2005 (7) TMI 108 - HC - Customs

Summary

Issues Involved:
1. Legality of second testing of food samples.
2. Applicability of Section 144 of the Customs Act, 1962.
3. Source of power under the Prevention of Food Adulteration Act, 1954 (PFA Act).
4. Distinction between reports by Central Food Laboratory (CFL) and Public Analyst.
5. Procedure for collecting and testing food samples.
6. Legal provisions for re-testing food samples.
7. Specific cases and their facts (Magma (India), Mcton Trade Links, Surya Foods & Agro Ltd., Sri Raghunath Traders).

Detailed Analysis:

1. Legality of Second Testing of Food Samples:
The judgment addresses the issue of whether a second testing of food samples by the Central Food Laboratory (CFL) is legally permissible. The Court notes that there is no legal provision explicitly enabling or prohibiting the second testing of food samples. The argument against second testing, presented by the CFL, is based on the absence of a statutory provision. However, the Court finds that in the absence of a statutory prohibition, second testing cannot be deemed impermissible. The Court references a previous case (WP (C) No. 4200/2003) where a Division Bench had allowed a second test, reinforcing the view that second testing is permissible under court intervention.

2. Applicability of Section 144 of the Customs Act, 1962:
The Court clarifies that Section 144 of the Customs Act, 1962, which empowers the Proper Officer to take samples for examination or testing, is not applicable in this case. This is because the issue at hand concerns the quality of the food substance for human consumption, not the value of the consignment for customs duty purposes.

3. Source of Power under the Prevention of Food Adulteration Act, 1954 (PFA Act):
The Court identifies Section 5 of the PFA Act as the source of power for the Customs Department to draw and forward food samples for testing. Section 5 contains a prohibition on the import of certain articles of food, and Section 6 empowers the Commissioner of Customs to detain any imported package suspected of containing prohibited food articles and forward samples to the CFL for testing.

4. Distinction between Reports by Central Food Laboratory (CFL) and Public Analyst:
The judgment highlights the distinction between the roles of the CFL and the Public Analyst. For imported food articles, the Commissioner of Customs must refer samples to the CFL, not the Public Analyst. This distinction is crucial as it ensures that the testing and analysis of imported food articles adhere to the provisions of the PFA Act.

5. Procedure for Collecting and Testing Food Samples:
The Court notes that the procedure followed by the Customs Department is generally in conformity with Section 13 of the PFA Act and Section 25 of the Drugs and Cosmetics Act, 1940. These statutes require the drawing and sealing of three samples, one for analysis, one retained by the authority, and one given to the owner. This procedure is considered salutary as it provides an opportunity for re-testing.

6. Legal Provisions for Re-testing Food Samples:
The Court finds no provision in the law that prohibits second testing of food samples. The Court emphasizes that if there is dissatisfaction with the CFL report, a second testing should be allowed to ensure fairness and accuracy. The Court also addresses the argument that the audi alteram partem rule (right to be heard) was violated, concluding that this rule is not applicable to the preparation of an objective analysis and report.

7. Specific Cases and Their Facts:
- Magma (India): The petitioner imported betel-nut from Indonesia, which was found to have fungal growth. The request for a second test was denied by the CFL, leading to the writ petition.
- Mcton Trade Links: The petitioner imported Vanaspati Ghee, which was found to have a higher melting point and suspended matter. The request for a second test was denied by the CFL.
- Surya Foods & Agro Ltd.: The petitioner imported Cocoa powder, which was found to have higher alkalinity of total ash. A second test by ARBRO Pharmaceuticals showed different results, but the request for a re-test by the CFL was denied.
- Sri Raghunath Traders: The petitioner imported Red Asafetida, which was found to have higher ash insoluble in H.C.L. The request for a second test was denied by the CFL.

Conclusion:
The Court allows the writ petitions and directs the Commissioner of Customs to dispatch the retained sample or the third sample to the Central Food Laboratory, Calcutta, for analysis and report. If three samples were not initially taken, this should be done immediately. The judgment emphasizes that there is no statutory prohibition against second testing, and fairness dictates that such testing should be allowed to challenge the veracity of the initial findings.