Bombay High Court
Nestle India Limited vs State Of Maharashtra on 29 June, 2012
Author: Prasanna B.Varale
Bench: Prasanna B.Varale
1 wp2514.10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2514 OF 2010.
Nestle India Limited, a Company duly
incorporated under the Companies Act,
1956 India Limited, a Company duly
incorporated under the Companies
Act, 1956, and having its Registered
Office at M/5A, Connaught Circus,
New Delhi 110 001, and having a
Branch Office at 1st Floor, ICC Chambers,
Near Saki Vihar Road, Powai, Mumbai
400 072, through Mr. Rajendra K. Rajput,
Manager Sales and authorized represen-
tative of the petitioner having his office
at 1st Floor, ICC Chambers, near Saki
Vihar Telephone Exchange, Saki Vihar
Road, Powai, Mumbai 400 072. ... PETITIONER
VERSUS
1. State of Maharashtra,
through the Secretary,
Food and Civil Supplies
Department, Mantralaya,
Mumbai - 32.
2. The Commissioner,
Food and Drugs Administration,
having its office at Survey No.341,
Bandra Kurla Complex,
Bandra (East), Mumbai - 51.
3. The Licensing Officer and
Assistant Commissioner (Food),
Food and Drugs Administration,
Maharashtra, Nagpur Division
having its office at Limbanna
Compound, Mount Road,
Sadar, Nagpur - 440 001. ... RESPONDENTS
....
::: Downloaded on - 09/06/2013 18:43:14 :::
2 wp2514.10
Shri Sunil V. Manohar, Senior Advocate with Ms. T.H. Udeshi, Advocate for
the petitioner.
Shri A.S. Fulzele, Assistant Government Pleader for the respondents.
....
WITH
WRIT PETITION NO. 2515 OF 2010.
Nestle India Limited, a Company duly
incorporated under the Companies Act,
1956 India Limited, a Company duly
incorporated under the Companies
Act, 1956, and having its Registered
Office at M/5A, Connaught Circus,
New Delhi 110 001, and having a
Branch Office at 1st Floor, ICC Chambers,
Near Saki Vihar Road, Powai, Mumbai
400 072, through Mr. Rajendra K. Rajput,
Manager Sales and authorized represen-
tative of the petitioner having his office
at 1st Floor, ICC Chambers, near Saki
Vihar Telephone Exchange, Saki Vihar
Road, Powai, Mumbai 400 072. ... PETITIONER
VERSUS
1. State of Maharashtra,
through the Secretary,
Food and Civil Supplies
Department, Mantralaya,
Mumbai - 32.
2. The Commissioner,
Food and Drugs Administration,
having its office at Survey No.341,
Bandra Kurla Complex,
Bandra (East), Mumbai - 51.
3. The Licensing Officer and
Assistant Commissioner (Food),
Food and Drugs Administration,
Maharashtra, Nagpur Division
having its office at Limbanna
Compound, Mount Road,
Sadar, Nagpur - 440 001. ... RESPONDENTS
::: Downloaded on - 09/06/2013 18:43:14 :::
3 wp2514.10
....
Shri Sunil V. Manohar, Senior Advocate with Ms. T.H. Udeshi, Advocate for
the petitioner.
Shri J.B. Jaiswal, Assistant Government Pleader for the respondents.
....
CORAM : PRASANNA B.VARALE, J.
DATED : 29TH JUNE, 2012.
ORAL JUDGMENT :
Rule. Rule is made returnable forthwith. Heard finally by consent of the parties. Shri A.S. Fulzele, learned Assistant Government Pleader waives notice on behalf of the respondents in Writ Petition No. 2514 of 2010 and Shri J.B. Jaiswal, learned Assistant Government Pleader waives notice on behalf of the respondents in Writ Petition No. 2515 of 2010.
2. In both these petitions, an identical issue is involved and as such these petitions are being decided together by this common judgment and order.
3. The petitioner is a public limited company duly registered under the provisions of Companies Act. The petitioner/company is engaged in manufacturing and marketing of various food products. A licence is issued to the petitioner/company bearing No. Hingna/360/2007 ::: Downloaded on - 09/06/2013 18:43:14 ::: 4 wp2514.10 in the year 2007 for sale and distribution of various food products and operating the business under the licence in the various areas of district Nagpur.
4. In Writ Petition No. 2514 of 2010, a notice is issued to the petitioner/company through their trader at Wardha, Taluka and District Wardha for committing breach of the provisions of the Prevention of Food Adulteration Act, 1954 and more particularly Rule 39 of the Prevention of Food Adulteration Rules, 1955 for the product "Maggi Noodles"; whereas in Writ Petition No. 2515 of 2010, a notice was issued to the trader, namely, Shri Manoj Subhash Rathi at Wardha, Taluka and District Wardha for the product namely "Teekha Masala Sauce".
5 In Writ Petition No. 2514 of 2010, a notice dated 17.07.2009 is placed on record at "Annexure-A" at page 32 mentioning therein that, the sample of the product "Maggi Noodles" was drawn and was forwarded for analysis and in view of the report received by the Public Health Laboratory, Pune, there is defect in a label and the same constitutes the contravention of the provisions of the Prevention of Food Adulteration Act, 1954 and Rule 39 of the Prevention of Food Adulteration Rules, 1955. The petitioner was further informed that the petitioner/company has committed breach of Rule 5(5) of 1962 Rules read with Prevention of Food Adulteration Act. A notice was issued by the competent authority i.e. the Food Inspector and ::: Downloaded on - 09/06/2013 18:43:14 ::: 5 wp2514.10 the Licensing Authority, Wardha. The petitioner/company in response to the notice dated 17.07.2009 submitted its reply. It is submitted in the reply by the petitioner/company that the statement made on the label is the statement of facts. It is further stated that there is no breach committed by the petitioner/company of Rule 39 as alleged in the notice. The department then issued a fresh notice dated 01.10.2009 to the petitioner on the same ground alleging that the petitioner has committed the breach of the provisions of the Prevention of Food Adulteration Act read with Rule 39 of Prevention of Food Adulteration Rules, 1955. The said notice was annexed with the report of Public Analyst, State Public Health Laboratory, Pune dated 25.02.2009.
6. The petitioner/company submitted its reply dated 09.11.2009 to the notice dated 01.10.2009. The petitioner reiterated its submission of the statement of facts shown on the label of the product and denying the breach of Rule 39 of the PFA Rules. The Food Inspector and the Licensing Authority, Nagpur, by order dated 10.12.2009, suspended the licence of the petitioner/company for the period of five days i.e. 20.01.2010 to 25.01.2010.
It is stated in the order that the submission/say filed by the petitioner is not found satisfactory and the authority arrived at a conclusion that the petitioner has committed the breach of Section 7(v) of the PFA Act and Rule 39 of PFA Rules. The petitioner was intimated that the petitioner can avail the remedy of preferring the appeal to the appellate authority within ::: Downloaded on - 09/06/2013 18:43:14 ::: 6 wp2514.10 thirty days from the date of receipt of the order. The petitioner/company by availing the remedy, filed appeal before the Commissioner of Food and Drugs Administration, Maharashtra, Mumbai and the appellate authority, by order dated 14.05.2010, maintained the order of the Food Inspector by making a partial modification to the period of suspension i.e. the period was shortened and the licence of the petitioner was suspended for three days with effect from 14.06.2010 to 16.06.2010.
7. Being aggrieved by the order dated 10.12.2009 passed by the Food Inspector and the order passed by the appellate authority, the petitioner is approaching this Court by way of present petitions.
8. Shri Sunil Manohar, the learned Senior Counsel appearing on behalf of the petitioner/company, by inviting my attention to the relevant provisions of the Prevention of Food Adulteration Act and the Rules framed thereunder, in his elaborate arguments, submits that the Food Inspector by issuing the order dated 10.12.2009 and the appellate authority maintaining the order of the Food Inspector partly, committed serious error. He further submits that the approach of both the authorities below is wholly unsustainable as these authorities have failed to consider the relevant provisions in proper perspective. The learned Senior Counsel for the petitioner further submits that initially a notice was issued to the trader of the petitioner/company alleging the breach of the provisions of the ::: Downloaded on - 09/06/2013 18:43:14 ::: 7 wp2514.10 Prevention of Food Adulteration Act and the Rules to which a detailed reply was submitted by the petitioner/company, and for a considerable period of two months, the department was silent and the petitioner was under impression that its reply has been considered by the authority in a positive way. But, the department again, on the same allegation, issued the subsequent impugned notice dated 01.10.2009. Shri Manohar, the learned Senior Counsel submits that the notice dated 01.10.2009 and the order dated 10.12.2009 show that the approach of the authority is clearly erroneous and with a pre-determined mind, the authorities have acted upon. As these petitions involved the breach of provisions of Section 7(v) of the PFA Act and Rules 39 and 5(5) of the PFA Rules, it will be necessary to consider these provisions. These provisions read as follows :-
"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) ...
(ii) ...
(iii) ...
(iv) ...
(v) any article of food in contravention of any other
provision of this Act or of any rule made thereunder."
Rule 39 of PFA Rules, 1955 reads thus :-
"39. Labels not to use words implying recommendations by medical profession. - There shall not appear in the label of any package containing food for sale the words "recommended by ::: Downloaded on - 09/06/2013 18:43:14 :::
8 wp2514.10 the medical profession" or any words which imply or suggest that the food is recommended, prescribed or approved by medical practitioners."
Rule 5(5) of the Maharashtra Prevention of Food Adulteration Rules, 1962 reads thus :-
"5(5) The licensee shall abide by the provisions of the Act and the rules made thereunder, and the conditions of the licence granted to him. The licensing authority may suspend or cancel the licence for breach of any of the provisions of the Act or rules made thereunder or the conditions of licence."
The reading of these provisions show that Section 7(v) of the PFA Act deals with the prohibition of manufacture, sale etc. of food articles in contravention of the provisions of the Act or the Rules; whereas Rule 5(5) of the Maharashtra PFA Rules, 1962 deals with the power of licensing authority to suspend or cancel the licence in breach of the provisions of the Act or the Rules.
9. The main controversy in these petitions revolves around Rule 39 of the PFA Rules, 1955. Shri Sunil Manohar, the learned Senior Counsel placed on record the labels on the food articles namely "Maggi Noodles"
and "Maggi Teekha Masala Sauce" for perusal of this Court.
10. The allegation against the company is about the contravention as referred to in Rule 39. In case of the food product "Maggi Noodles", the ::: Downloaded on - 09/06/2013 18:43:14 ::: 9 wp2514.10 label contains the words, "Maggi Noodles are packed with the power of Protein and Calcium. Protein helps improve muscle growth. Calcium helps build strong bones". The label further contains, "Good to know -
Protein and Calcium help improve growth". It further reads, "TASTE BHI, HEALTH BHI for your child". The label of product "Maggi Teekha Masala Sauce" reads, "Good to remember - Tomatoes are a good source of lycopene - an anti oxidant which helps strengthen your body's natural defenses".
11. The notice issued to the petitioner and the order passed by the Food Inspector and the Licensing Authority refer to these products i.e. "Maggi Noodles" and "Maggi Teekha Masala Sauce". The report annexed to the notice of the Public Analyst, State Public Health Laboratory refers to label and it reads, "Label complies with the label provisions as per P.F.A. Rules 1955 except it contains the words - protein and calcium help promote growth. Protein helps improve muscle growth. Calcium helps build strong Bones." In the further part of the report, it is referred by the Public Analyst that label contravenes Rule 39. It contains the words which suggest of implies that the food is recommended or approved for medical purpose. The opinion expressed by the Public Analyst reads thus, "Opinion - I am of the opinion that the Sample bearing L (H) A Code No. and Sr. No. WRD/24/ND-264 contravenes Rules 39 of PFA Rules, 1955."
This is in respect of the product "Maggi Noodles"; whereas in respect of ::: Downloaded on - 09/06/2013 18:43:14 ::: 10 wp2514.10 the product "Maggi Teekha Masala Sauce", the report of the Public Analyst reads, "Label - Label complies with the label provisions of P.F.A. Rules, 1955 except it contains the words tomatoes are a good source of lycopene an antioxidant, which helps strengthen your body's natural defenses". It further reads, "Label contains the words which suggest or implies that the food is recommended or approved for medical purpose. The opinion expressed by the Public Analyst reads thus, "Opinion - I am of the opinion that the Sample bearing L (H) A Code No. and Sr. No. WRD/24/ND-265 contravenes Rules 39 of PFA Rules, 1955."
12. Shri Sunil Manohar, the learned Senior Counsel for the petitioner vehemently submits that the bare perusal of the words of Rule 39, shows that the Act prohibits appearing the word on label -
"recommended by the medical profession" or any words which imply or suggest that "the food is recommended, prescribed or approved by medical practitioner or approved for medical purpose". He further submits that the words on the label of these two products are only the statement of facts i.e. protein helps improve muscle growth, calcium helps build strong bones and good to remember - tomatoes are a good source of lycopene - an antioxidant which helps strengthen your body's natural defenses. The learned Counsel further submits that the nutrients value of these products are separately mentioned in the label. Shri Manohar, the learned Senior Counsel further submits that the petitioner in its reply ::: Downloaded on - 09/06/2013 18:43:14 ::: 11 wp2514.10 specifically submitted that the statement on the label is purely statement of facts and there is no contravention of Rule 39. The learned Senior Counsel submits that the Food Inspector and the Licensing Authority has failed to consider the reply and the appellate authority not only failed to consider the submission of the petitioner but substituted its grounds which are not the grounds or the charges either in the notice issued to the petitioner or in the order passed by the Food Inspector.
13. Shri Sunil Manohar, the learned Senior Counsel, by referring to the order passed by the appellate authority, strongly criticizes the appellate authority's observations in respect of the contents of the label namely, "Calcium 100 mg/100 gms and Protein 9.9 gm/100 gms and it meets 20% requirement of child's growth" and further observation that, "it is clearly established that on the wrapper of the food product the appellant's distributor has introduced advertisement of the contents of Calcium and Protein". He also criticizes the further observation that, "in view of GSR 664, the meaning of 'Health claim' clearly provides that the said ingredient must be present in the said food product. In the said Noodles the main ingredient is wheat fine flour which contains proportion of Carbohydrates in excess. Suppression of the disclosure thereof and by providing the information of Protein and Calcium, the consumers are misguided." The learned Senior Counsel for the petitioner submits that the alleged misrepresentation as observed by the appellate authority and ::: Downloaded on - 09/06/2013 18:43:14 ::: 12 wp2514.10 the observation in respect of the label being an attempt of advertisement of the contents of Calcium and Proteins was wholly uncalled for and contrary to the facts of the matter. Shri Manohar, the learned Senior Counsel submits that the notice issued to the petitioner and the order of the Food Inspector which call for an action against the petitioner for contravention of Rule 39 and in view of Rule 39, there is prohibition under the Act for the words on the products recommended by the medical profession or any words which imply or suggest that the food is recommended, prescribed or approved by medical practitioners or approved for medical purpose. The learned Senior Counsel submits that none of these requirements which call for an action is appearing on the label of the product of the petitioner. The petitioner/company nowhere claimed that the product is either recommended by the medical profession or any words which would imply or suggest that the food product of the petitioner/company is recommended, prescribed or approved by the medical practitioner or the foot product is approved for medical purpose.
Shri Manohar, the learned Senior Counsel submits that the statement on the label of the product "Maggi Noodles" is a statement about the value of protein and calcium and even a common man is aware of the value of protein and calcium. He further submits that it is not claimed by the petitioner/company that the food product of the petitioner/company is recommended by any medical practitioner. In respect of product "Maggi Teekha Masala Sauce", the words on the label are, "tomatoes are a good ::: Downloaded on - 09/06/2013 18:43:14 ::: 13 wp2514.10 source of lycopene - an antioxidant which helps strengthen your body's natural defenses." The learned Senior Counsel submits that even these words are the general statement of facts about the tomatoes. He further submits that there is a separate information provided on the label about the nutrients value or the nutrition information in the product and nowhere it is stated on the label that the product is recommended by medical practitioner. Shri Manohar further submits that the appellate authority, while substituting the reasons, gave a complete go-bye to the notice, the report of the Public Analyst and the order passed by the Food Inspector and the Licensing Authority. He further submits that the notice dated 01.10.2009 is not a notice as required under law i.e. asking the noticee to show cause and in failure a proposed action. The learned Senior Counsel submits that in the notice, the authority has already arrived at a conclusion that the petitioner has committed a breach of provisions of PFA Act and Rules. Such a notice is no notice as it reflects that the authority is pre-determined and the notice is not issued with free mind. The learned Senior Counsel, in support of his submissions, places reliance on the judgments of the Apex Court in the case of Oryx Fisheries Private Limited .v. Union of India and others (reported in 2010 (11) SCALE, 554) and in the case of Institute of Chartered Accountants of India .v. L.K. Ratna and others (reported in AIR 1987 SC 71). The Apex Court in the case of Oryx Fisheries Private Limited .v. Union of India and others (cited supra) referring to the show cause notice observed as follows :-
::: Downloaded on - 09/06/2013 18:43:14 :::14 wp2514.10 "24. There can be no dispute that the function of the Disciplinary Committee of holding an enquiry under S.21(1) of the Act into the conduct of the member calls for a recording of evidence by the Committee. Its duty does not end there. It must consider the evidence and come to its conclusions. As S.21(2) of the Act plainly says, it must report :the result of its enquiry" to the Council. In the absence of express or implied statutory intendment to the contrary, it appears to us that the members of such a Committee would be disqualified from participating in the deliberations of the Council when it proceeds to consider the report in order to find whether the member is guilty of misconduct. For that alone would be consistent with the fundamental principle that justice must not only be done but must also appear to be done. The nature of the function discharged by the Council in rendering its finding is quasi-
judicial, and we are reminded of the observations of this Court as far back as Manak Lal V. Dr.Prem Chand, 1957 SCR 575: (AIR1957 SC 425):
"It is well settled that every member of a tribunal that is called upon to try issues in judicial or quasi-judicial proceedings must be able to act judicially; and it is of the essence of judicial decisions and judicial administration that judges should be able to act impartially, objectively and without any bias. In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have ::: Downloaded on - 09/06/2013 18:43:14 ::: 15 wp2514.10 operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done."
28. The conclusion reached by us has not been an easy one. The authorities on the subject have oscillated from one extreme to the other, and an analysis of the cases points at times to some rather slender element in the mosaic of facts which has influenced the outcome. There is good reason ultimately for adopting a liberal view, for as has been observed by the late Professor S.A.de Smith in his 'Judicial Review of Administrative Act' Fourth Edition P.261:
"......a report will normally include a statement of findings and recommendations, which may be controverted before the parent body; and in such a case the participation of members of the sub-
committee in the final decision may be of dubious validity. The problem is not merely one of strict law; it is also one of public policy."
14. Shri Sunil Manohar, the learned Senior Counsel submits that the judgment of the Apex Court in the case of Oryx Fisheries Private Limited .v. Union of India and others (cited supra) is clearly applicable to the case at hand and the notice issued against the petitioner is not giving any opportunity to the petitioner to meet with the allegation and to counter or confront those allegations but the notice issued by the authority ::: Downloaded on - 09/06/2013 18:43:14 ::: 16 wp2514.10 with pre-determined mind observed that the petitioner has committed breach of the provisions. He, therefore, submits that the order passed by the Food Inspector and the Licensing Authority and the order passed by the appellate Authority are unsustainable and deserve to be set aside.
15. Shri A.S. Fulzele, the learned Assistant Government Pleader appearing on behalf of the respondents, per contra, submits that the petitioner/company has committed the breach of Rule 39 of PFA Rules, 1955. He further submits that the words on the label that, "Protein helps improve muscle growth, Calcium helps build strong bones" and the product "Maggi Noodles" contains the protein and calcium is an attempt of the petitioner/company to suggest that the food product of the petitioner/company is full of the nutrient values with protein and calcium and as such a false claim is made by the petitioner/company about their product in the label. The learned AGP, therefore, submits that the action taken by the authority is in accordance with the provisions of law.
16. In view of the above rival contentions of the learned Counsel appearing on behalf of the respective parties, the core issue for consideration before this Court is a limited one and i.e. of consideration of the alleged violation of the petitioner/company under Rule 39 of the Prevention of Food Adulteration Rules, 1955.
::: Downloaded on - 09/06/2013 18:43:14 :::17 wp2514.10
17. The plain reading of the said provision, on the backdrop of the words mentioned on the label of the food products, namely, the "Maggi Noodles" and "Maggi Teekha Masala Sauce", I find considerable merit in the submissions of Shri Sunil Manohar, the learned Senior Counsel for the petitioner. The requirement as suggested by the provisions of Rule 39 is the words recommended by the medical profession or any such words implying or suggesting that the food is recommended, prescribed or approved by the medical practitioner is certainly with a view to prohibit or sale of such a food product which would create an impression in the mind of purchaser that as the product is recommended by the medical profession or medical practitioner, it is beneficial for his health. The object is certainly laudable i.e. to prevent the general public from misleading claims of the manufacture or the seller of food product. On this touchstone if the labels are scanned and assessed with the objectivity, one would find that the words used on the label are the statement of facts. In the case of the product, namely "Maggi Noodles", the words reflected about the protein and calcium and the product "Maggi Teekha Masala Sauce" is packed with protein and calcium is merely a statement of facts.
The label nowhere suggests that the said product is recommended by the medical profession or medical practitioner so as to meet the requirement under Rule 39. Insofar as the nutrient values contained in the product, the data is separately reflected on the label. In view of these facts, the conclusion arrived at by the authority passing the order dated 10.12.2009 ::: Downloaded on - 09/06/2013 18:43:14 ::: 18 wp2514.10 i.e. the Food Inspector and Licensing Authority is certainly erroneous. The order also suffers from a mechanical approach by the authority as the petitioner/ company in its reply submitted that the statements about the protein and calcium are the statements of facts and the submission in the reply that there is nothing on the label either in clear words or any such words to imply with the product is recommended, prescribed or approved by any medical practitioner or is approved for medical purpose. The appellate authority substituted its own reasons namely about the words on label were in the nature that the appellant's distributor has introduced advertisement of contents of protein and calcium. Now this was not the charge levelled against the petitioner/company. As there was nothing in that respect either in the notice or in the order passed by the Food Inspector and Licensing Authority, the petitioner had no opportunity to meet these substituted charges by the appellate authority. The same is the case about further observation of the appellate authority in respect of one GSR 664(E). The appellate authority observed that as per the said new GSR 664(E), the petitioner has suppressed the facts. The appellate authority further observed that in the product "Maggi Noodles", the main ingredient is the wheat fine flour and the petitioner/company has made the statements on the label about the value of protein and calcium.
Suppressing the fact that the main ingredient of the product "Noodles" is wheat fine flour which contains proportion of Carbohydrates in excess.
This is also not a charge levelled against the petitioner/company. The ::: Downloaded on - 09/06/2013 18:43:14 ::: 19 wp2514.10 notice issued to the petitioner along with the report of Public Analyst of State Public Health Laboratory refers to the contents on the label and particularly about the protein and calcium. In view of these facts, the appellate authority's observations about the petitioner misguiding the consumers by suppressing the fact that the noodle's main ingredient is wheat fine flour is erroneous. The appellate authority's order in respect of the product "Maggi Teekha Masala Sauce" is also erroneous. While considering the report of the Public Analyst and the objection of the Food Inspector, Wardha in respect of the contravention of Rule 39, reference is made to the words, "Tomatoes are a good source of lycopene - an antioxidant which would strengthen your body's natural defenses". Here also reference is made to GSR 664 and further it is observed by the appellate authority that the main ingredient in the product is only four per cent of tomato base and the general consumer is likely to mislead by the words appearing on the label as to, "Tomatoes are a good source of lycopene - an antioxidant which would strengthen your body's natural defenses" and as such it contravenes Rule 39. Reading the words appearing on the label as it is, it only reflects a general statement that the "Tomatoes are a good source of lycopene - an antioxidant which would strengthen your body's natural defenses". The label nowhere suggests that the product "Maggi Teekha Masala Sauce" is either recommended by medical practitioner or recommended for medical purpose by medical practitioner. In that effect, the observation of the appellate authority that ::: Downloaded on - 09/06/2013 18:43:14 ::: 20 wp2514.10 the petitioner/company through the label making an advertisement of its product showing that the product contains large scale of lycopene;
whereas lycopene proportion is very minimal in the product and as such the consumer is being misguided. These observations of the appellate authority are farfetched.
18. Taking overall view of the matter, I am of the considered opinion that there is considerable merit in the submission of Shri Sunil Manohar, the learned Counsel for the petitioner that the charge levelled against the petitioner/company in respect of contravention of Rule 39 of PFA Rules is unsustainable. I also find considerable merit in the submission of the learned Counsel for the petitioner in respect of the nature of the notice. The notice dated 17.07.2009 and notice dated 01.10.2009 are not the notices asking the petitioner to show cause and submit its reply for initiating proceedings for contravention of the provisions of the Prevention of Food Adulteration Act. The notice reflects that the authorities have arrived at a conclusion that the petitioner has committed the breach of provisions of the Act and the action is being followed for the said breach by the petitioner. As observed by the Apex Court in the case of Oryx Fisheries Private Limited .v. Union of India and others (cited supra) that at the stage of show cause notice, the person proceeded against must be told the charges against him so that he can take his defence and prove his innocence. The Apex Court in the aforesaid case ::: Downloaded on - 09/06/2013 18:43:14 ::: 21 wp2514.10 observed that, "the bias of the third respondent which was latent in the show cause notice became patent in the order of cancellation of the registration certificate". It can safely be said that a reverse process is adopted by the authority. Normally a person by issuing show cause notice is given an opportunity to meet with the allegation and on consideration of the reply, the authority may arrive at a conclusion that the person has committed breach of certain provision. Here the authority in the notice itself had arrived at a definite conclusion that the petitioner has committed breach of the provisions of the Act and then asking the petitioner/ company to submit its reply. This is a sort of pre-determined mind of the authority; whereas the authority is expected to issue the notice with an open mind. On this aspect also, the learned Senior Counsel Shri Sunil Manohar is justified in his submission.
19. Taking overall view of the matter, I am of the opinion that the order impugned is unsustainable in the eyes of law and deserves to be quashed and set aside. Accordingly the impugned order passed by the Food Inspector and Licensing Authority as well as the appellate authority is quashed and set aside. This Court further makes it clear that the department is at liberty to issue a fresh notice against the petitioner/company if occasion arises by following due procedure of law.
::: Downloaded on - 09/06/2013 18:43:14 :::22 wp2514.10
20. The Writ Petitions are allowed. Rule is made absolute in the aforesaid terms. No order as to costs.
JUDGE *rrg.
::: Downloaded on - 09/06/2013 18:43:14 :::