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2010 Supreme(Mad) 862
High Court of Judicature at Madras
THE HONOURABLE CHIEF JUSTICE MR. H.L. GOKHALE & THE HONOURABLE MR. JUSTICE K.K. SASIDHARAN
Red Bull India Pvt., Ltd. Mumbai
Versus
The Office of the Commissioner ofCustoms through the Joint Commissioner of Customs Custom House, Chennai & Others
W.A.No.1778 of 2009 & M.P.Nos.1 of 2009 & 2 of 2009
Decided On :26-02-2010
For the Appellant:C.A. Sundaram, Senior Counsel for S. Sethuramn, Advocate.
For the Respondents: M. Ravindran, Additional Solicitor General of India,Assisted by R2, C. Kanagara, & P. Bhuvaneshwari, SCCG.
The main legal point established in the judgment is that even 'Proprietary Food' should conform to the regulatory provisions and standards of quality specified in the PFA Act and Rules, as interpreted under Rule 37-A(2)(b) and the amendment made to it.
Headnote:
Regulatory Provisions - Applicability of Regulatory Provisions in Prevention of Food Adulteration Rules to 'Proprietary Food' - Rule 37-A(2)(b) - Summary of Acts and Sections: PFA Act, 1954 - Sections 5, 6; PFA Rules, 1955 - Rule 5, Rule 37-A; Appendix B - Clause A.01.01 - The judgment discusses the applicability of regulatory provisions to 'Proprietary Food' and the standards of quality prescribed under the PFA Act and Rules. It interprets Rule 37-A(2)(b) and the amendment made to it, emphasizing that even proprietary food should conform to the regulatory provisions and standards of quality specified in the Rules and Appendixes. The court's decision is influenced by the interpretation of 'Regulatory Provisions' and the standards of quality prescribed for the ingredients of proprietary foods.
Fact of the Case:
The appellant, a manufacturer of Red Bull Energy Drink, challenged the Analysis Report issued by the Central Food Laboratory, Mysore, which tested the energy drink as a 'Proprietary Food' and found it non-compliant with the standards prescribed under the Prevention of Food Adulteration Act (PFA Act). The appellant contended that the product is purely a proprietary food and should not be tested as a standardised food.
Finding of the Court:
The court found that the energy drink did not conform to the standards prescribed under the PFA Act and Rules, based on the analysis report. It held that the appellant failed to make a case for a fresh analysis treating the drink purely as 'proprietary food'. The court dismissed the writ appeal.
Issues: The main issue was the applicability of regulatory provisions to 'Proprietary Food' and whether the energy drink imported by the appellant should conform to the standards of quality as provided in the PFA Rules and Appendixes.
Ratio Decidendi: The court interpreted Rule 37-A(2)(b) and the amendment made to it, emphasizing that even proprietary food should conform to the regulatory provisions and standards of quality specified in the Rules and Appendixes. It concluded that the energy drink did not comply with the prescribed standards and dismissed the appeal.
Final Decision: The writ appeal was dismissed, and the connected Mps were closed. No costs were awarded to the appellant.
K.K. Sasidharan, J.
The applicability of the Regulatory Provisions specified in the Prevention of Food Adulteration Rules and Appendixes under Rule 37-A(2)(b) in respect of "Proprietary Food" is the moot question to be decided in this writ appeal.
2. The appellant challenges the order passed by the learned Single Judge dated 18 November, 2009 in W.P.No.17507 of 2009 whereby and whereunder the request of the petitioner to quash the Analysis Report issued by the Central Food Laboratory, Mysore and to test the Energy Drink of the appellant as a "Proprietary Food" was rejected.
3. The facts, giving rise to the present appeal, may be summarised thus:
(a) The appellant is a company registered under the Companies Act, 1956. It is a wholly owned subsidiary of the Red Bull GMBH, a company incorporated under the laws of Austria. The appellant is the manufacturer of Red Bull Energy Drink, a world renowned energy drink sold globally. The appellant imports Red Bull Energy Drink and sells the same in India.
(b) The appellant earlier filed a Writ Petition in W.P.No.17805 of 2005 challenging the Certificate of Analysis dated 10 January, 2005 issued by the Central Food Laboratory and prayed for a direction to test the Energy Drink purely as a "Proprietary Food". The said writ petition was dismissed by a learned Single Judge. When the matter was taken up in Writ Appeal in W.A.No.2206 of 2005, the Division Bench opined that the energy drink of the appellant was purely a proprietary food. Accordingly, the energy drink was tested as a proprietary food and ultimately the consignment was released.
(c) While the matters stood thus, the energy drink imported by the appellant on 22 June, 2009 was once again detained by the Customs Department at Chennai and the sample was sent for analysis. The appellant came to know that the sample was tested by the Central Food Laboratory, Mysore and they have given a report that the energy drink does not conform to the standards prescribed under the Prevention of Food Adulteration Act (hereinafter referred to as "PFA Act"). According to the appellant, the product is purely a proprietary food and as such the Central Food Laboratory erred in treating it as a standardised food.
(d) The Central Food Laboratory placed reliance on the amendment made to the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as "PFA Rules") and more particularly Rule 37-A(2)(b) and tested the sample in accordance with the standards prescribed for other products which are not proprietary and as such, the very basis adopted by the Central Food Laboratory was incorrect.
4. The second respondent filed a counter affidavit wherein it was contended that the proprietary food imported by the appellant contained carbon-di-oxide as one of the ingredients, as evident from the label itself and as such, the product was nothing but carbonated beverage. Therefore, such non-alcoholic carbonated beverage has to be tested as per clause A.01.01 of Appendix B of the PFA Rules. There was an amendment to Rule 37-A(2) of the PFA Rules as per G.S.R. 664(E) dated 19 September, 2008 whereby and whereunder even the proprietary foods were expected to conform to the standards prescribed under various Appendixes to the PFA Act and Rules. Accordingly, the Central Food Laboratory justified the report of analysis.
5. The learned Single Judge found that the appellant earlier filed a writ petition before the High Court of Bombay and it was dismissed on the ground that the appellant has to approach the concerned authorities. According to the learned Single Judge, when there was a direction by the Bombay High Court in the very same subject matter, it was not proper on the part of the appellant to approach this Court with the very same plea. Accordingly, the writ petition was dismissed. Aggrieved by the said order, the appellant is before us.
SUBMISSIONS:-
6. The learned Senior Counsel for the appellant would contend thus:-
(a) It is true that
