2009 (9) TMI 604 - HC - Customs

Second testing of sample - sample failed in two parameters - petitioner made representations for second testing of sample - sample retained by the Customs Department is forwarded to other Centres - testing is found to be favourable to the Petitioner - question would still have to be answered by the Authority concerned whether the first Report should be ignored or discounted - petition is accordingly disposed of

Summary

Issues involved:
1. Failure of imported cashew kernel LP sample in testing parameters.
2. Request for second testing of the sample.
3. Prohibition on re-testing under Prevention of Food Adulteration Act/Rules.
4. Interpretation of the judgment in Magma (India) v. Union of India.
5. Legal provisions for second testing of food samples.
6. Violation of audi alteram partem rule.
7. Direction for sending the sample to another Central Food Laboratory for re-testing.

Analysis:
1. The petitioner had imported cashew kernel LP from Vietnam, which failed in two parameters during testing by the Central Food Laboratory, Ghaziabad.
2. The petitioner requested a second testing of the sample, citing the judgment in Magma (India) v. Union of India, but the respondents did not comply, leading to the filing of a writ petition.
3. The Commissioner of Customs argued that under the Prevention of Food Adulteration Act/Rules, no provision allowed for re-testing of samples.
4. Referring to the judgment in Magma (India), the court highlighted the opportunity for re-testing to challenge the initial report's findings and emphasized the absence of statutory prohibition on second testing.
5. The court noted that there was no legal prohibition on conducting a second test, emphasizing the importance of allowing individuals to challenge findings and the need for fairness in the process.
6. The court rejected the argument of violating the audi alteram partem rule, stating that as long as the analysis and report were based on objective criteria, there was no violation.
7. Following previous judgments, the court directed the respondents to send the sample to another Central Food Laboratory for re-testing within 15 days without informing the petitioner about the specific laboratory.

This detailed analysis of the judgment showcases the legal interpretations, precedents, and directions provided by the court regarding the testing and re-testing of food samples in this case.