Gujarat High Court
Shree Ram Industries Thro' Anandkumar ... vs State Of Gujarat & 2 on 29 February, 2016
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/908/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 908 of 2016
TO
SPECIAL CRIMINAL APPLICATION NO. 911 of 2016
==========================================================
SHREE RAM INDUSTRIES THRO' ANANDKUMAR RAMBARAN SHARMA....Applicant(s) Versus STATE OF GUJARAT & 2....Respondent(s) ========================================================== Appearance :
MR VIRAT G POPAT, ADVOCATE for the Applicant(s) No. 1 NOTICE SERVED BY DS for the Respondent(s) No. 2 - 3 MR JK SHAH, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1 ========================================================== CORAM HONOURABLE MS JUSTICE SONIA GOKANI :
Date : 29/02/2016 ORAL COMMON ORDER
1. Since the present petitions arise from the identical questions of facts and law, they are being decided by this common order. For the sake of brevity and convenience, the facts are drawn from Special Criminal Application No.908 of 2016.
2. The petitioner is engaged in production of different types of edible flours and cattle feed since the year 1987. On the strength of the raw Page 1 of 18 HC-NIC Page 1 of 18 Created On Sun Mar 06 00:27:35 IST 2016 R/SCR.A/908/2016 ORDER material in the form of wheat, gram, etc. procured from the open market, the flour is being made after removing impure seeds, insects, etc. It is the say of the petitioner that fumigation on regular basis is being done in the godowns and thereafter, the godown is locked in an airtight condition.
2.1 On October 15, 2015, the respondent No.3 Food Safety Officer along with certain private individuals and Government officers entered the godown of the petitioner and opened the storage room of the godown, which was under fumigation. The samples of grains were drawn from the raw material, which according to the petitioner, was not meant for human consumption. The samples were drawn by some of the private individuals and as the godown was packed with gunny bags full of grains, the samples were drawn from the material lying on the floor. Resultantly, the samples did not meet with the standards and a spot seizure memo had also been issued to the petitioner. The report of the Food Analyst in that respect prepared on Page 2 of 18 HC-NIC Page 2 of 18 Created On Sun Mar 06 00:27:35 IST 2016 R/SCR.A/908/2016 ORDER October 20, 2015, indicated therein that the samples were unsafe as defined under section 3(1)(zz)(ix) of the Food Safety and Standards Act, 2006 (hereinafter referred to as 'the Act') and the rules framed thereunder, was given.
2.2 At the instance of the petitioner, who preferred an appeal, the samples were analysed by the Food Laboratory at Gaziabad, which also indicated that the sample was of substandard quality and the same was unsafe.
2.3 In pursuance of the same, the petitioner made a representation on November 24, 2015 to the respondentauthority indicating therein that the process of sampling and the act of opening of fumigated godown is beyond the powers of the respondentauthority. It had objected to the very sampling method and has also urged that the unfinished raw material which was valued at Rs.1.77 crore is lying in the storage godown would be severely damaged and the petitioner will be saddled with the Page 3 of 18 HC-NIC Page 3 of 18 Created On Sun Mar 06 00:27:35 IST 2016 R/SCR.A/908/2016 ORDER irreversible damages.
2.4 In view of aforesaid, a request is made in this group of petitions to quash and set aside the process undertaken by the respondent authority under the Act and rules framed thereunder, with a further request to release the goods in the form of wheat and gram and to permit the petitioner to manufacture the flour accordingly.
3. An affidavitinreply has been filed by the respondent No.3Food Safety Officer contending inter alia that the authority concerned has powers of search, seizure, investigation, prosecution and to undertake procedure thereof as provided under section 41 of the Act. The definition of 'food' as provided under section 3(j) of the Act has also been relied upon to urge that the petitioner is holding licence under the said Act and, therefore, the Food Safety Officer would be entitled to take sample of the food and also search the premises under the Food Safety and Standards (Licensing and Registration of Fod Page 4 of 18 HC-NIC Page 4 of 18 Created On Sun Mar 06 00:27:35 IST 2016 R/SCR.A/908/2016 ORDER Business) Regulation, 2011 (hereinafter referred to as 'the Regulations'). Moreover, there is no licence obtained for cattle feed and, therefore also, the competent authority can take samples to ascertain whether the sample which is for cattle feed is in proper condition. It is further urged that the premises had been inspected and as per the message and instructions received by the District Supply Officer, Panchmahals at Godhra, regarding rotten and bad quality of food grains in petitioners' premises, as the primary concern of the officer is as to whether the food stored in different godowns for production of flour is fit for human consumption. In the interest of public health and larger public interest, the samples have been drawn and eventually the Director of Food Laboratory declared the sample unsafe and substandard as per Rule 2.4.6(1). It is also their say that the sample was tested by the Food Analyst and the report of Food Analyst dated October 20, 2015, which was received on October 26, 2015, was referred to the Food Laboratory, Gaziabad and the certificate was Page 5 of 18 HC-NIC Page 5 of 18 Created On Sun Mar 06 00:27:35 IST 2016 R/SCR.A/908/2016 ORDER received from the Director of Food Laboratory on January 27, 2016, which was stated to be despatched on January 15, 2016.
4. As one year is the time for launching the prosecution as per section 77 of the Act from the date of commission of the offence, the launching of the prosecution is awaited as the sanction of the Food Safety Commissioner is yet to be obtained. It is also the say of the respondent authority that in some cases like raid at hotel and restaurant, the samples of chilly powder as well as turmeric powder with cooked food is obtained. However, it is misconception on the part of the petitioner that the result of sample would have been different if the sample would have been taken after final product.
5. Both the sides have been heard at length. Various submissions have been made as to whether the raw material wheat and gram could be said to be covered by the definition of food under section 3(j) of the Act. The manner and method of sampling, the timings chosen for raid by the Page 6 of 18 HC-NIC Page 6 of 18 Created On Sun Mar 06 00:27:35 IST 2016 R/SCR.A/908/2016 ORDER respondent No.3, the reports of both the laboratories, etc. had been at length argued by raising rival contentions.
6. It is to be noted that during the course of hearing, what weighed with the Court is the fact that the petitioner had possessed the licence for selling flour of wheat and gram both and the sample had been drawn not from the final product, but from the raw material which undergoes the entire process of cleansing. Before the actual process had been carried out, the samples had been drawn by the respondent No.3. This Court on February 17, 2016 inter alia passed the following order :
"2. During the course of hearing, the Report of Food Analyst as per regulations
(ii) of 2.3.1 dated 20th October, 2015 giving the Analysis and opinion in respect of wheat is as follows :
"Opinion : In respect of the tests performed above the sample of Ghau (wheat) is substandard as it do not comply to the standards and provisions laid down under Regulation No. 2.4.6(2) of Food safety and Page 7 of 18 HC-NIC Page 7 of 18 Created On Sun Mar 06 00:27:35 IST 2016 R/SCR.A/908/2016 ORDER standards (Food products and food additive)Regulations 2011 and provision of FSSA 2006 and rules made there under in respect of Damaged grains, Weevil led grains and Uric acid and also Unsafe food as defined under Section 3(1)(zz)(ix) and provision of Food safety and Standard Act 2006 and rules made there under in respect of presence of living and dead insects and insects parts."
3. From the Certificate of Analysis by the Referral Food Laboratory, Gaziabad (U.P.) for the sample of wheat opinion given is as follows : "Opinion The sample of Ghau (Wheat) does not conform to the standards laid down under Regulation 2.4.6(2) of Food Safety and Standards (Food Products Standards and Food Additives) Regulations 2011, as the sample shows Foreign matter (extraneous matter) and Weevilled grains above the maximum prescribed limit. The sample also shows presence of large number of live and dead insects /larvae. The sample is thus unsafe under section 3(1)(zz)(ix)(xi) of FSS Act, 2006."
4. All along the emphasis on the part of the common applicant (in all the above Page 8 of 18 HC-NIC Page 8 of 18 Created On Sun Mar 06 00:27:35 IST 2016 R/SCR.A/908/2016 ORDER applications) is that the applicant is not selling wheat/gram, but wheat/gram flours and admittedly, no sample of wheat/gram flour is taken. The flowchart of the Wheat and Gram Cleaning Process at Annexure H would be necessary to be reproduced which is as hereinunder: "Flow Chart of Wheat and Gram Cleaning Process First Stage of Cleaning Wheat Gram Intake 1st Round Reel Machine 2nd Round Reel Machine Scouring Machine Screen Separator Machine Washer Vizer First silos Scouring Machine Screen Seperator Machine 3 Brush Machine Second Silos Dry Stoner Round Reel Machine Third and Final Silos All machines are connected to separately high pressure fan which collects all small and medium impurities, power, dust and live and dead insects to dust collector room.
5. It is the case of the applicant that the seized items are not meant for sale and what is being sold is wheat/gram flour. The applicant is in the business of production of wheat/gram flour from the year 1987 and Page 9 of 18 HC-NIC Page 9 of 18 Created On Sun Mar 06 00:27:35 IST 2016 R/SCR.A/908/2016 ORDER at no stage, any irregularities/ adulteration is noticed by the authority much less any illegality. Decision of this Court rendered in case of Cargill India Private Limited Vs. Union of India through Secretary reported in 2012(4) GLR 3485 [Coram: Mr.Justice Bhaskar Bhattacharya, Chief Justice(as he then was) and Mr.Justice J.B.Pardiwala] is also pressed into service.
6. Considering the fact that the bags from which the samples were drawn had not been cleaned for the purpose of preparation of wheat/gram flour and admittedly, the applicant is not in the business of selling either gram or wheat, before this Court adjudicates the issue of handing over the seized articles, it would be necessary to find out as to whether the quality of wheat/gram as such is not substandard rendering them as unfit for human consumption, even when converted into wheat flour. It is the case of the applicant that in the flow chart up to the process of wheat/gram going to the third silos, basic material would be completely clean. No sample thereafter can contain Weevilled grains above prescribed limit or for that matter insect live or dead or any extraneous matter.
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R/SCR.A/908/2016 ORDER
7. Bearing in mind, the dimension of the machine, it would be necessary as submitted by the learned advocate for the applicant on seeking instructions before this Court that minimum 200 gunny bags of wheat shall be released for the process of cleaning .
8. Food Safety Officers, Godhara as named by the learned APP shall remain present . They shall be :
1. Mr.I.V.Patel, Food Safety Officer, Godhara
2. Mr.R.B.Raj, Food Safety Officer, Godhara
3. Mr. U.S.Patil, Food Safety Officer, Godhara
4. Mr.Y.C.Shah, Food Safety Officer, Godhara
9. These Officers shall remain present to select and identify 200 gunny bags of wheat and gram at random and shall hand over to the applicant. Such samples shall be processed up to third and final silos by the applicant in the presence of these officers. No further process thereafter shall be undertaken without permission of the Court and before any report is received from the Food Analyst.
10. Once the process of cleaning shown in the flow chart is made, the sample shall be Page 11 of 18 HC-NIC Page 11 of 18 Created On Sun Mar 06 00:27:35 IST 2016 R/SCR.A/908/2016 ORDER sent to the Food and Drugs Laboratory, Vadodara for the purpose of analysis to be carried out expeditiously but not later than one week.
11. The concerned officer for earmarking the seized goods for the aforesaid purpose shall visit the place of the applicant tomorrow i.e. on 18th February, 2016 at 11.00 a.m. .
12. Copy of this order shall be provided to learned APP Mr.J.K.Shah for onward communication and necessary followup action.
13. Let the matter appear on 29th February, 2016 along with the report of the Laboratory.
Direct service is permitted today."
7. Today when the report has been produced on record which is forwarded by the Food Analyst, Food and Drugs Laboratory at Vadodara, addressed to the Designated Officer, Food and Drugs Control Administration, Godhra, it transpires that the test performed on the sample of the processed wheat and gram conforms to the standards and Page 12 of 18 HC-NIC Page 12 of 18 Created On Sun Mar 06 00:27:35 IST 2016 R/SCR.A/908/2016 ORDER provisions laid down under Regulation 2.4.6(2) of the Food Safety and Standards (Food Products and Food Additive) Regulations, 2011 as well as the Food Safety and Standards Act and rules framed thereunder. It would be worthwhile to reproduce the report of Food Analyst in tabular form qua wheat and gram respectively, which reads as under
:
Sr. Quality Name of the Method of Results Prescribed std. as No. Characte- the test used per regulation ristics No.2.4.6.(2) & as per provision of the Act, Rules & Regulations 1 Moisture DGHS Lab Manual 10.84% Max.14.0% by 3:2005 weight (Cereals and cereal products) Method 2.0 2 Other edible Visible separation Absent Max.6.0% by grains method weight.
Ref.: DGHS Manual methods-2005 3 Foreign DGHS Lab Manual 3 : Absent Max.1.0% by matter 2005 (Cereals and weight.
cereal products) Method 1.2.1 4 Damaged DGHS Lab Manual 3 : 2.39% Max.6.0% by grains 2005 (Cereals and weight.
cereal products) Method 1.1.2.3 5 Weevil led DGHS Lab Manual 3 : Absent Max.10.0% by grains 2005 (Cereals and count.
cereal products)
Method 1.2.3
6 Uric acid DGHS Lab Manual 3 : 8.0 Max.100 mg/Kg
2005 (Cereals and mg/Kg
cereal products)
Method 1.2.3
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R/SCR.A/908/2016 ORDER
7 Added DGHS Lab Manual 3 : Absent As per Regulation
Colouring 2005 (Cereals and No.3.1.2
matter cereal products)
Method 4.2
Sr. Quality Name of the Method of the Results Prescribed std. as
No Characte test used per regulation
. -ristics No.2.4.6(9) & as
per provision of the
Act, Rules &
Regulations
1 Moisture DGHS Lab Manual 3:2005 9.15% Max.16.0% by
(Cereals and cereal products) weight
Method 2.0
2 Other Visible separation method Absent Max.4.0% by
edible Ref.: DGHS Manual methods- weight.
grains 2005
3 Foreign DGHS Lab Manual 3 :2005 Absent Max.1.0% by
matter (Cereals and cereal products) weight.
Method 1.1.2.1
4 Damage DGHS Lab Manual 3 :2005 0.09% Max.5.0% by
d grains (Cereals and cereal products) weight.
Method 1.1.2.3
5 Weevil DGHS Lab Manual 3 :2005 0.20% Max.10.0% by
led (Cereals and cereal products) count.
grains Method 1.1.2.3
6 Uric acid DGHS Lab Manual 3 :2005 28.0 Max.100 mg/Kg
(Cereals and cereal products) mg/Kg
Method 3.0
7 Added DGHS Lab Manual 3 :2005 Absent Absent
Colourin (Cereals and cereal products) g matter Method 4.2
8. At this stage, Shri Virat Popat, learned counsel appearing for the petitioner, does not press the prayer clauses 8(b) and 8(c) with liberty to agitate these issues at an appropriate stage before appropriate forum, bearing in mind, the Page 14 of 18 HC-NIC Page 14 of 18 Created On Sun Mar 06 00:27:35 IST 2016 R/SCR.A/908/2016 ORDER report of analysis dated February 25, 2016, where loose processed wheat and gram are said to have conformed to the standards and provisions laid down under Regulation 2.4.6(2) of Food Safety and Standards (Food Products and Food Additive) Regulations, 2011, and the provisions of the Food Safety and Standards Act, 2006 and Rules framed thereunder.
9. Without entering into the issues and contentions raised by both the sides, only on the ground that the reports of both the laboratories after the wheat and gram having been permitted to be cleansed and processed when conforms to the standards, request of petitioner to allow the process of flour deserves consideration. What has weighed with the Court is that huge quantity of wheat and gram has been seized by the respondent authority which is valued in lakhs of rupees and if the same is allowed to lie in the godown without any further process, it is surely going to be the national wastage. Had this been the case where end product rendered itself inedible Page 15 of 18 HC-NIC Page 15 of 18 Created On Sun Mar 06 00:27:35 IST 2016 R/SCR.A/908/2016 ORDER or unfit for human consumption, the petition would have been dismissed in limine. However, when on undertaking process of cleansing as prescribed hereinbefore when the samples of flour conform to the standards prescribed under the rules and regulations, it is a fit case for the Court to invoke extraordinary jurisdiction with inherent powers for the cause of justice.
10. On reiterative questioning to the learned Additional Public Prosecutor who, on instructions from the team of officers, has submitted to the Court that the sample of flour of both i.e. wheat and gram, conforms to the prescribed standards and there is not the slightest doubt in the report, which has been obtained from the Food and Drugs Laboratory pursuant to the order dated February 17, 2016.
11. In view of aforesaid the following directions are issued without interfering with the process of prosecution, which is otherwise contemplated to be initiated by the respondent Page 16 of 18 HC-NIC Page 16 of 18 Created On Sun Mar 06 00:27:35 IST 2016 R/SCR.A/908/2016 ORDER authority :
(i) The respondents at this stage are directed to release the goods which are in the form of wheat and gram forthwith qua all the petitioners.
(ii) The respondents shall permit the petitioners to continue the manufacturing process for manufacturing flour from both these commodities i.e. wheat and gram, lying in six lots and four godowns of the petitioners.
(iii) On the petitioners completing the process of manufacturing, they shall communicate the said aspect to the respondent No.3 in writing. If the respondentauthority is desirous of taking sample, it shall take the same within a week from the date of receipt of a communication from the respective petitioner and the report qua the same shall be supplied to the respective petitioner within a week thereafter.
(iv) If such sample so obtained conforms to the prescribed standards, the petitioners will be at liberty to sell the same, keeping detailed record Page 17 of 18 HC-NIC Page 17 of 18 Created On Sun Mar 06 00:27:35 IST 2016 R/SCR.A/908/2016 ORDER of everything which shall be produced before the respondent Nos.2 and 3 as well as before the concerned Court by way of an affidavit and annual record be maintained in the course of process.
(v) All legal issues raised by both the sides which are not pressed and, therefore, not adjudicated, are permitted to be agitated before the concerned authority.
(vi) This order shall not be treated as a precedent in other proceedings.
With the above directions and observations, this petition stands disposed of. Direct Service is permitted.
(MS SONIA GOKANI, J.) Aakar Page 18 of 18 HC-NIC Page 18 of 18 Created On Sun Mar 06 00:27:35 IST 2016