SHORT NOTE
BOMBAY HIGH COURT
Mohit S. Shah and N.M. Jamdar JJ
M/s. Dhariwal Industries Limited and
another —Petitioners
versus
State of Maharashtra and Ors. —Respondents
Writ Petition Nos. 1631 to 1635 of 2012 with Petition Nos. 7592 and 8800 of 2012
Decided on 15.9.2012

IMPORTANT POINT
Nature of business is an important element in deciding reasonableness of restrictions. Right of every citizen to pursue any lawful trade or business is subject to such reasonable conditions as may be deemed by governing authority of country essential to safety, health, peace, order and morals of community.

Headnote:(A) Food Safety and Standards Act, 2006—Section 30(2)(a)—Regulation 2.3.4 of Food Safety and Standards (Prohibition & Restrictions on Sales) Regulations, 2011 read with Regulation 3.1.7 of Food Safety and Standards (Food Products Standards & Food Additives) Regulations, 2011—Public health—Ban on manufacture, storage, distribution or sale of Gutkha or Pan-Masala—Even if gutka or pan Masala were not to be ingested inside digestive system, any substance which goes into mouth for human consumption is sufficient to be covered by definition of food which is in the widest possible terms—Very fact that petitioners themselves had obtained licences under PFA Act and have also obtained licences under Food Safety Act, 2006 is sufficient to estop them from raising contention that gutka and pan Masala do. not fall within definition of “food” under Food Safety Act, 2006.

       Held: While the definition in the 1954 Act excluded drugs and water, the definition in the Food Safety Act, 2006 excludes animal feed; live animals, plants prior to harvesting, drugs and medicinal products, cosmetic, narcotic and psychotropic substance. Obviously, gutka and pan masala do not fall in any of these excluded categories. The expression “any substance which is intended for human consumption” in FSS Act 2006 is also wider than the expression “any article used as food or drink for human consumption” in PFA Act, 1954. It is also pertinent to note that the definition of food in the Act of 2006 specifically includes “chewing gum” and any substance used into the food during its manufacture, preparation or treatment. Hence, even if gutka or pan masala were not to be ingested inside the digestive system, any substance which goes into the mouth for human consumption is sufficient to be covered by definition of food just as chewing gum may be kept in the mouth for some time and thereafter thrown out. Similarly gutka containing tobacco may be chewed for some time and then thrown out. Even if it does not enter into the digestive system, it would be covered by the definition of “food” which is in the widest possible terms. The definition of “food” under Section 2(v) of the PFA Act was narrower than the definition of food under Food Safety Act, still the Supreme Court in Ghodawat case held that pan masala and gutka were “food” within the meaning of PFA Act. The very fact that the petitioners themselves had obtained licences under the PFA Act and have also obtained licences under the Food Safety Act, 2006 is sufficient to estop them from raising the contention that gutka and pan masala do. not fall within the definition of “food” under the Food Safety Act, 2006.

       (B) Food Safety and Standards Act, 2006—Section 30(2)(a)—Regulation 2.3.4 of Food Safety and Standards (Prohibition & Restrictions on Sales) Regulations, 2011 read with Regulation 3.1.7 of Food Safety and Standards (Food Products Standards & Food Additives) Regulations, 2011—Public health—Ban on manufacture, storage, distribution or sale of Gutkha or Pan-Masala—If possibility of harmful effects on health is identified but scientific uncertainty persists, provisional risk management measures necessary to ensure appropriate level of health may be adopted—In cases where there are reasonable grounds to suspect that a food may present a risk for human health, Food Authority and Commissioner of Food Supply shall inform general public about food, risk to health and measures being taken to prevent or eliminate that risk—Authorities entrusted with duty of implementing Food Safety Act, 2006 are not merely to perform negative duty of preventing food adulteration, but are required to play very pro-active role for ensuring safe and wholesome food and to prevent and eliminate risk to health caused by unsafe food—Food Safety and Standards Act, 2006 is comprehensive single special legislation for all food products on subject of safety and standards.

       Held: Section 16 of the Food Safety Act, 2006 providing for duties and functions of the Food Safety and Standard Authority of India clearly provides in sub-section (1) .that it shall be the duty of the Food Authority to regulate and monitor the manufacture, processing, distribution, sale and import of food so as to ensure safe and wholesome food.

       The detailed duties and functions of the Food Authority in sub-section (2) of Section 16 are without prejudice to the provisions of sub-section (1), Clause (a) of sub-section (2) thereafter confers power upon the Food Authority to specify the standards and guidelines in relation to articles of food and the limits for use of food additives. Chapter III of the Act contains general principles of food safety and requires the Central Government, the State Government, the Food Authority and other agencies implementing the provisions of the Act to be guided by the principles laid down in Chapter III. These provisions require all the above authorities which include the other agencies implementing the provisions of the Act to identify the possibility of harmful effects on health on the basis of assessment of available information.

       If the possibility of harmful effects on health is identified but scientific uncertainty persists, provisional risk management measures necessary to ensure appropriate level of health may be adopted. In cases where there are reasonable grounds to suspect that a food may present a risk for human health, the Food Authority and the Commissioner of Food Supply shall inform the general public about the food, risk to health and measures being taken to prevent or eliminate that risk. Section 18(2)(a) also requires that the Food Authority shall, while framing regulations and specifying standards under the Act, ensure prevention of unsafe or contaminated or sub-standard food. It is, thus, clear that the authorities entrusted with the duty of implementing the Food Safety Act, 2006 are not merely to perform the negative duty of preventing food adulteration, but are required to play a very pro-active role for ensuring safe and wholesome food and to prevent and eliminate risk to health caused by unsafe food. It is, therefore, clear that Food Safety and Standards Act, 2006 is the comprehensive single special legislation for all food products on the subject of safety and standards.

       (C) Food Safety and Standards Act, 2006—Section 30(2)(a)—Regulation 2.3.4 of Food Safety and Standards (Prohibition & Restrictions on Sales) Regulations, 2011 read with Regulation 3.1.7 of Food Safety and Standards (Food Products Standards & Food Additives) Regulations, 2011—Public health—Ban on manufacture, storage, distribution or sale of Gutkha or Pan-Masala—It is for food business operators which would include petitioners manufacturing gutka and pan Masala to ensure that they do not manufacture any article or food which is unsafe—Parliament does not require manufacturers like petitioners to wait for any declaration to be made by Food Authority or Central Government or State Government to declare any food as injurious to health or unsafe—It is statutory duty of manufacturers to ensure that they do not manufacture any article of food which is unsafe—Question of Food Safety Commissioner following principles of natural justice before issuing such order under Section 30(2)(a) does not arise.

       Held: Since we have already held that the definition of “food” in the Food Safety Act is wide enough to include gutka and pan masala, it is obvious that the above regulations also apply to gutka and pan masala. Apart from, and even before, conferring powers of enforcement on the authorities under the Act in Chapter VII, Parliament has in Chapter VI of the Act cast special responsibilities as to food safety on the food business operators, manufacturers, workers, distributors and sellers. Food business operator is defined by Section 3(o) as a person by whom food business is carried on or owned and is responsible for ensuring the compliance. Food business is defined as any undertaking carrying out any of the activities related to any stage of manufacture, processing, packaging, storage, transportation, distribution of food. Section 26(1) provides that every food business operator shall ensure that the articles of food satisfy the requirements of the Act and the rules and regulations made thereunder at all stages of production etc. within the businesses under his control. The Parliament has not stopped at requiring the food business operator to comply with the legal requirements in such general terms alone. Clause (i) of sub-section (2) further casts a duty on the food business.

       So also we do not find substance in Mr. Seervai’s contention that legislative power has not been conferred on any authority, other than the Central Government (Section 91), Food Authority (Section 92) and State Government (section 94). Merely because the Food Safety Commissioner’s order is not required to be laid before Parliament or State Legislature, it does not mean that Parliament did not require the Food Safety Commissioner exercise any quasi legislative power. As already discussed earlier, the obligation of food business operator under Section 26(2)(i) not to manufacture or sale any food which is unsafe, without any declaration by the Central Government, Food Authority or the State Government under Section 26(2)(iv), would be meaningless, if the Food Safety Commissioner does not have any power to issue a quasi legistative order under Section 30(2)(a) of the Food Safety Act, 2006. Hence, the question of the Food Safety Commissioner following the principles of natural justice before issuing such order under Section 30(2)(a) does not arise.

       (D) Constitution of India—Articles 19(1)(g). 301 and 304—Right to trade and business—When State authority has passed a statutory order which requires subordinate authorities to implement statutory regulations made by Food Authority of India and when Food Safety Commissioner in exercise of powers conferred upon him by Parliament issues an order which has effect of directing his subordinates to implement statutory regulations made by Food Authority of India in exercise of powers conferred by Parliament in same enactment and as a result petitioners manufacturing pan Masala or gutka in violation of statutory regulations are prohibited from manufacturing, storing, distributing or selling gutka or pan Masala within State of Maharashtra, it cannot be said that any restriction is imposed on free flow of trade, commerce and intercourse within territory of India which is not authorised by Parliament—When action based on experts’ reports is taken by a delegate of Parliament, it should not in normal course, be disturbed.

       Held: The Supreme Court has thus, clearly held that Articles 301 to 304 are enacted to remove economic barriers on the free flow of trade, commerce and intercourse within the territory of India. Hence, the said provisions can be invoked only when a State Legislation or the exercise of State Government creates economic barriers which impede the free flow of trade and commerce and intercourse. When the State authorlty has passed a statutory order which requires the subordinate authorities to implement the statutory regulations made by the Food Authority of India and when the Food Safety Commissioner in exercise of the powers conferred upon him by Parliament issues an order which has the effect of directing his subordinates to implement statutory regulations made by the Food Authority of India in exercise of powers conferred by the Parliament in the same enactment, (which Regulations were laid before each House of Parliament and no modification was made by Parliament) and as a result the petitioners manufacturing pan masala or gutka in violation of the said statutory regulations are prohibited from manufacturing, storing, distributing or selling gutka or pan masala within the State of Maharashtra, it cannot be said that any restriction is imposed on the free flow of trade, commerce and intercourse within the territory of India, which is not authorised by Parliament.

       We, therefore, find considerable substance in the submission made by the learned Advocate General and the learned Additional Solicitor General that when action based on experts’ reports is taken by a delegate of Parliament, it should not in the normal course, be disturbed.