Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE ANIL K.NARENDRAN & THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR TUESDAY, THE 11TH DAY OF APRIL 2023 / 21ST CHAITHRA, 1945 W.P.(C)NO.41743 OF 2022 PETITIONER:
AYYAPPA SPICES, REPRESENTED BY ITS SOLE PROPRIETOR, PRAKASH.S, AGED 52 YEARS, S/O SIVARAJAN, MANIMANDIRAM HOUSE, KAJANAPARA, RAJAKUMARI VILLAGE, UDUMBACHOLA TALUK, IDUKKI DISTRICT PIN :685619
BY ADVS.V.SETHUNATH V.R.MANORANJAN (MUVATTUPUZHA) SREEGANESH U.
OBEID ABDUL MAJEED RESPONDENTS:
1 THE TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, DEVASWOM HEAD QUARTERS, NANTHANCODE, THIRUVANATHAPURAM. PIN : 695 003 2 THE COMMISSIONER, TRAVANCORE DEVASWOM BOARD, DEVASWOM HEAD QUARTERS, NANTHANCODE, THIRUVANATHAPURAM. PIN: 695 003 3 THE EXECUTIVE OFFICER, SABARIMALA, SABARIMALA.
P.O, RANNI-PERUNAD VILLAGE, RANNI TALUK, PATHANAMTHITTA DISTRICT, PIN: 689662 4 THE DEPUTY DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, PATHANAMTHITTA. P.O, PIN:
689645 5 SUNIL, GALAXY BHAVAN, KARUNAGAPPALLY, KOLLAM DISTRICT. PIN: 690518 *ADDL.R6 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT REVENUE (DEVASWOM) DEPARTMENT,
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GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695001.
*ADDL.R7 THE COMMISSIONER OF FOOD SAFETY, COMMISSIONERATE OF FOOD SAFETY, DEPARTMENT OF HEALTH SERVICES, THIRUVNANTHAPURAM.
*ADDL.R8 THE CHIEF ANALYST, GOVERNMENT ANALYSTS' LABORATORY, THIRUVANANTHAPURAM.
* ARE SUO MOTU IMPLEADED AS PER THE ORDER DATED 04-01-2023 IN THE WP(C).
*ADDL.R9 MINISTRY OF HEALTH AND FAMILY WELFARE, GOVERNMENT OF INDIA, ROOM NO.348, 'A' WING, NIRMAN BHAWAN, NEW DELHI- 110 011, REPRESENTED BY ITS SECRETRAY.
*ADDL.R10 FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA, FDA BHAWAN, KOTLA ROAD, NEW DELHI- 110 002, REPRESENTED BY ITS EXECUTIVE DIRECTOR ARE SUO MOTU IMPLEADED ADDITIONAL R9 AND R10 AS PER THE ORDER DATED 05.01.2023 IN WP(C).
*ADDL.R11 DEPUTY DIRECTOR (PROJECT TIGER), PERIYAR WEST DIVISION, PEERMEDU, IDUKKI- 685531.
*ADDL.R12 KERALA STATE POLLUTION CONTROL BOARD, REPRESENTED BY ITS MEMBER SECRETARY, MIG AND HIG COLONY, GANDHI NAGAR, ELAMKULAM, ERNAKULAM 682020 *ARE SUO MOTU IMPLEADED AS PER THE ORDER DATED 10.04.2023 IN THE WP(C).
BY ADVS.G.BIJU, SC, TDB C.S.MANILAL S. BIJU, CGC C.D.ANIL(K/379/1994) S.NIDHEESH(K/1061/2007) KUNJAPPEASOW RAINGE(K/1346/2018)
SRI S.RAJMOHAN- SR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT Anil K. Narendran, J.
The petitioner, who was the supplier of cardamom to the Travancore Devaswom Board, during the Mandala-Makaravilakku festival season of 1197 ME (2021-22), has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the 1st respondent Travancore Devaswom Board to conduct an analysis of the cardamom, which was purchased after the cancellation of the tender conducted pursuant to Ext.P9 e-tender notification dated 12.10.2022, during Mandala-Makaravilakku festival season of 1198 ME (2022- 23), at Government Analytical Laboratory, Thiruvananthapuram, under the supervision of this Court. The petitioner has also sought for a writ of certiorari to quash the proceedings of the 1st respondent Travancore Devaswom Board for the local purchase of cardamom, at Sabarimala Devaswom, during Mandala- Makaravilakku festival season of 1198 ME (2022-23), as it was done without competition and newspaper advertisement.
2.
On 11.01.2023, this Court passed a detailed order in this writ petition, whereby the Travancore Devaswom Board was restrained from selling Aravana Prasadam made using the cardamom supplied by the 5th respondent-contractor, to pilgrims.
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The additional 7th respondent Commissioner of Food Safety was directed to take necessary steps, through the Food Safety Officer at Sannidhanam, to ensure that Aravana Prasadam made using the cardamom supplied by the 5th respondent-contractor are not sold to pilgrims, forthwith, without awaiting receipt of a copy of that order. It was made clear that the order dated 11.01.2023 will not stand in the way of the Travancore Devaswom Board in making Aravana Prasadam without cardamom or after procuring cardamom, which meets the standards prescribed in the Regulations framed under the Food Safety and Standards Act, 2006, after obtaining test report from the Government Analyst’s Laboratory, Thiruvananthapuram.
3.
The order 11.01.2023 was followed by another order dated 27.03.2023 in I.A.No.3 of 2023, which was an interlocutory application filed by Travancore Devaswom Board and its officials, who are respondents 1 to 4 in this writ petition, seeking permission to draw samples from the stock of Aravana Prasadam kept sealed pursuant to the orders of this Court dated 11.01.2023, through the Food Safety Officers and sent the same for analysis to any laboratory accredited by the Food Safety Authority of India to test whether Aravana Prasadam conforms to the food standards prescribed by the Food Safety and Standards
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Authority of India and safe for human consumption. By the order dated 27.03.2023, this Court dismissed I.A.No.3 of 2023, holding that in view of the provisions under Section 26 of the Food Safety and Standards Act, 2006 the Travancore Devaswom Board, which falls within the sweep of ‘food business operator’ as defined in clause (o) of Section 3(1) of the Act, in relation to the manufacture, processing, packing, etc., of Aravana, which falls within the sweep of ‘food business’ as defined in clause (n) of Section 3(1) of the Act, has to ensure that Aravana satisfy the requirements of the Act and the Rules and Regulations made thereunder at all stages of production, processing, import, distribution and sale, etc. Therefore, once it is found that the sample of cardamom is not conforming to Regulation 2.3.1. of the Food Safety Standards (Contaminants, Toxins and Residues) Regulation, 2011 and amendments thereon and as such it is unsafe as per the provisions in sub-clause (xii) of clause (zz) of Section 3(1) of the Act, the Travancore Devaswom Board cannot store, sell or distribute Aravana made using that cardamom, since the said article of food falls within the sweep of ‘unsafe food’, as defined in the said sub-clause. Therefore, no purpose will be served by sending Aravana made using that cardamom for analysis at any laboratory accredited by the Food Safety and
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Standards Authority of India.
4.
Heard the learned counsel for the petitioner, the learned Standing Counsel for Travancore Devaswom Board for respondents 1 to 4, the learned counsel for the 5th respondent- contractor, the learned Senior Government Pleader for additional respondents 6 to 8 and 11, the learned Central Government Counsel for additional respondents 9 and 10 and also the learned Standing Counsel for Kerala State Pollution Control Board for additional 12th respondent.
5.
The issue involved in this writ petition has already been considered in detail in the order dated 27.03.2023 in I.A.No.3 of 2023 [2022/IO/KER/55713].
6.
Initially, pursuant to the order of this Court dated 23.12.2022 in this writ petition, the sample of cardamom supplied by the 5th respondent-contractor was sent for testing to the Government Analyst’s Laboratory, Thiruvananthapuram. The certificate of the examination dated 28.12.2022 issued by the Food Analyst in the Government Analyst’s Laboratory contains the opinion of the Food Analyst, which reads thus;
“Opinion: The said sample contains the insecticide residues Fipronil, Tebuconazole and Imidacloprid to an extent of not less than 0.061 mg/kg, 0.792 mg/kg and 0.795 mg/kg respectively which exceeds the MRL
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(Maximum Residue Limit) as per Regulation 2.3.1. of Food Safety and Standards (Contaminants, Toxins and Residues) Regulations 2011, read with Note:- [Tolerance limit of 0.01 mg/kg shall apply in cases of Pesticides for which MRL have not been fixed & File No. Std/SP- 02/Technical Matter/2021-22[E-4311] of FSSAI dated 21st April 2022] and is therefore unsafe as per Section 3(1)(zz)(iii)&(xii) of Food Safety and Standards Act 2006.”
7.
Thereafter, in terms of the order dated 06.01.2023 in this writ petition, another sample of cardamom supplied by the 5th respondent-contractor was sent for testing to the accredited laboratory of the Food Safety and Standards Authority of India.
Since facilities are not available in the primary accredited laboratory at Kochi, the sample was sent to a referral laboratory, i.e., the Quality Evaluation Laboratory of the Spices Board at Kochi. In terms of the orders of this Court, the test report was forwarded to the Executive Director of the Food Safety and Standards Authority of India. On 11.01.2023, when this writ petition came up for consideration, the learned Central Government Counsel has placed on record, along with a memo dated 11.01.2023, the test report dated 10.01.2023 issued by the Quality Evaluation Laboratory of the Spices Board at Kochi and the report dated 11.01.2023 of the Executive Director, Food
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Safety and Standards Authority of India. The report of the Executive Director of the Food Safety and Standards Authority of India is reproduced hereunder;
“In pursuance to the order dated 06.01.2023 of the Honb'le High Court of Kerala, the opinion by Advisor (QA), is as given as below:
The report of Quality Evaluation Laboratory (QEL), Spices Board, Kochi has been scrutinized and the following is observed: Total 95 pesticides, were tested in which 14 pesticides are found to be exceeding the MRL (Minimum Residual Limit) as specified under Food Safety and Standards (Contaminants, Toxins and Residues) Regulation, 2011.
In addition, it may be noted that as per FSS (Contaminants, Toxins and Residues) Regulation, 2011, MRL/limit of six pesticides (Copper sulphate, copper oxychloride, Diafenthiuron, FosetylAl, Monocrotophos and Quinalphos) specially for cardamom is defined. Out of above, two (Monocrotophos and Quinalphos) were tested by QEL, Kochi in which the sample is exceeding the limit for Quinalphos. Tolerance limit of 0.01 mg/kg shall apply in cases of pesticides for which MRL have not been fixed.
The details of 14 pesticides which are exceeding the MRL as follows:
Sl.No. Pesticide Test result (mg/kg) Maximum Residue Limit (MRL) in mg/kg as per FSSR 1 Carbendazim 0.17 0.01 2 Chlorpyrifos 0.41 0.01 3 Cyfluthrin (isomers) 0.73 0.01 4 Cyhalothrin lambda 0.14 0.01
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5 Cyhalothrin gamma 0.16 0.01 6 Cypermethrin (isomers) 1.10 0.01 7 Diothiocarbamates (Total) 14.04 0.01 8 Hexaconazole 0.09 0.01 9 Imidacloprid 1.09 0.01 10 Metalaxyl 0.04 0.01 11 Quinalphos 0.75 0.01 12 Tebuconazole 0.18 0.01 13 Fipronil 0.06 0.01 14 Thiamethoxam 0.30 0.01
In view of the above, the sample is not conforming to regulation 2.3.1 of FSS (Contaminants, Toxins and Residues) Regulation, 2011 and amendments thereon.
Therefore the sample is unsafe as per section 3(1)(zz)(xii) of the Food Safety and Standards Act, 2006.
(underline supplied)
8.
In the report dated 11.01.2023 of the Executive Director, Food Safety and Standards Authority of India, it has been categorically stated that the sample of cardamom taken from the cardamom supplied by the 5th respondent-contractor is not conforming to Regulation 2.3.1. of the Food Safety Standards (Contaminants, Toxins and Residues) Regulations, 2011 and the amendments thereon, which is unsafe as per Section 3(1)(zz)(xii) of the Food Safety and Standards Act, 2006. When the contract between the Travancore Devaswom Board and the 5th respondent-contractor is for the supply of 15,000 kg cardamom, in terms of the tender conditions and also the statutory mandate of the Regulations made under the Food Safety and Standards Act, 2006, the cardamom supplied by the
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contractor has to meet the requirements of the relevant Regulations. If the cardamom supplied by the 5th respondent- contractor does not meet the Maximum Residue Limits (MRLs) prescribed under the Regulations, it is unsafe as per Section 3(1)(zz)(xii) of the Food Safety and Standards Act, 2006, as found in the report dated 10.01.2023 of the Executive Director, Food Safety and Standards Authority of India.
9.
In the order dated 27.03.2023, this Court noticed that going by the definition in clause (j) of Section 3(1) of the Act, ‘food’ means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food to the extent defined in clause (zk), genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used into the food during its manufacture, preparation or treatment. Clause (n) of Section 3(1) of the Act defines ‘food business’ to mean any undertaking, whether for profit or not and whether public or private, carrying out any of the activities related to any stage of manufacture, processing, packaging, storage, transportation, distribution of food, import and includes food services, catering services, sale of food or food
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ingredients. Clause (o) of Section 3(1) defines ‘food business operator’ in relation to food business to mean a person by whom the business is carried on or owned and is responsible for ensuring the compliance of this Act, Rules and Regulations made thereunder. A plain reading of the provisions referred to above would make it explicitly clear that Aravana and cardamom falls within the sweep of ‘food’ defined in clause (j) of Section 3(1) of the Act. The wider definition of ‘food business’ in clause (n) of Section 3(1) of the Act takes within its sweep any of the activities related to any stage of manufacture, processing, packaging, storage, transportation, distribution of food or import carried out by an undertaking, whether for profit or not and whether public or private, including food services, catering services, sale of food or food ingredients. A plain reading of clause (n) of Section 3(1) of the Act would make it explicitly clear the activities of the Travancore Devaswom Board related to the manufacture, processing, packaging, etc., of Aravana fall within the definition of ‘food business’. Therefore, in the order dated 27.03.2023, it was held that the Travancore Devaswom Board falls within the sweep of ‘food business operator’ defined in clause (o) of Section 3(1) of the Act, in relation to the said food business, and the Board is responsible for ensuring the
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compliance of the Act, Rules and Regulations made thereunder.
10. In V.G.K.Menon v. State of Kerala [1998 (1) KLT 981], a learned Judge of this Court was dealing with a petition filed under Section 482 of the Criminal Procedure Code, 1973 to quash the prosecution proceedings in S.T.No.175 of 1997 on the file of the Judicial First Class Magistrate Court, Ranni, which was instituted based on a complaint made by the Food Inspector, Ranni alleging an offence punishable under Section 16(1)(a) of the Prevention of Food Adulteration Act, 1954, against the President and Members of the Travancore Devaswom Board. On 08.01.1997, the Food Inspector inspected four tanks in Sabarimala in which ghee is stored for preparation of Appam and Aravana. He obtained 450 ml. of ghee from the Store Superintendent of Sabarimala Devaswom, on payment of Rs.45/- as its cost. He divided the ghee into three portions, packed and sealed it as per Rules and sent one sample to the Public Analyst.
On receipt of a report that the sample does not conform to the standards prescribed for ghee under the Prevention of Food Adulteration Rules, complaint was filed before the Magistrate Court, impleading the Store Superintendent as the 1st accused, the Executive Officer of the Devaswom as the 2nd accused and the President and two Members of the Travancore Devaswom
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Board as accused Nos.3 to 5 and the Devaswom Board itself as the 6th accused. After referring to the provisions under clause (xiii) of Section 2 of the said Act, which define ‘sale’, and the provisions under Section 16(1)(a), the learned Single Judge held that storing of an adulterated article of food for purposes other than for sale would not constitute an offence under Section 16(1)(a). The Food Inspector can take samples only if the article is kept for sale. The ghee purchased by the Food Inspector was not for sale nor for preparation of an article of food intended for sale. Therefore, the learned Single Judge held that the Food Inspector has no authority to collect a sample and for that reason the supply of sample of ghee and payment of its cost cannot amount to sale for the purpose of the said Act.
11. In the order dated 27.03.2023, we disagreed with the proposition laid down by the learned Single Judge in V.G.K.Menon [1998 (1) KLT 981] that an offence under Section 16(1)(a) of the Prevention of Food Adulteration Act is not attracted, since Appam and Aravana prepared by the Travancore Devaswom Board is not an article of food intended for sale and that, Appam and Aravana are distributed from Sabarimala as prasadam and therefore, what is paid by the devotees is only their offering. In Sabarimala, Appam and Aravana Prasadam are
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sold to devotees on payment of the price fixed by the Travancore Devaswom Board, from time to time. As already noticed, the wider definition of ‘food business’ in clause (n) of Section 3(1) of the Act takes within its sweep any of the activities related to any stage of manufacture, processing, packaging, storage, transportation, distribution of food or import carried out by an undertaking, whether for profit or not and whether public or private, including food services, catering services, sale of food or food ingredients. In the order dated 27.03.2023, this Court held that, a plain reading of the provisions under clause (j) of Section 3(1) of the Food Safety Standards Act, which defines the term ‘food’, clause (n) of Section 3(1) of the Act, which defines the term ‘food business’, and clause (zr) of Section 3(1) of the Act, which defines the term ‘sale’ would lead to an irresistible conclusion that the manufacturing, processing, packaging, storing and sale of Appam and Aravana Prasadam at Sabarimala by the Travancore Devaswom Board will fall within the sweep of ‘food business’ as defined in clause (n) of Section 3(1) of the Act and ‘sale’ as defined in clause (zr) of Section 3(1) of the Act.
12. Clause (zz) of Section 3(1) of the Act defines the term ‘unsafe food’ to mean an article of food whose name, substance or quality is so affected in any one of the manners enumerated
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in clauses (i) to (xii) as to render it injurious to health. Clause (iii) of clause (zz) of Section 3(1) deals with an article of food whose name, substance or quality is so affected by virtue of its unhygienic processing or the presence in that article of any harmful substance as to render it injurious to health. Clause (xii) of clause (zz) of Section 3(1) deals with an article of food whose name, substance or quality is so affected by virtue of containing pesticides and other contaminants in excess of quantities specified by regulations as to render it injurious to health.
13. In exercise of the powers conferred by clause (o) of sub-section (2) of Section 92 read with Section 31 of the Food Safety and Standards Act, 2006 the Food Safety and Standards Authority of India made Food Safety and Standards (Licensing and Registration of Food Businesses) Regulations, 2011.
Regulation 2.1. deals with registration and licensing of food business. In view of the statutory mandate of Regulation 2.1., all food business operators in the country will be registered or licensed in accordance with the procedures laid down in the said Regulations. Regulation 2.1.1. provides registration even for petty food business. Regulation 2.1.2. deals with licence for food business. As per Regulation 2.1.2., subject to Regulation 2.1.1, no person shall commence any food business unless he
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possesses a valid licence. As per clause (5) of Regulation 2.1.2., the food business operator shall ensure that all conditions of licence as provided in Annexure 3 of Form B in Schedule 2 and safety, sanitary and hygienic requirements provided in the Schedule 4 contained under different Parts depending on nature of business are complied with at all times. As per the first proviso to clause (5), the Licensing Authority shall ensure periodical food safety audit and inspection of the licensed establishments through its own or agencies authorised for this purpose by the Food Safety Standards Authority of India.
Annexure 3 of the Regulations deals with conditions of licence.
As per condition No.9, all food business operators shall ensure that the source and standards of raw material used are of optimum quality at all times during the course of its food business.
14. As per sub-section (1) of Section 26, every food business operator shall ensure that the articles of food satisfy the requirements of the Act, Rules and Regulations made thereunder at all stages of production, processing, import, distribution and sale within the businesses under his control. In view of the provisions under Section 26 of the Act, the Travancore Devaswom Board, which falls within the sweep of
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‘food business operator’ as defined in clause (o) of Section 3(1) of the Act, in relation to the manufacture, processing, packing, etc., of Aravana, which falls within the sweep of ‘food business’ as defined in clause (n) of Section 3(1) of the Act, has to ensure that Aravana satisfy the requirements of the Act, Rules and Regulations made thereunder at all stages of production, processing, import, distribution and sale, etc. Therefore, in the order dated 27.03.2023, this Court held that the Travancore Devaswom Board has to ensure that cardamon and other ingredients used for Aravana satisfy the requirements of the Act, Rules and Regulations made thereunder. The statutory mandate of clause (i) of sub-section (2) of Section 26 is that no food business operator shall himself or by any person on his behalf manufacture, store, sell or distribute any article of food which is unsafe. In view of the provisions under sub-clause (xii) of clause (zz) of Section 3(1) of the Act, ‘unsafe food’ means an article of food whose name, substance or quality is so affected as to render it injurious to health by virtue of containing pesticides and other contaminants in excess of quantities specified by regulations. Therefore, in the order dated 27.03.2023, it was held that, once it is found that the sample of cardamom is not conforming to Regulation 2.3.1. of the Food Safety Standards
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(Contaminants, Toxins and Residues) Regulation, 2011 and amendments thereon and as such it is unsafe as per the provisions in sub-clause (xii) of clause (zz) of Section 3(1) of the Act, the Travancore Devaswom Board cannot store, sell or distribute Aravana made using that cardamom, since the said article of food falls within the sweep of ‘unsafe food’, as defined in the said sub-clause.
15. Along with the memo filed by the learned Central Government Counsel, letter vide File No.Std/SP-02/Technical Matter/2021-22[E-4311] dated 30.08.2022 issued by the Joint Director (Science and Standards), Food Safety and Standard Authority of India to the Commissioner of Food Safety, Kerala;
order vide File No. Std/SP-02/Technical Matter/2021-22[E-4311] dated 30.08.2022 issued by the Advisor (Science and Standards), Food Safety and Standard Authority of India; and order vide File No.Std/SP-02/Technical Matter/2021-22[E-4311] dated 21.04.2022 issued by the Advisor (Science and Standards), Food Safety and Standard Authority of India are placed on record.
16. In the order dated 27.03.2023, this Court found that the arguments advanced by the learned Standing Counsel for Travancore Devaswom Board and the 5th respondent-contractor,
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relying on Ext.R1(i)/R5(i) letter dated 04.09.2020 of the Joint Director (Science and Standards), Food Safety and Standards Authority of India, is absolutely untenable, since the said letter has already been withdrawn, as evidenced by the letter vide File No.
Std/SP-02/Technical Matter/2021-22[E-4311] dated 30.08.2022 issued by the Joint Director (Science and Standards).
17. Therefore, in the order dated 27.03.2023, this Court concluded that, in view of the provisions under Section 26 of the Act, the Travancore Devaswom Board, which falls within the sweep of ‘food business operator’ as defined in clause (o) of Section 3(1) of the Act, in relation to the manufacture, processing, packing, etc., of Aravana, which falls within the sweep of ‘food business’ as defined in clause (n) of Section 3(1) of the Act, has to ensure that Aravana satisfies the requirements of the Act, Rules and Regulations made thereunder at all stages of production, processing, import, distribution and sale, etc.
Therefore, once it is found that the sample of cardamom is not conforming to Regulation 2.3.1. of the Food Safety Standards (Contaminants, Toxins and Residues) Regulation, 2011 and amendments thereon and as such it is unsafe as per the provisions in sub-clause (xii) of clause (zz) of Section 3(1) of
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the Act, the Travancore Devaswom Board cannot store, sell or distribute Aravana made using that cardamom, since the said article of food falls within the sweep of ‘unsafe food’, as defined in the said sub-clause. Therefore, no purpose will be served by sending Aravana made using that cardamom for analysis at any laboratory accredited by the Food Safety and Standards Authority of India as sought for in I.A.No.3 of 2023 filed by the Travancore Devaswom Board.
18. On 19.01.2023, when this writ petition came up for consideration, we have perused the files handed over by the learned Standing Counsel for Travancore Devaswom Board. As per the relevant files, there were three e-tender notifications for procuring cardamom and other items during Mandala- Makaravilakku festival season of 1198 ME (2022-23), i.e., Exts.P3, P6 and P9 e-tender notifications. In terms of the tender conditions in those e-tender notifications, the sample of cardamom taken from each supplier was sent for analysis before the Government Analyst’s Laboratory, Thiruvananthapuram. On all three occasions, the samples failed to meet the requirements under the Food Safety and Standards (Contaminants, Toxins and Residues) Regulation, 2011, since they contained residues exceeding the Maximum Residue Limits (MRLs) as per the said
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Regulations. It is thereafter that a decision has been taken by the Travancore Devaswom Board, whereby the Executive Officer, Sabarimala Devaswom was authorised to procure cardamom and also certain other items, by local purchase. Instead of going for local purchase, the Executive Officer published a notification at Sannidhanam, inviting quotations from suppliers. Based on that notification, four quotations were received including that of the 5th respondent-contractor. Out of the four samples of cardamom sent for analysis before the Laboratory at Pamba, under the Food Safety Commissionerate, Kerala, two samples failed to meet the requirements under the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011. Out of the suppliers of the other two samples, the price quoted by the 5th respondent-contractor was the lowest.
19. On 19.01.2023, the learned Standing Counsel for Travancore Devaswom Board submitted that since the price quoted by the 5th respondent-contractor for the supply of cardamom was the lowest, the Executive Officer placed the proposal of the said respondent for the supply of cardamom, before the Devaswom Commissioner for negotiation. The Devaswom Commissioner negotiated with the said respondent and thereafter, the matter was placed before the Travancore
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Devaswom Board for further negotiation. The decision taken by the Board to accept the proposal of the 5th respondent-contractor was communicated to the Executive Officer, through the Devaswom Commissioner. Based on that decision, the Executive Officer issued a supply order to the said respondent for supply of cardamom. In the order dated 19.01.2023, we noticed that, a perusal of the files relating to Exts.P3, P6 and P9 e-tender notifications and also Ext.R1(a) notification would show that a similar procedure has been followed in respect of other items as well, during the Mandala-Makaravilakku festival season of 1198 ME.
20. In terms of the direction contained in the order dated 13.01.2023, the Commissioner of Food Safety has submitted a report dated 17.01.2023 as to the testing facilities available at the laboratory at Pamba, under the Food Safety Commissionerate, Kerala. In the said report it is stated that this Court ordered in SSCR No.1 of 2012 that the production, making and handling of Aravana shall be in strict conformity with the contents of the report of the learned Ombudsman and the report of the Commissioner of Food Safety, Kerala. It was further ordered that testing labs shall be functional during the monthly pooja period also apart from Mandala-Makaravilakku season for
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a complete regulatory measure in place regarding the procurement of raw materials, manufacture, packing and handling of Aravana in Sabarimala. Having regard to the order passed in SSCR No.1 of 2012 and the report of the Joint Commissioner of Food Safety, this Court directed the Travancore Devaswom Board to ensure that the standards prescribed by the Food Safety Commissionerate, Kerala for preparation of Aravana are maintained scrupulously and in any case any batch of Aravana is found to be not conforming to the standards, the same shall not be distributed to the devotees. On the basis of the directions issued by this Court, two analytical laboratories were set up at Pamba and Sannidhanam, which are functional since 2012, under the control of the Commissioner of Food Safety, Kerala. Infrastructure for the analytical laboratories was provided by the Travancore Devaswom Board and technical and analytical staff were posted by the Commissioner of Food Safety.
All raw materials for Aravana are being stored at Pamba godown and being analysed at the Analytical Laboratory at Pamba. The raw materials conforming to the standards alone are transported to Sannidhanam for the preparation of Aravana and Appam. If any re-examination is needed, the article will be analysed at Government Analyst’s Laboratory, Thiruvananthapuram for
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confirmation of test results. The prepared Aravana and Appam are being analysed at the Analytical Laboratory in Sannidhanam.
As per the report dated 17.01.2023 of the Commissioner of Food Safety, Kerala, the Analytical Laboratory at Pamba has the facility to test the quality standards and synthetic food colour of raw materials used for preparation of prasadam, which includes Cardamom. In respect of Cardamom, the following parameters are being tested at Pamba.
“1.
Mould growth & Rodent contamination 2.
Dead and living insects, Insect fragments 3.
Extraneous matter 4.
Empty and malformed capsules by count 5.
Moisture 6.
Total ash on dry weight basis 7.
Volatile oil content on dry weight basis 8.
Test for synthetic food colour 9.
Insect damaged matter 10.
Immature and shrivelled capsules.”
The equipment available in the analytical laboratories at Pamba to test the quality parameters for Aravana and that available at Sannidhanam to test the quality parameters for Aravana are furnished in the report dated 17.01.2023 of the Commissioner of Food Safety.
21. In the order dated 19.01.2023, we noticed that the facilities for testing cardamom and other items with reference to
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the requirements of the Food Safety and Standards (Contaminants, Toxins and Residues) Regulation, 2011, are not available at the Laboratory at Pamba, under the Food Safety Commissionerate, Kerala, where the testing parameters are with reference to the provisions under the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011. When the samples of cardamom in respect of Exts.P3, P6 and P9 e-tender notifications failed to meet the requirements of the Food Safety and Standards (Contaminants, Toxins and Residues) Regulation, 2011, in the testing conducted at Government Analyst’s Laboratory, Thiruvananthapuram, even when it is decided by the Travancore Devaswom Board to go for local purchase for procuring cardamom and other items, before accepting the quotations by the suppliers, the Board should have ensured that the sample of cardamom meets the requirements of the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 and also the requirements under the Food Safety and Standards (Contaminants, Toxins and Residues) Regulation, 2011.
22. In the order dated 19.01.2023, this Court found that a proper food safety audit at Sabarimala is highly essential in order to ensure strict compliance of the statutory requirements
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of the Food Safety and Standards Act, 2006 and the Rules and Regulations made thereunder, including the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 and the Food Safety and Standards (Contaminants, Toxins and Residues) Regulation, 2011. In such circumstances, by the order dated 19.01.2023, we directed Registry to register a suo motu proceedings in order to ensure strict compliance of the statutory requirements of the Food Safety and Standards Act, 2006 and also the Rules and Regulations made thereunder, including the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 and the Food Safety and Standards (Contaminants, Toxins and Residues) Regulation, 2011 at Sabarimala in the preparation of Aravana Prasadam, Appam Prasadam, etc., which is now pending consideration as DBP No.4 of 2023.
23. When the contract between the Travancore Devaswom Board and the 5th respondent-contractor is for supply of 15,000 kg cardamom, in terms of the tender conditions and also the statutory mandate of the provisions under the Food Safety and Standards Act, 2006 and the Rules and Regulations made thereunder, including the Food Safety and Standards
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(Food Products Standards and Food Additives) Regulations, 2011 and the Food Safety and Standards (Contaminants, Toxins and Residues) Regulation, 2011, the cardamom supplied by the said respondent has to meet the requirements of those Regulations.
If the cardamom supplied by the 5th respondent-contractor do not meet the Maximum Residue Limits (MRLs) prescribed under the Regulations, it is unsafe as per Section 3(1)(zz)(xii) of the Food Safety and Standards Act, 2006, as found in the report dated 11.01.2023 of the Executive Director, Food Safety and Standards Authority of India.
24. By the order dated 27.03.2023, the learned Senior Government Pleader was directed to get instructions from the additional 7th respondent Commissioner of Food Safety, Kerala on the disposal of a total stock of 6,65,159 cans of Aravana, which is kept in a sealed godown after preparing a mahazar on 11.01.2023. Thereafter, by the order dated 10.04.2023, the Deputy Director (Project Tiger), Periyar West Division, Peerumedu and also the Kerala State Pollution Control Board were impleaded as additional respondents 11 and 12 and this writ petition was ordered to be listed along with DBP No.4 of 2023.
25. On 10.04.2023, in view of the order/judgment dated
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23.03.2022 in SSCR No.29 of 2022 and W.P.(C) No.42987 of 2022, whereby Vigilance enquiry has already been ordered in respect of auction conducted by the Travancore Devaswom Board, in terms of the tender notification dated 10.08.2022 for the Kuthaka rights in Sabarimala Devaswom for the year 1198 ME (2022-23), Registry was directed to return the files handed over by the learned Standing Counsel for Travancore Devaswom Board, which are kept in safe custody by Registrar (Judicial), after obtaining proper acknowledgment.
26.
By a separate order of this date (11.04.2023) in DBP No.4 of 2023, the Deputy Director (Project Tiger), Periyar West Division, Peerumade, the Divisional Forest Officer, Ranni and the Kerala State Pollution Control Board, represented by its Member Secretary are suo motu impleaded as additional respondents 9 to 11 in the said DBP, which is ordered to be listed on 12.04.2023 for considering the question of disposal of a total stock of 6,65,159 cans of Aravana, which is kept in a sealed godown.
Orders regarding disposal of the said stock of Aravana will be passed in DBP No.4 of 2023. Further orders to ensure strict compliance of the statutory requirements of the Food Safety and Standards Act, 2006 and the Rules and Regulations made thereunder, including the Food Safety and Standards (Food
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Products Standards and Food Additives) Regulations, 2011 and the Food Safety and Standards (Contaminants, Toxins and Residues) Regulation, 2011, will be passed in DBP No.4 of 2023.
27. In view of the statutory violations of the provisions under Food Safety and Standards Act, 2006 and the Rules and Regulations made thereunder, including the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 and the Food Safety and Standards (Contaminants, Toxins and Residues) Regulation, 2011, noticed in the order dated 27.03.2023 in I.A.No.3 of 2023 in this writ petition, the additional 7th respondent Commissioner of Food Safety, Kerala is directed to initiate prosecution proceedings, strictly in accordance with law. Necessary steps in this regard shall be initiated, as expeditiously as possible, at any rate, within a period of two weeks from the date of receipt of a certified copy of this judgment. The 1st respondent Travancore Devaswom Board shall initiate appropriate proceedings against the 5th respondent-contractor for violation of the tender conditions and for recovering the loss sustained to the Board on account of supply of cardamom by the contractor, which does not meet the requirements regarding Maximum Residue Limits (MRLs) prescribed in the Food Safety and Standards (Contaminants,
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Toxins and Residues) Regulation, 2011, which was found unsafe as per Section 3(1)(zz)(xii) of the Food Safety and Standards Act, 2006, in the test report dated 10.01.2023 issued by the Quality Evaluation Laboratory of the Spices Board at Kochi and in the report dated 11.01.2023 of the Executive Director, Food Safety and Standards Authority of India. The learned Central Government Counsel shall ensure that the original test report dated 10.01.2023 issued by the Quality Evaluation Laboratory of the Spices Board at Kochi and the report dated 11.01.2023 of the Executive Director, Food Safety and Standards Authority of India are provided to the additional 7th respondent Commissioner of Food Safety, Kerala, through the learned Senior Government Pleader, within a period of one week from the date of receipt of a certified copy of this judgment.
28. The 1st respondent Travancore Devaswom Board and the additional 7th respondent Commissioner of Food Safety shall ensure strict compliance of the statutory requirements of the Food Safety and Standards Act, 2006 and the Rules and Regulations made thereunder, including the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 and the Food Safety and Standards (Contaminants, Toxins and Residues) Regulation, 2011 at all
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stages of production, processing, distribution, sale, etc. of Appam and Aravana at Sabarimala Sannidhanam, taking note of the law laid down in the order dated 27.03.2023 in I.A.No.3 of 2023.
With the above directions, this writ petition is disposed of.
Sd/- ANIL K. NARENDRAN, JUDGE
Sd/- P.G. AJITHKUMAR, JUDGE
AV/12/4
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APPENDIX OF WP(C) 41743/2022
PETITIONER EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE GST REGISTRATION CERTIFICATE ISSUED BY THE COMPETENT AUTHORITY DATED 14-12-2021 EXHIBIT P2 THE TRUE COPY OF THE FSSAI CERTIFICATE ISSUED BY THE COMPETENT AUTHORITY DATED 25-02-2022 EXHIBIT P3 THE TRUE COPY OF THE E-TENDER NOTIFICATION DATED 16-6-2022 ISSUED BY THE OFFICE OF THE 2ND RESPONDENT EXHIBIT P4 TRUE COPY OF THE AUTO GENERATED MAIL RECEIVED BY THE PETITIONER ON 4-7-2022 EXHIBIT P5 THE AUTO GENERATED EMAIL DATED 25-08- 2022 CANCELLING THE EXT.P3 TENDER EXHIBIT P6 THE TRUE COPY OF THE NOTIFICATION DATED 24-08-2022 ISSUED BY THE TENDER INVITING AUTHORITY EXHIBIT P7 TRUE COPY OF THE AUTO GENERATED MAIL FOR BID SUBMISSION DATED 1-9-2022 EXHIBIT P8 THE TRUE COPY OF AUTO GENERATED EMAIL DATED 28-09-2022 CANCELLING THE EXT.P6 RE-TENDER EXHIBIT P9 THE TRUE COPY OF THE NOTIFICATION DATED 12-10-2022 ISSUED BY THE TENDER INVITING AUTHORITY EXHIBIT P10 THE TRUE COPY OF THE REPORT OF THE FOOD ANALYST AT PAMPA DATED 26-11-2022 EXHIBIT P11 THE TRUE COPY OF THE APPLICATION GIVEN BY THE PETITIONER DATED 16-12-2022 EXHIBIT P12 THE TRUE COPY OF THE REPLY GIVEN BY THE RESPONDENTS DATED 16.12.2022
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ALONG WITH REPORTS OF THE FOOD ANALYST EXHIBIT P13 THE TRUE COPY OF THE PETITION GIVEN BY THE PETITIONER BEFORE THE TRAVANCORE DEWASOM BOARD DATED 2-1-2023 EXHIBIT P14(A) TRUE COPY OF THE NEWSPAPER ADVERTISEMENT OF EXT.P3 TENDER 16-6- 2022 EXHIBIT P14(B) THE TRUE COPY OF THE NEWSPAPER ADVERTISEMENT OF EXT.P6 TENDER 22-8- 2022 EXHIBIT P14(C) THE TRUE COPY OF THE NEWSPAPER ADVERTISEMENT OF EXT.P9 TENDER 13-10- 2022
RESPONDENT EXHIBITS EXHIBIT-R5(A) TRUE COPY OF THE PROFILE OF THE PETITIONER EXHIBIT-R5(B) TRUE COPY OF THE FSSAI CERTIFICATE DATED 29.11.2022 EXHIBIT-R5(C) TRUE COPY OF THE GST REGISTRATION CERTIFICATED DATED 11.8.2018 EXHIBIT-R5(D) TRUE COPY OF THE PROCEEDINGS OF THE BOARD DATED 22.11.2022 EXHIBIT-R5(E) TRUE COPY OF THE INVOICE DATED 28.11.2022 EXHIBIT-R5(F) TRUE COPY OF THE INVOICE DATED 10.12.2022 EXHIBIT-R1(A) TRUE COPY OF THE NOTICE DATED 04.11.2022 PUBLISHED IN THE NOTICE BOARD AT SABARIMALA EXHIBIT-R1(B) TRUE COPY OF THE EXAMINATION REPORT DATED 06.11.2022 OF THE SAMPLE
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PROVIDED BY THE 5TH RESPONDENT EXHIBIT-R1(C) TRUE COPY OF THE RE-EXAMINATION REPORT DATED 06.12.2022 OF THE THREE SAMPLES KEPT AT THE BOARD OFFICE EXHIBIT-R1(D) TRUE COPY OF THE RELEVANT PORTION OF ORDER DATED 12.01.2012 IN SSCR NO.01 OF 2012 OF THIS HON'BLE COURT EXHIBIT-R1(E) TRUE COPY OF THE RELEVANT PORTION OF ORDER DATED 05.03.2012 IN SSCR NO.01 OF 2012 OF THIS HON'BLE COURT EXHIBIT-R1(F) TRUE COPY OF THE CERTIFICATE OF EXAMINATION DATED 28.12.2022 ISSUED BY THE FOOD ANALYST OF GOVERNMENT ANALYSTS' LABORATORY, THIRUVANANTHAPURAM DOCUMENT TEST REPORT NO. HN/LR 0051540/23 DATED 10.01.2023 ISSUED BY THE QUALITY EVALUATION LABORATORY OF THE SPICES BOARD KOCHI DOCUMENT REPORT NO.P.15017/15/2023-FSSAI/LEGAL DATED 11.01.2023 EXHIBIT-R5(G) COPY OF THE RELEVANT PORTION OF THE STUDY REPORT NIL DATED PREPARED BY THE CENTER FOR SCIENCE AND ENVIRONMENT.
EXHIBIT-R5(H) COPY OF THE RELEVANT PORTION OF GUIDANCE DOCUMENT ISSUED BY THE FSSAI DATED NIL EXHIBIT-R5(I) COPY OF THE TYPE WRITTEN ORDER DATED 4.09.2020 OF THE FSSAI EXHIBIT-R5(J) COPY OF THE REPRESENTATION DATED 15.09.2020 BY THE CONSORTIUM OF CURRY POWDER MANUFACTURERS OF KERALA EXHIBIT-R1(G) TRUE COPY OF THE CLARIFICATION, F.
NO.01-SP(PAR)-NOTIFICATION- PESTICIDE/STD-FSSAI/2017 (PT-1) DATED
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11.01.2021 ISSUED BY THE FSSAI EXHIBIT-R1(H) TRUE COPY OF THE ORDER, FILE NO.STD/SP 02/TECHNICAL MATTER/2021-22[E-4311] DATED 21.04.2022 ISSUED BY FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA EXHIBIT-R1(I) TRUE COPY OF THE COMMUNICATION, FILE NO.STD/SP-02A1-1 DATED 04.09.2020 SENT FROM FSSAI TO THE FOOD SAFETY COMMISSIONER, THIRUVANANTHAPURAM ANNEXURE R10(A) A) LETTER DATED 30/08/2022 IN FILE NO.
STD/SP-02/TECHNICAL MATTER/2021-22[E- 4311] ISSUED BY THE JOINT DIRECTOR (SCIENCE AND STANDARDS), FOOD SAFETY AND STANDARD AUTHORITY OF INDIA.
ANNEXURE R10(B) B) ORDER DATED 30/08/2022 IN FILE NO.
STD/SP-02/TECHNICAL MATTER/2021-22[E- 4311] ISSUED BY THE ADVISOR (SCIENCE AND STANDARDS), FOOD SAFETY AND STANDARD AUTHORITY OF INDIA.
ANNEXURE R10(C) C) ORDER DATED 21/04/2022 IN FILE NO.
STD/SP-02/TECHNICAL MATTER/2021-22[E- 4311] ISSUED BY THE ADVISOR (SCIENCE AND STANDARDS), FOOD SAFETY AND STANDARD AUTHORITY OF INDIA.
ANNEXURE1 LETTER NO C.F.S 10/2023-G DATED 03-04- 2023 MARKED AS ANNEXURE1 IN THE REPORT OF FOOD SAFETY COMMISSIONER.