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TMI Blog1991 (8) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... not be disposed of in whole or in part unless the Collector of Customs or any other officer on his behalf allows them to do so in writing. Samples were drawn by Port Health Officer and Plant Quarantine and Fumigation Officer in presence of the appellants representative at the time of examination of the goods. Plant Quarantine and Fumigation Department vide Certificates No. F-5-28/90 J-298 to 303, dated 8-5-1990 recommended for release of the goods. The Port Health Officer vide his Certificate No. 906/P.H.O.G./ 106/F-2(a) (90), dated 4-5-1990 has stated that the sample did not conform to the standard specification as laid down under the prevention of Food Adulteration Rules, 1955 in respect of insect damaged weevilled grains and was unfit for human consumption as it contains dead insects. The appellants vide their letter dated 10-5-1990 requested for drawal of fresh samples for retesting. Collector of Customs allowed them to draw fresh samples, two each from the consignments in barges lying in godown of the party and from water stained bags. Accordingly, samples were again drawn by Port Health Officer in presence of Customs Authorities and party s representative and 3 (three) sets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d effectively removed the causes of contamination and hence the objection raised by the Central Food Laboratory for the clearance of the goods can be cured by reprocessing the same. In this connection, Shri Ghosh, learned Counsel relied on Section 11(5) of the Prevention of Food Adulteration Act (to be referred to as `PFA Act , for short), 1954, which empowers a Magistrate to order that the articles of food can be returned to the owner on his executing a bond with or without sureties if they process the same and make it conforming to the prescribed standard of human consumption after reprocessing under the supervision of such Officer as may be specified in the orders. It was his submission that this power could be exercised by the Collector in terms of section 6 of the PFA Act. It was also urged that the CIF Value of the imported pulses is 72.06 lakhs and that the only ground for holding the same as adulterated is the marginal excess of D.D.T. and lindane which is due to the use of insecticides/pesticides. It was also submitted that the absolute confiscation of 24,300 bags is a harsh punishment and a national loss when the CIF value has already been remitted to the sellers. 5. Af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility of PFA authorities is to ensure that food conforms to safety standards and one will be free to analyse the food product for any suspected component from additives in the laboratories. In this particular case if DDT was detected PFA authorities have every right to come to a conclusion that the food does not conform to specifications. 3. It is possible that during the milling process almost the entire pesticide residues will get removed in the husk fractions and the resulting dals may be free from this contaminating chemical. This can be confirmed only by a trial milling to assess the extent of pesticide diffusion into the kernel." 6. Relying on the abovementioned report it was contended before us that the Toor Whole in question at pesticides level had a marginally higher level than the human consumption and the same can be removed or reduced by washing or addition of water and can be made fit for use as cattle feed supplement. It was also contended that in view of the opinion of the CFTRI this Tribunal may be pleased to remit the case to the Collector for reconsideration on the basis of samples thereon after processing of the goods and testing the same in a specialised lab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the DDT there is an observation by the CFL that the second sample contains 5.3 ppb of DDT. After analysis the CFL opined as follows : The sample of Toor Whole is adulterated . 9. It is clear from the Order-in-Original that these facts were not considered by the learned Collector. A perusal of the order clearly goes to show that in the first instance a single sample as drawn by the PHO and the same was forwarded to the Calcutta Municipal Corpn. for testing. That test report was to the effect that the goods were damaged and unfit for human consumption and the appellant made a fresh request. Accordingly six samples were drawn in the presence of the appellants representative. Out of 24300 bags about 500 bags were lying in the barges while the remaining had been kept in the appellants godown awaiting final Customs clearance. Two samples were drawn from the part consignment lying in the barges and two samples were drawn from water stained bags forming part of the consignment and all these samples were drawn by the Port Health Organisation in the presence of the appellants. Out of the six samples three samples were sent to Calcutta Municipal Corporation and the second set of thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 11 can be exercised by the Collector. In order to appreciate the contention it is necessary to reproduce Section 6 of the Act, which reads as follows : - 6. Application of law relating to sea customs and powers of Customs Officers - (1) The law for the time being in force relating to sea customs and to goods, the import of which is prohibited by section 18 of the Sea Customs Act, 1878 (8 of 1878) shall, subject to the provisions of section 16 of this Act, apply in respect of Articles of food, the import of which is prohibited under section 5 of this Act, and officers of Customs and officers empowered under that Act to perform the duties imposed thereby on a Customs Collector and other officers of Customs shall have the same powers in respect of such articles of food as they have for the time being in respect of such goods as aforesaid. (2) Without prejudice to the provisions of sub-section (l) the Customs Collector, or any officer of the Government authorised by the Central Government in this behalf, may detain any imported package which he suspects to contain any article of food the import of which is prohibited under section 5 of this Act and shall forthwith report suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1962. This power is saved by Section 6 of the PFA Act, 1954 subject to the provisions of Section 16 of the said Act. 12. Section 16 of the Act mentions about penalties. Section 16(1) states that if any person has imported into India any adulterated food, he shall in addition to the penalty to which he may be liable under the provisions of Section 6 of the PFA Act, be punished with imprisonment for a term which shall not be less than six months. But these are functions to be exercised by the Courts, and the Section 16(a) of the PFA Act, the Judicial Magistrate of First Class is empowered to try the case under the criminal law summarily. A combine reading of Section 6 and 16 of the PFA Act, 1954 makes it abundantly clear that the Collector of Customs has the same power to deal with the goods in question under the Customs Act, 1962 and that power is saved by Section 6 of the PFA Act, 1954. If that is so the power of the Collector to confiscate the goods is within his jurisdiction and the same cannot be called in question in this appeal. He is right in confiscating the goods in question under Section 111(d) of the Customs Act, 1962. 13. But the contention of the learned Counsel is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court may order the article of food to be returned to the owner, on his executing a bond with or without sureties, for being sold, subject to the other provisions of this Act, after reprocessing the supervision of such officer as may be specified therein." In the light of the above provision, the learned Counsel contended that even when a person has been convicted under the Act for contravention of the Notification or of any rule thereunder, if the Court is satisfied that the article of food is capable of being made to conform to prescribed standards for human consumption after reprocessing, the Court may order the article of food to be returned to the owner on his executing a bond with or without sureties for being sold subject to the provisions of this Act after reprocessing under the supervision of such Officer as may be specified therein. 15. It is no doubt true that even if the articles are found to be adulterated and even if the person is convicted of such an offence still the Court has the power to return the articles to the person with a direction to reprocess the same so that it may conform to the standards of human consumption and then to sell the same subject to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her goods, give to the owner of the goods [or, where such owner is not known, the person from whose possession or custody such goods have been seized] an option to pay in lieu of confiscation such fine as the said officer thinks fit: Provided that, without prejudice to the provisions of the proviso to sub-section (2) of Section 115, such fine shall not exceed the market price of the goods confiscation, less in the case of imported goods the duty chargeable thereon. (2) Where any fine in lieu of confiscation of goods is imposed under sub-section (1), the owner of such goods or the persons referred to in sub-section (1), shall, in addition, be liable to any duty and charges payable in respect of such goods." 18. A perusal of Section 125 of the Customs Act goes to show that whenever confiscation of any goods is authorised thereunder the Officer adjudging it may in the case of any goods importation of which is prohibited under the Customs Act or under any other law for the time being in force, give to the owner of the goods an option to pay in lieu of confiscation such fine as the said Officer thinks fit. It is, therefore, clear that whenever a confiscation is made under the Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o apply his mind as to whether the goods in question are to be returned back to the owner on a redemption fine which he considers fit within the frame work of Section 125 and that aspect not having been considered we feel that this is a fit case which requires to be remanded to the Collector for consideration on this limited aspect of the matter. The appellant can also bring to the notice of the learned Collector several provisions like Section 6 and Section 18 of the PFA Act, 1954 and the learned Collector may apply his mind and he can pass suitable orders in this behalf. 20. Accordingly, this appeal is allowed by way of remand with a direction to the Collector to consider as to whether or not to give an option to the appellants to redeem the confiscated goods on payment of such fine in lieu of confiscation as may be considered appropriate by him. The adjudicating Officer should take a decision one way or the other in accordance with law as is considered appropriate in the circumstances of the case after hearing the appellants. We have no doubt that the adjudicating Officer will take into consideration all the relevant circumstances and the provisions of PFA Act, 1954 which may ..... X X X X Extracts X X X X X X X X Extracts X X X X
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