9911796707
TMI Blog2009 (8) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... l)]. - By this petition under Article 226 of the Constitution of India, the Petitioner has applied for the following reliefs:- "(a) For a writ of mandamus or any other appropriate writ, order of direction under Article 226 of the Constitution of India ordering and directing the Respondents (i) to treat, classify, categorize and test and analyze Red Bull Energy Drink as Proprietary Food and NOT as a non-alcoholic carbonated water under the provisions of the Prevention of Food Adulteration Act, 1954 and Prevention of Food Adulteration Rules, 1955 and release the consignments of the Petitioners lying at Nhava Sheva Port and warehouses of the Petitioners seized/detained by Respondent No. 4 as detailed in Exhibit on that basis and (ii) to treat/classify/categorize the Petitioners product Red Bull Energy Drink(R) as Proprietary Food and not as non-alcoholic carbonated water and to deal with the same on the basis that it is a Proprietary food. (b) For a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India calling for the papers and records relating to the analysis report of Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the letter of the Director General of Foreign Trade. It is alleged that since the category of energy drink has not been standardized under the Prevention of Food Adulteration Rules, the energy drink falls under category of "Proprietary Food" as defined in Rule 37A of the said Rules. A Proprietary Food would not be required to comply with any standards prescribed in Appendix B to the PFA Rules inasmuch as there are no standard prescribed for such products. However, the Petitioners do not dispute that their products would have to comply with other requirements of the PFA Act and the PFA Rules. Thus, substance of the Petitioners' grievance is that their Energy Drink is non-alcoholic aerated, carbonated water. It would not be required to conform to the standards laid down for carbonated water under Item A. 01.01 of Appendix B to the PFA Rules. The further grievance of the Petitioner is that Respondent No. 2 is treating their product as a "carbonated water." In such circumstances, the consignment of the product which has been imported into India has been seized and details of the seizure are set out in the Petition. 5. The Petitioners state that Petitioner Nos. 1 and 3 have been impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on receipt of the report passed appropriate orders in accordance with law. It is in these circumstances that the certificate at Annexure 'F' has been issued on 10th March, 2008 and all Respondents are bound by the same. 7. It was expected that the stand of all the Respondents would be in consonance with Annexure 'F' but on 9th April, 2009, the Fourth Respondent to this Writ Petition visited the warehouses/godowns of the Petitioner situated at Worli, Bombay and at Kalamboli in Taluka Panvel, District Raigad. They inspected the same and drew samples of the drink. They seized the remaining stock under Section 10(4) of the PFA Act. The stocks seized are worth Rs. 63,25,350/-. It is then alleged that on 13th April, 2009 one part of the sample was sent to Respondent No. 2 and remaining samples were sent for testing to the Local Health Authority (Food Drug Administration), Raigad. The Second Respondent in contravention of the orders, directions and findings of the Hon'ble Madras High Court and the analysis report wrongly concluded that the product is carbonated water and held that it does not conform to the standards laid down for such product under the Act and Rules. That report is da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, issue appropriate orders and directions inconsonance with the findings recorded by the Hon'ble Madras High Court. Mr. Tulzapurkar has taken us also through the present Petition and all annexures thereto. He strenuously urged that all orders made by the Hon'ble Madras High Court are in the case of the present Petitioners and they bind Respondent Nos. 2 and 7 so also all subordinate authorities. Once Central Government has not challenged these orders means they accept the correctness of the classification of the Petitioners' product as a proprietary food. Hence, the issue of classification is concluded and now cannot be re-opened once again by the State Government or its officers. He submits that the Petitioners be not relegated to any other forum but this Court should decide the controversy on the basis of the available material and grant the reliefs as prayed, more so, when there is no affidavit in reply nor any dispute is raised by the Respondents. 12. On the other hand, Mr. Nalavade, appearing for the State and Mrs. Bharucha, appearing for Respondent No. 7 have urged that there is alternate and equally efficacious remedy available to the Petitioner inasmuch as pursuant to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fy and categorize the energy drink as proprietary food and not as a non-alcoholic carbonated water. We do not possess the expertise to grant these reliefs inasmuch as whether the reports as annexed to the Writ Petition are conclusive or not is something which must be decided on the basis of evidence and more particularly expert opinion, by competent authorities and Courts. We cannot in our limited jurisdiction go into disputed questions of facts. More particularly, when the order of the Division Bench of the Hon'ble Madras High Court is based upon a concession of the Additional Solicitor General appearing before it. The Hon'ble Madras High Court has not decided the matter finally but remitted the case at the stage of Show Cause Notice back to the Director of Central Food Laboratory. The Petitioners can therefore take up the matter with the authorities under the Prevention of Food Adulteration Act and Rules. 14. Further, the principal relief of the Petitioners is release of the seized stocks and goods. Admittedly, the case of the Petitioners is that Exhibit 'J' is a conclusive report and therefore, the seized/detained stocks must be released. Now, whether the report is conclusive ..... X X X X Extracts X X X X X X X X Extracts X X X X
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