A.M. Shaffique, J.

1. This appeal is filed by the 2nd respondent in W.P.C.No.22987/2014. 1st respondent is the writ petitioner and respondents 2 and 3 are respondents 1 and 3 in the writ petition.

2. The writ petition was filed seeking for a declaration that 'cocoa bean' imported by the writ petitioner, who is hereinafter referred as the petitioner, is not "food" coming under the provisions of Food Safety and Standards Act, 2006 (hereinafter referred to as 'FSS Act') and the Rules framed thereunder. Petitioner also sought for a direction to quash Exts.P4, P6 and P7. By Ext.P4, clearance was sought from the Food Safety and Standards Department before Custom's clearance of 'cocoa bean'. Exts.P6 and P7 are the test reports. Direction was also sought for to release the consignment covered under Ext.P1 without insisting for a test to be conducted by the authorities under the FSS Act and the Rules and for other consequential reliefs.

3. The facts involved in the writ petition would indicate that the petitioner imported 'cocoa bean' from Indonesia through Cochin port. The 3rd respondent, Commissioner of Customs issued Ext.P4 stipulating that the 'cocoa bean' has to be tested as per Food Safety Standards or else a no objection certificate has to be obtained from the competent authority under the FSS Act. The 2nd respondent subjected the 'cocoa bean' to test under Clause 2.2 of the Food Safety and Standards (Contaminants, Toxins and Residues) Regulations, 2011 and a further test was conducted under the category of 'Dry Fruits and Nuts' under clause 2.3.47.5 of the Food Safety and Standards (Food Products Standards and Food Additives) Regulations 2011, (hereinafter referred as the Regulations). It was found that the 'cocoa bean' does not satisfy the specification of approved standards and accordingly they issued Ext.P6 stating that it contains contaminants which are not approved for food items. Contending that no standard has been fixed under the FSS Act or Regulations for 'cocoa bean' and the only standard available is under the Bureau of Indian Standards (for short BIS), the writ petition was filed contending that FSS Act and Rules are not applicable to 'cocoa bean'. It is contended that the 'cocoa bean' has to undergo further process to make it fit for human consumption and thereafter alone it has to comply with the standards fixed under the FSS Act and Rules. It is also contended that the test conducted for 'Dry Fruits and Nuts' has no application to 'cocoa bean' which is a seed of cocoa.

4. Statement has been filed by the 2nd respondent inter alia contending that 2nd respondent had taken samples of the imported 'cocoa beans'. Two consignments passed the test and two consignments failed the test as the product was heavily infected with mould growth and fungus growth resulting in changed colour to greyish white. It was also found that it has musty and rancid odour. Damaged units was 100% by weight instead of 2% and acidity of extracted fat expressed as oleic acid 2.8% by weight instead of 1.25%. Therefore, according to them, the sample was not edible and thus failed the test. Reference is also made to various statutory provisions to indicate that as long as the item imported is food, it has to comply with certain standards and if it is not fit for human consumption, it cannot be permitted to be imported.

5. Learned Single Judge, after hearing the rival contentions, formed an opinion that the test conducted by the Department is as if the 'cocoa bean' is coming under the specification 'dry fruits and nuts'. 'Cocoa bean' is nothing but a 'seed' and cannot be equated with 'dry fruits or nuts'. Only if there is a prescribed standard for 'cocoa bean', the product should conform to such standard. Based on the said finding, the following directions have been issued:

“(i) The imported goods shall be released to the petitioner forthwith.

(ii) In the absence of standards, I am of the view, the sample shall be sent to analysis by the Bur