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TMI Blog2015 (2) TMI 1137X X X X Extracts X X X X X X X X Extracts X X X X ..... for analysis, to ensure that the food item is neither sub-standard nor unsafe. The learned Single Judge was not justified in permitting import of a consignment which, according to the Food Safety Officer, was unsafe or sub-standard. In the event of a like situation where no specific standard is prescribed for a particular imported food item, still the Food Safety Officer has to certify that the food item is not sub-standard or unsafe. Therefore, the jurisdiction of the Food Safety Officer to grant or reject clearance certificate of food items on sufficient materials cannot be disputed or doubted. Hence it was appropriate that the Food Safety Officer should have been directed to conduct analysis based on appropriate standards or even BIS standards to ensure that the product is neither sub-standard nor unsafe for import. - Writ Appeal disposed of - W.A. No. 1317 of 2014 - - - Dated:- 4-2-2015 - Ashok Bhushan, ACJ and A.M. Shaffique, J. Shri Paul Jacob and Mehmood Pracha, Advocates, for the Appellant. Shri N. Nagaresh, Assistant Solicitor General, Tojan J. Vathikulam, SC, P. Ravindran, Senior Advocate and Madhu Radhakrishnan, Advocate, for the Respondent. JUDGMENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xed under the FSS Act and Rules. It is also contended that the test conducted for Dry Fruits and Nuts has no application to cocoa bean which is a seed of cocoa. 4. Statement has been filed by the 2nd respondent inter alia contending that 2nd respondent had taken samples of the imported cocoa beans . Two consignments passed the test and two consignments failed the test as the product was heavily infected with mould growth and fungus growth resulting in changed colour to greyish white. It was also found that it has musty and rancid odour. Damaged units was 100% by weight instead of 2% and acidity of extracted fat expressed as oleic acid 2.8% by weight instead of 1.25%. Therefore, according to them, the sample was not edible and thus failed the test. Reference is also made to various statutory provisions to indicate that as long as the item imported is food, it has to comply with certain standards and if it is not fit for human consumption, it cannot be permitted to be imported. 5. Learned Single Judge, after hearing the rival contentions, formed an opinion that the test conducted by the Department is as if the cocoa bean is coming under the specification dry fruits and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court in Centre for Public Interest Litigation v. Union of India and Others [AIR 2014 SC 49]. Paragraphs 24 to 26 have been highlighted whereby directions have been issued to the FSS Authority of India to conduct periodical inspection and monitoring of major fruit and vegetable markets to ensure that the specification and standards are conformed by the suppliers/retailers and that the provisions of the Act has to be implemented in the light of safeguarding the right to life guaranteed under Article 21 of the Constitution of India. Learned counsel for the appellant also argued that even going by the standards prescribed under BIS, the sample failed and therefore, no food product or any material used for manufacture of food, which does not comply with the standards, cannot be imported to India. Further, reference has also been made to the import licence issued in favour of the petitioner which permitted only import of products allowed under the FSS Act, 2006. It is argued that when cocoa beans are imported under the aforesaid licence, it is not open for the petitioner to contend that they have no obligation to comply with the standards prescribed. Argument has also been raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... food containing such ingredients, infant food, packaged drinking water, alcoholic drink, 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. The definition is very wide enough as it includes the primary food which comes under the definition of Section 3(zk) and also any substance used into the food during its manufacture, preparation or treatment. The meaning given to primary food, food additive and ingredient are also relevant which reads as under : Section 3(zk) primary food means an article of food, being a produce of agriculture or horticulture or animal husbandry and dairying or aquaculture in its natural form, resulting from the growing, raising, cultivation, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon by the appellant which reads as under : Dry Fruits and Nuts means the products obtained by drying sound, clean fruits and nuts of proper maturity. The product may be with or without stalks, shelled or unshelled, pitted or unpitted or pressed into blocks. The product shall be free from mould, living/dead insects, insect fragments and rodent contamination. The product shall be uniform in colour with a pleasant taste and flavour characteristic of the fruit/nut free from off flavour, mustiness, rancidity and evidence of fermentation. The product shall be free from added colouring. The product shall conform to the following requirements :- (i) Extraneous Vegetable matter (m/m) Not more than 1.0 per cent. (ii) Damaged/Discoloured units (m/m) Not more than 2.0 per cent. (iii) Acidity of extracted fat expressed as oleic Acid not more than 1.25 per cent. Explanation. - For the purpose of this paragraph - (i) Extraneous vegetable matter means stalks, pieces of shells, pits, fibre, peel; (ii) Damaged or Discoloured means units affected by sunburn, scars, mechanical injury, discolouration and insects. Dry fruits and nuts means the products ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e question of importing food on the basis of license for importing food under the FSS Act, and the requirement of standards to be maintained. Section 25 of the FSS Act reads as under : 25. All imports of articles of food to be subject to this Act. - (1) No person shall import into India - (i) any unsafe or misbranded or sub-standard food or food containing extraneous matter; (ii) any article of food for the import of which a licence is required under any Act or rules or regulations, except in accordance with the conditions of the licence; and (iii) any article of food in contravention of any other provision of this Act or of any rule or regulation made thereunder or any other Act. (2) The Central Government shall, while prohibiting, restricting or otherwise regulating import of articles of food under the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992), follow the standards laid down by the Food Authority under the provisions of this Act and the rules and regulations made thereunder. Sub-standard is defined under Section 3(zx) and unsafe food is defined under Section 3(zz) as under : Section 3(zx) sub-standard , an article of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been taken in such place and in such manner as may be prescribed by the Central Government : Provided that where such person refuses to sign or put his thumb impression, the Food Safety Officer shall call upon one or more witnesses and take his signature or thumb impression, in lieu of the signature or thumb impression of such person; (c) (i) send one of the parts for analysis to the Food Analyst under intimation to the Designated Officer; (ii) send two parts to the Designated Officer for keeping these in safe custody; and (iii) send the remaining part for analysis to an accredited laboratory, if so requested by the food business operator, under intimation to the Designated Officer : Provided that if the test received under sub-clauses (i) and (iii) are found to be at variance, then the Designated Officer shall send one part of the sample kept in his custody, to referral laboratory for analysis, whose decision thereon shall be final. (2) When a sample of any article of food or adulterant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority of India for laying down specific standards for articles of food and to regulate the manufacture, storage, distribution, sale and import to ensure availability of safe and wholesome food for consumption and for matters connected therewith or incidental thereto. 17. Therefore, when a food item is imported, it is the bounden duty of the Food Safety Officer exercising power under Section 47(5) of the FSS Act to take sample and sent the same for analysis, to ensure that the food item is neither sub-standard nor unsafe. 18. Ext. P6 is the first report which indicates that the sample does not conform to the prescribed standard due to the presence of visual mould. The sample was tested according to item No. 2.2 of the Regulation. Ext. P7 is the analysis report of food from the analytical lab at Mysore. The report indicates that the said sample was heavily infested with mould growth and fungus growth resulting in change in colour to greyish white and it has musty and rancid odour. The report also indicates the nature of test conducted and it is opined that the goods does not conform to the standards laid down for dry fruits and nuts . 19. The learned counsel for the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision under which they tested the sample was not applicable under the circumstances. But, as held in Al Marwa Traders case (supra), it is for the Food Safety Officer to ensure and certify that the goods can be imported and it is neither sub-standard nor unsafe. Merely for the reason that no standard had been fixed for cocoa beans or cocoa seed it does not mean that the Food Safety Officer is without power to analyse the same and ensure that it is safe for human consumption. Probably, they could analyse the food product with reference to the standards fixed by BIS as well. But the authority to analyse the sample vests in them, which cannot be questioned by the importer. It is, therefore, mandatory for any importer of food item to obtain appropriate certification from the Food Safety Officer stating that the food item is not sub-standard or unsafe. 21. As already indicated, the scope and effect of the FSS Act is clear from the preamble and highlighted by the Supreme Court in the judgment in Writ Petition (Civil) No. 681/2004. Paragraphs 23, 24 and 25 are relevant which reads as under : 23. Enjoyment of life and its attainment, including right to life and human dignity encompa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Regulations as well, since no material was available to indicate that the commodity was a packaged commodity and no action had been taken in that regard by the Food Safety Officer, we do not think that it is proper to consider the same at this point of time. 24. Having regard to the aforesaid findings of ours, we are of the view that the learned Single Judge was not justified in permitting import of a consignment which, according to the Food Safety Officer, was unsafe or sub-standard. In the event of a like situation where no specific standard is prescribed for a particular imported food item, still the Food Safety Officer has to certify that the food item is not sub-standard or unsafe. Therefore, the jurisdiction of the Food Safety Officer to grant or reject clearance certificate of food items on sufficient materials cannot be disputed or doubted. Hence it was appropriate that the Food Safety Officer should have been directed to conduct analysis based on appropriate standards or even BIS standards to ensure that the product is neither sub-standard nor unsafe for import. 25. The goods having already been released and a direction has been issued to conduct test by the BIS, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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