Well Owners Selling Water Through Tankers Must Obtain Licenses And Conform To Food Safety Act: Kerala High Court

The Kerala High Court recently issued general directions to the State to bring water drawn from wells that is being sold to the public as drinking water, under the purview of the Food Safety and Standards Act, 2006 and the Food Safety and Standards (Food Products Standards & Food Additives) Regulation 2011.

A single bench of Justice Amit Rawal observed:

“In order to prevent further misuse of provisions of Act, at the hands of the well owner and food operators, I deem it appropriate to issue general directions to the State Government as well as respondent No.2 [Food Safety Officer, Kochi Circle] to publish a notice and personal notice to all the well owners and food operators who are indulging into the practice of selling the water through tankers to the general public to obtain licence and conform to the standards prescribed under the Act, Rules and regulations. This Court is sanguine of the fact that the respondent No.1 [Food Safety Standards Authority Of India] would come out with a notification for bringing the water drawn from well and standardizing the conditions of the water drawn from the well for the purpose of selling into general public.”

The court was considering two writ petitions filed by a person holding a licence for running the business of selling water. He would purchase water from a well owner and sell it to the public as ‘drinking water’. One petition challenged a communication issued to the petitioner pointing out that the water being sold by him had a lesser pH value than what was prescribed for drinking water under IS 10500:2012 specification read with Regulation 2.10.9 of the 2011 Regulations. The other petition challenged a report that showed the presence of Coliform in the sample and also the communication to the petitioner regarding the same.

Adv Premjit Nagendran appearing for the petitioner contended that well water would not come under the 2006 Act or the 2011 Regulations. Hence the designated officer invoking his powers under the Act to collect the sample and obtain the report did not have the power to do so, the petitioner argued. The 2011 regulation despite recent amendments, does not include drinking water derived from well and only applies to drinking water purified through a machine, it was submitted.

Advocate Chithra P George and Advocate Justin Jacob representing the respondents argued that even though the kind of drinking water envisaged under the 2011 Regulations are Mineral water, Packaged Drinking water and Drinking water (purified), well water could be considered a Proprietary Food under Regulation 2.12.1 or a Non Alocoholic Beverage under Regulation 2.10.6 of the Regulation.

It was also argued by the respondents that as per Section 2(1)(o) of the 2006 Act a food business operator is a person carrying on a business and is responsible for complying with the provisions of the Act, rules and regulations. Section 26 (Responsibilities of the food business operator) of the Act, puts the responsibility of food safety on a food business operator to ensure that the provisions of the Act are adhered to at all stages of production, processing, import, distribution and sale. It also requires the food business operator to not manufacture, store, sell or distribute any food article, water in this case, that is unsafe, misbranded, substandard or contains extraneous matter.

The court refused to interfere with the orders challenged by the petitioner and held that even though well water has not been described in the Regulations, the provisions of food operator as defined under Section 2(o) and Section 26 of the 2006 Act cannot be ignored.

“I am of the prima facie view that in the absence of the definition of water drawn from well, the petitioners cannot be permitted to urge this Court for issuing a mandate to the respondent not to take action under Regulation 2.10.9. Though it may not specifically be dealing with the water drawn from well as it only provides to dispensation but the fact remains the sum and substance is water meant for drinking. “

Also Read: Persons Extracting Groundwater For Consumer Supply Are Bound To Obtain Statutory Registration: Kerala High Court

Case Title: Hisham Transports V Food Safety Standards Authority Of India

Citation: 2023 LiveLaw (Ker) 166

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