Dismissed

Haridas V.S. v. Union of India

Kerala HC22 Feb 2023WP(C)/17182/2022

Case brief

AI extract

What is this about?

The High Court rejected the petitioner's challenge to a food analysis report alleging excessive pesticide levels. It held that Section 10(5) of the Food Safety and Standards Act 2006 validly empowers the CEO to appoint designated officers and analysts, overruling arguments regarding ultra vires appointments.

What did the court decide?

The writ petition challenging the food analysis report was dismissed, and further proceedings are subject to the outcome of the adjudication order under Section 76.

Haridas V.S. Vs Union of India — Writ and Judicial Review | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE AMIT RAWAL

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WEDNESDAY, THE 22^ND DAY OF FEBRUARY 2023 / 3RD PHALGUNA, 1944

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WP(C) NO. 17182 OF 2022

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PETITIONER/S:

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HARIDAS V.S. AGED 50 YEARS, S/O.A.P. VENUGOPALAN, FACTORY MANAGER, YAMUNA ROLLER FLOUR MILLS (P) LTD, 22A, DEVELOPMENT PLOT, PERINGANDOOR P.O, ATHANI, THRISSUR -680581

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BY ADVS. R.ANIL THOMAS ABRAHAM THOMAS SABU VADAKEKUT MAHESH BHANU S. SWETHA P. DILEEP

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RESPONDENT/S:

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1 UNION OF INDIA REPRESENTED BY THE SECRETARY, GOVERNMENT OF INDIA, DEPARTMENT OF HEALTH & FAMILY WELFARE,, NIRMAN BHAVAN, C- WING, NEW DELHI-110001

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2 FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA, REPRESENTED BY THE CHIEF EXECUTIVE OFFICER OF FOOD AUTHORITY, FDA BHAVAN, KOTLA MARG, MANDI HOUSE, NEW DELHI - 110002

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3 THE CHIEF EXECUTIVE OFFICER OF FOOD AUTHORITY, FDA BHAVAN, KOTLA MARG, MANDI HOUSE, NEW DELHI - 110002

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4 THE DEPUTY DIRECTOR & DESIGNATED OFFICER, FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA, 1ST FLOOR, MARINE BUILDING NORTH END, WILLINGTON ISLAND, COCHIN -682009

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5 CENTRAL FOOD SAFETY OFFICER, FOOD SAFETY AND STANDARDS AUTHORITY OF INDIA, 1ST FLOOR, MARINE BUILDING NORTH END, WILLINGTON ISLAND, COCHIN -682009

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WP(C) NO. 17182 OF 2022

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6 COMMISSIONER OF FOOD SAFETY, GOVERNMENT OF KERALA, THYCAUD P.O, THIRUVANANTHAPURAM -695014

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7 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM.

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8 M/S. GEO-CHEM LABORATORIES PRIVATE LTD, AMAN COMMERCIAL COMPLEX, AROOR, ALAPPUZHA - 688537.

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9 JITHIN C.R, FOOD ANALYST, GEO-CHEM LABORATORIES PRIVATE LTD, AMAN COMMERCIAL COMPLEX, AROOR, ALAPPUZHA - 688537. BY ADVS. SHRI.K.R.RAJKUMAR, C.G.C. SANTHAN V.NAIR

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 17182 OF 2022

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JUDGMENT

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Petitioner has approached this Court by laying challenge to the report of the Food Analysis in Form VII A dated 5.3.2022.

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Petitioner is the Factory Manager of M/s Yamuna Roller Flour Mills (P) Ltd., a company engaged in the manufacture of Food Articles having all and every necessary licences and permits for the same. On the basis of an inspection conducted was served with an analysis report on 14.3.2022 alleging the permissible pesticide limit in respect of Chlorpyrifos, cypermethrin, Fenoburcab, Profenofos has been found excessive and was given opportunity to invoke the provisions of sub Section 4 of Section 46(4) of the Food Safety and Standards Act, 2006 (hereinafter called 'the Act'). Along with the aforementioned report, was served with a communication of the Deputy Director and Designated officer, Central Licensing Authority Kerala and Lakshadweep, Food Safety and Standards Authority of India, Branch office, Cochin informing the right of appeal.

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Learned counsel appearing on behalf of the petitioner submitted that the Article send for analysis was forwarded by the Food Safety Officer appointed by the Chief Executive Officer of Food Authority at its branch office at Kochi and the analysis was conducted at Geochem Laboratories Private Limited, Aroor,

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WP(C) NO. 17182 OF 2022

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Alappuzha by the Food analyst appointed by the Chief Executive Officer of the Food Authority. The laboratory where the sample was taken was not accredited food testing laboratory. As per the notification of the State Commissioner of Food Safety in respect of the 'Local Area' jurisdiction of the Food Analysts, the sample taken from the unit of the petitioner ought to have been sent for analysis having local jurisdiction of the area as per the provisions of the Act. On the contrary, the Chief Executive Officer had appointed Food Analyst under the Act having all India jurisdiction.

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The Food Authority is established under Section 4 of the Act and its functions and duties are prescribed under Section 16. As per Section 9, Chief Executive Officer of Food authority is the Member Secretary of the Authority whereas Section 10 prescribes the functions of the Chief Executive Officer and mandates that Chief Executive Officer shall be the Legal representative of the Food Authority. Neither under Section 10 or 16, there is any power of entrustment of function of making appointment of statutory authorities such as designated officer, Central food safety officer and food analyst for the enforcement of the Act, to either of them. The Chief Executive Officer can exercise the powers of the Commissioner of Food Safety under Section 10(5) only to the extent permitted under Section 16 of the Act. Food Analysis as per the

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WP(C) NO. 17182 OF 2022

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definition under Section 3(1)(I) means Analyst appointed under Section 45 of the Act. Commissioner of Food Safety can appoint a person having a qualification prescribed by the Central Government for such local area for the purpose of this Act. Thus for all intents and purposes, the power to appoint Food Safety Officer, Designated officer and Food Analyst is with the Commissioner of Food Safety and not with CEO.

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On the contrary, learned Government Pleader countered the arguments by stating that the Central Food Safety Officer (CFSO) conducted inspection on 21.2.2022 and taken the samples in quadruplicate in accordance with the provisions of the Act which was packed in clean, food grade polythene zip lock packet and affixed label on each part, bearing signature of FBO. Representative of the food business operator/petitioner Mr.Haridas was not interested in getting the sample tested from another accredited laboratory despite given an opportunity.

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As per sub Section (5) of Section 10 read with Section 45 of the Food Safety and Standards Act, 2006, the CEO, FSSAI notified Food Analysts vide Gazette Notifications dated 2.7.2021, 30.11.2021 and 15.2.2022 who were working in FSSAI recognized/notified Food Testing Laboratories for the purpose of performing functions under the said Act. Sections 36, 37 and 45 of

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WP(C) NO. 17182 OF 2022

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the Act stipulate that the Commissioner of Food Safety can appoint Designated officer, Food Safety Officer and Food Analyst. Therefore, by virtue of the powers delegated to the Chief Executive Officer under Section 10(5) of the FSS Act, 2006 the appointments of Central Food Safety Officer and Food Safety Officer and Food Analyst are legally valid and well within the ambit of the CEO, FSSAI to appoint the same. Notification in this regard had already been published as R2(c), R2(d) and R2(e) respectively.

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I have heard the learned counsel for the parties and appraised the paper book. There is no force and merit in the submission of the learned counsel for the petitioner.

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This Court vide order dated 1.6.2022 ordered that the further proceedings will be subject to final outcome of the writ petition. However this Court has been deprived of the information as to whether any adjudication has taken place as order of adjudicating authority is appealable under Section 76 of the Act. Be that as it may, the grounds which have been raised as noticed above is with regard to the powers of the Chief Executive Officer in appointing the officers. Government has placed on record the notifications which clearly establish that in view of the provisions of Section Section 36 and 37, it refers to “Commissioner of Food Safety” and not a “Commissioner of Food Safety of the State “ and

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WP(C) NO. 17182 OF 2022

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based upon t he area of operation, the designation is notified by competent authority. Chief Executive Officer under Section 10(5) is conferred with the powers of the Commissioner of Food Safety, who is well within the rights and mandate of the law to appoint Food Safety Officers, Designated officers and Food Analysts. After the completion of the analysis of Article, Food Analysts as per the provisions of the Ru le 2.1.4 of the S tandard Rules, shall send a report to the designated officer, purchaser of article of food as the case may be in Form VII A. Accordingly, the writ petition stands dismissed.

Sd/-

AMIT RAWAL JUDGE

sab

WP(C) NO. 17182 OF 2022

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APPENDIX OF WP(C) 17182/2022

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PETITIONER EXHIBITS

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Exhibit P1 THE TRUE COPY OF THE REPORT OF THE FOOD ANALYST IN FORM VII A DATED 05-03-2022 Exhibit P2 THE TRUE COPY OF THE COMMUNICATION NO.1108/FSSAI/ COCHIN / 2017 DATED 8-2-2022 OF THE DEPUTY DIRECTOR AND DESIGNATED OFFICER, BRANCH OFFICE COCHIN. Exhibit P3 THE TRUE COPY OF THE GAZETTE PUBLICATION DATED 2ND JULY, 2021. Exhibit P4 THE TRUE COPY OF FORM OF NOMINATION IN FORM IX.

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RESPONDENT EXHIBITS

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Exhibit R2(A)	TRUE COPY OF THE AUTHORISATON LETTER DATED 12/07/2021 FROM THE COMPETENT AUTHORITY OF FSSAI
Exhibit R2(B)	TRUE COPY OF THE GAZETTE NOTIFICATIONS F. NO. RCD-150001/4/2021-REGULATORY-FSSAI DATED 12/01/2022
Exhibit R2(C)	TRUE COPY OF THE NOTIFICATION NO. 1- SP(PAR)-NOTIFICATION-PESTICIDE/STDS- FSSAI/2017 DATED 24/12/2018
Exhibit R2(D)	TRUE COPY OF THE GAZETTE NOTIFICATION NO. SO 1595(E) U/S 43 OF THE FSS ACT, 2006 DATED 15/05/2017 NOTIFYING GEO CHEM LABORATORIES PVT. LTD.
Exhibit R2(E)	TRUE COPY OF THE CERTIFICATION OF ACCREDITATION ISSUED TO GEO CHEM LABORATORIES PRIVATE LIMITED BY NATIONAL ACCREDITATION BOARD FOR TESTING AND CALIBRATION LABORATORIES DATED 01/08/2021 NO. TC 7888

Haridas V.S. v. Union of India

Case brief

What is this about?

What did the court decide?

Haridas V.S. v. Union of India

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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