Allowed

Monster Energy India Private Limited v. Union of India and 6 Ors.

Bombay HC18 Dec 2014NMW/51/2015

Case brief

AI extract

What is this about?

The single judge court removed a prior restriction on the petitioner's imports, directed clearance of any goods received thereafter, and ordered the Food Authorities to process non-ginseng product applications within four weeks, citing arbitrary conduct by the Respondents.

What did the court decide?

Restricted import ban removed; goods received to be cleared; pending non-ginseng applications to be disposed of within four weeks.

Monster Energy India Private Limited Vs… — Constitutional and Fundamental Rights | Bombay HC (2014)

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NMWL/630/2014

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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NOTICE OF MOTION (L) NO.630 OF 2014

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WRIT PETITION (L) NO. 2628 OF 2014

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Monster Energy India Pvt. Ltd.

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….. Petitioners.

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V/s

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Union of India & Ors.

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….. Respondents.

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Mr. Janak Dwarkadas, Senior Counsel alongwith Mr. Zal Andhyarujina and Mrs. Jyoti Singh, Mr. Vishnu Shriram and Mrs. Ritika Ganu i/b Phoenix Legal for the Petitioners.

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Mrs. S.V. Bharucha with Mr. Y.R. Mishra for Respondent No.1.

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Mr. Mohammed Pracha with Ms. Dixit and Mr. Pathan for Respondent Nos. 2 and 3.

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CORAM: V. M. KANADE & M.S. SONAK, JJ.

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DATE: 18^th December, 2014. (In Chamber at 2.35 P.M.)

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NMWL/630/2014

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P.C.:- (Per V.M. Kanade, J.)

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Heard Mr. Dwarkadas, the learned Senior Counsel appearing on behalf of the Petitioners and Mr. Mohammed Pracha, the learned Counsel appearing on behalf of Food Safety and Standards Authority of India (“FSSAI”). Petitioners have taken out this Notice of Motion for the following reliefs:-

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“(a) that pending the hearing and final disposal of the Writ Petition, this Hon'ble Court be pleased to stay the operation of Impugned Rejection Letter dated September 4, 2014 ( Exhibit JJ to the Writ Petition at page 1223 ) refusing to grant product approval;

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(b) that pending the hearing and final disposal of the Writ Petition, this Hon'ble Court be pleased to direct the Respondent No.2 to forthwith extend the No Objection Certificate dated October 15, 2013 (Exhibit Y to the Writ Petition at Page 1138) granted by Respondent No.2 to the Petitioner till further orders;

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(c) that this Hon'ble Court direct the Respondent No. 2 to expeditiously consider and dispose of the Petitioner's four applications dated October 8, 2013 seeking product approval for the Petitioner's products without ginseng ( Exhibits X1 to X4 to the Writ Petition at

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NMWL/630/2014

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Pages 1023 – 1137 ) in accordance with law and forthwith grant a No Objection Certificate to the Petitioner pending the risk assessment;

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(d) for ad-interim reliefs in terms of prayers (a), (b) and (c ) above;

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(e) that costs of this Notice of Motion be provided for; and

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(f) for such further and other reliefs as this Hon'ble Court may in the nature and circumstances of the case deem fit.”

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Petitioners have filed Writ Petition (L) No. 2628 of 2014, challenging the impugned order passed by the Competent Authority on 4^th September, 2014 and the consequential order of detaining the consignments of the Petitioners at Nhava Sheva Port and in the said Writ Petition, this Court was pleased to stay the said order dated 4^th September, 2014 vide order dated 03/11/2014 passed in the aforesaid Notice of Motion and was pleased to direct the Product Approval Department to give personal hearing to the Petitioners and thereafter pass fresh orders in accordance with law. We have further directed that fresh orders should be passed within four weeks from the date of the order i.e. from 3^rd November, 2014. We have also directed the Respondents to release the consignments of the Petitioners which were detained at Nhava Sheva Port and we have further directed the Petitioners not to import any further consignment until

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NMWL/630/2014

further orders.

We are informed that the said directions given by this Court have not been complied with and on the alleged ground that certain documents which are relevant for the purpose of authorization of the representative to appear before the FSSAI were not produced, no orders were passed. It is submitted that even the direction given by this Court to the Product Approval Department to process the applications filed by the Petitioners in respect of their product which does not contain Ginseng, were not considered and disposed of.

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It is submitted that the restriction imposed by this Court not to import any further consignment may be set aside and a direction may be given to Respondent No.2 to extend the No Objection Certificate dated 15^th October, 2013 with a further direction to Respondent No.2 to dispose of the Petitioners' pending applications dated 8^th October, 2014, seeking product approval for the Petitioners' products without Ginseng.

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The Minutes of the Meeting have been produced by Mr. Pracha the learned Counsel appearing on behalf of FSSAI. We notice that though a specific direction was given to the Food Authorities to give personal hearing to the Petitioners, so that they could explain their stand in respect of the

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NMWL/630/2014

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ingredients which are found in their product, instead of giving hearing on that aspect, Petitioners have been told that Scientific Panel Committee would consider the Petitioners' applications. This is clearly contrary to the directions given by this Court and is, therefore, in breach of the orders passed by this Court. Secondly, though this Court had directed the Product Approval Department to consider the products of the Petitioner which do not contain Ginseng, even the said applications have not been considered and disposed of as directed and, again, on some pretext or the other, applications of the Petitioners have not been considered.

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Mr. Dwarkadas, the learned Senior Counsel appearing on behalf of the Petitioners submitted that on the one hand, products of the Petitioners' rival competitors which contain Ginseng and Caffeine are given NOC and are cleared by the Food Authorities and, on the other hand, the Petitioners have been singled out for no apparent reason and their products have been detained. It is submitted that this has caused a tremendous financial loss to the Petitioners-Company.

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On the other hand, Mr. Pracha, the learned Counsel appearing on behalf of the Food Authorities has invited our attention to the Minutes of the Meeting and pointed out that requisition of the Food Authorities regarding details of the actual person who was manufacturing the product was not

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NMWL/630/2014

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complied with and the said details were not supplied and, therefore, the applications of the Petitioners were not considered.

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We are of the view that though a direction was given to Respondents to give hearing to the Petitioners so that they could satisfy the Product Approval Department, this direction has not been complied with by raising some flimsy and unwarranted grounds. The direction for giving personal hearing was regarding contents of the product and not regarding certificate of incorporation and other irrelevant queries which have been raised by the Food Authorities. We are satisfied that the Food Authorities have acted in a most arbitrary and capricious manner. There is no denial that other products which contain Ginseng and Caffeine have been granted NOC by the Food Authorities. We are satisfied that the Petitioners are being singled out and harassed by not clearing their goods and they have been rejected the certificate of product approval on extraneous considerations. We have already, by our order dated 3^rd November, 2014, stayed the impugned order dated 4^th September, 2014 and have observed that on account of Circular dated 29^th September, 2014, NOC granted to the Petitioners dated 15^th October, 2013 has been extended.

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We, therefore, remove the restriction which is imposed

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NMWL/630/2014

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by us on the Petitioners, directing them not to import any further consignment and direct the Food Authorities that in the event such consignment is received, the same should be cleared forthwith. Lastly, we direct that Food Authorities to process the applications of the Petitioners in respect of their products which do not contain Ginseng and clear them in accordance with law within four weeks from today.

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With the above directions, Notice of Motion is disposed of.

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BDPPS

Monster Energy India Private Limited v. Union of India and 6 Ors.

Case brief

What is this about?

What did the court decide?

Monster Energy India Private Limited v. Union of India and 6 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

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