DHARAMPAL SATYAPAL LIMITED Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner, a public limited company incorporated under the Companies Act, 1956 is a food business operator as defined in section 3(o) of the Food Safety and Standards Act, 2006 (hereinafter referred to as "the Act" for short). It is engaged inter alia in the manufacture and sale of salts, spices, soda water, dry fruits, mouth freshener, mineral water, panmasala, etc. A consignment of 1280 kgs. (50 bags) of Pass Pass, a mouth freshener manufactured by the petitioner was seized by the Commercial Tax Inspector, Commercial Tax Check Post, Walayar on 3.10.2013 on the suspicion that sale of the said item is banned in the State of Kerala. He also made it over to the Food Safety Officer, Palakkad. The Food Safety Officer got the sample analysed by the Food Analyst who gave Ext.P3 analysis report dated 17.10.2013. The analysis report indicates that the test for nicotine was negative. In the analysis report it was also stated that the sample contains Magnesium Carbonate (an anticaking agent) and Monosodium Glutamate which are not permitted to be used in pan masala as per regulation 3.1.7(1) and regulation 3.1.11 (1) of Food Safety & Standards (Food Products Standards & Food Additives) Regulations, 2011.

(2.) Aggrieved by the analysis report, the petitioner filed Ext.P4 memorandum of appeal before the Designated Officer in terms of section 46(4) of the Act. In the appeal memorandum, the petitioner contended that the report of the Food Analyst is erroneous for the reason that he had applied standards prescribed for pan masala when the goods in question was not pan masala but mouth freshener for which different standards have been prescribed. The petitioner also raised various other contentions. The Designated Officer dismissed the appeal by Ext.P5 order passed on 21.12.2013 on the short ground that the petitioner/appellant before him, had not produced an accredited laboratory report under section 47(1)(c) (iii) read with 2.4.1 and 2.4.5 of the Food Safety & Standards Rules, 2011 and therefore, it is not a fit case to be referred to the referral laboratory. The said order, a copy of which is on record as Ext.P5, is under challenge in this writ petition filed under Article 226 of the Constitution of India.

(3.) The principal contention raised in the instant writ petition is that the dismissal of the appeal on the grounds stated in the impugned order is not tenable, that the petitioner was not heard before the appeal was dismissed, that the Designated Officer has dismissed the appeal under the misconception that along with the appeal a report of the accredited laboratory is required to be filed when the law does not insist on such a stipulation. It is contended that on the terms of sub-section (4) of section 46 of the Act, the Designated Officer was bound to refer the matter to the referral food laboratory for opinion.