V.B.Muraleedharan vs. The Assistant Commissioner Of Food Safety

W.P.(C).No.35151/18 & RP.1051/18 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 12TH DAY OF APRIL 2019 / 22ND CHAITHRA, 1941 WP(C).No. 35151 of 2018 PETITIONER: V.B. MURALEEDHARAN AGED 46 YEARS S/O BALAKRISHNAN, MAMPATTAKALATHIL (H), MUNDAKKOTTU KURUSSI P.O., SHORANUR -2, PROPRIETOR, AMRUTHA OIL PRODUCTS, MUNDAKKOTTUKURUSI, SHORANUR -2 BY ADV. SRI.V.C.MADHAVANKUTTY RESPONDENTS: 1 THE ASSISTANT COMMISSIONER OF FOOD SAFETY OFFICE OF THE FOOD SAFETY COMMISSIONER, KASARAGOD. - 671123 2 FOOD ANALYST REGIONAL ANALYTICAL LABORATORY, KOZHIKODE- 673009. 3 ASSISTANT AGRICULTURAL MARKETING ADVISER REGIONAL OFFICE, DMI, KOCHI-682037. BY ADV. SRI.V.MANU, SENIOR GOVT. PLEADER OTHER PRESENT: SR. GP V MANU

W.P.(C).No.35151/18 & RP.1051/18 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13.02.2019, ALONG WITH RP.1051/2018, THE COURT ON 12.04.2019 DELIVERED THE FOLLOWING:

W.P.(C).No.35151/18 & RP.1051/18 3 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 12TH DAY OF APRIL 2019 / 22ND CHAITHRA, 1941 RP.No. 1051 of 2018 IN WP(C). 28041/2018 REVIEW PETITIONER: V.B.MURALEEDHARAN AGED 46 YEARS S/O.BALAKRISHNAN, MAMPATTAKALATHIL(H)MUNDAKKOTTU KURUSSI,P.O.SHORANUR-2, PROPRIETOR, AMRUTH OIL PRODUCTS, MUNDAKKOTTUKURUSI, SHORANUR-2. BY ADV. SRI.V.C.MADHAVANKUTTY RESPONDENTS: 1 THE ASSISTANT COMMISSIONER OF FOOD SAFETY OFFICE OF THE FOOD SAFETY COMMISSIONER, KASARAGOD-671123. 2 FOOD ANALYST, REGIONAL ANALYTICAL LABORATORY, KOZHIKODE-673009. 3 ASSISTANT AGRICULTURAL MARKETING ADVISER, REGIONAL OFFICE, DMI, KOCHI-682037. THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 13.02.2019, ALONG WITH WP(C).35151/2018, THE COURT ON 12.04.2019 PASSED THE FOLLOWING:

W.P.(C).No.35151/18 & RP.1051/18 4 = = = = = = = = = = = = = = = W.P.(C).No.35151 of 2018 & R.P.No.1051 of 2018 in W.P.(C).No.28041 of 2019 = = = = = = = = = = = = = = = = JUDGMENT 1.W.P.(C).No.35151 of 2018 is filed by the proprietor of Amrutha Oil Products challenging Exhibit P6 report of the Food Analyst finding that the petitioner's product, 'Kera Co' is misbranded. Earlier W.P.(C).No.28041 of 2018 had been preferred challenging an identical report issued in July 2018 as well as an order of the Assistant Commissioner of Food Safety dated 2.8.2018 communicating the report to the petitioner. W.P. (C).No.28041/2018 had been disposed of directing the submission of appeal and the consideration of the contentions raised by the petitioner in the appeal. However a review petition has been filed by the petitioner stating that the report of the Food Analyst is not appealable in terms of the Act and the Regulations and that as such unless the contention of the petitioner is considered, there would be no purpose in considering an appeal under Section 46(4) of the Act.

W.P.(C).No.35151/18 & RP.1051/18 5 2.The learned counsel for the petitioner would contend that the Food Analyst has the power under Section 46 of the Food Safety and Standards Act 2006 only to analyse the sample and submit a report to the designated officer. It is stated that what is to be analysed by the Food Analyst is the sample sent and the Food Analyst has no power to declare that the product is misbranded. It is stated that the report of analysis of the product in the packet should have been carried out by the Food Anlayst and the report thereof should have been made available to the Designated Officer and nothing further. It is stated that any finding of misbranding of the product can be entered into only by the designated officer and that too only after hearing the petitioner. The specific case of the petitioner is that when there is any discrepancy in the product as provided by the branding on the package, the Designated Officer has to issue an improvement notice under section 32. It is only if the petitioner does not comply with such improvement notice that the further proceedings as against the petitioner or the product can be taken by the respondents in accordance with law. It is contended that the steps taken by

W.P.(C).No.35151/18 & RP.1051/18 6 the Food Analyst himself to declare the product as misbranded and to require the petitioner to submit an appeal as against the said finding is completely without juri iction and such erroneous procedure is liable to be interdicted by this Court.

W.P.(C).No.35151/18 & RP.1051/18 7 4.A statement has been placed on record by the 1st respondent. Section 3(1)(zf) of the Food Safety and Standards Act is also relied on to contend that an article of food is said to be misbranded when the package containing the article or the label of the package bears any statement, design or device regarding the ingredients of the substances contained which is false or misleading in any material particularly or if the package is otherwise deceptive with respect to its contents. The learned Senior Government Pleader relies on Regulation 2.3.1.5 of the Food Safety and Standards (Packaging and Labelling) Regulations, 2011. The said regulation reads as follows:- “Labels not to contain false or misleading statements. A label shall not contain any statement, claim, design, device, fancy name or abbreviation which is false or misleading in any particular concerning the food contained in the package, or concerning the quantity or the nutritive value or in relation to the place of origin of the said food. Provided that this regulation shall not apply in respect of established trade or fancy names of confectionery, biscuits and sweets, such as, barley, sugar, bull's eye, cream cracker or in respect of aerated waters, such as, Ginger Beer or Gold-spot or any other name in existence in international trade practice.”

W.P.(C).No.35151/18 & RP.1051/18 8 5.It is stated that Section 46(2) of the Food Safety and Standards Act empowers the Food Analyst to analyse the food sent to him by the Food Safety Officer. It is stated that the Form B report of the Food Analyst, inter alia, provides for analysis report, taking note of the label as well. Form B report is relied on to contend that the contents of the label are also required to be looked into by the Food Analyst to decide whether the product is the same as what is claimed on the label or the packet. It is further stated that Regulation 2.3 of the Food Safety and Standards (Laboratory and Sample Analysis) Regulations 2011 prescribes the procedure for sampling. It is contended that since the label of the package in the instant case bears the design of coconut, though the material is blended vegetable oil, the label is evidently misleading. Provisions of Section 23, 24, 26 and 27 of the Food Safety and Standards Act are also relied upon. It is contended that in terms of Section 3(1)(b) of the Food Safety and Standards Act the representation on the package is also an advertisement and that the petitioner is, therefore, liable to

W.P.(C).No.35151/18 & RP.1051/18 9 be proceeded against for misbranding, since he has made false representation about the produce on the package. 6.I have considered the contentions advanced. The legal question raised by the petitioner is that the Food Analyst can only analyse an article of food and send a report to the Designated Officer and that there cannot be finding of misbranding at the instance of the Food Analyst. On facts, the contention is that the packet clearly says that the product is blended vegetable oil and that there is no attempt to mislead the public and therefore the finding of misbranding is misconceived. With regard to the initial contention of the petitioner, going by the provisions of Section 3(zf) of the Act, an article of the food can be said to be misbranded, if the package bears any statement, design or device regarding the ingredients which is false or misleading. In the instant case, the contention of the respondents is that there is a pictorial representation on the package and an attempt to pass off the product, which is deceptively named 'Kera Co' as coconut oil, while the product is blended vegetable oil. The contention of

W.P.(C).No.35151/18 & RP.1051/18 10 the petitioner that there is no misbranding involved in the instant case, therefore, cannot be accepted. 7.With regard to the legal contention, Section 46(2) of the Act requires the Food Analyst to analyse the article and submit a report to the Designated Officer. The purpose of the analysis would be to find out the nature of the product. There is a specific requirement under Section 46 of the Act as also under the provisions of the Food Safety and Standards (Laboratory and Sample Analysis) Regulations 2011, to submit a report of analysis of the article involved, taking note of the contents of the label and the package as well. Therefore, when an article, which is labelled as one product, is sent for analysis, the Food Analyst should analyse the article and report the contents thereof with specific reference to whether it is, as a matter of fact, what is claimed in the package. The contention of the petitioner that there should be no reference to the package at all and that all that is required is analysis of the contents and a report on the same, according to me, cannot be accepted in view of the fact that what is sent for analysis is a package

W.P.(C).No.35151/18 & RP.1051/18 11 containing the sample and the analysis contemplated is inclusive of whether the article is the same as represented on the package. In the above view of the matter and in view of the provisions of the Act and Regulations, I am unable to accept the contention of the petitioner that the Food Analyst can only submit a report on anlaysis of the contents and cannot make the finding as to the misbranding of the article. 8.The further contention of the petitioner that an improvement notice is liable to be served on the petitioner before any action is taken against him is also not sustainable in view of the clear language of Section 32. Section 32 is clearly a directory provision and it is well within the power of the designated office to decide, in a given case, whether an improvement notice is liable to be served and an opportunity granted to rectify the non compliance. As such, the non serving of an improvement notice will not be a ground for challenging an action taken by the designated officer on the basis of a test report.

W.P.(C).No.35151/18 & RP.1051/18 12 9.In the above view of the matter, the writ petition as well as the review petition fail. The same are accordingly dismissed. In case the petitioner has any contention as against the report of the Food Analyst, he will be free to raise the same in a properly constituted appeal. Since these writ petitions have been pending before this Court, the time taken for prosecuting these writ petitions will be exempted for the purpose of the time limit for preferring an appeal under Section 46 of the Act. Anu Sivaraman, Judge sj

W.P.(C).No.35151/18 & RP.1051/18 13 APPENDIX OF WP(C) 35151/2018 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 THE ENROLMENT 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 P4 THE AGMARK CERTIFICATE NO.Q- 11030/24/G/17-QC/942 DATED 23.10.2017. EXHIBIT P5 THE LETTER OF THE IST RESPONDENT NO.514/18/ACFS/K DATED 6.10.2018. EXHIBIT P6 FORM B REPORT NO.125/2018-19 DATED 6.9.2018 OF THE 2ND RESPONDENT. EXHIBIT P7 THE APPROVAL GIVEN BY THE 3RD RESPONDENT FOR APPROVED TRADE BRAND LABEL DATED 19.12.2017. EXHIBIT P8OF THE DESIGN AND OTHER DETAILS UP ON THE PACKAGE IS PRODUCED.PS to Judge