V.B.Muraleedharan vs. The Assistant Commissioner Of Food Safaty - Kerala High Court, 17 September 2018

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN MONDAY ,THE 17TH DAY OF SEPTEMBER 2018 / 26TH BHADRA, 1940 WP(C).No. 28041 of 2018 PETITIONER: V.B.MURALEEDHARAN, AGED 46 YEARS MAMPATTAKALATHIL(H), MUNDAKKOTTU KURUSSI P.O., SHORNUR-2, PROPRIETOR, AMRUTHA OIL PRODUCTS, MUNDAKKOTTUKURUSI, SHORNUR-2 BY ADV. SRI.V.C.MADHAVANKUTTY RESPONDENTS: 1 THE ASSISTANT COMMISSIONER OF FOOD SAFATY OFFICE OF THE FOOD SAFETY COMMISSIONER, 2 FOOD ANALYST, REGIONAL ANALYTICAL LABORATORT,LABORATORY,KOZHIKODE 673009 3 ASSISTANT AGRICULTURAL MARKETING ADVISER, REGIONAL OFFICE, DMI, KOCHI – 682 037. BY ADV.SR.GOVERNMENT PLEADER V.P.MANU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 6.09.2018, THE COURT ON 17.09.2018 DELIVERED THE FOLLOWING:

JUDGMENT 1.Heard learned counsel for the petitioner and the learned senior Government Pleader. 2.Petitioner, who is the proprietor of an oil manufacturing unit challenges Exhibits P5 and P6 issued by the respondents on the ground that the finding that the product is misbranded is is issued without notice to the petitioner and without considering his claim. It is stated that there is absolutely no misbranding as is evident from Exhibit P8, since the package specifically states that the product is 100% edible grade vegetable oil and that the composition as raw coconut oil- 80% by weight and RBD palmolein oil-20% by weight is also clearly shown on the package. It is stated that the label on the package with designs of coconut which is false and misleading and the package is deceptive with respect to this contents also cannot be accepted, in view of the fact that the package also contains pictorial representation of palm seeds, apart from coconuts. It is stated that the nature of the product is clearly shown on the name and the finding of misbranding is completely misconceived.

The learned Government Pleader, on instructions, would submit that pictorial representations on the label or wrapper would also amount to an advertisement and any misrepresentation as to the nature of the product comes within the ambit of misbranding, as provided in the Food Safety and Standards Act, 2006 (Act for short) and the Regulations. It is stated that no prior notice or hearing is contemplated in the case of misbranding and that the orders being clearly appealable in nature can be taken up in appropriate proceedings before the designated appellate authority. 4.I have considered the contentions advanced on either side. The specific case of the petitioner is that any examination of sample could only be in respect of the contents of the package and there is no specification in the Act, Rules or Regulation with respect to designs in the label. It is stated that the label was printed with the approval of the 3rd respondent and that in view of the functions of the Food Analyst under Section 46 of the Act, there is no power to inspect the label on the package. In view of the provisions of Sections 46, 47 and Section 3(b) as also the form of the report to be submitted by the Food analyst, I am not prepared to accept the contention that the orders are liable to be interfered with since the Food Analyst has no power to examine the pictorial representation on the label to enter a finding of misbranding. In any view of the matter, I am of the opinion that these are aspects which have to be considered in a duly constituted appeal. I am not inclined to interdict the orders issued on the basis of a finding of misbranding. All contentions of the petitioner are left open. In case the petitioner avails the appellate remedy as against Exhibit P5 order, the same will be considered by the appellate authority without delay in accordance with law. Anu Sivaraman, Judge

sj APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1OF THE CERTIFICATE ISSUED BY COMMERICAL TAX OFFICER, PATTAMBI DATED 27.6.2017 EXHIBIT P2OF THE ACKNOWLEDGEMENT DATED 16.1.2017 FOR FORM GST "APPLICATION FOR ENROLMENT OF EXISTING TAX PAYER"HAS BEEN FILED AGAINST APPLICATION REFERENCE NO (ARN) AA 3201170226050Q, EXHIBIT P3OF THE LICENCE NO 1131600900388 ISSUED BY THE 2ND RESPONDENT AS POER FSS ACT DATED 15.10.2016 EXHIBIT P4 THE AGMARK CERTIFICATE NO.1- 11030/24/G/17-QC/924 DATED 23.10.2017 EXHIBIT P5 THE LETTER OF THE 1ST RESPONDENT NO 368/18 DATED 2.8.2018 EXHIBIT P6 FORM B REPORT NO 72/2018-19 DATED 17.7.2018 OF THE 2ND RESPONDENT. EXHIBIT P7 THE APPOROVAL GIVEN BY THE 3RD RESPONDENT FOR APPROVED TRADE BRAND LABAL DATED 19.12.2017 EXHIBIT P8OF THE DESIGN AND OTHER DETAILS UO ON THE PACKAGE IS PRODUCED.PS TO JUDGE