2012 (9) TMI 921 - HC - Customs

Import of pulses (Toor Whole) - unsafe or sub-standard food - Held that - When import of sub-standard materials is prohibited testing is required to be done at the point of entry into India. Any certificate of a prior date is of no consequence. It is possible that the said consignment was in perfect condition on the date on which samples were drawn for analysis by SGS Myanmar Limited but subsequently deteriorated in course of transit. Even in such circumstances, this Court in exercise of jurisdiction under Article 226 of the Constitution of India cannot issue mandatory orders for clearance of a consignment that is found sub-standard when the same landed in India. Instructions contained in the circular of the Senior Inspecting Officer of the Food Authority cannot, in my view, be enforced by initiation of proceedings under Article 226 of the Constitution of India. The circular has been issued in response to representations for relaxation of standards. The prayer for relaxation of prescribed standards was apparently turned down having regard to the object of ensuring the mandate of safe food imports into India. An importer can be allowed facilities for improving the quality of foodgrains, at the sole discretion of the Authorized Officer of Food Authority who is required to ensure that clearing/sorting of food grains can be done by the importer strictly under the supervision of the Customs in customs bonded area. - Decided against the petitioner.

Issues Involved:
1. Refusal of Customs Authorities to allow clearance of imported consignment.
2. Compliance with Food Safety and Standards Act, 2006.
3. Discrepancies in test reports and their implications.
4. Applicability of Prevention of Food Adulteration Act, 1954.
5. Validity of certificates from exporting country.
6. Enforcement of circulars and instructions by Food Authority.

Detailed Analysis:

1. Refusal of Customs Authorities to Allow Clearance of Imported Consignment:
The petitioner company filed a writ petition against the refusal of Customs Authorities to clear a consignment of pulses imported from Myanmar. The consignment arrived at the port of Kolkata on January 28, 2012, and the Bill of Entry was filed on February 1, 2012. The refusal was based on the consignment not meeting the standards under the Food Safety and Standards Act, 2006 (Food Safety Act).

2. Compliance with Food Safety and Standards Act, 2006:
Section 25 of the Food Safety Act prohibits the import of unsafe, misbranded, or sub-standard food. The Central Government, while regulating food imports, must follow the standards set by the Food Authority. The definition of 'food' and 'primary food' under Sections 3(1)(j) and 3(1)(zk) respectively, were highlighted to argue that the consignment constituted 'primary food'. The Food Authority, established under Section 4(1), is responsible for regulating and monitoring food imports to ensure safety.

3. Discrepancies in Test Reports and Their Implications:
The consignment was initially tested by Mitra S.K. Private Limited, which reported non-conformity to the prescribed standards. A second test report, conducted months later, showed different results, indicating the presence of dead insects and rodent excreta. The petitioner argued that improper storage led to contamination, and the customs should release the consignment based on the initial report. However, the court emphasized that it cannot direct the release of food items that do not conform to the standards under the Food Safety Act.

4. Applicability of Prevention of Food Adulteration Act, 1954:
The petitioner cited a previous judgment under the Prevention of Food Adulteration Act, 1954, which allowed the import of primary food if the quality fell below standards due to natural causes. However, the court noted that the Food Safety Act prohibits the import of sub-standard food irrespective of whether it is injurious to health or not. The judgment under the Food Adulteration Act was deemed inapplicable to the current case.

5. Validity of Certificates from Exporting Country:
The petitioner referred to a certificate issued by SGS Myanmar Limited certifying the quality of the consignment. The court held that testing must be done at the point of entry into India, and any prior certificate is inconsequential if the consignment deteriorated during transit. The court emphasized that it cannot issue orders for clearance of sub-standard consignments based on prior certificates.

6. Enforcement of Circulars and Instructions by Food Authority:
The petitioner relied on a government circular allowing re-sampling and re-testing of foodgrains. The court stated that such instructions cannot be enforced through proceedings under Article 226 of the Constitution. The circular allows importers to improve the quality of foodgrains under customs supervision, but the court cannot mandate clearance of contaminated consignments.

Conclusion:
The writ application was dismissed, with the court holding that it cannot direct the release of food items that do not conform to the standards under the Food Safety Act. The court emphasized the importance of ensuring that sub-standard food does not enter the Indian market, irrespective of who is responsible for the contamination.

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