Sainath Traders vs Commissioner of Food and Drug Administration

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2005 Supreme(Bom) 1782

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
Deshpande A.P. & Kukday S.P., JJ.
Sainath Traders & Anr. - Petitioners.
Versus
Commissioner of Food and Drug Administration & others - Respondents.
Writ Petitioner No. 6708 of 2005
Decided on 5/20-12-2005.
Advocates appeared:
V.J. Dixit, for petitioners.
U.K. Patil, A.G.P., for respondent Nos. 1 to 14.

Headnote:Prevention of Food Adulteration Rules, 1955 - Rule 3 - Prevention of Food Adulteration Act, 1954, Sections 24 and 2(4) - Constitution of India, Articles 226 and 19(1)(g) - Prohibition on storage, use and sale of tobacco products - Contention - Concerned authority had no jurisdiction to pass such order - Provisions under PFA Act/Rules and of Supply and Distribution Act are in direct conflict with each other - Order preventing use of tobacco set aside. - As the Prevention of Food Adulteration Act is general enactment, the orders passed by the authority concerned are prima facie wholly without jurisdiction. It may not be out of place to point out that Section 3(p) of the Act of 2003 defines the expression ’tobacco products" as the products specified in the schedule. Entry 8 of the Schedule covers Pan Masala or any chewing material having tobacco as one of its ingredients (by whatever name called), where entry 9 covers "Gutka". The tobacco products are, as such, regulated by Act No. 34 of 2003 and the said products cannot be regulated by the Prevention of Food Adulteration Act. In the referred judgment, the Apex Court has answered all the issues dealing with the subject and the same goes in favour of the petitioners herein. The State Government or Food (Health) Authority has a limited power contained in Rule 3 of the Maharashtra Prevention of Food Adulteration Rules, 1962 and the same does not vest the authority to ban or restrict the sale and distribution of tobacco products except in case of an emergent situation, such as, outbreak of an epidemic or likewise. It is interesting to read the order dated 8.2.2005 which says that unless the Central Government/State Government determines the standards of goods as per provisions of Section 3 of Prevention of Food Adulteration Act, in respect of production and sale of Gutka and similar such other goods, no licence should be issued under the Prevention of Food Adulteration Act. A further direction is issued to cancel the licences or suspend the same. The impugned order dated 8th February 2005 totally prevents the sale of Gutka, Pan Masala or other similar products and the same has been held to be impermissible, without authority or jurisdiction by the above referred judgment of the Apex Court.

Per DESHPANDE A.P., J.: - The instant petition challenges four orders issued by the Commissioner, Food and Drugs administration and Food (Health) Authority. Maharashtra State. Mumbai dated 2-11- 2004, 29-12005, 31-1-2005 and 8-2-2005. The challenge is based on the judgment of the Apex Court in the case of (Godawat Pan Masala Products J.P. Ltd. and another. v. Union of India and others)1, 2005(1) Bom.C.R. (S.C.)194 : 2004(2) F.A.C. 33.

2. Learned Counsel for the petitioners has assailed the orders on the following grounds:

(a) That, the orders issued by the Food (Health) Authority of the Maharastra State purportedly in exercise of powers under Rule 3 of the Maharastra Prevention of Food Adulteration Rules, 1962, are without jurisdiction. The Authority has no power to prohibit sale, storage or distribution.

(b) That, tobacco and tobacco products cannot be regulated by the provisions of the Food Adulteration Act, 1954, and the same has to be regulated by cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003.

(c) That, the impugned orders are in violation of the petitioners fundamental right guaranteed by Article 19(1) and Article 14 of the Constitution of India.

(d) That, the authority has not acted justly and fairly and has acted in breach of principles of natural justice.

3. Learned Counsel for the petitioners has invited our attention to the judgment of the Apex Court in the case of Godawat Pan Masala products I.P. Ltd. (supra) and to be precise, to 1e conclusion recorded in paragraph 76 of the judgment. We reproduce the same:

1. Section 7(iv) of the Act is not an independent source of power for the State Authority:

2. The source of power of the State Food (Health) Authority is located only in the valid rules made in exercise of the power under section 24 of the Act by the State Government to the extent permitted there-under.

3. The power of the Food (Health) Authority under the rules is only of transitory nature and intended to deal with local emergencies and can last only for short period while such emergency lasts;

4 The power of banning an article of food or an article used as ingredient of food, on the ground that it is injurious to health, belongs appropriately to the Central Government to be exercised in accordance with the Rules made under section 23 of the Act particularly, sub-section (l-A)(t).

5. The State Food (Health) Authority has no power to prohibit the manufacture for sale storage, sale or distribution of any article, whether used as an article or adjust thereto or not used as an food. Such a power can only arises as a result of wider policy decision and emanate from Parliamentary legislation or, at least, by exercise of the powers by the Central Government by framing rules under section 23 of the Act:

6. The provisions of the cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Distribution Commerce, Production, Supply) Act, 2003, are directly in conflict with the provisions of section 7(iv) of the Prevention of Food Adulteration) Act, 1954. The former Act is a special Act intended to deal with tobacco and tobacco products particularly, while the latter enactment is a general enactment. Thus, the Act 34 of 2003 being a special Act, and of later origin, overrides the provisions of section 7(iv) of the Prevention of Food Adulteration Act, 1954 with regard to the power to prohibit the sale or manufacture of tobacco products which are listed in the schedule to the Act 34 of 2003:

7. The impugned notification are ultra vires the Act and, hence, bad in law:

8. The impugned notification are unconstitutional and void as abridging the fundamental rights of the appellants guaranteed under Articles 14 and 19 of the Constitution.

It is thus clear that the power of the Food (Health) Authority under the rules is only of transitory nature and intended to deal with local emergencies and can last only

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