S. Muralidhar, J.

1. This writ petition raises important questions concerning the interpretation of the relevant provisions of Food Safety and Standards Act, 2006 (‘FSS Act’) and the functioning of the Food Safety and Standard Authority of India (‘FSSAI’). It also involves interpretation of the relevant provisions of the Food Safety and Standards (Food Products Standards and Food Additives) Regulations 2011 (‘FSS Regulations 2011’) and the Food Safety and Standards (Packaging and Labelling) Regulations 2011 (‘FSS Packaging Regulations 2011’).

The two issues

2. There are two broad issues that arise in this petition. The first concerns the question whether proprietary foods are outside the purview of the FSS Act, the FSS Regulations 2011 and the FSS Packaging Regulations 2011. The second issue is whether on the facts of the present case, the Petitioner can be said to have complied with the FSS Packaging Regulations 2011.

3. The first issue has been comprehensively dealt with by this Court on 18th January 2016. The Court in that order, which will be referred to hereafter, held that in the facts and circumstances of the case the stand taken by the FSSAI that the proprietary foods imported by the Petitioner fall outside the ambit of the FSS Act, Rules and Regulations was not borne out on a correct and holistic reading of Section 22 of thereof together with the FSS Regulations 2011.

4. As regards the second issue concerning the compliance with the labelling requirements, the matter was further examined after the said date and the present order proposes to deal with the said issue.

Background facts

5. The Petitioner, M/s. Unlimited Nutrition Private Limited (‘UNPL’) is registered under the Companies Act, 1956 and has its registered office in Mumbai. It is engaged in the import of food items, including ‘energy gel’ and ‘energy chews’ of different flavours. The Respondents in the petition are the Commissioner of Customs, (Respondent No. 1), the FSSAI (Respondent No. 2), the Joint Commissioner of Customs, ICD, Patparganj, Delhi, The Deputy Commissioner of Customs (Import Shed) (Respondent Nos. 3 and 4 respectively).

6. UNPL placed orders on GU Energy Labs, 1609 4th St. Berkeley, CA, USA on 5th June 2015 for supply of 'energy gel' and 'energy chews' amounting to USD 13,317.60. Pursuant to the above order, the said goods were shipped on 13th June 2015. The place of delivery was the Inland Container Depot (ICD), Patparganj. It terms of the FSS Act for the import of any food articles, the FSSAI issues a 'No Objection Certificate' ('NOC') in order that the Customs Department may issue an 'Out of Charge' ('OOC') order. The FSSAI grants such NOC on the basis of the report of a Food Analyst at a lab notified by the FSSAI. For the purpose of a 'one window' clearance, the Customs has, in terms of Circular No. 3/2011-Cus dated 6th January 2011, devised a procedure of sending an online request to the FSSAI for getting the NOC for the purpose of clearance of goods particularly at ICD, Tughlakabad and Patparganj.

7. On arrival of goods at ICD, Patparganj, the Petitioner filed the first check Bill of Entry No. 2540559 ('B/E') dated 9th September 2015 for clearance for home consumption. The B/E indicated that the consignment was of 94 cartons which in turn contained boxes and each box contained 24 packets/sachets. There were 17 different types of energy gel and energy chews that formed part of the imported consignment. One sample of each was drawn by the Customs officer and sent for testing to M/s. Ozone Pharmaceuticals Limited ('OPL') which was notified as accredited laboratory by the National Accreditation Board for Testing and Calibration Laboratories in terms of the Notification dated 1st April 2015 of the Ministry of Health and Family Welfare.

8. OPL tested the samples drawn and submitted its report under cover of letter dated 12th October 2015 c