The judgment established that the petitioner's adherence to the PFA Act, despite inconsistencies with the IMS Act, was justified under the legal maxim 'Lex non cogit ad impossibilia'. The court also emphasized the flexibility of relief under Article 226 of the Constitution of India.

Siddharth Mridul, J.

1. By way of the present writ petition under Article 226 of the Constitution of India, the petitioners, inter alia, are seeking the following reliefs:-

(i) Declare the provisions of Sections 2(1)(f), 6 (1)(a), (b) and (c) of the Infant Milk Substitutes, feeding Bottles and Infant foods (Regulation of Production, Supply and Distribution) Act, 1992 (hereinafter referred to as the ‘IMS Act’) and Rules 6 and 7 (a) and (c) of the Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Rules, 1993 (hereinafter referred to as the ‘IMS Rules’) to be invalid; and

(ii) Declare that until there was an alignment of the two Acts i.e., the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the “PFA Act”) read with the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the ‘PFA Rules’) and the ‘IMS Act’ read with the ‘IMS Rules’ on 15.09.1997, it was open to the manufacturers of the Infant Milk substitutes or the Infant Foods to follow one or the other of the provisions made there under for the purposes of labeling of Infant Milk Foods/substitutes, without being exposed to the penal provisions under the said law.

(iii) Pass such further and other orders as may be deemed just and necessary. At the outset, Mr. Ashok Desai, the learned Senior Counsel appearing for the petitioners has submitted that he is restricting the scope of the present writ petition to the relief no. (ii) only.

2. The factual matrix unfolds as under:-

(i) Petitioner No.1 is a company incorporated under the Companies Act, 1956 dealing with manufacturing of infant food products namely, LACTOGEN and CERELAC. The petitioner company is currently selling products in the category of Infant Milk Substitutes and Weaning Foods.

(ii) In the year 1994, a complaint was filed by an organization namely Association on Consumer Action on Safety and Health (ACASH), the Intervener in the present writ petition, against the petitioner company under Section 6 and 7 of the IMS Act, on the ground that on the products of the petitioner company, important notice is printed as “BREAST MILK IS BEST FOR YOUR BABY” instead of “MOTHER’S MILK IS BEST FOR YOUR BABY”. It was also alleged that this notice was not printed in its Hindi equivalent in Devnagiri script. It was further alleged that the English version contained some material and deliberate alterations which were violative of the IMS Act and the IMS Rules. The complainant further alleged that the petitioner company has infringed Section 6(1)(c) of the IMS Act as the mandatory warning that the infant milk substitutes or the infant food is not the sole source of nourishment for the infant had not been inscribed properly on the packaging of the milk substitute products. It was also alleged that the petitioner company has violated Rule 7(a) of the IMS Rules as the typed letters on the boxes were less than 5mm in size as prescribed and that the petitioner company has violated the provisions of Section 2(f) of the IMS Act by printing the words “FROM 4 MONTHS OF AGE” instead of “AFTER THE AGE OF 4 MONTHS”.

(iii) On 09.03.1994, the Directorate General of Health Services issued a communication to Food (Health) Authorities reflecting upon the inconsistencies between the provisions of the PFA Rules and IMS Act. The contents of the said communication are pertinent in view the controversy raised and the same are being extracted below:-“DR. B.K. TIWARI ASSTT. DIRECTOR GENERAL (PFA) D.O. NO.P-15025/139/92-ZB DIRECTORATE GENERAL OF HEALTH SERVICES NIRMAN BHAWAN, NEW DELHI

DATED THE 09.03.1994 Dear Dr./Shri This is to invite your kind attention to the Infant Milk Substitute, Feeding Bottle and Infant Food (Regulation & Production, Supply and Distribution) Act, 1992 which came into force w.e.f. 01.08.1993. Though the Act has been enacted on the instance (sic) of Deptt. of Women & Child Development of Ministry of Human Resource Development but