SHORT NOTE
BOMBAY HIGH COURT
V. M. Kanade and B. P. Colabawalla, JJ.
M/s Nestle India Limited —Petitioner
versus
The Food Safety and Standards Authority of India & Ors. —Respondents
Writ Petition (L) No.1688 of 2015
Decided on 13.8.2015

IMPORTANT POINT
A food product can be banned only after proper risk analysis.

Headnote:(A) Food Safety and Standard Act, 2006—Section 43—Constitution of India—Article 226—Maggi Noodles—Direction to stop manufacture, sale and distribution of nine types of variants of noodles—Alternative remedy by way of appeal is not always a bar in approaching High Court under Article 226, particularly when Petitioner challenges order on ground of violation of principles of natural justice—Whenever allegation is made that there is violation of principles of natural justice Petitioner is entitled to challenge said order—Impugned order cannot be strictly said to be a show cause notice since order imposes a ban on manufacture, sale, distribution of 9 variants of Maggi Noodles—It imposes a complete ban on the product— Petition filed by Petitioner under Article 226 of Constitution of India is maintainable.

       Held: In view of the exhaustive definition of “risk” and its peripheral expressions, the Designated Officer ought to have made a risk assessment before recommending prohibition. Since Pan Masala has been mentioned as food product in the Regulations, it was imperative for the Commissioner to ascertain, firstly, whether any risk assessment had been made by the Designated Officer, which, admittedly, has not been done in the present case.

        Secondly, there is no reference to any emergent circumstances, which led to the passing of the prohibitory orders under Section 30(a).

        Thirdly, no right of hearing was ever given to any of the Food business operators before passing the prohibition orders.

       (B) Food Safety and Standard Act, 2006—Section 43—Food Safety and Standards (Contaminants, Toxins and Residues) Regulations, 2011—Regulation 2.1.1.(2)—Constitution of India—Article 226—Maggi Noodles—Direction to stop manufacture, sale and distribution of nine types of variants of noodles—Product which is manufactured by Petitioner viz Maggi Noodles is proprietary food—Authorities can pass orders and impose penalties in ascending degree of coercion—Samples of product of Petitioner have not been analysed as per mandatory provision—Merely stating that food was unsafe or that action was in public interest is not sufficient—Respondents had not undertaken any investigation for carrying out risk analysis to decide that product of Petitioner was unsafe for human consumption—Though samples of only three variants of Maggi Noodles were taken all 9 variants of Maggi Noodles have been banned—Action of State of not supplying material on the basis of which action was taken and not giving a personal hearing to Petitioner and issuing an order of ban when Petitioner itself had withdrawn product clearly falls within four corners of arbitrariness and is violative of Article 14 and 19 of Constitution of India—Impugned orders set aside—However, before allowing Petitioner to manufacture and sell its product, Petitioner should send 5 samples of each batch which are in their possession to three Food Laboratories accredited and recognized by NABL.

       Held:There is challenge to Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restriction on Sales) Regulations, 2011. The said Regulations mandates that tobacco and nicotine shall not be used as ingredients in any food product. The Regulations have been framed in exercise of powers conferred by Section 92 of the Food Act. In exercise of power conferred by Section 92 of the Food Act, the Food Authority may, with the previous approval of the Central Government and after previous communication, vide notification, make notification, consistent with the Food Act and the Rules made thereunder, to carry out the provisions of the Act.

       The question, which, now, arises, is : whether it is permissible in the present case, for the court to give effect to both the enactments as far as possible? The question arises, because tobacco is, undoubtedly, injurious to health and leads to disastrous consequences, even death. In these circumstances, keeping in mind human ingenuity, tomorrow a situation may arise, where tobacco, the use of which is regulated by COTPA, is used in a substance, say some fluid products, which has been standardized under the Food Act and Food Safety and Standards (Prohibition and Restriction on Sales) Regulations, 2011. Can it still be said that tobacco, being governed by the COTPA, the Food Authorities would not be in a position to prohibit the sale of such product even for a temporary period.

       Result: Writ Petition disposed of with directions.