Back
2006 Supreme(Ker) 578
Judges : V.K.BALI,M.RAMACHANDRAN
Pepsico India Holdings Pvt.Ltd - Appellant
Versus
State of Kerala, Represented by the Chief Secretary to the Government of Kerala - Respondent
Case No : W.P.(C).No.22140 of 2006(I)
Decided On : 09/22/2006
Advocates Appeared :
For the Petitioners: A.L. Somayaji (Senior Advocate), Rajeev K. Virmani, Antony Dominic, E.K. Nandakumar, A.K. Jayasankar Nambiar, Advocate. For the Respondents: R1 to R3, C.P. Sudhakara Prasad, Advocate General, K.K. Raveendranath, I/B, Government Pleader, R4 & R5, Sajeev Kumar K. Gopal, Binoy Vasudevan, K. Ramkumar, Advocates.
Headnote:
Prevention of Food Adulteration Act 1954 - Sections 7, 23( 1A)(f) & 24 - Prevention of Food Adulteration Rules 1955 - Rule 5 - Kerala Prevention of Food Adulteration Rules 1957 - Constitution of India, Art.162 & Sch.VII List III Entry 18, Article 19(1)(g) - Ban Order - Powers of - Validity of - Held, It could not be said that the sample that was tested would show the product to be adulterated as per the Act of 1954 and the Rules framed thereunder - There is no other power vesting with the State Government to pass an order of prohibition of manufacture and sale other than the provisions contained in the Act of 1954 - Legislation with regard to adulteration of food stuffs and other goods would be covered under Entry 18, List III of the Seventh Schedule - If the legislation has been made with regard to Entry 18 by Parliament, the State would have no power - Want of notice before passing drastic orders that may entail complete stop on business would violate fundamental rights of the Citizen under Art.19(1)(g) of the Constitution of India and cannot be passed without observing the principles of natural justice -Materials brought on record on the basis of news paper reports cannot be accepted per se as, surely, it is at the best a second-hand secondary evidence - Orders cannot be said to be an outcome of any ill-will by the Government.
V.K. Bali, C.J.
Hindustan Cola Beverages Pvt. Ltd., a Company incorporated under the provisions of the Companies Act, engaged in the business of manufacturing and marketing of non-alcoholic sweetened carbonated beverages, fruit-based drink and packaged drinking water in the leading brand names of Coca-cola, Fanta, Sprite, Thumps Up, Limca, Maaza, Kinley, etc., along with its share holder Amit Oberoi, has filed W.P.(c).No.22141 of 2006 challenging G.O.(Rt). No.2396/06/H&FWD issued by Government of Kerala dated 10.08.2006 and consequential Order No.PH6.62469/DHS dated 11.08.2006 issued by food (Health) Authority of State of Kerala whereby the State Government in exercise of the powers under Section 7(iv) of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as ‘Act of 1954’, prohibited manufacture and sale of Coca-Cola in the whole State of Kerala with immediate effect and for an indefinite period. By the same very orders manufacture and sale of Pepsi Cola has also been prohibited and, therefore, the same very orders have also been challenged by Pepsico India Holdings Pvt. Limited, again a Company incorporated under the Companies Act, wholly owned subsidiary of PepsiCo Inc. U.S.A along with Pepsi Foods Pvt. Limited, also a Company incorporated under the Companies Act, a wholly owned subsidiary of PepsiCo Inc. U.S.A. and Mr. Jyoti Sagar, a citizen of India and shareholder of the petitioner Company – Pepsi Foods Pvt. Ltd. The challenge as mentioned above in both petitions is to be common order and by this order, we propose to dispose of both the petitions by a common order as has also been suggested by the learned counsel representing the parties as well.
2. The order passed by the Government dated 10.08.2006 (Exhibit P1) and consequential order passed by Director of Health Services in its powers as State Food (Health) Authority under Section 7(iv) of the Act of 1954 dated 11.08.2006 (Exhibit P1[a]) reads as follows: -
Ext.P1
“As per the D.O. letter cited, it was informed by the Ministry of Health and Family Welfare Department, Government of India to state Government that as per the study conducted by the Centre of Science and Environment (CSE) which was covered in the National News Papers on 3rd August 2006 as well as in the Electronic media that out of 57 samples of 11 soft drinks brands of Coca Cola and Pepsi Cola collected from 25 manufacturing units across 12 States, it was found that these samples contained different pesticides, which are much above the prescribed standards. The CSE has found pesticide residues of organo chlorine pesticides (MCH and derivates and Heptachlor) and organo phosphorous pesticides (Chlopyrifos and Malathion) in the soft drink samples tested and analyzed by them.
In the above circumstances and considering the best interest of public health, Government of Kerala have decided to ban the manufacture and sale of Coca Cola and Pepsi Cola in the whole of Kerala as per Section 7 (iv) of Prevention of Food Adulteration Act, 1954 and Rules made thereunder.
The State Food Health Authority, i.e., Director of Health Services shall take steps in accordance with relevant provisions of Prevention of Food Adulteration Act, 1954 and Rules made thereunder to prohibit manufacture and sale of Coca Cola and Pepsi Cola in whole of Kerala in the interest of Public Health”.
Ext.P1(a)
“As per the order cited, Government of Kerala have decided to ban the manufacture and sale of Coca Cola and Pepsi Cola in the whole of Kerala under section 7 (iv) of the Prevention of Food Adulteration Act 1954 and the Rules made thereunder. In this order, it is also specifically directed that the State (Food) Authority, i.e. Director of Health Services shall take steps in accordance with relevant provisions of the Prevention of Food Adulteration Act 1954 and Rules made thereunder to prohibit the same.
In exercise of the powers conferred on me as the Director of Health Services in my capacity as the State Food (Health)
