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TMI Blog2014 (10) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... , the writ petition fails and it is dismissed. - W.P. No. 24999 of 2014 - - - Dated:- 10-10-2014 - T.S. Sivagnanam, J. Shri J. Sivanandaraaj, for the Petitioner. Shri K.S. Sampth, K. Surendranath and S. Xavier Felix, SCGSC, for the Respondent. ORDER The petitioner has filed this writ petition for issuance of a writ of Certiorarified Mandamus to quash the proceedings of the third respondent, dated 19-6-2014, imposing a condition on the petitioner to obtain no objection certificate from the second respondent and for a consequential direction to release consignment covered under bill of entry BE No. 5853707, dated 19-6-2014. 2. The petitioner filed bill of entry dated 19-6-2014 for clearance of 50.94 Metric Tones of Areca Nuts (Betel-Nuts) classifying the product under (CTH) 0802 80 10 and tariff item 5094 00 00. The goods were from Sri Lanka and to support the same, the petitioner relies upon the Certificate of Origin issued by the exporter dated 16-6-2014. On examination, the third respondent filed a report dated 19-6-2014, imposing the condition that the petitioner must obtain a certificate from the second respondent under the provisions of Food Safety and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision is equally applicable to the case on hand, since the same standards are mentioned in the test contemplated under the Food Safety and Standards Act, 2006. Therefore, the petitioner would state that the betel-nuts imported by the petitioner is raw ungarbled form and the question of obtaining no objection certificate from the second respondent does not arise. 4. The learned counsel appearing for the petitioner after elaborately referring to the factual situation invited the attention of this Court to the decision of the Hon ble Division Bench of the High Court of Kerala and submitted that the test contemplated under the Prevention of Food Adulteration Act and Food Safety and Standards Act being identical and the decision of the Hon ble Division Bench of the Kerala High Court squarely applies to the case of the petitioner and that the petitioner having imported betel-nuts in ungarbled form, cannot be compelled to obtain a no objection certificate/test report from the second respondent. The learned counsel further submitted that the decision of the Hon ble Division Bench of the Kerala High Court has been followed by the learned Single Judges of the Kerala High Court in the wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Imports, (referred supra) lays down a mandatory condition for Food Regulation Authority to ensure that the imported betel-nuts are not injurious to the health of the ultimate consumers. Further it is submitted that the petitioner has not stated in the imported documents that the areca-nuts imported is in ungarbled form. Therefore, such averment is put to strict proof by the petitioner himself. Further, it is submitted that so far as the writ petition which was filed before the Kerala High Court in W.P. No. 26785 of 2013, the Department has filed a petition for modification of the order passed by the Kerala High Court. Further, the learned counsel reiterated that the report of the Food Safety Authority of India, dated 27-6-2014 clearly states that the Areca-Nuts (Betel-Nuts) does not conform with the standard laid down under [clause] 2.3.47(5) of the Food Safety and Standards Act and the Regulation. Further that the petitioner submitted an application for retesting of the samples and it was sent to the Referral Laboratory at Mysore and the Referral Lab by report dated 1-8-2014 confirmed that the samples do not conform with the standards laid down for dry fruits and nuts. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Standards and Food Additives) Regulations, 2011. At this stage, it has to be mentioned that the terms of Section 97(1) of the Food Safety and Standards Act, with effect from such date as the Central Government may appoint in that behalf, the enactment and orders specified in II Schedule of the Act shall stand repealed. Serial No. 1 of the II Schedule is the Prevention of Food Adulteration Act, 1954. Thus, by virtue of Section 97, the Prevention of Food Adulteration Act, 1954, stood repealed and the provisions of the Food Safety and Standards Act alone shall be applicable to all imports including the import done by the petitioner. 12. The petitioner s application under the FICS system was considered and samples were drawn. The sample was sent to the Laboratory for testing, the product was Areca-nuts (Betel-nuts) and the Laboratory tested the samples and issued certificate of analysis in Form B dated 27-6-2014. The operative portion of the report reads as follows :- Sl.No. Quality Characteristics Name of the Method of the test used Results Prescribed Standard as per 2.3.47(5) Food Safet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... growth was observed on the split of the areca nut. (b) Damaged/Discoloured units exceeds the maximum permissible limit. 14. From the above reports, it is evidently clear that the sample drawn from the import consignment does not conform with the standards laid down under the provisions of the Food Safety Regulations, 2001. In fact the Referral Laboratory at Mysore observed mould growth on the split of the Areca Nuts; damaged/discoloured units exceed the maximum permissible limit. The reports submitted by the notified Laboratory as well as by the Referral Laboratory are against the petitioner and the samples does not satisfy the statutory requirement. This appears to be the undisputed factual position. In such circumstances, the petitioner cannot come forward with a case that the consignment should be cleared without insisting upon a no objection certificate from the second respondent, more particularly, when the petitioner himself applied through the FICS system pursuant to which samples were drawn, analysed and found to be not in conformity to the standards laid down, and thereafter, it sent to the Referral Laboratory at the instance of the petitioner, which also reporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chewing gum, and any substance, including water used into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances : Provided that the Central Government may declare, by notification in the Official Gazette, any other article as food for the purposes of this Act having regards to its use, nature, substance or quality. 18. From the above definition, it is clear that the food includes any substance whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food and food means any article being a produce of agriculture or horticulture, etc. Admittedly, the Areca nut (Betel-Nuts) is an agriculture product include to fall within the definition of primary food and such primary food is covered in the definition of food as contained in Section 3(2) of Food Safety and Standards Act. The definition of food as contained in the provisions of the Prevention of Food Adulteration Act is quite ..... X X X X Extracts X X X X X X X X Extracts X X X X
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