A. Muhamed Mustaque, J.

1. This writ petition is filed by a company engaged in manufacture and distribution of spices powder and other food products. They challenge Ext. P1 order passed by the Commissioner of Food Safety, Kerala prohibiting manufacture, storage, sale and distribution of Nirapara Brand of chilly, turmeric, and coriander powder, manufactured by the petitioner.

2. The impugned order is produced as Ext. P1. It is seen from the impugned order that the Food Safety Officers in the State took random samples of Nirapara brand spices powder from different parts of the State on different dates. The report of the Food Analyst would indicate that the products referred as above contain added starch.

3. It is stated in Ext. P1 that 30 cases of the same nature have been reported in various parts of the State containing extraneous starch in the products. It is noted that in spite of the notices issued under the Food Safety and Standards Act, 2006 (for short, the "FSS Act") the petitioner was continuing manufacture and sale of adulterated spices powder. Since the manufacturer did not stop the unscrupulous activity of adultering spices powder with cheaper starch, an order has been issued prohibiting manufacture, storage, sale, and distribution of the Nirapara brand of chilly, turmeric, and coriander powder, manufactured by KKR Food Products, Kalady, under relevant provisions of the Food Safety and Standards Act of India, to protect the interest of the consumers.

4. Heard Shri Mathai M. Paikeday, learned Senior Counsel appearing for the petitioner and Shri Tom K. Thomas Special Government Pleader.

5. The learned Senior Counsel would submit that the petitioner has not been finally found in adultering spices powder. It is submitted that various proceedings are pending and they have challenged reports of referral lab. Therefore, it is submitted that in the absence of the matter attaining finality, the prohibitory order is illegal. It is further submitted that the Commissioner of Food Safety has no power referable in the order to issue such a prohibition. The learned Senior Counsel also submitted that the Commissioner exceeded his authority by issuing the order. The learned Senior Counsel pointed out to the definition of "sub-standard" under the FSS Act. According to the learned Senior Counsel, the findings in Ext. P1 for prohibition is that prohibition is necessitated on account of the fact that the spices powder of the petitioner is of sub-standard. It is further submitted that there is no provision to prohibit sale of sub-standard food. The learned Counsel also attempted to demonstrate mala fides in issuing such an order. It is also submitted that Ext. P1 was issued without giving an opportunity of being heard to the petitioner.

6. On the other hand, the learned Special Government Pleader referred to the statement filed by the fifth respondent. It is submitted that there were 33 cases of adulteration of spices product and various Adjudicating Officers imposed penalties ranging from Rs. 10,000/- to Rs.5 lakhs. It is also submitted that the cases are pending before the Authority for adjudication across the State. In view of large number of reports of cases of adulteration and in the interest of public at large, it is submitted that the Commissioner of Food Safety was constrained to take such an action against the petitioner.

7. Though, a specific ground of mala fides has been alleged, no notice was issued to the officials in personal capacity.

8. On going through the pleadings and after hearing both sides, the following points arise for consideration:

"i. Whether the Commissioner of Food Safety is justified in issuing the order of prohibition?

ii. If the Commissioner is not justified in issuing order of prohibition, what is the extent of the power that could be exercised when spices powder or condiments are found as sub-standard?

iii. Whether there exist any mala fides on the part of the Commissioner of Food Safety for issuing Ext. P