IMPORTANT POINTS
When a sample is sent for analysis, Food Analyst has to analyse the sample and submit a report, as to whether the food is in compliance with the Act or rules or regulations made thereunder. Food Analyst is competent to submit a report as to whether the food is adulterated, misbranded etc. Contention of the appellant to the contra, that he is not competent to give opinion, cannot be countenanced.

JUDGMENT :

S. MANIKUMAR, J.

1. Instant writ appeals are filed by the petitioner in W.P(C) Nos.35151 of 2018 and 28041 of 2018, being aggrieved by the judgments dated 12.04.2019 and 17.09.2018, wherein the writ petitions, as well as the review petition were dismissed by the writ court.

2. Short facts leading to the appeals are that, appellant is the proprietor of Amrutha Oil Products. Respondents have declared the product, as misbranded, based on the reports dated 6.9.2018 and 6.10.2018 (ExhibitsP5 and P6) of the Food Analyst, Regional Analytical Laboratory, Kozhikode, respondent No.2, wherein it was stated that “the label on the package bears the design of Coconut, which is false, misleading and the package is deceptive with respects its contents”.

3. Appellant has stated that the product is blended edible vegetable oil, which is a combination of 80% Raw Coconut Oil and 20% RBD Palmolin Oil by weight. Appellant has further stated that the content of the packet is clearly written on the packet with weight and the package, and, therefore, in no way, is deceptive with respect to its contents. It bears the design of palm nut as well, which is not evident in Exhibits-P5 and P6, while ordering the product as misbranded.

4. The appellant has further contended that, the functions of the Food Analyst have been stated in Section 46 of the Food Safety and Standard Act, 2006 (hereinafter referred to as, 'the Act', in short). According to him, the Act does not confer power on the the Food Analyst, Regional Analytical Laboratory, Kozhikode, 2nd respondent, to give any opinion on the label on the package for the purpose of misbranding the product. By the report dated 6.9.2018 of the Food Analyst, the product has no complaint. Appellant has printed the package based on the approval obtained from the Assistant Agricultural Marketing Adviser, Kochi, respondent No.3, as per Exhibit-P6. Respondents have misbranded the product, without giving notice or affording an opportunity of being heard to the appellant. Hence, the appellant has approached this Court by filing the writ petitions.

5. W.P.(C) No.35151 of 2018 has been filed challenging the report dated 6.9.2018 of the Food Analyst, respondent No.2, in particular, the finding that the petitioner/appellant's product 'Kera Co', is misbranded.

6. Earlier, W.P.(C) No.28041 of 2018 has been preferred challenging an identical report issued on July, 2018, as well as order of the Assistant Commissioner of Food Safety dated 2.8.2018 communicating the report to the appellant. W.P(C) No.28041 of 2018 has been disposed of directing submission of an appeal and consideration of contentions raised by the writ petitioner in the appeal.

7. Thereafter, a review petition has been filed by the appellant as against the judgment dated 17.09.2018 in W.P.(C) No.28041 of 2016, contending that the report of the Food Analyst, is not appealable in terms of the Food Safety and Standards Act, 2006 and Food Safety and Standards (Packaging and Labelling) Regulations, 2011, and that, unless the contention of the petitioner/appellant is considered by this Court, there would be no purpose of considering an appeal under Section 46(4) of the Act.

8. In W.P.(C) No.35151/2018, on behalf of the Assistant Commissioner of Food Safety, Kasaragod, respondent No.1, a statement has been filed by learned Senior Government Pleader, wherein Section 3(1)(zf) of the Food Safety and Standards Act has been relied on, to contend that an article of food is said to be misbranded when the package containing the article or the label of the package bears any statement, design or device regarding the ingredients of the substances contained which is false or misleading in any material particularly or if the package is otherwise deceptive with respect to its contents.

9. Learned Senior Government Pleader has also relied on Regulation 2.3.1.5 of the Food Safety