AI Structured Summary
Not yet generated for this judgment
Judgment
P.N. Deshmukh, J.—Petitioners have approached this court by invoking extraordinary jurisdiction of this court under Article 226 of the Constitution of India alleging that the action of respondent No. 2 of collecting sample and seizure of goods has caused undue harassment to the petitioners and as such are being prejudiced by the approach of the respondent department in sampling and seizing the product manufactured by the petitioners, on the ground that product does not conform to the standard of "tea" as specified in item A-14 of Schedule-B of Prevention of Food Adulteration Rules, 1955 (hereinafter referred as PFA Rules) and by not treating the product as a Proprietary food product inspite of petitioners'' declaration to that effect in clear and unambiguous terms. Accordingly petitioner has prayed as follows-
"(A) Direct the respondents to recognize the produce "NEW Lipton TIGER" as proprietary food falling under Rule 37-A of Prevention of Food Adulteration Rules 1955 and further be pleased to restrain the respondents from wrongfully classifying the said produce as " Tea " falling under Item A-14 of Schedule B to the Prevention of Food Adulteration Rules.
(B) OR Direct the respondents not to take any action against the petitioners on the ground that the produce in question does not conform to the standards of "pure tea" as specified in Item A-14 of Schedule B of Prevention of Food Adulteration Rules."
By way of interim order dated 11.10.1999 passed by this court, directions are issued to respondents to treat the food product involved in the petition as proprietary food product falling under Rule 37-A read with Rule 43(2) of PFA Rules.
Learned senior counsel Shri Sunil Manohar has contended that petitioner No. 1 is a company duly registered under the Companies Act, 1956 having registered office at 165/166 Backbay Reclamation, Mumbai and is engaged in manufacture, distribution and sale of fast moving consumer items including food products which are manufactured in due compliance with the standard prescribed under the Appendix to the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the Act). It is also submitted that the petitioners also inter alia manufacture and sale for the past many years various tea products as specified under item A-14 to Appendix B of the PFA Rules.
It is contended that the company carries out researches for the purpose of innovating its products with a view to successfully developing and launching a wide variety of new food products keeping in mind the needs, preferences and demands of the consumers and as such since 1997 had launched new food product under the brand name " New Lipton Tiger" containing an admixture of tea, jaggery, tapioca and chicory having declaration in the form of label that the product is sold as a proprietary food as an admixture of tea, Jaggery, Tapioca and Chicory. In the background of above facts, learned counsel for petitioners further submitted that on 25.6.1999 Food Inspector for the local area of Nagpur visited factory site of petitioners and in compliance to service of Form VI to the petitioners'' agent obtained sampling of the product " Popular Tea Mixture". Said officer also served upon the petitioners'' agent notice in Form IV thereby directing the agent to retain in custody the available stock of the product until further direction. Similar action was also carried out at the petitioners'' factory located at Kanhan on 28.6.1999 and goods worth Rs. 16.8 lacs came to be seized.
It is further submitted that in view of above action carried out by the respondents department, petitioners addressed a letter dated 5.7.1999 to the respondents placing on record nature of product as a proprietary food product informing that the product manufactured and sold by the petitioners was a proprietary food as defined under the provisions of Rule 37-A (2)(b) of the PFA Rules, since the said product has not been standardized under the Act or the Rules framed thereunder. It was therefore requested to test the product as a proprietary food and not to test the same under any of the prescribed standard in Appendix "B" to the Rules.
It is the case of petitioners that after collecting samples as aforesaid nothing was intimated to petitioners till 19.8.1999 when petitioners were served with an application/complaint under section 11(4) of the Act filed by the Food Inspector, Nagpur, in the Court of Judicial Magistrate, First Class, Nagpur.
According to the learned Senior Counsel Shri Sunil Manohar for the petitioners, Public Analyst Report demonstrates that the product was examined as "tea" and not as "proprietary food product" which is clearly contrary to the declaration which is in clear terms made by the petitioners on the label of the product that the product is a proprietary food product being an admixture of tea, jaggery, tapioca and chicory and thus the Public Analyst observed that the sample received for testing was containing Sucrose, Tapioca and Chicory and as such does not conform to the standards of "tea" as per Item No. A-14 Schedule B of the Act. It is also the case of petitioners that the team of respondents department in Maharashtra has visited various locations of petitioners and had collected samples and seized proprietary food product being an admixture of tea, jaggery, tapioca and chicory from petitioners various locations at Akola, Akot, Kolhapur, Parbhani, Latur, Aurangabad, Dhule, Udgir, Nilanga and Nanded during the period from 1.7.1999 to 27.9.1999.
In the background of above facts and apprehending that the respondents department would carry out sampling and forward said product to the Public Analyst for being tested as "tea" though the said product is not "tea", has approached this court by invoking extraordinary writ jurisdiction under Article 226 of the Constitution of India and has prayed as aforesaid.
Heard learned Additional Govt. Pleader. Admittedly no reply is filed by department, nor during the course of hearing learned AGP could point out that the sale of admixture is prohibited in any manner. Having considering the submissions advanced as above, we have considered the definition of "tea" as specified under item A-14 Appendix B of PFA Rules as well as of proprietary food as per Rule 37-A and Rule 43 of Rules.
With reference to the issue involved in the present petition and on bare perusal of Rule 37-A, it is apparent that the Act and Rules clearly recognize and defines "proprietary food" as food which has not been standardized under the Rules. Similarly, Rule 43(2) of the said Rules recognizes that mixture of articles of food which is called "admixture" is duly recognized under the Act as well as Rules and is permissible provided the manufacturer gives the requisite declaration by way of label as required under Rule 43(2).
Subsection 2(B) of Rule 37-A deals with the manufacture of proprietary food and defines proprietary food product as a food which has not been standardized under Rules of 1955. Considering the case of petitioners we thus find that the product in question is a ''popular tea mixture'' having label in compliance to Rule 43 of Rules having clear declaration as under -
"This Popular Tea Mixture contains an admixture of not less than 70% Tea and not more than 30% Jaggery/Tapioca/Chicory
The label further clearly declares that it is a proprietary food being a popular tea mixture with Sucrose contents. The ingredients are also stated as under:
Ingredients:
Tea, Jaggery, Tapioca and Chicory."
In that view of the matter, we are of the view that the product in question is clearly a proprietary food and petitioners are entitled to manufacture and sale such proprietary food product within the meaning and scope of Rule 37-A and 43(2) of the Act. Consequently, we find that the action on the part of respondents in not treating the said product as proprietary food but classifying it as the product "tea" is clearly contrary to the provisions of the Act and Rules as the product is neither ''tea'' nor sold as ''tea''.
Learned counsel for the petitioners in support of the present petition has referred to the decision in the case reported at R.M. Kalia and Another Vs. Union of India and Another, . Facts in this case are similar to the petition in hand which are -
"The Public Analyst examined a sample of ''Flavoured Cornflour'' as Cornflour simpliciter. This was because the Food Inspector did not send the printed colour cartons with the food stuff. The Public Analyst, who was examined stated in cross-examination that he had examined the sample according to the standard laid down in rules for Cornflour at A.18.08 which prescribed that Cornflour should contain no colour, flavour or other chemicals. He however, made two prominent and significant admissions which were (a) that no standard has been prescribed by Rules for Flavoured Cornflour, and (b) that he would not have declared the sample adulterated if the cartons had come to him along with the sample. The reason given by him was that the ingredients were printed on cartons and the sample was found by him containing the same ingredients."
And in the background of above facts and the relevant Act and Rules it is held as follows -
"Keeping in view the facts of the case in their entirety, I am of the opinion that the petitioner has fallen a victim to the most casual and mechanical functioning of the Food Inspector. One is intrigued to find as to why the Food Inspector did not consider it necessary to send the cartons to Public Analyst or at least to describe the ingredients that the article of food consisted of and represented on the cartons. Had that been done, the Public Analyst should certainly have said that he is unable to examine it as no standard is prescribed. Had that been done, both the State and the petitioner should have been saved of useless waste of time and expense."
Perusal of label at Annexure-A would establish that it complies with the Rule 43(2) and as such petitioners cannot be prevented from manufacturing and selling proprietary food product inasmuch as the Act and Rules itself recognize the proprietary food and the fact that upon declaration being made in pursuance to Section 43(2), it is permissible for manufacture and sale of admixture. In that view of the matter, we find that respondents are fully unjustified in classifying the product in question as "tea" falling under Item A-14 of Schedule B of the Act.
We have already noted, nothing could be placed on record on behalf of the respondents to establish that sale of admixture is prohibited. On the contrary, we find that petitioners had never treated product in question as "pure tea" but had clearly on its label declared that the produce is a " popular tea mixture" and also by clarifying the ingredients therein, conforming to the prescribed standard under the Act. There is no challenge to the case of petitioners by respondents that 70% of the tea in the admixture fully complies with the standard of tea in Item A-14 of Appendix B and that the chicory in the mixture conforms with the standard of chicory under item A.08.02 of Appendix B and also that jaggery conforms to the standard of jaggery as laid down in Appendix B of the Rules. Admittedly, there is no prescribed standard for Tapioca. However, the tapioca in the admixture conforms to the standard of "starchy food" falling under A.03.02 of schedule B.
In that view of the matter, we hold that all the items used for the admixture conform to the prescribed standard and thus hold that the action taken by the officer of the respondent department is grossly incorrect in concluding the food product not as a ''popular tea mixture'' but as ''pure tea'' contrary to the declaration made by the petitioners under Rule 43(2) of the Rules.
In the result, the petition is allowed. The proprietary food sold by the petitioners could not have been examined by applying standards falling under Item A-14 of appendix B to the Prevention of Food Adulteration Rules, 1955. With the result, no action, criminal or otherwise, can be taken against the petitioners on the basis of said report at Annexure- E. The said report at Annexure E is quashed and set aside.
Rule is made absolute.
In the circumstances, no order as to costs.