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2014 DIGILAW 79 (KER)

Dharampal Satyapal v. State of Kerala

2014-01-30

P.N.RAVINDRAN

body2014
Judgment : The petitioner, a public limited company incorporated under the Companies Act, 1956 is a food business operator as defined in section 3(o) of the Food Safety and Standards Act, 2006 (hereinafter referred to as “the Act” for short). It is engaged inter alia in the manufacture and sale of salts, spices, soda water, dry fruits, mouth freshener, mineral water, panmasala, etc. A consignment of 1280 kgs. (50 bags) of Pass Pass, a mouth freshener manufactured by the petitioner was seized by the Commercial Tax Inspector, Commercial Tax Check Post, Walayar on 3.10.2013 on the suspicion that sale of the said item is banned in the State of Kerala. He also made it over to the Food Safety Officer, Palakkad. The Food Safety Officer got the sample analysed by the Food Analyst who gave Ext.P3 analysis report dated 17.10.2013. The analysis report indicates that the test for nicotine was negative. In the analysis report it was also stated that the sample contains Magnesium Carbonate (an anticaking agent) and Monosodium Glutamate which are not permitted to be used in pan masala as per regulation 3.1.7(1) and regulation 3.1.11 (1) of Food Safety & Standards (Food Products Standards & Food Additives) Regulations, 2011. 2. Aggrieved by the analysis report, the petitioner filed Ext.P4 memorandum of appeal before the Designated Officer in terms of section 46(4) of the Act. In the appeal memorandum, the petitioner contended that the report of the Food Analyst is erroneous for the reason that he had applied standards prescribed for pan masala when the goods in question was not pan masala but mouth freshener for which different standards have been prescribed. The petitioner also raised various other contentions. The Designated Officer dismissed the appeal by Ext.P5 order passed on 21.12.2013 on the short ground that the petitioner/appellant before him, had not produced an accredited laboratory report under section 47(1)(c) (iii) read with 2.4.1 and 2.4.5 of the Food Safety & Standards Rules, 2011 and therefore, it is not a fit case to be referred to the referral laboratory. The said order, a copy of which is on record as Ext.P5, is under challenge in this writ petition filed under Article 226 of the Constitution of India. 3. The said order, a copy of which is on record as Ext.P5, is under challenge in this writ petition filed under Article 226 of the Constitution of India. 3. The principal contention raised in the instant writ petition is that the dismissal of the appeal on the grounds stated in the impugned order is not tenable, that the petitioner was not heard before the appeal was dismissed, that the Designated Officer has dismissed the appeal under the misconception that along with the appeal a report of the accredited laboratory is required to be filed when the law does not insist on such a stipulation. It is contended that on the terms of sub-section (4) of section 46 of the Act, the Designated Officer was bound to refer the matter to the referral food laboratory for opinion. 4. The third respondent has filed a statement dated 15.1.2014 wherein the principal contention raised is that the question of sending the sample to the referral laboratory arises only in a case where the food business operator has made a request for sending a sample to the accredited laboratory as contemplated in section 47(1)(c)(iii) of the Act and a report which is at variance with the report of the analyst is received from the accredited laboratory. It is contended that in the instant case, the petitioner had not opted to have the sample sent to the accredited laboratory, that the only report available with the Designated Officer is the report of analysis submitted by the Food Analyst, that the Designated Officer had no reason to disbelieve the report submitted by the Food Analyst and as no other material was placed before him to cast doubt on the genuineness of the report of the Food Analyst, he had no alternative but to reject the appeal. 5. I heard Sri.Deepak Dhingra, learned counsel appearing for the petitioner and Sri.Tom K.Thomas, learned Special Government Pleader appearing for the respondents. I have also gone through the pleadings and the materials on record. The relevant portion of the impugned order reads as follows:- “The Appeal Petition filed by M/s.Dharampal-Satyapal Ltd, Coimbatore – 641005 was considered and the grounds in the Appeal challenging the Food Analyst's Report No.87 dated 17.10.2013 are not maintainable in law. I have also gone through the pleadings and the materials on record. The relevant portion of the impugned order reads as follows:- “The Appeal Petition filed by M/s.Dharampal-Satyapal Ltd, Coimbatore – 641005 was considered and the grounds in the Appeal challenging the Food Analyst's Report No.87 dated 17.10.2013 are not maintainable in law. The Appellant had not produced an Accredited Laboratory Report under section 47(1)(a)(c) (iii) read with Rule 2.4.1 and 2.4.5 in support of the grounds in the Appeal. So, this is not a fit case to refer the matter to Referral Laboratory. Hence, in the absence of considerable materials in support of the Appeal, the Appellant is not entitled to the relief sought and the Appeal is dismissed accordingly.” A reading of the impugned order discloses that the Designated Officer has dismissed the appeal filed by the petitioner on the short ground that the petitioner has not produced an accredited laboratory report in support of the appeal and therefore, he does not deem it fit to refer the matter to the referral laboratory. Subsection (4) of section 46 of the Act stipulates that an appeal against the report of Food Analyst shall lie before the Designated Officer who shall, if he so decides, refer the matter to the referral food laboratory as notified by the food authority for opinion. It is no where stipulated in section 46 of the Act that the appellant should produce along with the appeal a report of the accredited laboratory. Section 47(1)(c) of the Act stipulates that when the Food Safety Officer takes a sample of food for analysis he shall (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 them 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. It is one of the two parts of the sample thus sent by the Food Safety Officer to the Designated Officer [vide section 47(1)(c)(ii) of the Act] which has to be sent by the Designated Officer to the referral food laboratory as stipulated in sub-section (4) of section 46 of the Act. It is one of the two parts of the sample thus sent by the Food Safety Officer to the Designated Officer [vide section 47(1)(c)(ii) of the Act] which has to be sent by the Designated Officer to the referral food laboratory as stipulated in sub-section (4) of section 46 of the Act. The question of sending the remaining part of the sample to the accredited laboratory arises only in a case where the food business operator makes a request in that regard [vide section 47(1)(c)(iii) of the Act]. Neither section 46 nor section 47 of the Act stipulates that to have an appeal decided on the merits the appellant who invokes the appellate jurisdiction of the Designated Officer should produce a copy of the report of the accredited laboratory. 6. Going by the provisions contained in section 46 read with section 47(1)(c) of the Act, I am of the opinion that it is for the Designated Officer, if he so decides, after hearing the appellant, to send one of the two parts of the sample sent to him by the Food Safety Officer [under section 47(1)(c)(ii) of the Act] to the referral laboratory for opinion. The option no doubt is available to the Food Safety Officer to send the remaining part of the sample taken by him (what is left after three parts of the sample are taken by the Food Safety Officer) to an accredited laboratory for analysis. In the instant case, such a contingency had not arisen. But that by itself is not in my opinion a reason for the Designated Officer to decline to send the sample in his custody for analysis to the referral food laboratory. Though a reading of sub-section (4) of section 46 of the Act indicates that it is not mandatory that the Designated Officer should send the sample in his custody to the referral laboratory for analysis, he has the duty to decide whether the sample should be sent for analysis after hearing the appellant. In the instant case, the Designated Officer did not hear the appellant or consider the grounds raised by him in the appeal on the merits. Instead, without entering a finding on the merits he rejected the appeal on the short ground that the appeal is not supported by a report from an accredited laboratory. In the instant case, the Designated Officer did not hear the appellant or consider the grounds raised by him in the appeal on the merits. Instead, without entering a finding on the merits he rejected the appeal on the short ground that the appeal is not supported by a report from an accredited laboratory. In the absence of a stipulation in the Act or the Rules to the effect that an appellant challenging the correctness of an analysis report should produce the report of the accredited laboratory, I am of the opinion that the impugned order cannot be sustained. The petitioner has positively averred that it was not heard before the appeal was dismissed on the grounds stated in the impugned order. The said averment is not denied in the statement filed by the Designated Officer. Therefore, for that reason also, I am of the opinion that the petitioner is entitled to succeed. The Designated Officer ought to have in my opinion heard the petitioner, considered the contentions raised by the petitioner on the merits and decided whether he should send the sample to the referral laboratory in terms of the provision in sub-section (4) of section 46 of the Act. I accordingly allow the writ petition, set aside Ext.P5 order dated 21.12.2013 passed by the third respondent, restore the appeal to file and direct the third respondent to pass fresh orders on the appeal after affording the petitioner/appellant an opportunity of being heard, expeditiously and in any event within two weeks from the date on which the petitioner appears before him along with a copy of this judgment.