2015 (2) TMI 1137 - HC - Customs

Cocoa beans imported as an item of food on the basis of license for importing food under the FSS Act - Whether imported cocoa beans satisfy any of the specification or standards under the FSS Act or the Rules framed thereunder - Held that - cocoa powder, which is produced from cocoa beans, is specified under clause 2.11.6 of the Regulations. It is meant as a powder which is the partially defatted product derived from the cocoa bean , the seed of Theobroma cacao L. Therefore, when the Statute has prescribed standards for cocoa powder and has consciously decided not to fix any standards for cocoa beans , it can safely be assumed that no standards had been fixed under the FSS Act or Regulations for cocoa beans . No Objection Certificate - To obtain from FSS authorities for permitting clearance of the cargo - Whether product is sub-standard/unsafe or not - Held that - when a food item is imported, it is the bounden duty of the Food Safety Officer exercising power under Section 47(5) of the FSS Act to take sample and sent the same for analysis, to ensure that the food item is neither sub-standard nor unsafe. The learned Single Judge was not justified in permitting import of a consignment which, according to the Food Safety Officer, was unsafe or sub-standard. In the event of a like situation where no specific standard is prescribed for a particular imported food item, still the Food Safety Officer has to certify that the food item is not sub-standard or unsafe. Therefore, the jurisdiction of the Food Safety Officer to grant or reject clearance certificate of food items on sufficient materials cannot be disputed or doubted. Hence it was appropriate that the Food Safety Officer should have been directed to conduct analysis based on appropriate standards or even BIS standards to ensure that the product is neither sub-standard nor unsafe for import. - Writ Appeal disposed of

Summary

Issues Involved
1. Whether 'cocoa bean' falls under the definition of "food" as per the Food Safety and Standards Act, 2006 (FSS Act).
2. Whether the imported 'cocoa bean' needs to comply with the standards prescribed under the FSS Act and its regulations.
3. The applicability of specific standards or regulations for 'cocoa bean'.
4. Jurisdiction and authority of the Food Safety Officer under the FSS Act.
5. The validity of the test reports (Exts.P6 and P7) and their implications on the import clearance.

Detailed Analysis

1. Definition of 'Food' under FSS Act:
The court established that 'cocoa bean' is considered "food" under the FSS Act. Section 3(j) defines "food" broadly to include any substance intended for human consumption, whether processed, partially processed, or unprocessed. The court noted:
> "The definition is very wide enough as it includes the primary food which comes under the definition of Section 3(zk) and also any substance used into the food during its manufacture, preparation or treatment."

2. Compliance with FSS Act Standards:
The court examined whether 'cocoa bean' must meet specific standards under the FSS Act. The appellant argued that 'cocoa bean' should comply with the standards prescribed for food items. However, the court found no specific provision in the regulations prescribing standards for 'cocoa bean'. The court stated:
> "The learned counsel for the appellant was unable to point out any specific provision under the regulations which prescribes the standards for 'cocoa bean'."

3. Applicability of Specific Standards:
The court evaluated the applicability of standards for 'dry fruits and nuts' to 'cocoa bean'. The court concluded that 'cocoa bean' cannot be equated with 'dry fruits or nuts' as it is a seed of the cocoa tree. The court referenced the Bureau of Indian Standards (BIS) definition:
> "'Cocoa bean' is defined as 'the seed of cocoa tree (Theobroma cacao Linnaeus)'... Apparently 'cocoa bean' is the seed of cocoa tree and is not termed as a fruit or nut."

4. Jurisdiction and Authority of Food Safety Officer:
The court affirmed the jurisdiction and authority of the Food Safety Officer under Section 47 of the FSS Act to take samples of imported food and conduct analysis to ensure it is neither sub-standard nor unsafe. The court emphasized:
> "It is the bounden duty of the Food Safety Officer exercising power under Section 47(5) of the FSS Act to take sample and send the same for analysis, to ensure that the food item is neither sub-standard nor unsafe."

5. Validity of Test Reports (Exts.P6 and P7):
The court scrutinized the test reports which indicated that the 'cocoa bean' samples were heavily infested with mould and fungus, making them unfit for consumption. The court noted:
> "The report indicates that the said sample was heavily infested with mould growth and fungus growth resulting in change in colour to greyish white and it has musty and rancid odour."

Conclusion and Directions:
The court modified the judgment of the learned Single Judge, directing the Food Safety Officer to conduct appropriate tests based on BIS standards to ensure the product is neither sub-standard nor unsafe. The court concluded:
> "The appellant is directed to examine the product from the place where it is stored by the petitioner and the samples shall be tested to ensure that it is neither sub-standard nor unsafe for human consumption taking into consideration the standards prescribed by BIS as well."

The appeal was disposed of with these directions, ensuring that the imported 'cocoa bean' complies with safety standards before being cleared for human consumption.