IMPORTANT POINT
As the Coconut Testa Oil is found to be a Proprietary Food distinct from Coconut Oil, no prosecution can be initiated against the petitioner based on a test report on Coconut Testa Oil, for not confirming to the Standards prescribed for Coconut Oil.

JUDGMENT :

N. NAGARESH, J.

1. The petitioner, a proprietary concern running an Oil Mill, is before this Court seeking to quash Exts.P6 and P7 orders. By Ext.P6 order, the Designated Officer under the Food Safety and Standards Act, 2006 accorded sanction to the Food Safety Officer, Kunnamangalam Circle to file an application for adjudication before the Revenue Divisional Officer and Adjudicating Officer, Kozhikode under Section 36(3)(e) of Food Safety and Standards Act, 2006 read with Rule 3.1 of Food Safety and Standards Rules, 2011, against the petitioner. By Ext.P7, the Adjudicating Officer and Sub Collector of Kozhikode issued summons to the petitioner to answer to a charge in the case filed by Food Safety Officer, Kozhikode South Circle under Section 3(1)(zx), 26(1)(2)(ii) and 49 and 51 of Food Safety and Standards Act, 2006 read with Regulation 2.2.1:1 of Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 and Regulation 2.2.1:1 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011, for Selling Prohibited Coconut Testa Oil.

2. The petitioner is engaged in the manufacture, packing and sale of edible oils. The petitioner holds Ext.P1 licence dated 10.09.2017 issued by the Government of Kerala, Commissionerate of Food Safety. The licence is valid till 09.09.2022. The 3rd respondent-Assistant Commissioner of Food Safety came to the petitioner's Oil Mill and took samples of Coconut Testa Oil. A notice was served on the petitioner stating that the 2nd respondent-Commissioner of Food Safety and Standards Authority, Kerala has issued a general order banning the manufacture and sale of Coconut Testa Oil for a period of one year.

3. The sample taken from the Oil Mill was tested in the Regional Analytical Laboratory, Kozhikode. The test report stated that the sample labelled as proprietary food does not qualify any of the standards of quality of any of the edible oil prescribed under the Food Safety and Standards Act, 2006 and Regulations, 2011. The petitioner filed a statutory appeal against the said test report invoking Section 46(4) of the Act read with Rule 2.4.6 of the Rules, 2011. The petitioner also sought a referral report. The sample was again tested by the Referral Food Laboratory, Pune. The said Referral Laboratory issued Ext.P2 report dated 18.09.2019. Ext.P2 stated that the sample does not come under any regulation/standards and cannot be treated as proprietary food.

4. The petitioner on 25.10.2018 submitted Ext.P3 application before the 1st respondent-Food Safety and Standards Authority of India for approval of the product as proprietary food. The 1st respondent issued Ext.P4 on 25.03.2019 granting approval to Coconut Testa Oil under Food Safety and Standards (Approval for Non-Specified Food and Food Ingredients) Regulations, 2017. Consequently, the Central Licensing Authority issued Ext.P5 licence to the petitioner for manufacturing proprietary food.

5. In spite of the afore facts, the 2nd respondent-Commissioner of Food Safety and Standards Authority, Kerala issued Ext.P6 order dated 05.11.2019 holding that Coconut Testa Oil will not come under the category of ‘Proprietary Food’ and the petitioner is liable to be proceeded under Section 58 of the Act, 2006. The 2nd respondent was directed to file an application for adjudication against the petitioner. On the basis of Ext.P6, the 5th respondent-Adjudicating Officer and Sub Collector initiated prosecution proceedings. As per Ext.P7 Summons dated 07.03.2020, the 5th respondent required the petitioner to appear before him to answer the charges.

6. The counsel for the petitioner argued that Ext.P1 licence was issued by the Assistant Commissioner of Food Safety having convinced that the product Coconut Testa Oil qualify the Food Safety Standards of edible oil prescribed under the Act, 2006. The ban on sale and manufacture of Coconut Testa Oil for one year was without making any studies. On the application o