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2010 Supreme(Bom) 1770
High Court of Judicature at Bombay
THE HONOURABLE CHIEF JUSTICE MR. MOHIT S. SHAH & THE HONOURABLE DR. JUSTICE D.Y. CHANDRACHUD
PepsiCo India Holdings Limited
Versus
State of Maharashtra, through the Secretary, Food and Drug Administration, Consumer Protection Department & Another
WRIT PETITION NO.3998 OF 2010
Decided on : 23-12-2010
For the Petitioner:Janak Dwarkadas, Senior Advocate with Rajeev V. Talasikar, Advocate.
For the Respondents: R1 & R2, S.N. Patil, Assistant Government Pleader.
Headnote:Prevention of Food Adulteration Act, 1954 - Section 16-Maharashtra Prevention of Food Adulteration Rules, 1962, Rule 5-Suspension of licence-Appeal against-Appellate authority required to examine and hold whether additional material produced before appellate authority credible and deserves to be accepted-However, appellate authority cannot refuse to consider additional material placed by licensee before appellate authority only on ground that it was not placed before licensing authority.-The appellate authority is not required to confine its attention to the material which was placed before the licensing authority. The appellate authority is bound to consider the material placed before the appellate authority. Of course, it is for the appellate authority to examine and hold whether the additional material produced before the appellate authority is credible and deserves to be accepted. However, the appellate authority cannot refuse to consider the additional material placed by the licensee before the appellate authority merely on the ground that it was not placed before the licensing authority. Of course, the fact that some material is produced by the licensee before the inspecting officer as soon as show cause notice is issued, will certainly carry much greater weightage so also the material which may be placed by the licensee at the hearing before the licensing officer will also carry much greater weightage than the material which the licensee may seek to produce before the appellate authority. But it is not that the material which may be placed before the appellate authority should not at all be considered by the appellate authority.
Prevention of Food Adulteration Act, 1954 - Section 16-Prevention of Food Adulteration Rules, 1955, Rules 32, Explanation VII(1), 50-Maharashtra Prevention of Food Adulteration Rules, 1962, Rule 5-Expiry of "best before" period-Not means that beyond that date, food can never be satisfactory-Licence issued under Rules 32 and 50 of Rules, 1955 read with Rule 5 of Rules, 1962-Burden of show that beyond "best before" period food is satisfactory lies on licensee, manufacturer.-Court is of the view that while in a criminal proceeding which may entail the sentence of imprisonment, the burden would be on the authority to show that beyond the "best before" period, the food was unsatisfactory and that can be done only by getting their food samples tested in the Central Food Laboratory, Court sees no reason why the manufacturer of the Potato Chips or any other final product should be permitted to use the raw material/s beyond their "best before" date without getting raw materials tested to ensure that they are satisfactory. It could never have been the intention of the Legislature or Rule making authority that the manufacturer of the final product could use the raw materials beyond their "best before" date without getting raw materials tested to see that they are satisfactory. It is nobody’s case, not even the petitioner’s case that the manufacturer has a right to manufacture the final product by using raw materials which are unsatisfactory. Hence, for the purpose of complying with the conditions of license issued under Rule 50 of the PFA Rules, 1955 read with Rule 5 of the Maharashtra Prevention of Food Adulteration Rules, 1962 in conjunction with Rule 32 of the PFA Rules, 1955, it is only the manufacturer who has to be fastened with the responsibility of ensuring that the raw materials are satisfactory at the time of making the final product.
Chief Justice, J.
What is challenged in this petition under Article 226 of the Constitution of India is the order dated 17 April 2010 of the Food (Health) Officer & Commissioner, Food & Drug Administration (Maharashtra State), Mumbai, dismissing Appeal No.14/2009 and confirming the order dated 11 June 2009 of the Licensing Officer & Officer (Food) Food & Drug Administration, Pune, suspending the license of the petitioner-factory for a period of two days. The license was issued under Rule 5 of the Maharashtra Prevention of Food Adulteration Rules, 1962. During pendency of this writ petition, the said orders of the authorities were stayed.
2. By consent of the parties, petition was taken up for final disposal.
3. The facts leading to filing of this writ petition, briefly stated, are as under:
One complaint was received by the office of Food Inspector, Pune on 7 October 2008 regarding infection of larves in “oats Break Fast special” manufactured by the petitioner. The Food Inspector, Pune inspected the petitioner-factory on 8 October 2008 and 12 May 2009. On the basis of inspection reports of the above dates, the Licensing Authority, Pune sent a show cause notice to the petitioner on 15 May 2009 at Exhibit `B'. The petitioner submitted its explanation dated 1 June 2009 at Exhibit `C'. By order dated 11 June 2009 at Exhibit `D', the Licensing Officer suspended the petitioner’s license for two days.
4. For the sake of convenience, we have given the allegations in the show-cause notice, the explanation in the reply and finding given by the Licensing Officer item wise.
5. Allegation -A : Use of raw materials beyond "Best Before" date: Spinach powder Manufacturer-Sensienf Production date 14.08.08, Best buy –Feb.2009, stock 52 nos. The said food product is stored for production even after expiry of Best buy date. It was observed that you have used for production the raw food items which are out of date. You have not confirmed by taking test of said food items whether it is proper to eat out of date food product. Hence you have violated Rule 32(i) of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as “PFA Rules, 1955) Besan – Manu. Rajdhani Flour Mill Ltd., Delhi, 35 Kg. Packing Mfg. Date : 03.03.09, Best before 60 days, Stock 77 nos. It is observed that this out of date raw food item is used for production by you. You have not confirmed by taking test of said food item whether it is proper to eat such out of date food product or how. Hence you have violated Rule 32(i) of PFA Rules, 1955.
Out of date stock of food item like (i) Kesar flavour (ii) Strawberry flavour was observed at the time of inspection on 8.10.2008.
Explanation : For materials Spinach powder and Besan, the suppliers have specified shelf life as 6 months and 3 months respectively. On the basis of the nature of the product and processing, the R&D department which technically controls quality of the product, has defined the shelf life as 1 year and 4 months respectively. Hence as recommended by you, in future usage, validation for best before date materials will be validated by respective suppliers only and we have already started the process. In addition we are in the process of having single shelf life as recommended by suppliers in our internal system.
The supplier validated shelf life for best before materials certificate was also furnished with the reply.
Finding given by the Licensing Officer : It has been observed that Spinach powder manufactured by Sensient with manufacturing date 14.08.08 and “Best Before by Feb 09” has been used for manufacturing. You have not done any testing to find out whether it is good for consumption. Because of that you have violated Rule 32(i) under the PFA Rules, 1955.
It has been observed as regards material Besan, manufacturer, Rajdhani Flour Mills Ltd., Delhi, product date 03.03.09 “Best Before 60 days”, that the said raw material has been used by you even after the expiry date. You have not carr
