JUDGMENT :

(S. K. Mishra, J.)

1. By filing this writ petition, the petitioners, being a private limited company registered under the provisions of the Companies Act, 1956 and another being its Director, have prayed to issue a declaration that Section 30(2)(a) of the Food Safety and Standards Act, 2006 (hereinafter referred to as ‘the FSS Act” for brevity), is ultra vires of the said Act and suffers from vice of excessive delegation as it confers an independent source of legislation and power of policy decision upon the Commissioner of Food safety and empowers him to prohibit completely, without issuing any show-cause notice, the Trade and Commerce and other allied activities in the food products permanently which is contrary to the substantive provisions of the aforesaid Act.

The petitioners also seek a declaration that that the impugned provision, as mentioned above, is in the teeth of the constitutional prohibition as contained in Article 13(2) of the Constitution of India, 1950 and is also violative of constitutional guarantee regarding right of freedom of Trade and Commerce in the territory of India under Article 301, Part XIII of the Constitution of India, 1950.

The petitioners further pray a consequential declaration that the notification dated 03.06.2022 as unconstitutional, unenforceable and illegal and to issue a writ certiorari quashing the said notification being contrary to the law laid down by the Hon’ble Supreme Court in the case of Godawat Pan Masala Products I.P. Ltd. and another vs. Union of India and others, (2004) 7 SCC 68, and also being ultra vires of the FSS Act, for not issuing any show-cause notice to the parties effected, before taking a decision on such an issue. Other similar prayers have been made by the petitioners.

2. On 23.08.2006, the Food Safety and Standards Act, 2006 was enacted by the Parliament and it came into force on 1st August, 2011. The Ministry of Health and Family Welfare in exercise of powers conferred under Clause (e) of sub-section (2) of Section 92 read with Section 16 of the FSS Act, enacted the Food Safety and Standards (Food Products and Food Addictives) Regulations, 2011. On 15.08.2011 of the Jharkhand Food Safety and Standards Rules, 2000 came into force. On 05.09.2016, a notification amending Food Safety and Standards (Food Products and Food Addictives) Regulations, 2011, was issued. On 18.01.2017, Food Safety and Standards (Food Recall Procedure) Regulation, 2017 was enacted. In the meantime, the Goods and Services Tax (Compensation to States) Act, 2017, was enacted. On 08.05.2020, the State Government vide Notification No.16/Khadya (Vividh)-12-06/2017-84(16) imposed prohibition on manufacture, storage, distribution of sale of Rajnigandha Pan Masala along with 10 other brands of Pan Masala for one year. Vide Notification No.93(16) issued on 28.05.2021, the said prohibition was extended for one year on the said Pan Masala along with 10 other brands of Pan Masala. On 03.06.2022 again by virtue of impugned notification, the said prohibition on the aforesaid Pan Masala along with 10 other brands was extended for one year. Hence, this writ application was filed by the petitioners seeking the aforesaid reliefs.

3. At the outset, Mr. Jai Prakash, learned A.A.G.-1A, appearing for the State of Jharkhand, would submit that the writ application has become infructuous as the last date of the said notification has come to an end on 30thof June, 2023. However, we are of the opinion that the aforesaid notification did not only prohibit the sale of the aforesaid Pan Masala but it also by virtue of the provisions contained in the FSS Act made the storage, productions, sale, etc of the aforesaid Pan Masala a criminal offence and, therefore, by virtue of the operation of the three identical notifications for three consecutive years, criminal liability as well as civil liability has already arisen which cannot be said to have become infructuous because of the afflux of time in completion of the ou