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TMI Blog2005 (7) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... sed through the Customs or, to take samples of such goods in the presence of the owner, with the purpose of their examination or testing, or for ascertaining the value thereof. In the present case this provision does not have any role to play since it is the quality of the food substance from the standpoint of human consumption which is in issue, and not the value of the consignment, for imposition of Customs duty. 3.The source of power of the Customs Department to draw and thereafter forward food samples for testing can be traced to Section 5 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as 'PFA Act') which contain a prohibition on the import of certain articles of food. The next following Section empowers the Commissioner of Customs or any officer of the Government authorised by the Central Government in this behalf to detain any imported package which he suspects to contain any article of food the import of which is prohibited. Such Officer is duty bound to forthwith report such detention to the Director of the Central Food Laboratory and, if required by him, forward the package or send samples of any suspected article of food found therein to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discloses that if there is dissatisfaction with the report of the Public Analyst the Petitioner has another opportunity to prove that the food sample is not adulterated or is otherwise unfit for human consumption by having it re-tested by the Central Food Laboratory. There appears to be no justification for vesting absolute finality to the Report of the CFL only because it pertains to an import. 6.The procedure normally followed by the Customs Department is in conformity with Section 13 of the PFA Act so far as the collection of three samples is concerned. This is also in consonance with the provisions of Section 25 of the Drugs and Cosmetics Act, 1940. These statutes envisage the drawing and sealing of three samples, one of which is forwarded for analysis, the second is retained by the Authority and the third is handed back to the owner of the food articles. Even though, Section 13 would not apply to imported consignments of food articles, the drawing of these samples is salutary as it affords another opportunity of carrying out of testing and analysis. 7.Counsel for the CFL have not been able to cite any provision of law which prohibits the carrying out of a second testing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is violated where only an analysis and report, founded of objective criteria, is prepared. If another opportunity is available to test another of the three samples drawn at the relevant time, the Petitioners can scarcely have any further grievance. Since there are four Central Food Laboratories in India, it would be in the interest of all concerned, if on a request being made by the party concerned, the sample retained by the Customs Department is forwarded to any of the other Centres. In the event that the second testing is found to be favourable to the Petitioner the question would still have to be answered by the Authority concerned whether the first Report should be ignored or discounted. Magma (India) 10.The facts in WP (C) No. 10553-54/2005 are that in February, 2005 the Petitioner had imported a consignment of betel-nut from Indonesia. These were fumigated as per Certificate dated February 17, 2005 issued by the Superintendent Marine/Ship Surveyor/Stuffing/Unstuffing Survey, Fumigation, Pest Control, Termite Control, Analytical Testing Laboratories, Indonesia by Pt. Carsurindo Era Mandiri, Medan Office: Komp. Griya Raitur Indah Blok B No. 205 Helvetia Timur Medan 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... container from which one sample was sent to the Central Food Laboratory, Ghaziabad for testing, second sealed sample was given to the Petitioner and third sealed sample was retained by the Customs Authority. The Central Food Laboratory sent his analysis Report on 16th June, 2005 to the Customs Authorities and the Report, however, was to the effect that the alkalinity of total ash was found to be 7% against the prescribed standard of not more than 6%. The Petitioner sent the second set of sealed sample to ARBRO Pharmaceuticals Ltd., 4/9, Kirti Nagar Industrial Area, New Delhi which is a Government approved Test House. The said laboratory gave its Report to the Petitioner on 24th June, 2005 in which the alkalinity of the sample was found within the prescribed limit of 0.48% against the report of 7% of Central Food Laboratory, Ghaziabad. The Petitioner thereupon approached the Assistant Commissioner of Customs (Imports) with the report of ARBRO Pharmaceuticals Ltd. and requested that the third sample may be dispatched for testing. It was stated that the Petitioner was confident that the import was not sub-standard and the first sample may not have been sealed/packed in proper pac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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