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TMI Blog2012 (12) TMI 983X X X X Extracts X X X X X X X X Extracts X X X X ..... ner. - Writ Petition (ST) No. 28980 of 2012 - - - Dated:- 19-12-2012 - S.J. Vazifdar And R.Y. Ganoo,JJ. For the Petitioner : Mr. Virag Tulzapurkar, senior counsel with Mr. Firoz Palkhiwala and Mr. R.H. Gajria, i/b M/s. Gajria Co. For the Respondent : Mr. Parag Vyas with Mr. M.S. Bhardwaj for the Respondent Nos.1 and JUDGMENT [Per S.J. Vazifdar, J.] 1. Respondent Nos.2, 3 and 4 are the Commissioner of Food Safety, Assistant Commissioner (Food) Nanded, Maharashtra, Assistant Commissioner (Food), Aurangabad of the Food and Drug Administration. Respondent No.5 is the Food and Drug Administration. Respondent No.6 is the Union of India. 2. By the impugned action, the respondents have sealed and seized the petitioner's food products and the raw material. The petitioner seeks a writ of certiorari to set aside several notices issued by the respondents. The petitioner also seeks an order directing the respondents to take any action against it with regard to the alleged excess use of colour in any particular batches of its products only after following due process of law. The petitioner further seeks a writ of prohibition restraining the respondents from tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge of N.A.B.L. Accredited / FSSA, notified laboratory by paying requisite fee. The petitioner states that as no analysis report was received, it had no reason to believe that the analysis would be adverse to it and, therefore, did not respond to the said letter. 5. On 3rd October, 2012, the petitioner received a letter dated 1st October, 2012, from respondent No.3 stating that a sample of the said products from the particular batch had been drawn for analysis. The letter stated that the same had been declared as unsafe and of sub-standard quality by the Director Referral Laboratory, Ghaziabad (U.P.), as the same contained more than the permissible amount of colour as well as acidulants 270 i.e. lactic acid. The petitioner was requested to recall the entire stock of the said products and to confirm the same under section 28 of the said Act. The documents annexed to the letter indicated that the Food Safety Officer had seized and/or sealed the quantities of the products at the petitioner's depot. All the documents were dated 1st October, 2012, which included certain forms, letters from the Food Safety Officer, seizure memo and the form of the order of seizure. The same ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch and seizure spree at its manufacturing centres and depots with an intention of sending the same for analysis. Moreover, even before sending the samples for analysis, the officers seized and sealed the products as well as the stock of lactic acid. The documents in respect of this action are annexed at Exhibits D to J of the petition, which are also challenged by the petitioner. 8. Respondent No.4 - Assistant Commissioner (Food), SRP 8/28 ASWPL28980.12 FDA, Aurangabad, by a letter dated 3rd October, 2012 raised similar allegations against the petitioner namely regarding the petitioner's products containing excess colour and lactic acid as an acidulant and stated that the same was not a permitted ingredient. Annexed to the letter was a certificate dated 13th September, 2012 from the Referral Food Laboratory stating that the products did not conform to the regulations on account of the above facts. The letter and the report, which are annexed as Exhibits K-1 and K-2, are also challenged in this petition. Similar notices were received from the Food Safety Officer from other locations, which are annexed as Exhibits L and M . The same are challenged in the petition. Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various ingredients such as milk and milk products, malt extracts, edible starches, none of which are relevant to this petition. After setting out these items, the Regulation 2.7.1 continues as follows :- It shall also conform to the following standards, namely:-- (i) Ash sulphated (on salt free basis) Not more than 2.5 per cent by weight. Provided that in case of sugar boiled confectionery where spices are used as centre filling, the ash sulphated shall not be more than 3 per cent by weight. (ii) Ash insoluble (in dilute Hydrochloric acid) Not more than 0.2 Percent by weight. Provided that in case of sugar boiled confectionery where spices are used as centre filling, the ash insoluble in dilute Hydrochloric acid shall not be more than 0.4 per cent. Where the sugar boiled confectionery is sold under the name of milk toffee and butter toffee, it shall conform to the following additional requirements as shown against each; (1) Milk toffee- (i) Total protein (N x 6.25) shall not be less than 3 per cent by weight on dry basis. (ii) Fat content shall not be less than 4 per cent by weight on dry basis.ig (2) Butter toffee- fat content shall not be less than 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chelates; thus inhibiting decolourisation, off taste and rancidity; (ii) Buffering agents means materials used to counter acidic and alkaline changes during storage or processing steps, thus improving the flavour and increasing the stability of foods; 1) Restrictions on the use of sequestering and buffering agents. Unless otherwise provided in these regulations the sequestering and buffering agents specified in column (1) of the Table below, may be used in the groups of food specified in the corresponding entry in column (2) of the said Table, in concentration not exceeding the proportions specified in the corresponding entry in column (3) of the said Table : Table Name of Group of food Maximum sequestering and level of use buffering agents (parts per million) (ppm) SRP 14/28 ASWPL28980.12 mg./kg. 8. DL Lactic acid As acidulant in Limited by (food grade) miscellaneous food G.M.P. 9. L(+) Lactic Acid As acidulant in LimitedBy (food grade) miscellaneous food G.M.P. Pausing here, it must be noted that the column numbers should read column No.2 instead of column No.1, column No.3 instead of column No.2 and column No.4 instead of column No.3. The confusion ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... term miscellaneous to mean consisting of different elements, types, or things intermingled; diversified; many sided . The term miscellaneous in the Regulation is used without any restriction. It does not even use the phrase miscellaneous such as followed by any specific items. Absent anything to the contrary, the word must be given its full import. If the Legislature considered lactic acid to be a harmful ingredient in sugar boiled confectionery, it would have taken care to exclude it. We cannot presume an error on the part of the Legislature. The note below the Appendix indicates that where the intention was to prohibit the use of a particular ingredient, SRP 17/28 ASWPL28980.12 including lactic acid, it was specifically so provided. The note expressly states that DL-lactic acid and L(F) tartaric acid shall not be added to any food meant for children below twelve months. It is reasonable to presume that if the intention was to prohibit the use of these ingredients for any other persons or in respect of any particular food, it would have been so provided clearly. 14. In the affidavit in reply, the Joint Commissioner (Food), Food Drug Administration stated :- The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.12.1 1) Proprietary food means a food that has not been standardized under these regulations 2) In addition to the provisions including labelling requirements specified under these regulations, the proprietary foods shall also conform to the following requirements, namely:-- (i) the name describing as clearly as possible, the nature or composition of food and/or category of the food under which it falls in these regulations shall be mentioned on the label (ii) the proprietary food product shall comply with all other regulatory provisions specified in these regulations and in Appendices A and B. The Regulation only indicates that there is a difference between proprietary food and standardized items of food. The Regulation does not, however, establish Mr. Shinde's submission. For instance, the proviso to Regulation 2.7.1 emphasized by us permits the use of food additives permitted in the Regulation. It does not limit this use to proprietary foods. Our attention has not been invited to any of the provisions of the Act, Rules or Regulations which support the contention that standardized food products do not fall within the Table contained in Regulation 3.1.12. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ohibited ingredient in sugar boiled confectionery when the Bureau of Indian Standards permitted the use of the same. 22. In addition to the above, Mr. Tulzapurkar also relied upon the provisions of the Prevention of Food Adulteration Act, 1954 (PFA Act) which preceded the Food Safety and Standards Act, 2006. The PFA Act was repealed by section 97 read with Schedule 2 of the Food SRP 23/28 ASWPL28980.12 Safety and Standards Act, 2006. As pointed out by Mr. Tulzapurkar, Rules 70, 71 and 72 of the Prevention of Food Adulteration Rules, 1955 made under the PFA Act are similar to the provisions of the said Regulation 3.1.12 we have set out earlier. Rules 70, 71 and 72 of the PFA Rules, 1955, read as under :- 70. Definition of sequestering agents:- The sequestering agents are substances which prevent adverse effect of metals catalysing the oxidative breakdown of foods forming chelates; thus inhibiting decolourisation, off taste and rancidity. 71. Definition of buffering agents:- Buffering agents are materials used to counter acidic and alkaline changes during storage or processing steps, thus improving the flavour and increasing the stability of foods. 72. Restrictions on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This is similar to the fact that lactic acid is not mentioned in Table 13 to Appendix A referred to in Regulation 3.1.1. of the said Regulations. However, it is obvious that the authorities considered the use of lactic acid to be a permissible ingredient in sugar boiled confectionery in view of Rule 72 which is similar to Regulation 3.1.12. 25. Mr. Tulzapurkar relied upon the judgment of a Division Bench of this Court in Sadanand S. Varde Ors. v. State of Maharashtra Ors. 2001 (1) BCR 261 [paragraphs 63 to 66], which recognizes the principle of of contemporanea expositio. 26. We do not, however, base this judgment upon the action or inaction on the part of the authorities in respect of similar products which contained and continue to contain lactic acid either under the Prevention of Food Adulteration Act, 1954 or under the Food, Safety Standards Act, 2006. This judgment is based upon our construction of the provisions of the Food, Safety Standards Act, 2006 and the Rules and Regulations made thereunder. The provisions of the Prevention of Food Adulteration Act, 1954 and the revision published by the Bureau of Indian Standards are additional factors which support this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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