The State took the matter in revision before the learned single Judge and learned single Judge also took the same view. However, Ms. Shastri, the learned AGP vehemently submitted that the view taken by the Gujarat High Court is not correct as, according to her, in a proprietary food there is a combination of various food articles and it is not necessary to prescribe separate standards for gutka. She has relied upon Rule 37-A of the said Rules, which has been quoted ::: Downloaded on - 09/06/2013 17:59:08 ::: KPP -26- WP Nos. 1355, 1803 & 1857 of 2011 above. According to her, gutka is a proprietary food for which no separate standard is required to be provided and proprietary food product shall comply with all other regulatory provisions specified in the said Rules and in Appendixes. It is submitted by her that carbonates of calcium and magnesium is an anticaking agent. She has relied upon Rule 62 of the said Rules. According to her, such anticaking is not permissible so far as preparation of gutka is concerned. Mr. Hidayatullah has, however, submitted that there is no scientific basis for coming to the conclusion that use of carbonates of calcium and magnesium is injuries to health. As against that it is argued by Mrs. Shastri that on the basis of scientific study it has been found that it is dangerous to human health. So far as this argument is concerned, in our view, this Court is not required to examine this point in its writ jurisdiction. Whether the prosecution is rightly launched or not and whether any particular standard is prescribed for gutka or not are questions which can be decided by competent Court taking criminal case, as and when any question arises before such Court. Suffice it to say that it is for the petitioners to take out appropriate criminal proceedings under Section 482 of the Criminal Procedure Code or even before the concerned Magistrate in case proceedings have been launched or initiated against the concerned persons. It is for the competent court to adjudicate this aspect as and when this question arises for determination. It is, therefore, not necessary for us to examine this aspect and this Court has only considered the powers of Respondent Nos. 2 to 4 to initiate proceedings under the provisions of the said ::: Downloaded on - 09/06/2013 17:59:08 ::: KPP -27- WP Nos. 1355, 1803 & 1857 of 2011 PFA Act and the said Rules in connection with the alleged food article which are found to be adulterated or misbranded under the provisions of the said PFA Act.
Since the judgment of the Supreme Court in the case of Godawat's case (supra) deals with a different fact situation i.e. Regarding imposing of ban by the State Government, the ratio laid down in the said judgment has no application so far as the issue involved in these petitions are concerned. The other points are not required to be examined in these writ petitions as the writ petitions are mainly filed challenging the powers of the State machinery to initiate the prosecution against the petitioners. The aspect as to whether any particular standard is provided for tobacco and whether proceedings are required to be quashed and/or set aside is a question which we are not required to deal with in the civil writ petitions and such question is kept open for consideration at an appropriate stage before the appropriate Court.
16. In view of what is stated above, we uphold the powers of the Respondent Nos. 2 to 4 to initiate proceedings under the said PFA Act and the said Rules regarding misbranding of gutka or tobacco products are concerned.
We, therefore, do not find any substance in the main grievance raised by the petitioners challenging the authority of the State to initiate such proceedings.
Writ petitions being devoid of any merit are accordingly dismissed. Rule is discharged. Interim relief stands vacated.
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17. At the request on the part of the learned counsel for the petitioners, the statement made by the learned AGP at the time of admitting these writ petitions that they will not act further, which statement was made during the pendency of the writ petitions, is ordered to be continued for a period of three weeks from today.
P. B. MAJMUDAR, J.
MRS. MRIDULA BHATKAR, J.
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