Point of Law : Conviction of a food business operator –Notice - right of hearing to petitioner before passing the impugned notice of prohibition was an absolute necessity.

JUDGMENT :

1. Petitioner has challenged notice bearing No.ACF/Estt/Pul/21-22/71 dated 12.06.2021 issued by respondent No.3, whereby petitioner has been directed to stop the manufacturing of toned milk under the brand name of “SAAF SHEER” with immediate effect. A further direction commanding the respondents to permit the petitioner to run his milk processing unit M/S Insha Dairy Products without any hindrance, has also been sought.

2. The case set up by the petitioner is that he is running a milk processing unit under the name and style of M/S Insha Dairy Products, Lassipora Pulwama. It is averred that petitioner is manufacturing toned milk under the brand name of “SAAF SHEER” whereas the respondent No.4 is manufacturing toned milk under the brand name of “SAFA SHEER”. Petitioner alleges that at the behest of respondent No.4, Vice Chairperson, J&K Khadi and Village Industries Board addressed a communication to Commissioner, Food Safety Department, Jammu and Kashmir, asking the aforesaid authority to stop the petitioner from using POLYPACK film of “SAAF SHEER” as the same affects the goodwill of SAFA SHEER by misguiding the consumers. According to the petitioner, on the basis of this communication and under the political influence, respondent No.3 has issued the impugned notice directing the petitioner not to manufacture toned milk under the brand name “SAAF SHEER”.

3. Petitioner has challenged the aforesaid communication on the grounds that “SAAF SHEER” being a registered trademark of petitioner cannot be allowed to be infringed by asking him to stop production under the aforesaid brand name; that the petitioner has not violated any regulation pertaining to packing and labelling and, as such, action of respondent No.3 is not in accordance with law; that by issuing the impugned notice petitioner’s fundamental right to carry on business has been taken away without following due procedure and that action of respondent No.3 is without jurisdiction.

4. The writ petition has been contested by respondents including private respondent No.4 by filing replies thereto. The official respondents, in their reply, have submitted that the impugned notice has been issued by respondent No.3 as the brand name “SAAF SHEER” contravenes Regulation No.2.4.6(6) of Food Safety and Standards (Packaging and Labelling) Regulations, 2011. According to the said respondents, word “pure” or any word or words of the same significance cannot be included in the label of the package. Therefore, the name “SAAF SHEER” that is being used by petitioner for branding its milk products contravenes the regulations. It has been admitted by the official respondents that they had received a complaint from respondent No.4 to the effect that the petitioner is using brand name “SAAF SHEER” which has identical graphics/drawing to the brand name “SAFA SHEER” that is being used by respondent No.4 thereby deceiving the consumers. It is averred that on 11.05.2021, petitioner had submitted an application for adding brand name “SAAF SHEER” and the same was examined together with application of respondent No.4 whereafter the impugned notice came to be issued directing the petitioner to stop manufacture of toned milk under the brand name “SAAF SHEER”.

5. Respondent No.4 in his reply to the writ petition has averred that he is running a unit of manufacturing milk and milk products for the last several decades under the brand name “SAFA SHEER”. It is averred that the said respondent is having certificate of registration issued in his favour by the Department of Legal Metrology. According to respondent No.4, his unit has been established much prior to the establishment of unit by the petitioner who, with a deliberate intent to pass off his product with a similar brand name as that of respondent No.4, has started manufacturing of milk products under the brand name “SAAF SHEER”. This compelled the respondent No.4 to make a complaint against the petitioner and, accordingly, respondent No.3 issued