Food Safety And Standards Act| Presence Of Magnesium Carbonate Itself Does Not Make A Food Article Prohibited: Jharkhand HC

The Jharkhand High Court has held that as per the Food Safety and Standards Act, 2006 (FSS Act), the presence of magnesium carbonate itself does not make a food article prohibited.

The Court was deciding a petition filed by Dharampal Satyapal Limited (hereinafter referred to as the company) and its director praying to issue a declaration that Section 30(2)(a) of the FSS Act is ultra vires of the said Act and suffers from vice of excessive delegation as it confers an independent source of legislation and power of policy decision upon the Commissioner of Food safety and empowers him to prohibit completely, without issuing any show-cause notice, the Trade and Commerce and other allied activities in the food products permanently which is contrary to the substantive provisions of the aforesaid Act.

A Division Bench of Chief Justice Sanjaya Kumar Mishra and Justice Ananda Sen observed, “… it is seen that the respondents have taken a decision to ban certain Pan Masalas as on three consecutive years by three consecutive notifications to that effect on the ground that it contained Magnesium Carbonate. From the aforesaid analysis, we are of the opinion that presence of Magnesium Carbonate itself does not make a food article prohibited. An attempt has been made by the learned Senior Counsel appearing for the State-respondents that nicotine was found in certain laboratory analysis. However, it is not the case of the respondents that the Pan Masala in question does have any nicotine or tobacco in it.”

The Bench added that it is the consistent case of the petitioners that the said Pan Masala does not have any tobacco or nicotine in it.

Senior Advocates Vivek Kohli and Ajit Kumar appeared on behalf of the petitioners while Addl. S.G.I. Anil Kumar and AAG Jai Prakash appeared on behalf of the Centre and State respectively.

Factual Background -

The petitioners sought a declaration that that the provision, as mentioned above, was in the teeth of the constitutional prohibition as contained in Article 13(2) of the Constitution and was also violative of constitutional guarantee regarding right of freedom of Trade and Commerce in the territory of India under Article 301, Part XIII of the Constitution. They further prayed for a consequential declaration that the notification as unconstitutional, unenforceable and illegal and to issue a writ of certiorari quashing the said notification being contrary to the law laid down by the Supreme Court in the case of Godawat Pan Masala Products I.P. Ltd. and another v. Union of India and others, (2004) 7 SCC 68, and also being ultra vires of the FSS Act, for not issuing any show-cause notice to the parties effected, before taking a decision on such an issue.

In 2006, the FSS Act was enacted by the Parliament and it came into force in 2011. The Ministry of Health and Family Welfare enacted the Food Safety and Standards (Food Products and Food Addictives) Regulations, 2011. The Jharkhand Food Safety and Standards Rules, 2000 came into force and a notification amending the 2011 Regulations, was issued. The Food Safety and Standards (Food Recall Procedure) Regulation, 2017 was enacted. In the meantime, the Goods and Services Tax (Compensation to States) Act, 2017, was enacted and the State Government imposed prohibition on manufacture, storage, distribution of sale of Rajnigandha Pan Masala along with 10 other brands of Pan Masala for one year. Hence, a writ application was filed by the petitioners seeking the aforesaid reliefs.

The High Court in view of the above facts noted, “We take note of the fact that Section 30(2)(a) of the FSS Act provides that the Commissioner of Food Safety shall perform all or any of the factions, namely, prohibit in the interest of public health, the manufacture, storage, distribution or sale of an article of food, either in the whole of the State or any area or part thereof for such period, not exceeding one year, as may be specified in the order notified in this behalf in the Official Gazette.”

The Court said that if Section 30(2)(a) of the FSS Act is taken in isolation with the other provisions of the Act, then the Commissioner of Food Safety has been delegated absolute power to ban any article of the food for such a period not exceeding one year, however, a purposive interpretation of the definition of “food”, “business of food”, “designated officer”, etc reveals that the Act has certain built-in safeguards for imposition of a prohibitory order.

“… it is clear that the Commissioner of Food Safety, Section 30(3) of the FSS Act may, by order, delegate, subject to such conditions and restrictions as may be specified in the Order, such of his powers and functions under the Act (except the power to appoint Designated Officer) as he may deem necessary or expedient to any officer subordinate to him. Thus, it is clear that the Commissioner of Food Safety cannot act without a specific request made on this behalf by the Designated Officer. The Designated Officer cannot recommend or make an application to the Commissioner of Food Safety without issuing a notice to the concerned food business operator”, also said the Court.

The Court added that once an article is considered to be included in the definition of food, then, any transaction therein being manufacture, sale, storage, transportation, processing, etc. shall be meant to be food business and a food business operator in relation to food business means a person by whom the business is carried on or owned and is responsible for ensuring the compliance of the Act, rules and regulations made thereunder.

“Thus, it is clear that the power conferred upon the Commissioner of Food Safety is not excessive delegation if not unbridled. In other words, we may add that the powers conferred on the Commissioner of Food Safety have certain built-in safeguards in it, so that an order is not passed in a whimsical manner”, held the Court.

The Court further said that it cannot come to the conclusion that the power of the Commissioner of Food Safety is erroneous and ultra vires of the Constitution of being excessive delegation.

“The Hon’ble Supreme Court has directed banning on manufacturing and selling of “Gutkha and Pan Masala” with “tobacco and/or nicotine”. The Hon’ble Supreme Court did not pass any order on complete ban of Pan Masala when it is manufactured or stored, transported or consumed or sold for consumption, but does not contain any tobacco or nicotine. … y the State Government was in know of the fact that the Central Food Laboratory, Kolkata has come to the conclusion it does not contain nicotine, but they did choose not to act upon it and passed orders in clear ignorance of scientific proven facts”, observed the Court.

The Court held that the orders passed by Commissioner of Food Safety, State of Jharkhand is not only illegal, but also based on insufficient and inappropriate data and require to be quashed.

Accordingly, the High Court allowed the writ petition and quashed the notifications.

Cause Title- Dharampal Satyapal Limited & Anr. v. Union of India & Ors.

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