2012 (12) TMI 983 - HC - Indian Laws

Product Containing Lactic Acid Product prohibited or not Respondents sealed and seized petitioner s food products and raw material on ground that they contain lactic acid Whether use of lactic acid in petitioner s products were permitted Held that - petitioner does not deny fact that its products contain lactic acid (SRP 9/28 ASWPL28980.12) whereas respondents contend that it was not permissible ingredient Provisions of Regulation 3.1.1(1) permits use of food additives in food products as specified in regulations and in Appendix A Use of word and in regulation does not indicate that food additive must be stated to be permissible both in regulations and Appendix A Lactic acid is food additive and is used in food as acidulant, buffering agent, neutralising agent No dispute that petitioner uses lactic acid as buffering agent Provisions of Prevention of Food Adulteration Act, 1954 and revision published by Bureau of Indian Standards were additional factors which supported conclusion of Petitioner Decided in favour of Petitioner.

Summary

Issues Involved:
1. Sealing and seizure of petitioner's food products and raw materials.
2. Legality of notices issued concerning alleged excess use of color in products.
3. Permissibility of lactic acid in sugar boiled confectionery under the Food Safety and Standards Act, 2006, Rules, and Regulations.
4. Procedure for determining the permissible limit of color in products.
5. Alleged procedural lapses in sample collection and analysis.
6. Discrimination in enforcement actions against the petitioner.

Detailed Analysis:

1. Sealing and Seizure of Petitioner's Food Products and Raw Materials:
The respondents sealed and seized the petitioner's food products and raw materials, prompting the petitioner to seek a writ of certiorari to set aside several notices issued by the respondents. The petitioner also sought a writ of prohibition to restrain the respondents from taking any action against its products on the ground that they contain lactic acid and a writ of mandamus directing the respondents to withdraw all actions and decisions based on the presence of lactic acid in its products.

2. Legality of Notices Issued Concerning Alleged Excess Use of Color in Products:
The petitioner received notices from the respondents stating that samples of its products would be analyzed under the provisions of the Food Safety and Standards Act, 2006, Rules, and Regulations. The analysis revealed that some batches contained more than the permissible amount of color. The court noted that the question of the products containing more than the permissible limit of color could not be decided by the writ Court and ordered the respondents to follow the prescribed procedure under the Act, Rules, and Regulations for the nine batches found with excess color.

3. Permissibility of Lactic Acid in Sugar Boiled Confectionery:
The main issue was whether the use of lactic acid in the petitioner's sugar boiled confectionery was permissible under the said Act, Rules, and Regulations. The court examined the relevant provisions and concluded that lactic acid is a permissible ingredient in sugar boiled confectionery. Regulation 3.1.1(1) permits the use of food additives in food products as specified in the regulations and in Appendix A. Regulation 3.1.12 allows the use of lactic acid as an acidulant in miscellaneous foods, which the court interpreted to include sugar boiled confectionery. The court also noted that the Bureau of Indian Standards permits the use of lactic acid in such products.

4. Procedure for Determining the Permissible Limit of Color in Products:
The court noted that the respondents had fairly examined the extent of color based on samples taken from relevant batches. The petitioner disputed the findings for nine batches, and the court ordered the respondents to follow the prescribed procedure under the Act, Rules, and Regulations to determine the permissible limit of color.

5. Alleged Procedural Lapses in Sample Collection and Analysis:
The petitioner raised grievances regarding the manner in which samples were taken, drawn, and analyzed. The court did not delve into these allegations in detail, given the respondents' statement regarding the manner in which the amount of color was used. However, the court acknowledged the petitioner's grievance that it was kept in the dark about the analysis report and that the respondents conducted search and seizure operations without following due process.

6. Discrimination in Enforcement Actions Against the Petitioner:
The petitioner argued that other manufacturers using lactic acid in similar products were not subjected to similar actions. The court found it curious that no action had been taken against other manufacturers or imported products containing lactic acid. However, the court clarified that this would not entitle the petitioner to relief if lactic acid were not a permissible ingredient. The court emphasized that its judgment was based on the interpretation of the provisions of the Food Safety and Standards Act, 2006, and the Rules and Regulations made thereunder.

Conclusion:
The court disposed of the writ petition by making it absolute in terms of prayers (a) and (c). The respondents were ordered to return the petitioner's stock of lactic acid and the 39 batches of products that contained the permissible level of color. The court's order was to be implemented subject to any orders of the Apex Court, and there was no order as to costs.