Jolly Thomas vs. The Assistant Commissioner Of Food Safety

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR TUE AY, THE 26TH DAY OF NOVEMBER 2019 / 5TH AGRAHAYANA, 1941 WP(C).No.30996 OF 2019(Y) PETITIONER: JOLLY THOMAS AGED 59 YEARS W/O.THOMASKUTTY EAPEN, PROPRIETOR, KOCHUPURACKAL TRADERS, PEROOR JUNCTION, ETTUMANOOR.P.O., KOTTAYAM DISTRICT, PIN-686631. BY ADVS. SRI.M.V.BOSE SRI.VINOD MADHAVAN SRI.SHARATH S.PUTHENPARAMPAN SMT.P.M.MAZNA MANSOOR RESPONDENTS: 1 THE ASSISTANT COMMISSIONER OF FOOD SAFETY, OFFICE OF THE ASSISTANT COMMISSIONER OF FOOD SAFETY, 1ST FLOOR, DY.S.P.OFFICE, CIVIL STATION, KOTTAYAM, PIN-686001. 2 THE FOOD SAFETY OFFICER, ETTUMANOOR CIRCLE, OPPOSITE FAMILY COURT, ETTUMANOOR, KOTTAYAM DISTRICT, PIN-686631. 3 THE HEALTH INSPECTOR, OFFICE OF THE ETTUMANOOR MUNICIPALITY, ETTUMANOOR, KOTTAYAM DISTRICT, PIN-686631. 4 THE REVENUE DISTRICT OFFICER, OFFICE OF THE REVENUE DISTRICT OFFICER, KOTTAYAM DISTRICT, PIN-686001. R1 BY ADV.SRI. V.MANU GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.30996 OF 2019(Y) 2 W.P.(C) No.30996 of 2019 ------------------------------------------- J U D G M E N T The petitioner is a licensed dealer of food grains under the Food Safety and Standards Act, 2006 (the Act) having her place of business at Ettumanoor. The petitioner purchased 6550 Kgs of rice from her husband, another dealer of food grains under the Act having his establishment at Athirampuzha in terms of Ext.P5 invoice, and while the purchased quantity of rice was being unloaded at the premises of the petitioner, the headload workers experienced uneasiness and itching of their skin. The matter was accordingly informed to the Food Safety Officer, who, in turn came to the scene forthwith and seized the food grains covered by Ext.P5 invoice under Ext.P8 mahazer and took samples for analysis, as he found empty packets of Aluminium Phosphide in the vehicle in which the rice was brought to the premises of the petitioner. It is stated by the petitioner that later on 11.11.2019, the Food Safety Officer came to the premises of the petitioner again, seized the food grains stored in the premises before the arrival of the food grains covered by Ext.P5 invoice, under Ext.P12 mahazar and took samples for analysis therefrom as well. The

WP(C).No.30996 OF 2019(Y) 3 petitioner was also issued Ext.P11 notice on 11.11.2019 by the Food Safety Officer directing her to refrain from selling the food grains covered by Ext.P12 mahazar till the report of the food analysis is received. The case set out by the petitioner in the writ petition is that Aluminium Phosphide is an insecticide available for purchase even online; that the same is widely used to kill insecticides for stored cereal grains and merely for the reason that a few empty packets of aluminium phosphide were found in the vehicle in which the rice covered by Ext.P5 invoice was brought to the premises of the petitioner, it was highly arbitrary for the Food Safety Officer to prohibit the petitioner from selling the food grains which were available in her premises before the arrival of the food grains covered by Ext.P5 invoice. On that basis, the petitioner seeks appropriate directions to respondents 1 to 4 to refrain from interfering with the sale of the rice kept in her premises before the arrival of the rice covered by Ext.P5 invoice.

WP(C).No.30996 OF 2019(Y) 4 conducted on 11.11.2019 in the premises of the husband of the petitioner from where food grains covered by Ext.P5 invoice were transported and in the course of the said inspection, 13 packets of Aluminium Phosphide were recovered therefrom and it is in the said background that the premises of the petitioner was inspected on 11.11.2019. It is also stated by the second respondent in the counter affidavit that aluminium phosphide cannot be used as an insecticide directly on any article of food in terms of Regulation 2.3.1 (2) of the Food Safety and Standards (Contaminants, Toxins and Residues) Regulations, 2011 and that the same is a substance which is prohibited even from selling from a building where any articles consumable by human beings or animals are stored for sale, in terms of the Insecticides Rules, 1971. It is in the light of the aforesaid provisions, Ext.P11 communication was issued to the petitioner.

WP(C).No.30996 OF 2019(Y) 5 in the premises of the petitioner on 11.11.2019 and for having directed the petitioner to refrain from selling the same until the result of the food analysis is received in respect of the samples taken therefrom. Such actions are expected from the Food Safety Officer in terms of the scheme of the Act. Further, in terms of Ext.P11, the petitioner was only asked to refrain from selling the food grains until the report of the food

analysis is received. An approach to this court in a case of this nature under Article 226 of the Constitution, according to me, is misconceived. The writ petition, in the circumstances is only to be dismissed and I do so. P.B.SURESH KUMAR Mn JUDGE

WP(C).No.30996 OF 2019(Y) 6 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 AOF THE LICENSE BEARING NO.11316005000136, DATED 20.4.2016, ISSUED BY THE COMMISSIONERATE OF FOOD SAFETY, GOVERNMENT OF KERALA. EXHIBIT P2 AOF THE GST REGISTRATION CERTIFICATE WITH NO.32ABHPT8406DIZS, DATED 16.7.2018 ISSUED BY THE GOVERNMENT OF INDIA. EXHIBIT P3 AOF THE TRADE LICENSE NO.H2/3292, DATED 1.4.2019, ISSUED BY THE ETTUMANOOR MUNICIPAL CORPORATION TO THE PETITIONER FOR CONDUCTING THE TRADE IN BUILDING NO.VIII/19 B1. EXHIBIT P4 AOF THE TRADE LICENSE NO.H2/3292, DATED 1.4.2019, ISSUED BY THE ETTUMANOOR MUNICIPAL CORPORATION TO THE PETITIONER FOR CONDUCTING THE TRADE IN BUILDING NO.VIII/19 B1. EXHIBIT P5 AOF INVOICE DATED 7.11.2019 ISSUED BY KOCHUPURACKAL RICE, ATHIRAMPUZHA FOR THE PURCHASE OF RICE BY THE PETITIONER. EXHIBIT P6 AOF THE NOTICE DATED 7.11.2019 ISSUED BY THE FOOD SAFETY OFFICER INFORM V- A, TO THE PETITIONER HEREIN. EXHIBIT P7 AOF THE NOTICE, DATED 7.11.2019, SERVED ON THE PETITIONER BY THE FOOD SAFETY OFFICER DIRECTING HER TO REFRAIN FROM SELLING THE FOOD GRAINS UNTIL OBTAINMENT OF THE ANALYSIS REPORT. EXHIBIT P8 AOF THE SEIZURE MEMO DATED 7.11.2019 ISSUE DBY FOOD SAFETY OFFICER IN RESPECT OF SEIZURE OF 6550 KG OF BOILED RICE. EXHIBIT P9 AOF THE BANNER DISPLAYED BY DYFI IN FRONT OF THE SHOP OF THE PETITIONER. EXHIBIT P10 AOF THE NOTICE DATED 11.11.2019, ISSUED BY THE FOOD SAFETY OFFICER ON TAKING

WP(C).No.30996 OF 2019(Y) 7 OF THE SAMPLE. EXHIBIT P11 AOF THE NOTICE, DATED 11.11.2019, ISSUED BY THE FOOD SAFETY OFFICER TO THE PETITIONER. EXHIBIT P12 AOF SEIZURE MEMO DATED 11.11.2019, APPENDED WITH FORM OF ORDER OF SEIZURE OF BOILED RICE (74785 KG) AND RAW RICE (11450 KG). EXHIBIT P13 AOF THE INSPECTION REPORT DATED 7.11.2019 ISSUED BY THE AGRICULTURAL OFFICER, ETTUMANOOR. EXHIBIT P14 AOF THE SCREENSHOT OF THE SACHET OF ALUMINIUM PHOSPHIDE (56%) (CELPHOS) AVAILABLE FOR SALE WITH AMAZON. EXHIBIT P15 AOF THE RELEVANT PAGE CONTAINING THE CUSTOMER REVIEW OF THE PRODUCT (ALUMINIUM PHOSPHIDE). EXHIBIT P16 AOF THE RELEVANT PAGES OF THE TENDER NOTIFICATION, DATED 19.9.2016, ISSUED BY THE REGIONAL OFFICE, THIRUVANANTHAPURAM OF THE FOOD CORPORATION OF INDIA. RESPONDENTS' EXHIBITS: EXHIBIT R1 A A TRUE PHOTOCOPY OF THE MAHASSAR DATED 07.11.2019 IN RELATION TO KOCHUPURACKAL TRADERS, ETTUMANNOOR EXHIBIT R1 B A TRUE POTOCOPY OF THE MAHASSAR DATED 07.11.2019 IN RELATION TO KOCJUPURACKAL RICE, ATHIRAMPUZHA EXIBIT R1 C A TRUE PHOTOCOPY OF THE NOTICE DATED 07.11.2019 ISSUED IN RELATION TO KOCHUPURACKAL RICE, ATHIRAMPUZHA EXHIBIT R1 D A TRUE PHOTOCOPY OF THE MAHASSAR DATED 11.11.2019 IN RELATION TO KOCHUPURACKAL TRADERS, ETTUMANOOR EXHIBIT R1 E A TRUE PHOTOCOPY OF THE NOTICE DATED 11.11.2019 ISSUED IN RELATION TO KOCHUPURACKAL TRADERS, ETTUMANOOR

WP(C).No.30996 OF 2019(Y) 8 EXHIBIT R1 F A TRUE PHOTOCOPY OF TH REPLY DATED 08.11.2019 SUBMITTED BY SRIM THOMASKUTTY EAPEN EXHIBIT R1 G AOF THE ORDER NO. 2218/19-20 KTM DATED 21.11.2019 ISSUED BY THE ASSISTANT COMMISSIONER OF FOOD SAFETY , KOTTAYAM. //// PA TO JUDGE