Harisankar V.B. vs. The Food Safety Officer
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Cause title — parties, addresses and appearances
JUDGMENT 1.The petitioner has approached this Court with the following prayers:- “a)direct the respondents to release the articles seized by the 1st respondent from the premises of petitioner's establishment as per form II and III dated 28.6.2017 within a time limit as specified by this Honourable Court, by issue of a writ or Mandamus or such other writ or order or direction. b)declare that the respondents have no authority to seize the articles based on the reason that there is no AGMARK for the products.” 2.Heard learned counsel for the petitioner and the learned Government Pleader. 3.It is submitted that the petitioner is the Food Business Operator of Amrutha Oil Products and the 1st respondent seized certain items from petitioner's premises stating that there is no AGMARK. It is submitted that the respondents have seized those items without giving the petitioner an opportunity to be heard and without issuing 'improvement notice' under Section 32 of the Food Safety and Standards Act, 2006 (hereinafter referred to as 'the Act'). AGMARK is not shown as a requirement while granting licence under the Act. It is submitted that the petitioner has now obtained AGMARK and the respondents are liable to release the articles. The respondents have no authority to seize the articles for the reason that there is no AGMARK. Hence the petitioner has preferred this writ petition. 4.It is contended by the petitioner that by Exhibit P5 the products seized are as noted below. “(1) Kera Co blended edible vegetable oil (500ml) (450gm) batch No.A2 number of units 330, quantity in Kilograms is 2970 (2)Kera Co blended edible vegetable oil (1 litre) batch No.A2, number of units 525 and quantity in kilo grams is 4725.” 5.It is stated that the above articles have been seized alleging violation of Section 26(2)(ii), 27(1) regulation 2.4.12.11 of Food Safety and Standards (packing and labelling) Regulations 2011, Regulation 2.3.14(II) of Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations 2011. As per Regulation 2.4.2.11 of Food Safety and Standards (packaging and labelling) Regulations 2011, every package containing an admixture of edible oils shall carry the following label namely. “This blended edible vegetable oil contains a mixture of (1)----%weight (2)----%weight. (Name and nature of edible oils that is in row or refined form). Date of packing-----” There shall also be the following declaration in capital letters along with the name of product on front/central panel NOT TO BE SOLD Regulation 2.3.14.11 reads as follows:- “(The Blended Edible Vegetable Oils shall not be sold in loose form. It shall be sold in sealed package weighing not more than 15 litres. The container having blended edible vegetable oil shall be tamper proof. It shall also not be sold under the common or generic name of the oil used in the blend but shall be sold as “Blended Edible Vegetable Oil”. The sealed package shall be sold or offered for sale only under AGMARK certification mark bearing the label declarations as provided in the Regulations besides other labelling requirements under the Regulation 2.4.2 of Food Safety and Standards (Packaging and Labelling) regulations, 2011.”
Section 26(2) says that no food business operator shall himself or by any person on his behalf manufacture, store sell or distribute any article of food- (II) which is misbranded or substandard or contains extraneous matter. Section 27(1) provides that the manufacturer or packer of an article of food shall be liable for such article of food if it does not meet the requirements of these act and the rules and regulations made thereunder. 6.The main reason stated for seizure of the article was the absence of AGMARK Registration. Now, the Amrutha Oil products have got AGMARK registration and Exhibit P6, AGMARK registration certificate dated 23.1.2017 is valid upto 31.3.2022. 7.Referring to Section 32(1) of the Act, it is contended that any action against a food business operator for noncompliance of the regulations can only be after issuance of due notice and that too only in terms of the Act. It is stated that going by the provisions of the Act, there is no authority in the designated officer to seize the articles only for violation of the conditions with regard to fixing of AGMARK on the product. 8.A statement has been filed on behalf of the 2nd respondent contending that the petitioner's articles had been seized for violation of regulation No.2.3.14.11 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011 and Regulation 2.4.2 of Food Safety and Standards (Packaging and Labelling) Regulations, 2011. It is stated that the petitioner has violated the provisions contained in Section 26(2)(ii), 27(1) of Food Safety and Standards Acts, 2006, Regulation 2.4.2:11 of Food Safety and Standards (Packaging and Labelling) Regulations, 2.3.14:11 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011. It is, therefore, stated that there is ample power in the respondents to seize the articles. The provisions of Section 38(1)(b) and Section 3(1) of the Act are also referred.
I have considered the contentions advanced on either side at considerable length. Section 3(1)(zf) of the Act defines 'misbranded food'. Section 26(2) provides that no food business operator shall store, sell or distribute any article of food which is misbranded. Section 27(2) says that the wholesaler or distributor shall be liable under this Act for any article of food which is supplied by him and the seller shall be liable for any article of food which is misbranded. Section 32 provides for improvement notices, in case a food business operator had failed to comply with any regulations. Section 33 provides for prohibition orders. Section 52 provides for penalty for misbranded food and Section 58 provides for penalty for contraventions for which no specific penalty is provided.
In spite of my best efforts, I am unable to find any provision which empowers an authority under the Act to confiscate articles only on the ground that it is misbranded. In case of misbranding and any violation of the regulations as provided, the respondents are empowered to act in accordance with the statute and the regulations. The learned Government Pleader could not bring to my notice any provision of the Act, Rules or Regulations which would empower the authority to confiscate the articles seized on the ground of misbranding. In the above view of the matter, I am of the opinion that the articles seized from the petitioner are liable to be returned to him, less the quantity necessary to be retained as sample. The petitioner shall sell articles only in accordance with all the cautionary measures as contained in the Act, Rules and the Regulations. This will be without prejudice to the right of the respondents to proceed against the petitioner after giving him an improvement notice and an opportunity to show cause. The seized articles less the samples shall be released to the petitioner within a period of three weeks from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. Anu Sivaraman, Judge
sj APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1OF THE CERTIFICATE ISSUED BY COMMERCIAL TAX OFFICER, PATTAMBI DATED 27.6.2017. EXHIBIT P2OF THE ACKNOWLEDGEMENT DATED 16.1.2017 FOR FORM GST "APPLICATION FOR ENROLLMENT OF EXISTING TAX PAYER" HAS BEEN FILED AGAINST APPLICATION REFERENCE NO.(ARN) AA 320117022605Q. EXHIBIT P3OF THE LICENSE NO.11316009000388 ISSUED BY THE 2ND RESPONDENT AS PER FSS ACT DATED 15.10.2016. EXHIBIT P4OF THE LICENSE NO.A2-1241/2017 (106/2017-18), ISSUED BY SECRETARY CHALAVARA GRAMA PANCHAYATH DATED 1.4.2017. EXHIBIT P5OF FORM II AND III DATED 28.06.2017 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P6OF THE AGMARK REGISTRATION CERTIFICATE DATED 23.10.2017, VALID UP TO 31.03.2022 ISSUED BY THE ASSISTANT AGRICULTURAL MARKETING ADVISER, REGIONAL OFFICE, KOCHI WITH COVERING LETTER. EXHIBIT P7OF THE REPORT OF THE FOOD ANALYST IN FORM B SENT BY THE ASSISTANT COMMISSIONER OF FOOD SAFETY, PALAKKAD ADDRESSED TO THE PETITIONER, DATED 5.2.2018. EXHIBIT P8 AOF THE NOTICE DATED 03.2.2018 ISSUED IN THE NAME OF THE PETITIONER.PS TO JUDGE
Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.