Kerala High Court
Authorized Officer vs M/S. Mondelez India Food Ltd on 3 September, 2014
Author: Ashok Bhushan
Bench: A.M.Shaffique, Ashok Bhushan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
WEDNESDAY, THE 4TH DAY OF FEBRUARY 2015/15TH MAGHA, 1936
WA.No. 1317 of 2014 ()
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(AGAINST THE JUDGMENT IN WP(C).NO. 22987/2014 DATED 03-09-2014)
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APPELLANT/RESPONDENT NO.2 :
----------------------------------------------------
AUTHORIZED OFFICER,
COCHIN SEA PORT & AIRPORT
FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA,
MINISTRY OF HEALTH AND FAMILY WELFARE,
GOVERNMENT OF INDIA, 1ST FLOOR, MARINE BUILDING,
NORTH END, WILLINGTON ISLAND, COCHIN-682 009.
BY ADVS.SRI.PAUL JACOB
SRI.MEHMOOD PRACHA
RESPONDENT(S)/PETITIONER/RESPONDENTS:
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1. M/S. MONDELEZ INDIA FOOD LTD.,
(FORMERLY CADBURYS INDIA LTD.),
REGISTERED OFFICE AT UNIT -2001, 20TH FLOOR,
TOWER NO.3(WING-C), INDIA BULLS FINANCE CENTRE,
PAREL, MUMBAI-400 013,
REPRESENTED BY ITS LEGAL COUNSEL OFFICER,
PAVAN CHULLANI.
2. UNION OF INDIA,
REPRESENTED BY ITS SECRETARY,
MINISTRY OF HEALTH AND FAMILY WELFARE,
GOVERNMENT OF INDIA, NEW DELHI-110 001.
3. COMMISSIONER OF CUSTOM,
CUSTOM HOUSE, WELLINGDON ISLAND, COCHIN-682 009.
R1 BY SRI.P.RAVINDRAN,SENIOR ADVOCATE
ADV. SRI.MADHU RADHAKRISHNAN
R2 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL
R3 BY ADV. SRI.TOJAN J.VATHIKULAM,SC,C.B. EXCISE
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD
ON 09-12-2014 , THE COURT ON 04-02-2015 DELIVERED
THE FOLLOWING:
sts
W.A.NO.1317/2014
APPENDIX
PETITIONER'S ANNEXURES:
ANNEX A1 COPY OF THE LETTER TO THE RESPONDENT NO.1 BY THE
APPELLANT DATED 30/9/2014
ANNEX A2 COPY OF THE LETTER ISSUED BY THE RESPONDENT NO.1 TO THE
APPELLANT DATED 1/10/14
ANNEX A3 COPY OF THE LETTER ISSUED TO THE BIS BY THE APPELLANT
DATED 30/9/2014
ANNEX A4 COPY OF THE INTERNET SEARCH REPORT FOR BIS TEST.
RESPONDENT'S EXHIBITS & ANNEXURES:
EXT.R1(A) COPY OF THE EMAIL DATED 10/9/2014 ISSUED BY THE CLEARING
HOUSE AGENT OF THE 1ST RESPONDENT
EXT.R1(B) COPY OF THE MAIL DATED 12/9/2014 ALONG WITH ATTACHMENTS
SENT BY THE 1ST RESPONDENT
/TRUE COPY/
P.A.TO.JUDGE
sts
ASHOK BHUSHAN, Ag.CJ
& A.M.SHAFFIQUE, J.
* * * * * * * * * * * * *
W.A.No.1317 of 2014
----------------------------------------
Dated this the 4th day of February 2015
J U D G M E N T
Shaffique,J This appeal is filed by the 2nd respondent in W.P.C.No.22987/2014. 1st respondent is the writ petitioner and respondents 2 and 3 are respondents 1 and 3 in the writ petition.
2. The writ petition was filed seeking for a declaration that 'cocoa bean' imported by the writ petitioner, who is hereinafter referred as the petitioner, is not "food" coming under the provisions of Food Safety and Standards Act, 2006 (hereinafter referred to as 'FSS Act') and the Rules framed thereunder. Petitioner also sought for a direction to quash Exts.P4, P6 and P7. By Ext.P4, clearance was sought from the Food Safety and Standards Department before Custom's clearance of 'cocoa bean'. Exts.P6 and P7 are the W.A.No.1317/2014 2 test reports. Direction was also sought for to release the consignment covered under Ext.P1 without insisting for a test to be conducted by the authorities under the FSS Act and the Rules and for other consequential reliefs.
3. The facts involved in the writ petition would indicate that the petitioner imported 'cocoa bean' from Indonesia through Cochin port. The 3rd respondent, Commissioner of Customs issued Ext.P4 stipulating that the 'cocoa bean' has to be tested as per Food Safety Standards or else a no objection certificate has to be obtained from the competent authority under the FSS Act. The 2nd respondent subjected the 'cocoa bean' to test under Clause 2.2 of the Food Safety and Standards (Contaminants, Toxins and Residues) Regulations, 2011 and a further test was conducted under the category of 'Dry Fruits and Nuts' under clause 2.3.47.5 of the Food Safety and Standards (Food Products Standards and Food Additives) Regulations 2011, (hereinafter referred as the Regulations). It was found that W.A.No.1317/2014 3 the 'cocoa bean' does not satisfy the specification of approved standards and accordingly they issued Ext.P6 stating that it contains contaminants which are not approved for food items. Contending that no standard has been fixed under the FSS Act or Regulations for 'cocoa bean' and the only standard available is under the Bureau of Indian Standards (for short BIS), the writ petition was filed contending that FSS Act and Rules are not applicable to 'cocoa bean'. It is contended that the 'cocoa bean' has to undergo further process to make it fit for human consumption and thereafter alone it has to comply with the standards fixed under the FSS Act and Rules. It is also contended that the test conducted for 'Dry Fruits and Nuts' has no application to 'cocoa bean' which is a seed of cocoa.
4. Statement has been filed by the 2nd respondent inter alia contending that 2nd respondent had taken samples of the imported 'cocoa beans'. Two consignments passed the test and two consignments failed W.A.No.1317/2014 4 the test as the product was heavily infected with mould growth and fungus growth resulting in changed colour to greyish white. It was also found that it has musty and rancid odour. Damaged units was 100% by weight instead of 2% and acidity of extracted fat expressed as oleic acid 2.8% by weight instead of 1.25%. Therefore, according to them, the sample was not edible and thus failed the test. Reference is also made to various statutory provisions to indicate that as long as the item imported is food, it has to comply with certain standards and if it is not fit for human consumption, it cannot be permitted to be imported.
5. Learned Single Judge, after hearing the rival contentions, formed an opinion that the test conducted by the Department is as if the 'cocoa bean' is coming under the specification 'dry fruits and nuts'. 'Cocoa bean' is nothing but a 'seed' and cannot be equated with 'dry fruits or nuts'. Only if there is a prescribed standard for 'cocoa bean', the product should conform to such standard. Based on the said W.A.No.1317/2014 5 finding, the following directions have been issued:
"(i) The imported goods shall be released to the petitioner forthwith.
(ii) In the absence of standards, I am of the view, the sample shall be sent to analysis by the Bureau of Indian Standards.
(iii) The petitioner shall not use the 'cocoa bean' released to him for human consumption without report obtained as indicated above.
(iv) The petitioner shall pay such cost as may be required for the purpose of analysis."
6. It is not in dispute that based on the judgment of the learned Single Judge, the goods had been released. However, it is awaiting analysis of the Bureau of Indian Standards, as the learned Single Judge had observed that the 'cocoa bean' shall not be released for human consumption without appropriate report and analysis from the Bureau of Indian Standards. It is, impugning the above judgment, that the appeal has been filed by the petitioner.
7. Heard Sri.Mehmood Pracha, learned counsel for the appellant and Sri.P.Ravindran, learned senior W.A.No.1317/2014 6 counsel appearing on behalf of the 1st respondent/writ petitioner and learned Assistant Solicitor General of India appearing on behalf of the 2nd respondent. The appellant makes specific reference to the various provisions of the Act which defines what is food, primary food, ingredient etc, with specific emphasis on Sections 25 and 47 of the FSS Act. It is argued that the word 'food' and 'primary food' is wide enough to include all the food articles which are intended to be used for manufacturing food, to be used for human consumption and since 'cocoa bean' is a product of agriculture, which is used for human consumption by manufacturing chocolates, coco powder etc., it falls within the meaning of food, which is regulated by the provisions of the FSS Act. Further, it is contended that regulation 2.2.2.2
(c) of the Food Safety and Standards (Packaging and Labelling) Regulations 2011 (hereinafter referred to as 'P&L Regulations') has not been complied by the petitioner. It is argued that no food item will fall out of the purview of FSS W.A.No.1317/2014 7 Act or its Regulations. The learned counsel also relied upon the judgment of the Supreme Court in Centre for Public Interest Litigation v. Union of India and Others [AIR 2014 SC 49]. Paragraphs 24 to 26 have been highlighted whereby directions have been issued to the FSS authority of India to conduct periodical inspection and monitoring of major fruit and vegetable markets to ensure that the specification and standards are conformed by the suppliers/retailers and that the provisions of the Act has to be implemented in the light of safeguarding the right to life guaranteed under Article 21 of the Constitution of India. Learned counsel for the appellant also argued that even going by the standards prescribed under BIS, the sample failed and therefore no food product or any material used for manufacture of food, which does not comply with the standards, cannot be imported to India. Further, reference has also been made to the import licence issued in favour of the petitioner which permitted only import of products W.A.No.1317/2014 8 allowed under the FSS Act, 2006. It is argued that when 'cocoa beans' are imported under the aforesaid licence, it is not open for the petitioner to contend that they have no obligation to comply with the standards prescribed. Argument has also been raised contending that as per Regulations 2.3.14.17 and 18 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011, only packaged drinking water/mineral water and infant food comes under the BIS certification mark.
8. On the other hand, learned senior counsel appearing on behalf of the writ petitioner argued that though 'cocoa beans' can generally be termed as a substance used for manufacture of food, as far as standards are concerned, no specific standard has been prescribed for 'cocoa bean' whereas specific standard has been prescribed for cocoa powder. In so far as 'cocoa bean' has to undergo further process to make it fit for human consumption and W.A.No.1317/2014 9 since no standard has been prescribed for 'cocoa bean', import of the same cannot be restricted. Petitioner further argues that BIS has prescribed certain specification for 'cocoa bean' which alone is required to be complied with and the learned Single Judge had directed the imported commodity to be verified by the authorities under the BIS and only after such an analysis, the petitioner is permitted to use the 'cocoa beans' for the intended purpose. It is therefore argued that no modification is required to the judgment of the learned Single Judge.
9. Having heard the learned counsel on either side, the short issue to be considered is whether the imported cocoa beans should satisfy any of the specification or standards under the FSS Act or the Rules framed thereunder.
10. There cannot be any dispute regarding the fact that certain consignment of 'cocoa bean' have been imported by the petitioner as an item of food. As rightly W.A.No.1317/2014 10 contended by the learned counsel for the appellant, the import licence of the petitioner permits only import of the product allowed under FSS Act, 2006. Though a contention has been raised in the writ petition that 'cocoa bean' is not 'food' as defined under the FSS Act, 2006, learned senior counsel appearing for the petitioner fairly submits that they do not intend to take such a contention as it falls under the definition of 'food' coming under the FSS Act. Food is defined under Section 3(j) of the FSS Act as under:
"3(j) "food" means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food, to the extent defined in clause (zk) genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances:
W.A.No.1317/2014 11
Provided that the Central Government may declare, by notification in the Official Gazette, any other article as food for the purposes of this Act having regards to its use, nature, substance or quality."
The definition is very wide enough as it includes the primary food which comes under the definition of Section 3(zk) and also any substance used into the food during its manufacture, preparation or treatment. The meaning given to primary food, food additive and ingredient are also relevant which reads as under:
Section 3 (zk) "primary food" means an article of food, being a produce of agriculture or horticulture or animal husbandry and dairying or acquaculture in its natural form, resulting from the growing, raising, cultivation, picking, harvesting, collection or catching in the hands of a person other than a farmer or fisherman; Section 3(k) "food additive" means any substance not normally consumed as a food by itself or used as a typical ingredient of the food, whether or not it has nutritive value, the intentional addition of which to food for a technological (including organoleptic) purpose in the manufacture, processing, preparation, treatment, packing packaging, transport or holding of W.A.No.1317/2014 12 such food results, or may be reasonably expected to result (directly or indirectly), in it or its by-products becoming a component of or otherwise affecting the characteristics of such food but does not include "contaminants" or substances added to food for maintaining or improving nutritional qualities; Section 3(y) "ingredient" means any substance, including a food additive used in the manufacture or preparation of food and present in the final product, possibly in a modified form;
If, according to the petitioner, 'cocoa bean' extract is being used for the purpose of manufacture of chocolates and other products, there is no doubt regarding the identity of the goods as a 'food' item within the meaning given under the FSS Act.
11. The question therefore will be whether any standards have been fixed for 'cocoa bean'. The learned counsel for the appellant was unable to point out any specific provision under the Regulations which prescribes the standards for 'cocoa bean'. Regulations are fixed for W.A.No.1317/2014 13 beans, dry fruits and nuts, cocoa powder etc. The FSS authorities have, for the purpose of analysis, treated the product as 'Dry Fruits and Nuts'. Clause 2.3.47 (5) of the Regulations gives specification for the products obtained by drying sound, clean fruits and nuts of proper maturity. What is 'cocoa bean' is evident from the publication of BIS, produced as Ext.P10. 'Cocoa bean' is defined as "the seed of cocoa tree (Theobroma cacao Linnaeus)". Commercially and for the purpose of International Standard, the term refers to the whole seed which has been fermented and dried. Dry cocoa is defined as the derivation of 'cocoa bean' which has been evenly dried throughout until the moisture content is corresponding to the requirement of International Standards. Apparently 'cocoa bean' is the seed of cocoa tree and is not termed as a fruit or nut.
12. Clause 2.3.47(5) of the Regulations is relied upon by the appellant which reads as under:
"Dry Fruits and Nuts means the products obtained by drying sound, clean fruits and nuts of W.A.No.1317/2014 14 proper maturity. The product may be with or without stalks, shelled or unshelled, pitted or unpitted or pressed into blocks. The product shall be free from mould, living/dead insects, insect fragments and rodent contamination. The product shall be uniform in colour with a pleasant taste and flavour characteristic of the fruit/nut free from off flavour, mustiness, rancidity and evidence of fermentation. The product shall be free from added colouring. The product shall conform to the following requirements:-
(i) Extraneous Vegetable matter (m/m) Not more than 1.0 per cent.
(ii) Damaged/Discoloured units (m/m) Not more than 2.0 per cent.
(iii) Acidity of extracted fat expressed as oleic Acid not more than 1.25 per cent.
Explanation.- For the purpose of this
paragraph-
(i) Extraneous vegetable matter means
stalks, pieces of shells, pits, fibre, peel;
(ii) Damaged or Discoloured means units affected by sunburn, scars mechanical injury, discolouration and insects."
Dry fruits and nuts means the products obtained by drying sound, clean fruits and nuts of proper maturity. It cannot be W.A.No.1317/2014 15 disputed that 'cocoa bean' is the seed of cocoa tree. Bean is specified under clause 2.3.48 of the Regulations which reads as under:
"Bean: Means dry kidney shaped or flattened seeds of the leguminous varieties used as food, either whole or prepared as dal. It shall not contain hydrocyanic acid exceeding 20 parts per million as determined by Association of Official Analytical Chemists Maceration method."
Bean is treated as a seed which is used as 'food' either whole or prepared as dal. There is no material to indicate 'cocoa bean' as the seed of a legume. At any rate, in its present form, it cannot be used as food.
13. Perusal of clause 2.3.47 and its different derivatives are also useful to form an opinion as to whether 'cocoa bean' is a dried nut or not. Clause 2.3.47 by itself categorizes various commodities under general head "nuts and raisins". Specific commodities are mentioned in various sub items. Item (1) refers to Ground nut kernel, Item (2) refers to raisins, item (3) refers to pistachio nuts which is W.A.No.1317/2014 16 obtained from mature seeds of Pistachio Vera L which have been sun dried and their shell opened naturally or mechanically. Item (4) are different varieties of dates and item (5) is of general nature referring to dry fruits and nuts. In fact, in Regulation 2.3, the heading given is Fruit and Vegetable products and various type of fruits, vegetables, its formulations are given depending upon the nature of the product available in the market. There cannot be any dispute that 'cocoa bean' is derived from a fruit, but its seed cannot be termed as a substance obtained by drying of fruit or nut.
14. According to the petitioner, cocoa powder, which is produced from cocoa beans, is specified under clause 2.11.6 of the Regulations. It is meant as a powder which is the partially defatted product derived from the 'cocoa bean', the seed of Theobroma cacao L. Therefore as rightly contended by the petitioner, when the Statute has prescribed standards for cocoa powder and has consciously W.A.No.1317/2014 17 decided not to fix any standards for 'cocoa beans', it can safely be assumed that no standards had been fixed under the FSS Act or Regulations for 'cocoa beans'.
15. Having arrived at such a conclusion, we have to consider the argument of the learned counsel for appellant regarding the question of importing 'food' on the basis of license for importing food under the FSS Act, and the requirement of standards to be maintained.
Section 25 of the FSS Act reads as under:
25. All imports of articles of food to be subject to this Act.--(1) No person shall import into India--
(i) any unsafe or misbranded or sub-standard food or food containing extraneous matter;
(ii) any article of food for the import of which a licence is required under any Act or rules or regulations, except in accordance with the conditions of the licence; and
(iii) any article of food in contravention of any other provision of this Act or of any rule or regulation made thereunder or any other Act.
(2) The Central Government shall, while prohibiting, restricting or otherwise regulating import of articles of food under the Foreign Trade (Development and W.A.No.1317/2014 18 Regulation) Act, 1992 (22 of 1992), follow the standards laid down by the Food Authority under the provisions of this Act and the rules and regulations made thereunder.
Sub-standard is defined under section 3(zx) and unsafe food is defined under section 3(zz) as under:
Section 3 (zx) "sub-standard", an article of food shall be deemed to be sub-standard if it does not meet the specified standards but not so as to render the article of food unsafe;
Section 3 (zz) "unsafe food" means an article of food whose name, substance or quality is so affected as to render it injurious to health:--
(i) by the article itself, or its package thereof, which is composed, whether wholly or in part, of poisonous or deleterious substances; or
(ii) by the article consisting, wholly or in part, of any filthy, putrid, rotten, decomposed or diseased animal substance or vegetable substance; or
(iii) by virtue of its unhygienic processing or the presence in that article of any harmful substance; or
(iv) by the substitution of any inferior or cheaper substance whether wholly or in part; or
(v) by addition of a substance directly or as an ingredient which it not permitted; or W.A.No.1317/2014 19
(vi) by the abstraction, wholly or in part, of any of its constituents; or
(vii) by the article being so coloured, flavoured or coated, powdered or polished, as to damage or conceal the article or to make it appear better or of greater value than it really is; or
(viii) by the presence of any colouring matter or preservatives other than that specified in respect thereof; or
(ix) by the article having been infected or infested with worms, weevils or insects; or
(x) by virtue of its being prepared, packed or kept under insanitary conditions; or
(xi) by virtue of its being misbranded or substandard or food containing extraneous matter; or
(xii) by virtue of containing pesticides and other contaminants in excess of quantities specified by regulations."
Sampling and analysis is done by virtue of powers vested under Section 47 of the FSS Act, which reads as under:
47. Sampling and analysis.--(1) When a Food Safety Officer takes a sample of food for analysis, he shall--
(a) give notice in writing of his intention to have it so analysed to the person from whom he has taken the sample and to the person, if any, whose name, address W.A.No.1317/2014 20 and other particulars have been disclosed;
(b) except in special cases as may be provided by rules made under this Act, divide the sample into four parts and mark and seal or fasten up each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken in such place and in such manner as may be prescribed by the Central Government:
Provided that where such person refuses to sign or put his thumb impression, the Food Safety Officer shall call upon one or more witnesses and take his signature or thumb impression, in lieu of the signature or thumb impression of such person;
(c)(i) send one of the parts for analysis to the Food Analyst under intimation to the Designated Officer;
(ii) send two parts to the Designated Officer for keeping these in safe custody; and
(iii) send the remaining part for analysis to an accredited laboratory, if so requested by the food business operator, under intimation to the Designated Officer:
Provided that if the test received under sub-clauses (i) and (iii) are found to be at variance, then the Designated Officer shall send one part of the sample kept in his custody, to referral laboratory for analysis, whose decision thereon shall be final. W.A.No.1317/2014 21 (2) When a sample of any article of food or adulterant is taken, the Food Safety Officer shall, by the immediate succeeding working day, send the sample to the Food Analyst for the area concerned for analysis and report.
(3) Where the part of the sample sent to the Food Analyst is lost or damaged, the Designated Officer shall, on a requisition made to him, by the Food Analyst or the Food Safety Officer, despatch one of the parts of the sample sent to him, to the Food Analyst for analysis.
(4) An article of food or adulterant seized, unless destroyed, shall be produced before the Designated Officer as soon as possible and in any case not later than seven days after the receipt of the report of the Food Analyst:
Provided that if an application is made to the Designated Officer in this behalf by the person from whom any article of food has been seized, the Designated Officer shall by order in writing direct the Food Safety Officer to produce such article before him within such time as may be specified in the order. (5) In case of imported articles of food, the authorised officer of the Food Authority shall take its sample and send to the Food Analyst of notified laboratory for analysis who shall send the report within a period of five days to the authorised officer.
W.A.No.1317/2014 22 (6) The Designated Officer, the Food Safety Officer, the authorised officer and the Food Analyst shall follow such procedure as may be specified by regulations.
Sub section (5) of section 47 clearly gives power to the Food Safety Officer to take samples of imported food and to send the same for analysis. Therefore, it is evident from the statutory scheme that the authorities under the FSS Act has to ensure that the food product imported by the petitioner is neither unsafe nor sub-standard. Commissioner of Customs was therefore justified in calling upon the petitioner to obtain No Objection Certificate from the FSS authorities for permitting clearance of the cargo.
16. The respondent has a case that the cocoa bean imported by the petitioner is secondary. According to them, manufacturing of chocolates by using totally damaged cocoa beans will cause serious health hazards to the children. The very intention of enacting FSS Act, after repealing the Prevention of Food Adulteration Act, is clear from the preamble, which indicates that it has been enacted W.A.No.1317/2014 23 to consolidate the laws relating to food and to establish the Safety and Standards Authority of India for laying down specific standards for articles of food and to regulate the manufacture, storage, distribution, sale and import to ensure availability of safe and wholesome food for consumption and for matters connected therewith or incidental thereto.
17. Therefore, when a food item is imported, it is the bounden duty of the Food Safety Officer exercising power under section 47(5) of the FSS Act to take sample and sent the same for analyisis, to ensure that the food item is neither substandard nor unsafe.
18. Ext.P6 is the first report which indicates that the sample does not conform to the prescribed standard due to the presence of visual mould. The sample was tested according to item No. 2.2 of the Regulation. Ext.P7 is the analysis report of food from the analytical lab at Mysore. The report indicates that the said sample was heavily infested with mould growth and fungus growth resulting in change in W.A.No.1317/2014 24 colour to greyish white and it has musty and rancid odour. The report also indicates the nature of test conducted and it is opined that the goods does not conform to the standards laid down for 'dry fruits and nuts'.
19. The learned counsel for the appellant argued that even if cocoa bean is not considered to be either 'dry fruit or nut', still it has to be verified whether it could be imported. In order to import a food item, the same should be of standard quality and should be safe for human consumption. He referred to Ext.P10 Indian Standard for cocoa bean which also treats mouldy bean as defective. Similarly a cocoa bean which shows skaty colour of half or more of the surface exposed by the method described in ISO/R 1114 is also treated as defective. Learned counsel relied upon a Division Bench judgement of this Court in Al Marwa Traders v. Asst.Commissioner of Imports [(2007) 1 KLT 381], wherein this Court observed that though there is no prescribed standards, it could be ensured that betel nuts W.A.No.1317/2014 25 imported by the party is not injurious to the health of ultimate consumers. Paragraph 17 of the said judgement is relevant which reads as under :
"17. However, in public interest, we make it clear that although betel nuts imported by the appellants cannot be subjected to test for the standards prescribed under Item A.29.04, certainly, the respondents can ensure that the same is not adultered in the sense mentioned in S.2(b), (e) and (f) so as to see that the appellants are not importing betel nuts which are not injurious to the health of the ultimate consumer, who may consume the product made of betel nuts imported by the appellants. We are told by the counsel for the appellants that the inspection under the provisions of the Plant, Fruits and Seeds (Regulation of Import into India) Order 1989 and the Plant Quarantine (Regulation of Import into India) Order, 2003, would ensure the same. However, we leave it to the Customs Authorities to ensure, but without causing any delay in clearance of the goods on account of that, taking into account the perishable nature of the goods."
20. It is therefore the statutory duty of the Food Safety Officer to ensure that the goods imported as food item is not W.A.No.1317/2014 26 substandard or unsafe. Though there may not be a specific entry in the Regulations which prescribes a standard for cocoa beans, still the Food Safety Officer has to report whether it was either substandard or unsafe. The analysis report now relied upon by the Food Safety Officer indicates that they had tested the food sample based on certain specific requirement under Regulations. It might be true that the provision under which they tested the sample was not applicable under the circumstances. But, as held in Al Marwa Traders case (supra), it is for the Food Safety Officer to ensure and certify that the goods can be imported and it is neither substandard nor unsafe. Merely for the reason that no standard had been fixed for cocoa beans or cocoa seed it does not mean that the Food Safety Officer is without power to analyse the same and ensure that it is safe for human consumption. Probably, they could analyse the food product with reference to the standards fixed by BIS as well. But the authority to analyse the sample vests in them, W.A.No.1317/2014 27 which cannot be questioned by the importer. It is, therefore, mandatory for any importer of food item to obtain appropriate certification from the Food Safety Officer stating that the food item is not substandard or unsafe.
21. As already indicated, the scope and effect of the FSS Act is clear from the preamble and highlighted by the Supreme Court in the judgement in Writ Petition (Civil) No.681/2004. Paragraphs 23, 24 and 25 are relevant which reads as under:
"23. Enjoyment of life and its attainment, including right to life and human dignity encompasses, within its ambit availability of articles of food, without insecticides or pesticides residues, veterinary drugs residues, antibiotic residues, solvent residues, etc. But the fact remains, many of the food articles like rice, vegetables, meat, fish, milk, fruits available in the market contain insecticides or pesticides residues, beyond the tolerable limits, causing serious health hazards. We notice, fruit based soft drinks available in various fruit stalls, contain such pesticides residues in alarming proportion, but no attention is made to examine its contents. Children and infants are uniquely susceptible to the effects of pesticides W.A.No.1317/2014 28 because of their physiological immaturity and greater exposure to soft drinks, fruits based or otherwise.
24. We, therefore, direct the Food and Safety Standards Authority of India, to gear up their resources with their counterparts in all the States and Union Territories and conduct periodical inspections and monitoring of major fruits and vegetable markets, so as to ascertain whether they conform to such standard set by the Act and the Rules.
25. Penal provisions are also provided in the Act. It is, therefore, of utmost importance that the provisions of the Acts are properly and effectively implemented so that the State can achieve an appropriate level of human life and health, safeguarding the right to life guaranteed under Article 21 of the Constitution of India."
22. Though the learned counsel for the appellant placed reliance on the judgment of the learned Single Judge of Madras High Court in W.P.No.24999 of 2014 dated 10/10/2014, the said judgment was concerned with import of betel nuts. That judgment cannot be made applicable to the facts of the present case as, admittedly, betel nut was analysed with reference to the entry under 'dry fruits and W.A.No.1317/2014 29 nuts', which apparently applied to the said factual situation.
23. Another judgment relied upon is a judgment of the Division Bench of Calcutta High Court in MAT.No. 1252 of 2014. That judgment is concerned with import of refined oil. The question considered was regarding non observance of packaging and labelling which was required in terms of Food Safety and Standards (Packaging and Labelling) Regulations, 2011. Though it is argued by the learned counsel that the imported cocoa beans failed to satisfy the packing and labelling Regulations as well, since no material was available to indicate that the commodity was a packaged commodity and no action had been taken in that regard by the Food Safety Officer, we do not think that it is proper to consider the same at this point of time.
24. Having regard to the aforesaid findings of ours, we are of the view that the learned Single Judge was not justified in permitting import of a consignment which, according to the Food Safety Officer, was unsafe or W.A.No.1317/2014 30 substandard. In the event of a like situation where no specific standard is prescribed for a particular imported food item, still the Food Safety Officer has to certify that the food item is not substandard or unsafe. Therefore the jurisdiction of the Food Safety Officer to grant or reject clearance certificate of food items on sufficient materials cannot be disputed or doubted. Hence it was appropriate that the Food Safety Officer should have been directed to conduct analysis based on appropriate standards or even BIS standards to ensure that the product is neither substandard nor unsafe for import.
25. The goods having already been released and a direction has been issued to conduct test by the BIS, we are of the view that it is for the Food Safety Officer to give an opinion regarding the same. Hence we direct the Food Safety Officer to conduct appropriate tests and submit a report regarding the safety of food. The judgment of the learned Single Judge, therefore, requires modification to the following extent:
W.A.No.1317/2014 31
i) The appellant is directed to examine the product from the place where it is stored by the petitioner and the samples shall be tested to ensure that it is neither substandard nor unsafe for human consumption taking into consideration the standards prescribed by BIS as well.
ii) If the goods are found to be substandard or unsafe, appropriate steps shall be taken in accoradance with law. Such a procedure shall be adopted after giving notice to the petitioner.
This writ appeal is disposed of as above.
(sd/-) (ASHOK BHUSHAN, ACTING CHIEF JUSTICE) (sd/-) (A.M.SHAFFIQUE, JUDGE) jsr W.A.No.1317/2014 32 W.A.No.1317/2014 33