Firdouse International Trading Co. vs Commissioner of Cus., Cochin

A. Muhamed Mustaque, J.—The short question in this writ petition is whether the goods imported are required to satisfy the standards those prescribed in Regulations framed under the FSS Act at the time of import or at the time of release.

The petitioner imported betel nuts through Cochin Port. On 24-4-2015, the 2nd respondent, an Authorised Officer under the Food Safety and Standards Authority of India refused to issue NOC on the ground that the betel nuts did not satisfy the standards for dry fruits and nuts. The action of the 2nd respondent was challenged in W.P. (C) No. 15407/2015. This Court disposed the writ petition on 15-9-2015 directing as follows :

"(1) That betel nut is a primary food which requires to be tested and approved by the FSSA in terms of the Contaminants Regulations, 2011.

(2) That the betel nuts imported by the petitioners, if it complies with the standards fixed for aflatoxin in the Contaminants Regulations, 2011, shall be released to them and it does not prescribe the standards, it shall be open for the FSSA to issue appropriate directions in that regard."

The only issue now remains in this writ petition as to the satisfaction of the standards fixed for aflatoxin in the Contaminants Regulations, 2011 [Regulation No. 2.2.1(1)].

The consignments have been rejected as per Exts. P5 and P6 stating as follows :

"1. That the goods do not comply with the standards laid down under Sl. 2.3.47(5) of Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011, and

That the total Aflatoxin presence in the case of Exhibit P3 consignment was 16 �g/kg and in the case of Exhibit P4, it was 17 �g/kg as against the revised standard of 15 �g/kg."

The learned counsel for the petitioner would argue at the time of import, the prescribed standard for betel nuts on aflatoxin is 30 �g/kg and subsequent change in the standard brought as per notification dated 4-11-2015 cannot govern the import of consignments. By subsequent notification, Union Government fixed the limit of aflautoxin at 15 �g/kg. The petitioner�s consignments are having limit of 16 �g/kg and 17 �g/kg. Therefore, the petitioner is entitled for release.

To answer the question, whether the standards prescribed in the notification at the time of release of the consignment would govern at the time of import, this Court has to consider the nature of right conferred on the petitioner for import and the object of the food safety measures. It is pertinent to refer the judgment of the Hon�ble Supreme Court in Centre for Public Interest Litigation v. Union of India [2014 (2) KLT Suppl. 52 (SC)].

"21. We may emphasise that any food article which is hazardous or injurious to public health is a potential danger to the fundamental right to life guaranteed under Article 21 of the Constitution of India. A paramount duty is cast on the States and its authorities to achieve an appropriate level of protection to human life and health which is a fundamental right guaranteed to the citizens under Article 21 read with Article 47 of the Constitution of India.

We are, therefore, of the view that the provisions of the FSS Act and PFA Act and the rules and regulations framed thereunder have to be interpreted and applied in the light of the Constitutional Principles, discussed above and endeavour has to be made to achieve an appropriate level of protection of human life and health. Considerable responsibility is cast on the Authorities as well as the other officers functioning under the above mentioned Acts to achieve the desired results. Authorities are also obliged to maintain a system of control and other activities as appropriate to the circumstances, including public communication on food safety and risk, food safety surveillance and other monitoring activities covering all stages of food business.

Enjoyment of life and its attainment, including right to life and human dignity encompasses, within its ambit availability of articles of food, without insecticides or pesticides residues, veterinary drugs residues, antibiotic residues, solvent residues, etc. But the fact remains, many of the food articles like rice, vegetables, meat, fish, milk, fruits available in the market contain insecticides or pesticides residues, beyond the tolerable limits, causing serious health hazards. We notice, fruit based soft drinks available in various fruit stalls, contain such pesticides residues in alarming proportion, but no attention is made to examine its contents. Children and infants are uniquely susceptible to the effects of pesticides because of their physiological immaturity and greater exposure to soft drinks, fruit based or otherwise."

The petitioner�s right to import is always subject to the policy of India. The importers have no right to import any food articles which is hazardous or injurious to the public health. The regulatory mechanism and the standards under the FSS Act are to ensure and protect the public from possible health hazards and risks and not intended to confer any right on the importer or the distributor or the manufacturer of the product. Therefore, the standards under the Food Safety Act will have to be looked into from the stand point of view of the general public.

The legitimate expectation of the importer would always subject to the policy change of the State. If the law is changed as on the date of release, the importer is bound by the law on the date of release as already adverted above. The standards are prescribed for protecting the public. Therefore, the date of release is relevant not the date of import for the purpose of reckoning standards.

In Howrah Municipal Corporation and others v. Ganges Rope Co. Ltd. and others [(2004) 1 SCC 663], it was held by the Hon�ble Supreme Court as follows :

"37. ���. The claim based on the alleged "vested right" or "settled expectation" cannot be set up against statutory provisions which were brought into force by the State Government by amending the Building Rules and not by the Corporation against whom such "vested right" or "settled expectation" is being sought to be enforced. The "vested right" or "settled expectation" has been nullified not only by the Corporation but also by the State by amending the Building Rules. Besides this, such a "settled expectation" or the so-called "vested right" cannot be countenanced against public interest and convenience which are sought to be served by amendment of the Building Rules and the resolution of the Corporation issued thereupon."

The judgment of the Hon�ble Supreme Court cited by the learned counsel for the petitioner in Dayal Singh v. State of Rajasthan [2004 (2) KLT SN 98] has no relevance here as the same is dealing with the issue on penal provisions in Prevention of Food Adulteration Act. Certainly, the prosecution for any offence, governing law is the law at the time of commission of the offence.

In that view of the matter, I do not find any merit in this writ petition. Accordingly, the writ petition is dismissed.