Food Business Operators must demonstrate compliance with safety standards, and failure to appeal against adverse findings negates claims of exemption.

JUDGMENT :

Nitin Jamdar, CJ.

These two appeals arise from the common order passed by the learned Single Judge dated 22 February 2023, by which the writ petitions filed by the Appellants/Petitioners were dismissed.

2. In W.P.(C) No.24915 of 2022, from which W.A. No.704 of 2023 arises, the Petitioners/Appellants had challenged the communications dated 30 April 2020 and 17 March 2021 issued by Respondent No.4 – the Assistant Commissioner of Food Safety (Designated Officer), Ernakulam. In W.P.(C) No.15880 of 2021, from which W.A. No.707 of 2023 arises, the Petitioners/Appellants had challenged the letter dated 14 January 2021 issued by Respondent No.3 – the Assistant Commissioner of Food Safety (Designated Officer), Ernakulam.

3. The impugned communications/notices informed the Petitioners, who are dealing with drinking water, that as per the analysis report received from the Food Analyst under the Food Safety and Standards (Food Products Standards & Food Additives) Regulations, 2011 (Regulations of 2011), the drinking water supplied by them does not conform to the prescribed standards for drinking water and is, therefore, substandard. The Petitioners were also informed that they can file an appeal under Section 46 (4) of the Food Safety and Standards Act, 2006 (Act 34 of 2006) if they do not agree with the analysis report and, if no appeal is filed, the matter will be proceeded further as per Section 42 of the Act 34 of 2006. These notices were the subject matter of challenge in the writ petitions. Both the writ petitions were dismissed by the learned Single Judge by the impugned judgment.

4. We have heard Mr. Premjit Nagendran, learned counsel for the Appellants/Petitioners, Ms. Chithra P. George, learned standing counsel for Respondent No.1 – the Food Safety and Standards Authority of India, and Mr. Grashious Kuriakose, learned Additional Director General of Prosecution for the State.

5. The primary contention of the Petitioners is that the Petitioners are dealing with water which does not fall under the Regulations of 2011, and this position is even accepted by the Respondent – State. Reliance is sought to be placed on a communication dated 7 February 2018 issued by the Assistant Director (Regulatory Compliance) of the Food Safety and Standards Authority of India. It is sought to be contended that no standards are applicable to the water supplied by the Petitioners. Even Section 26 of the Act 34 of 2006 does not provide for any standards for the water that is being supplied. Therefore, the Respondents have no jurisdiction to issue the impugned notices to the Petitioners.

6. The Food Safety and Standards Authority of India (FSSAI) has filed counter affidavit in which it is contended as follows. The standards for Mineral Water, Packaged Drinking Water, and Drinking Water (Purified) are mandated under sub-regulations 2.10.7, 2.10.8, and 2.10.9, of Regulations of 2011 respectively. The term “captive consumption” refers to water that is extracted, stored, and/or purified for use as an ingredient in food preparation, as well as for cleaning and washing purposes. The Petitioners had various options for getting the sample analysed while the samples were in the custody of the Designated Officer as per the provisions of the Act 34 of 2006, and the Rules and Regulations made thereunder, however, they have not taken recourse to the same. The Food Business Operator (FBO) would have to obtain BIS Certification for the product “Packaged Drinking Water”. The Petitioners are selling drinking water as per the licence dated 27 November 2011 and by registration certificate dated 6 May 2022, Petitioner