Kerala High Court
V.Sukumaran vs The Food Safety Officer on 21 December, 2018
Author: Hrishikesh Roy
Bench: Hrishikesh Roy, A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY
&
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
FRIDAY ,THE 21ST DAY OF DECEMBER 2018 / 30TH AGRAHAYANA, 1940
WA.No. 2496 of 2018
AGAINST THE ORDER IN WP(C) 39232/2018 of HIGH COURT DATED 13.12.2018
APPELLANTS/PETITIONERS:
1 V.SUKUMARAN, AGED 70 YEARS
MANAGER, QUALITY CONTROL, NAZARETH FOODS (P) LTD, NO 64, AACHI STREET,
INDRA NAGAR, AYYANAMBAKKAM, CHENNAI-600 095.
2 M/S. NAZARETH FOODS( P) LTD,
NO.64, AACHI STREET, INDRA NAGAR, AYYANAMBAKKAM, CHENNAI-600 095,
REPRESENTED BY ITS MANAGER QC.
3 M/S. AACHI MASALA FOODS (P) LTD,
PLOT NO, 1926, 34 STREET, ISWARYA COLONY, IST BLOCK, ANNA NAGAR WEST,
CHENNAI-600 040, REPRESENTED BY ITS MANAGER QC.
4 A. YASER ARAFATH (VENDOR),
S/O. ABUBAKER, BERKAH MANZIL, KUMILY P.O, IDUKKI DISTRICT, PIN-685 509.
5 A. NAHAMATHULLAH KHAN (LICENCEE),
LIMRA AGENCIES, BERKATH MANZIL, KUMILY P.O, IDUKKI DISTRICT, PIN-685 509.
BY ADVS.
SRI.K.LAKSHMINARAYANAN
SATHYASHREE PRIYA
SRI.D.ANILKUMAR
RESPONDENTS/RESPONDENTS:
1 THE FOOD SAFETY OFFICER, PERMEDU CIRCLE, IDUKKI,
THODUPUZHA, KERALA-685 584.
2 COMMISSIONER OF FOOD SAFETY,
OFFICE OF COMMISSIONER OF FOOD SAFETY, THUCAUD PO,
THIRUVANANTHAPURAM,PIN-695014.
3 STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM-695 001
4 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF HEALTH AND
FAMILY WELFARE, GOVERNMENT OF INDIA, NEW DELHI-110 001.
SRI.C.S.MANU, GOVERNMENT PLEADER
SMT.K.R.AMBILI, CGC
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21.12.2018, THE COURT ON THE
SAME DAY PASSED THE FOLLOWING:
WA.No. 2496 of 2018
: 2 :
JUDGMENT
Hrishikesh Roy, C.J.
Heard Sri.D.Anilkumar, the learned counsel appearing on behalf of the appellants/writ petitioners.
2. This Writ Appeal is filed to challenge the order dated 13.12.2018 in the W.P. (C)No.39232 of 2018 whereby, the learned Single Judge refused to grant stay the ongoing prosecution, under the Food Safety and Standards (Food Products Standards & Food Additives) Regulations, 2011 merely because, the writ petitioners have challenged the Regulations 3.1.2(6), of the said Regulation.
3. The counsel would however argue that the writ petitioners have a very sound case on the challenge to the legal validity of the Regulation and, therefore, the learned Judge ought to have granted a stay of the criminal prosecution, against the writ petitioners.
4. In the present matter, the sample of chicken kabab masala manufactured by the 2nd appellant and sold by other appellants were collected on 21.7.2016, under the provisions of the Food Safety and Standards Act, 2006 and those samples were referred for testing. The report showed that synthetic food colours " carmoisine" and "sunset yellow" were found in the masala sample. Since then the Commissioner of Food Safety, Kerala had sanctioned prosecution by his order dated 23.5.2018 WA.No. 2496 of 2018 : 3 :
(Ext.P7) which lead to the Ext.P8 proceedings before the Judicial First Class Magistrate-II Peermedu.
5. On the challenge to the prosecution, the learned Single Judge declined interim relief by way of staying the criminal prosecution merely on the ground that the Regulation is challenged by the accused. This according to us was the right decision since unless and until any court of competent jurisdiction declares the concerned Regulations as ultra vires, the court has to proceed that the Regulations are valid and is applicable with all its rigor. Thus, the view taken by the learned Single Judge in declining the interim relief will not justify any interference. In any case, the Writ Petition is still pending, where the legal question would be answered by the learned Judge. Therefore, the Writ Appeal is not entertained without prejudice to the right of the appellants to move if advised, for modification of the Interim Prayer, made in the Writ Petition.
6. The Writ Appeal is dismissed with the above order.
SD/-
HRISHIKESH ROY CHIEF JUSTICE SD/-
A.K.JAYASANKARAN NAMBIAR JUDGE jes