‘Presence Of Magnesium Carbonate Itself Does Not Make A Food Article Prohibited’: Jharkhand High Court

The Division Bench of Chief Justice Sanjaya Kumar Mishra and Justice Ananda Sen observed, “...the respondents have taken a decision to ban certain Pan Masalas as on three consecutive years by three consecutive notifications to that effect on the ground that it contained Magnesium Carbonate. From the aforesaid analysis, we are of the opinion that presence of Magnesium Carbonate itself does not make a food article prohibited. An attempt has been made by the learned Senior Counsel appearing for the State-respondents that nicotine was found in certain laboratory analysis.”

“However, it is not the case of the respondents that the Pan Masala in question does have any nicotine or tobacco in it. In fact, it is the consistent case of the petitioners that the said Pan Masala does not have any tobacco or nicotine in it. A report to that effect is also annexed in the supplementary affidavit whereby the State Government was in know of the fact that the Central Food Laboratory, Kolkata has come to the conclusion it does not contain nicotine, but they did choose not to act upon it and passed orders in clear ignorance of scientific proven facts.,” the bench added.

The above ruling came in a petition filed by a private limited company, Dharampal Satyapal Limited and its director, seeking declaration that Section 30(2)(a) of the Food Safety and Standards Act, 2006, is ultra vires of the said Act and suffers from vice of excessive delegation as it confers an independent source of legislation and power of policy decision upon the Commissioner of Food safety and empowers him to prohibit completely, without issuing any show-cause notice, the Trade and Commerce and other allied activities in the food products permanently which is contrary to the substantive provisions of the aforesaid Act.

The petitioners also sought a declaration that that the impugned provision, as mentioned above, is in the teeth of the constitutional prohibition as contained in Article 13(2) of the Constitution of India, 1950 and is also violative of constitutional guarantee regarding right of freedom of Trade and Commerce in the territory of India under Article 301, Part XIII of the Constitution of India, 1950.

The FSS Act was enacted in 2006 and came into force in 2011. The Ministry of Health and Family Welfare introduced the Food Safety and Standards (Food Products and Food Additives) Regulations, 2011, and the Jharkhand Food Safety and Standards Rules, 2000, were enforced with a notification amending the 2011 Regulations.

Furthermore, the Food Safety and Standards (Food Recall Procedure) Regulation, 2017, was enacted. During this time, the Goods and Services Tax (Compensation to States) Act, 2017, was also implemented, leading the State Government to impose a prohibition on the manufacture, storage, distribution, and sale of Rajnigandha Pan Masala, along with ten other Pan Masala brands, for a one-year period. Hence, a writ application was filed by the petitioners seeking the aforesaid reliefs.

Key Questions Addressed by the Court:

(i) Whether the Commissioner of Food Safety in exercise of powers under Section 30(2)(a) of the Food Safety and Standards Act, 2006 can take a decision which is contrary to the specific provision of the Parent Act and Regulations made thereunder?

(ii) Whether an order under Section 30(2)(a) of section 34 of the FSS Act should precede by notice to show cause contemplating such an action?

(iii) Whether the action of completion prohibition on manufacture, sale, transport, distribution of any brand for an indefinite period is contemplated under any of the provisions of the FSS Act, 2006?

(iv) Whether the permission under the relevant Regulation with regard to Magnesium Carbonate to be used as food addictive leads to a natural corollary that the same is not injurious to health?

(v) Whether the Commissioner, Food Safety can base any prohibitory order for indefinite period on account of an ex parte collection of samples and food collected in the years 2019 and 2020?

(vi) Whether the issuance of prohibitory orders on year to year basis for the third time in succession by the Commissioner of Food Safety amounts to a fraud upon the Statute and amounts to colourable exercise of powers?

In addressing the first three questions before it, the Court examined Section 30(2)(a) of the FSS Act, which grants the Commissioner of Food Safety the authority to take actions in the interest of public health, such as prohibiting the manufacture, storage, distribution, or sale of a food product, either in the entire state or a specific area, for a period not exceeding one year as specified in an official Gazette notification.

The court opined, “The “Designated Officer” as appointed by the Commissioner of Food Safety has power to make a report to the Commissioner.”

The Court emphasized that when Section 30(2)(a) of the FSS Act is considered in isolation, it appears to grant the Commissioner of Food Safety absolute power to ban any food product for a duration not exceeding one year. However, a more purposive interpretation of key definitions within the Act, including "food," "business of food," and "designated officer," reveals that the Act contains inherent safeguards for imposing such prohibitory orders.

“Thus, it is clear that the Commissioner of Food Safety, Section 30(3) of the FSS Act may, by order, delegate, subject to such conditions and restrictions as may be specified in the Order, such of his powers and functions under the Act (except the power to appoint Designated Officer) as he may deem necessary or expedient to any officer subordinate to him. Thus, it is clear that the Commissioner of Food Safety cannot act without a specific request made on this behalf by the Designated Officer. The Designated Officer cannot recommend or make an application to the Commissioner of Food Safety without issuing a notice to the concerned food business operator.”, the Court clarified.

Furthermore, the Court said that once a product falls under the definition of "food," any related activities, such as manufacturing, selling, storing, transporting, or processing, are considered part of the food business. A food business operator, in this context, is someone responsible for ensuring compliance with the Act, its rules, and associated regulations.

The Court held, “Thus, it is clear that the power conferred upon the Commissioner of Food Safety is not excessive delegation if not unbridled. In other words, we may add that the powers conferred on the Commissioner of Food Safety have certain built-in safeguards in it, so that an order is not passed in a whimsical manner.”

Furthermore, the Court rejected the argument put forth by the Senior Counsel representing the petitioners, asserting that there is no unbridled delegation of power to the Commissioner of Food Safety. Consequently, the Court concluded that such delegation does not violate the Constitution by being overly extensive.

“In the result, this writ petition is allowed. The notifications dated 08.05.2020, 28.05.2021 and 03.06.2022, qua the brand of the petitioner, are hereby quashed with retrospective effect from the dates of their issue,” the court said.

Counsel For the Petitioners: Mr. Vivek Kholi, Sr. Advocate Mr. Ajit Kumar, Sr. Advocate M/s. Sanjai Pathak, Indrajit Sinha, Aashish Kaushik, Anjali Sinha, Advocates

Counsel For the UOI: Mr. Anil Kumar, Addl. S.G.I. Mr. Vikash Kumar, C.G.C.

Counsel For the State: Mr. Jai Prakash, A.A.G.-1A Ms. Omiya Anusha, A.C. to A.A.G.-1A

LL Citation: 2023 LiveLaw (Jha) 39

Case Title: Dharampal Satyapal Limited & Anr. vs Union of India & Ors.

Case no.: W.P. (C) No. 3346 of 2022

Click Here To Read Judgement