{"id":108298,"date":"2010-12-23T00:00:00","date_gmt":"2010-12-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/xcellency-chamber-vs-state-of-maharashtra-on-23-december-2010"},"modified":"2017-08-20T18:17:17","modified_gmt":"2017-08-20T12:47:17","slug":"xcellency-chamber-vs-state-of-maharashtra-on-23-december-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/xcellency-chamber-vs-state-of-maharashtra-on-23-december-2010","title":{"rendered":"Xcellency Chamber vs State Of Maharashtra on 23 December, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Xcellency Chamber vs State Of Maharashtra on 23 December, 2010<\/div>\n
Bench: Dr. D.Y. Chandrachud<\/div>\n
                                        1\n    upa                                                      wp3998-10-final.sxw\n\n          IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                                 \n                  CIVIL APPELLATE JURISDICTION\n\n                     WRIT PETITION NO.3998 OF 2010\n\n\n\n\n                                                         \n                                                        \n    PepsiCo India Holdings Limited,                             )\n    A company duly incorporated under the                       )\n    Companies Act, 1956, having its                             )\n    registered office at 3-B, DLF, Corporate Park,              )\n\n\n\n\n                                             \n    \"S\" Block, Qutub Enclave, Phase-III, Gurgaon and            )\n    having its one of the Plants at Plot No.5, Ranjangaon,\n                                ig                              )\n    MIDC, Taluka-Shirur, District-Pune, through its             )\n    Authorised representative and Finance Manager               )\n    Shri Mayank Jaju, having his office at                      )\n                              \n    Xcellency Chamber, Sion-Trombay Road,                       )\n    Bombay- 400 088.                                            ).. Petitioner\n\n                Versus\n            \n\n\n    1. State of Maharashtra,                                    )\n         \n\n\n\n       through the Secretary, Food and Drug                     )\n       Admiinstration, Consumer Protection Department,          )\n       Mantralaya, Mumbai - 400 032.                            )\n\n\n\n\n\n    2. The Commissioner, Food and Drug                          )\n       Administration, Maharashtra, having his                  )\n       Office at Bandra-Kurla Complex,                          )\n       Bandra (E), Mumbai- 400 051.                             ).. Respondents\n\n\n\n\n\n    Mr. Janak Dwarkadas, Senior Advocate with Mr. Rajeev V. Talasikar for\n    the petitioner.\n    Mr. S.N. Patil, Assistant Government Pleader for respondent Nos.1 and 2.\n\n                                  CORAM : MOHIT S. SHAH, C. J. AND\n                                         DR. D.Y. CHANDRACHUD, J.\n\n\n\n\n                                                         ::: Downloaded on - 09\/06\/2013 16:43:18 :::\n                                              2\n    upa                                                          wp3998-10-final.sxw\n\n                    JUDGMENT RESERVED ON : 01 OCTOBER 2010\n\n\n\n\n                                                                                       \n                    JUDGMENT PRONOUNCED ON : 23 DECEMBER 2010\n\n\n\n\n                                                               \n    JUDGMENT (Per Chief Justice)\n<\/pre>\n
                    What is challenged in this petition under Article 226 of the<\/p>\n
    Constitution of India is the order dated 17 April 2010 of the Food
\n    (Health) Officer & Commissioner, Food & Drug Administration
\n    (Maharashtra State), Mumbai, dismissing Appeal No.14\/2009 and<\/p>\n
    confirming the order dated 11 June 2009 of the Licensing Officer &<\/p>\n
    Officer (Food) Food & Drug Administration, Pune, suspending the
\n    license of the petitioner-factory for a period of two days. The license was<\/p>\n
    issued under Rule 5 of the Maharashtra Prevention of Food Adulteration
\n    Rules, 1962. During pendency of this writ petition, the said orders of the
\n    authorities were stayed.\n<\/p>\n
    2.              By consent of the parties, petition was taken up for final
\n    disposal.\n<\/p>\n
    3.              The facts leading to filing of this writ petition, briefly stated,
\n    are as under:\n<\/p>\n
                    One complaint was received by the office of Food Inspector,
\n    Pune on 7 October 2008 regarding infection of larves in “oats Break Fast
\n    special” manufactured by the petitioner.           The Food Inspector, Pune
\n    inspected the petitioner-factory on 8 October 2008 and 12 May 2009. On
\n    the basis of inspection reports of the above dates, the Licensing
\n    Authority, Pune sent a show cause notice to the petitioner on 15 May<\/p>\n
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\n                                           3<\/span>
\n    upa                                                    wp3998-10-final.sxw<\/p>\n
    2009 at Exhibit `B’. The petitioner submitted its explanation dated 1 June<\/p>\n
    2009 at Exhibit `C’. By order dated 11 June 2009 at Exhibit `D’, the
\n    Licensing Officer suspended the petitioner’s license for two days.\n<\/p>\n
    4.          For the sake of convenience, we have given the allegations<\/p>\n
    in the show-cause notice, the explanation in the reply and finding given
\n    by the Licensing Officer item wise.\n<\/p>\n
    5.          Allegation -A :        Use of raw materials beyond “Best<\/p>\n
    Before” date: Spinach powder Manufacturer- Sensienf Production date
\n    14.08.08, Best buy -Feb.2009, stock 52 nos. The said food product is<\/p>\n
    stored for production even after expiry of Best buy date. It was observed
\n    that you have used for production the raw food items which are out of
\n    date. You have not confirmed by taking test of said food items whether it<\/p>\n
    is proper to eat out of date food product. Hence you have violated Rule<\/p>\n
    32(i) of the Prevention of Food Adulteration Rules, 1955 (hereinafter
\n    referred to as “PFA Rules, 1955)<\/p>\n
                Besan – Manu. Rajdhani Flour Mill Ltd., Delhi, 35 Kg.
\n    Packing Mfg. Date : 03.03.09, Best before 60 days, Stock 77 nos. It is
\n    observed that this out of date raw food item is used for production by<\/p>\n
    you. You have not confirmed by taking test of said food item whether it
\n    is proper to eat such out of date food product or how. Hence you have
\n    violated Rule 32(i) of PFA Rules, 1955.\n<\/p>\n
              Out of date stock of food item like (i) Kesar flavour (ii)
\n    Strawberry flavour was observed at the time of inspection on 8.10.2008.\n<\/p>\n
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\n                                          4<\/span><\/p>\n
    upa                                                        wp3998-10-final.sxw\n\n\n\n\n                                                                                   \n                 Explanation :       For materials Spinach powder and Besan,\n<\/pre>\n
    the suppliers have specified shelf life as 6 months and 3 months<\/p>\n
    respectively. On the basis of the nature of the product and processing, the
\n    R&D department which technically controls quality of the product, has
\n    defined the shelf life as 1 year and 4 months respectively. Hence as<\/p>\n
    recommended by you, in future usage, validation for best before date
\n    materials will be validated by respective suppliers only and we have<\/p>\n
    already started the process. In addition we are in the process of having
\n    single shelf life as recommended by suppliers in our internal system.\n<\/p>\n
                 The supplier validated shelf life for best before materials<\/p>\n
    certificate was also furnished with the reply.\n<\/p>\n
                 Finding given by the Licensing Officer :         It   has       been
\n    observed that Spinach powder manufactured by Sensient with<\/p>\n
    manufacturing date 14.08.08 and “Best Before by Feb 09” has been used
\n    for manufacturing. You have not done any testing to find out whether it<\/p>\n
    is good for consumption. Because of that you have violated Rule 32(i)
\n    under the PFA Rules, 1955.\n<\/p>\n
                 It   has   been   observed    as    regards    material      Besan,<\/p>\n
    manufacturer, Rajdhani Flour Mills Ltd., Delhi, product date 03.03.09
\n    “Best Before 60 days”, that the said raw material has been used by you
\n    even after the expiry date. You have not carried out any testing to prove
\n    whether the said item is good for consumption. It is a violation of Rule
\n    32(i) under PFA Rules, 1955.\n<\/p>\n
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\n                                             5<\/span><\/p>\n
     upa                                                   wp3998-10-final.sxw<\/p>\n
    6.           Allegation B – Absence of manufacturing details on fiber
\n    plus pack : Fiber Plus WF 600, 20 Kg. Bag : on this raw food item the<\/p>\n
    name of manufacturer and address is not mentioned on the packing.
\n    Hence there is violation of Rule 32(i) of PFA Rules, 1955 and you have<\/p>\n
    stored this food item for production.\n<\/p>\n
                 Explanation : Fiber pulp- WF 600, 20 Kg is an imported<\/p>\n
    item from Australia. We have received a confirmatory note from our
\n    principal supplier and importer for all the manufacturing details.\n<\/p>\n
    However, we have highlighted this issue to our principal supplier at
\n    Australia and it has been agreed the future supply will carry the<\/p>\n
    manufacturing details on all individual bags.\n<\/p>\n
                 Finding given by the Licensing Officer : It has been<\/p>\n
    observed that the name and address of the manufacturer is not mentioned<\/p>\n
    on the raw material, Fiber plus WF 600, 20 Kg bags. It is a violation of
\n    rule 32(c) under food adulteration administration.     For the same the
\n    explanation given by you is not satisfactory.\n<\/p>\n
    7.           Allegation C : Century Refined Table iodized Salt Mfg.
\n    Date 6\/08, 50 Kg bags stock 120 bags on which “Best Before date” not<\/p>\n
    mentioned. Hence violated Rule 32(i) of PFA Rules, 1955 by storing raw
\n    food items for production of food items by you.\n<\/p>\n
                Explanation : The reference to Rule 32(i) is misplaced and
\n    is not maintainable.   The package iodized salt shown to the visiting<\/p>\n
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\n                                          6<\/span>
\n     upa                                                    wp3998-10-final.sxw<\/p>\n
    officials did contain the declaration of “best before”. The package will be<\/p>\n
    shown during the hearing to the satisfaction of this Ld. Authority.\n<\/p>\n
                 Finding given by the Licensing Officer : It has been
\n    observed that best before date has not been mentioned on raw material<\/p>\n
    Centurian refined iodized salt, product date 06.08 of 60 kg and 120 kg
\n    bags. This is the violation of Rule 32(i). The explanation given by you is
\n    not satisfactory.\n<\/p>\n
    8.            Allegation D – Non availability of Food Grade Certificate<\/p>\n
    for GMS (Glycerol Mono Stearate) : GMS (Glycol mono separate) this
\n    item is stored, this items is used in the product of Baked Corn. There is<\/p>\n
    no permission to use said item in Baked Corn Product. Hence you have
\n    violated Section 2(1a)(a), 2(in)(m) of       PFA Act, 1954; also made<\/p>\n
    violation of Rule 81.\n<\/p>\n
                 Explanation :    The said material is used as a lubricant for
\n    extruder start up process and not as an ingredient of the product. We
\n    have already taken up with the vendor and the required food grade<\/p>\n
    certificates are available with us now.\n<\/p>\n
                  Along with the reply, Food Grade Certificate for Glycerol<\/p>\n
    Mono Stearate was also supplied.\n<\/p>\n
                 Finding given by the Licensing Officer : It has been
\n    observed that you are using GMS (Glycerol mono stearate) in your baked
\n    corn products. You are not authorized to use the said material in baked
\n    corn products. You have violated section 2(1a)(a), 2(ia)(m) and Rule 81.\n<\/p>\n
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\n                                         7<\/span><\/p>\n
    upa                                                    wp3998-10-final.sxw<\/p>\n
    9.           Allegation E – Manufacturing Area : In the production
\n    department, the tiles are broken in between, where food particles are<\/p>\n
    kept. Therefore you have violated Rule 5(3) of Maharashtra Prevention of
\n    Food Adulteration Rules, 1962, read with License condition No.4 B.\n<\/p>\n
                 In the Production Department unclean tiles in between, in
\n    which stored on some times. Therefore you have violated Rule 5(3) of<\/p>\n
    Maharashtra Food Adulteration Prevention Rule 1962, read License
\n    condition No.4 B.\n<\/p>\n
                Explanation : 1. Repairing of broken tiles: We do have<\/p>\n
    regular maintenance system for carrying out the repair work of building
\n    structures. The broken and damaged tiles are periodically replaced or<\/p>\n
    repaired. The places identified are already replaced and in future we will
\n    plan it in our regular maintenance system and as ongoing activity.\n<\/p>\n
                2. During inspection the lines were under cleaning process<\/p>\n
    as a part of sanitation, hence dirt accumulation was observed during the
\n    visit. For effective cleaning we have provided high pressure jet cleaning
\n    machines and the actions are being taken for minimizing the product
\n    spillages during production.    Post sanitation line will be audited by<\/p>\n
    Quality Control Department and will be cleared for production.\n<\/p>\n
                Finding given by the Licensing Officer :            It has been
\n    observed that some tiles are in broken condition in manufacturing area<\/p>\n
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\n                                           8<\/span>
\n     upa                                                  wp3998-10-final.sxw<\/p>\n
    and food items have been accumulated in it. It is a violation of rule no.\n<\/p>\n
    5(3) and permission condition 4(b).\n<\/p>\n
    10.          Allegation F – Workers medically not checked: There are
\n    Contract Labours for handling food items in the production department,<\/p>\n
    but not medical checking of said labours.      Not produced certificate
\n    regarding labours whether they are free from skin & contagious disease
\n    & how, hence your have violated Rule 50(9) of         Food Adulteration<\/p>\n
    Prevention Rule, 1955.\n<\/p>\n
                 Explanation : We do have medical records for contract
\n    work force for packaging area. We do conduct medical test for contract<\/p>\n
    employees on every year. However, some people change due to non
\n    availability\/ absenteeism. Hence, in future we will place only medically<\/p>\n
    examined contract labourers in food handling area and the medical
\n    examination of the current contract employees will be completed by June<\/p>\n
    09 end.\n<\/p>\n
                  The petitioner also enclosed with the reply, sample medical<\/p>\n
    examination report of contract employee.\n<\/p>\n
                 Finding given by the Licensing Officer :          It has been
\n    observed that you have not carried out medical examination with respect
\n    to contractual labours. This is the violation of rule no.50(9) under food
\n    adulteration administration.\n<\/p>\n
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\n                                         9<\/span><\/p>\n
    upa                                                     wp3998-10-final.sxw\n\n    11,          Allegation G - Packaging Area not clean : Plastic\n\n\n\n\n                                                                                  \n<\/pre>\n
    wrapper and food particles fallen on tiles in the Packing Department.
\n    Hence you have violated Rule 5(3) read with License condition No.4 C of<\/p>\n
    Maharashtra Food Adulteration Prevention Rule 1962.\n<\/p>\n
                 Explanation : During inspection the packaging area was
\n    under cleaning process as a part of sanitation programme, hence the<\/p>\n
    observation on fallen plastic wrappers and food particles on floor. The<\/p>\n
    same was cleaned as a part of sanitation operation. During regular runs,
\n    the area will be clean and the production will be continued post clearance<\/p>\n
    of line audit by Quality Control Department.\n<\/p>\n
                 Finding given by the Licensing Officer :            It has been<\/p>\n
    observed that plastic covers (packaging film) and food items have been
\n    spilled on floor. This is violation of rule no.5(3) under food adulteration<\/p>\n
    administration and manufacturing permission condition 4(c).\n<\/p>\n
    12.          Allegation    H – Plastic Wrappers : Not produced the<\/p>\n
    certificate regarding Plastic wrapper used for food packing whether these
\n    are good graded or how to Inspector. Hence you have violated Rule
\n    49(v) of Food Adulteration Prevention Rule 1955.\n<\/p>\n
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\n                                          10<\/span><\/p>\n
    upa                                                      wp3998-10-final.sxw<\/p>\n
                 Explanation : We do have vendor development system for<\/p>\n
    supplying materials to us. Materials will be procured only from approved
\n    vendors by Corporate purchase department.         We do take food grade<\/p>\n
    certificate from packaging materials suppliers during first supply (the
\n    food grade certificate from film supplier M\/s. Positive Packaging was<\/p>\n
    shown to you during the visit). However as per your recommendation, in
\n    future we will get the same on yearly basis. We have already contacted
\n    our suppliers to issue a fresh food grade certificates which is expected in<\/p>\n
    a week’s time.\n<\/p>\n
                 Finding given by the Licensing Officer : During the<\/p>\n
    inspection the food grade certificate of packaging material was not
\n    presented and the certificate presented afterwards, is not clear. So you
\n    have violated rule 49(5) of food adulteration administration.\n<\/p>\n
    13.          Aggrieved by the above order dated 11 June 2009, the
\n    petitioner preferred appeal before the Commissioner, Food and Drug<\/p>\n
    Administration, Maharashtra State, Mumbai contending that the
\n    petitioner has been operating the license for manufacturing of potato
\n    chips and other food products in the manufacturing facility which is a
\n    state of the art facility accorded safety certification and environmental<\/p>\n
    certification as per the certificate enclosed. That the total annual turn
\n    over of the facility within Maharashtra was exceeding Rs.90 crores and
\n    that the petitioner was contributing through this facility local taxes to the
\n    tune of Rs.9 crores or more per year, that the facility provides average
\n    daily employment to 335 regular employees and about 580 contract<\/p>\n
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\n                                            11<\/span>
\n    upa                                                        wp3998-10-final.sxw<\/p>\n
    workmen and that the plant also provides indirect employment to<\/p>\n
    associated services for about 500 people and there are about 3600 farmers
\n    who are involved in the contract farming activity initiated by the<\/p>\n
    petitioner through who grow potatoes for consumption by the petitioner
\n    in manufacturing of the products. The petitioner raised various legal<\/p>\n
    contentions and factual defences.           The appellate authority, however,
\n    dismissed the appeal by the impugned order dated 17 April 2010. Hence
\n    this petition.\n<\/p>\n
    14.<\/p>\n
                     Mr. Janak Dwarkadas, learned Senior counsel for the
\n    petitioner raised the following contentions:\n<\/p>\n
                     The authorities have erred in passing the impugned orders on
\n    the ground of violation of Rule 30(i) and Rule 32(i) of the Prevention of<\/p>\n
    Food Adulteration Rules, 1955. He submitted that respondent-authorities<\/p>\n
    erred in not considering the scope and ambit of explanation VII (i) to
\n    Rule 32 defining “best before”. The authorities erred in not considering
\n    that “best before” date is not akin to expiry date and that the product<\/p>\n
    beyond the “best before” date may still be perfectly satisfactory. The
\n    petitioner had produced at the hearing of the appeal various certificates
\n    issued by the vendors\/suppliers of respective produces confirming the<\/p>\n
    above aspect. This fact was also informed to the visiting officials during
\n    the course of inspection. For instance, the specification sheet dated 28
\n    April 2009 (Exhibit `G’ at page 38 of the petition) indicated the
\n    certificate dated 2 January 2009 read as under:\n<\/p>\n
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\n                                           12<\/span><\/p>\n
    upa                                                       wp3998-10-final.sxw\n\n            \"Date : 02-01-2009\n\n\n\n\n                                                                                    \n                   TO WHOMSOEVER IT MAY CONCERN\n            Sub : Shelf life extension.\n\n\n\n\n                                                         \n            Produce                   : 1327 Spinach Powder\n            Lot No.                   : 264151\n\n\n\n\n                                                        \n            Manufacturing Date        : 19th August, 2008\n\n\n<\/pre>\n
            The Best before of 6 months from date of manufacture<\/p>\n
            provided for Spinach Powder was conservative. This
\n            material is well acceptable in terms of quality attributes and<\/p>\n
            safe and fit for human consumption 12 months from its date
\n            of manufacture when stored in original sealed packs at
\n            ambient conditions.\n<\/p>\n
            Sensient India Private Limited”\n<\/p>\n
    15.          It is submitted by the learned counsel for the petitioner that<\/p>\n
    Spinach Powder in question was manufactured on 19 August 2008 and
\n    that six months “best before” period came to an end on 19 February 2009
\n    but as mentioned in the certificate, the material was fit for human<\/p>\n
    consumption for 12 months from the date of its manufacture when stored
\n    in original sealed packs at ambient conditions and was, thus, safe and fit
\n    for human consumption till 19 August 2009. Hence, when the material<\/p>\n
    was used on the date of inspection i.e. on 12 May 2009, it was well
\n    within the safe and fit period and also shelf life product of potato chips
\n    made for spinach powder used on 12 May 2009 which was given three
\n    months best before period was also within the safe and fit period. In
\n    other words, the potato chips made was safe and fit for human
\n    consumption till 19 August 2009. The respondent-authorities, therefore,<\/p>\n
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\n                                         13<\/span>
\n    upa                                                     wp3998-10-final.sxw<\/p>\n
    erred in holding that the petitioner had violated rule 30(i) of the Rules.\n<\/p>\n
    The learned counsel placed strong reliance on the decision of the learned
\n    Single Judge of Andhra Pradesh High Court in Hyderabad Breverages<\/p>\n
    Pvt.Ltd. v. State of Andhra Pradesh, 2006 Cri.L.J. 3988, in support of
\n    the respondent-authorities who erred in suspending the petitioner’s<\/p>\n
    license under the Prevention of Food Adulteration Act, 1954 without
\n    sending any sample of the raw material (spinach powder\/Besan or all the
\n    finished product potato ships etc.) for analysis to the Central Food<\/p>\n
    Laboratory. Without getting any such analysis done by the Central Food<\/p>\n
    Laboratory, it is not open to the respondents to hold or even to allege that
\n    without a certificate from such laboratory that the sample has<\/p>\n
    decomposed or that the sample is fit or unfit for analysis etc, the
\n    respondent authorities could not have held that the petitioner had violated
\n    the provisions of rule 30 or rule 32 of the Prevention of Food<\/p>\n
    Adulteration Rules, 1955.\n<\/p>\n
    16.          The learned counsel heavily relied upon the decision of the
\n    learned Single Judge of Andhra Pradesh High Court in Hyderabad<\/p>\n
    Breverages case (supra) in support of the contention that expiry of “best
\n    before” date or shelf life of product would only enable the manufacturer
\n    to disclaim the liability regarding marketability and the specific qualities<\/p>\n
    of the product but it would not automatically render the sample unfit for
\n    analysis or consumption.\n<\/p>\n
    17.          The learned counsel further submitted that the authorities
\n    have erred in not considering the petitioner’s defence that in Turbo
\n    Extrusion machines, Glycerol Mono Stearate (GMS) is used as a<\/p>\n
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\n                                         14<\/span>
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    lubricant in a machine manufacturing certain food items and the<\/p>\n
    petitioner relies on the certificate (Exhibit `I’ at page 42) issued by the
\n    supplier manufacturer of the machine Schaaf Technologies GmbH, a<\/p>\n
    Germane company which explains the important function of the schaaf
\n    knows for a successful start of a turbo extruder machine used for making<\/p>\n
    potato chips and other food items. The learned counsel further submitted
\n    that during the course of hearing of the appeal, the appellate authority
\n    was also informed that tiles were replaced in the manufacturing area and<\/p>\n
    accordingly, necessary documents were also brought to his notice, for<\/p>\n
    instance, the check list reflecting maintenance in the process area,
\n    packaging area and raw material area and packaging material dispatch<\/p>\n
    area for May and June 2009.\n<\/p>\n
    18.          The learned counsel further submitted that the petitioner is<\/p>\n
    not employing any       contract labour which is suffering from any<\/p>\n
    infectious, contagious or loathsome disease. The petitioner has an
\n    established protocol in the factory to ensure health check up regularly as
\n    soon as the contract labour commences work from established hospitals<\/p>\n
    and\/or registered medical practitioners.     The contractual employees
\n    supplied by a registered labour contractor are assigned work involving
\n    packaging etc.     The petitioner-company and the registered labour<\/p>\n
    contractor execute a contract and the labour contractor is bound to supply
\n    the petitioner-company fit workers. The petitioner had produced before
\n    the appellate authority a chart (Exhibit `K’ at page 70 of the petition)
\n    reflecting the medical check up of the workers.\n<\/p>\n
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\n                                          15<\/span><\/p>\n
    upa                                                       wp3998-10-final.sxw<\/p>\n
    19.          The learned counsel further submitted that at the hearing of<\/p>\n
    the appeal, the petitioner had also relied upon the food grade certificate
\n    reflecting compliance to the respective standard regarding plastic<\/p>\n
    packaging material.     The learned counsel further submitted that the
\n    visiting officials were shown that the package had a proper sticker affixed<\/p>\n
    to it indicating all the relevant details with reference to the commodities
\n    known as “Fiber Plus” used by the petitioner in one of its products. The
\n    learned counsel also relied upon the certificate dated 28.5.2009 issued by<\/p>\n
    the supplier of Glycerol Mono Stearate (GMS) indicating that the said<\/p>\n
    material is manufactured from materials obtained from vegetable oil and
\n    that the product is food grain in nature.\n<\/p>\n
    20.          On the other hand, the learned counsel for the respondent-
\n    authorities has opposed the petition and pointed out that during the<\/p>\n
    inspection, the Food Inspector had noticed all the illegalities \/ non-\n<\/p>\n
    compliance of the relevant statutory provisions and conditions of license
\n    at the time of inspection on 8 October 2008 as under:\n<\/p>\n
            “1. On the mezzanine floor 13 bags of quick oat’s were
\n                stored which were imported from Australia, but did not
\n                bear the name of importer & it’s address, manufacturing
\n                date, batch no. and Best Before date.<\/p>\n
            2. On the said mezzanine floor, keshar masala flavour was
\n               found stored in 14 boxes on which manufacturing date
\n               01\/2008 Best Before six months from manufacturing was
\n               found. The said food article was used after its before date
\n               without pre-analysis.\n<\/p><\/blockquote>\n
            3. On the platform & steps food articles were found.\n<\/p><\/blockquote>\n
                                                            ::: Downloaded on – 09\/06\/2013 16:43:18 :::<\/span>
\n                                         16<\/span><\/p>\n
    upa                                                     wp3998-10-final.sxw<\/p>\n<\/blockquote>\n
            4. In the packing section, the packing material was used<\/p>\n
               which did not disclose the certificate to verify whether
\n               the said packing material was of food grade quality or
\n               not.”\n<\/p><\/blockquote>\n
    21.          The learned counsel for the respondents further submitted<\/p>\n
    that even at the time of second visit on 12 May 2009, the Food Inspector
\n    noticed 52 bags of spinach powder bearing manufacturing date 14\/8\/2008
\n    and best before date February 2009 was being used after its “best before”\n<\/p>\n
    date for the production of various food articles without verification of<\/p>\n
    pre-analysis. Similarly, 77 bags of 35 kg. each of Besan (Gram Flour)
\n    which was manufactured on 3 March 2009 and which was to be used<\/p>\n
    within a period of 60 days i.e. by 3 May 2009, was being used after
\n    expiry of the best before period and without verification of pre-analysis.\n<\/p>\n
    22.          It is also submitted that 20 kg. bags of fiber plus articles<\/p>\n
    were found stored for use in manufacturing of various food articles but
\n    the container did not mention name and address of the manufacturer, so
\n    also 120 bags of 50 kg. each of centurian refined iodized salt               had<\/p>\n
    manufacturing date of July 2008 but did not mention the best before
\n    date. It was also submitted by the learned counsel for the respondent-
\n    authorities that at the time of inspection, the flooring in manufacturing<\/p>\n
    area was found unclean and dirt was found accumulated on the tiles and
\n    that various food articles were handled by the contract labour without
\n    medical examination of all those workers to assure that they were free
\n    from contagious diseases.     The learned counsel for the respondent –
\n    authorities further submitted that the certificates relied upon by the
\n    petitioner at the hearing of the appeal were not produced before the<\/p>\n
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\n                                          17<\/span>
\n    upa                                                      wp3998-10-final.sxw<\/p>\n
    Licensing Authority and that even after production of those certificates,<\/p>\n
    the petitioner had not discharged the onus to show that the petitioner had
\n    got verification of pre analysis of the raw material at the time of using the<\/p>\n
    same for manufacturing the food products after the expiry of its ‘best
\n    before’ period.\n<\/p>\n
    23.          As regards the judgment of the learned Single Judge of
\n    Andhra Pradesh High Court, the learned counsel for the respondents<\/p>\n
    submitted that the said judgment does not bind this Court and that even<\/p>\n
    otherwise, the burden of proof on the licensing authority for the purpose
\n    of suspending the license cannot be as high as that in criminal trial for<\/p>\n
    proving the offence which would have the consequence of sending the
\n    manufacturer to jail.\n<\/p>\n
    24.          In rejoinder, the learned counsel for the petitioner submitted<\/p>\n
    that the Andhra Pradesh High Court has placed correct interpretation on
\n    explanation VII (i) to Rule 32 and that the interpretation of such a
\n    statutory provision cannot vary depending on whether the licensee is<\/p>\n
    facing a criminal trial or whether he is being proceeded against for
\n    suspension of license. The learned counsel submitted that suspension of
\n    license is also a penal measure and that license cannot be suspended<\/p>\n
    unless all the ingredients of the Act constituting an offence are fully
\n    satisfied.\n<\/p>\n
    25.          While the learned counsel for the petitioner devoted
\n    considerable time for canvassing the interpretation on explanation VII (i)
\n    to rule 32 of the Prevention of Food Adulteration Act, 1955 and we<\/p>\n
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\n                                         18<\/span>
\n    upa                                                      wp3998-10-final.sxw<\/p>\n
    would shortly deal with the same, it cannot be overlooked that the<\/p>\n
    proceedings in question are for suspension of a license under the
\n    Prevention of Food Adulteration Rules where mens rea is not required to<\/p>\n
    be proved unlike in an ordinary criminal trial.          Even the statutes
\n    providing for criminal liability may dispense with the proof for mens rea.\n<\/p>\n
    Since the decision rendered by the learned Single Judge of Andhra
\n    Pradesh High Court was in the proceedings for quashing the complaint,
\n    one must keep in mind that perspective while appreciating the principles<\/p>\n
    laid down in the said decision. In Hyderabad Beverages (supra), the<\/p>\n
    learned Single Judge of Andhra Pradesh High Court interpreted
\n    explanation VII (i) to Rule 32 in the following words:\n<\/p>\n
          “61. All that the prescription of “Best Before”, under Rule
\n          32(i) and Explanation VII thereunder entail is that, till the<\/p>\n
          end of the period “Best Before”, the manufacturer certifies
\n          that the product will remain fully marketable and will retain<\/p>\n
          its specific qualities. This requirement is an additional
\n          precaution to consumers informing them that it is safe for
\n          them to consume the food article before the “Best Before”
\n          date. Expiry of the “Best Before” date, as is clear from<\/p>\n
          Explanation VIII itself, does not mean that beyond that date
\n          the food is not satisfactory. The only obligation cast on the
\n          manufacturer is to ensure that under the stated storage
\n          conditions, the product retains its marketability and its
\n          specific qualities before the “Best Before” date. The rules<\/p>\n
          do not provide, by legal fiction, that after the “Best Before”
\n          date or the expiry of the shelf life of the product, the food
\n          decomposes and is rendered unfit for analysis, or even that
\n          the food becomes adulterated. It is not for Courts to read
\n          something more than what has specifically been provided in
\n          these statutory provisions.”\n<\/p><\/blockquote>\n
                                                          ::: Downloaded on – 09\/06\/2013 16:43:18 :::<\/span>
\n                                            19<\/span><\/p>\n
    upa                                                         wp3998-10-final.sxw<\/p>\n
                  In the said decision, reliance was placed upon the decision of<\/p>\n
    Andhra Pradesh High Court in Gangaiahnaidu Rama Krishna v. State of
\n    A.P.. 2005 (2) ALD (Crl) 889, wherein the following observations were<\/p>\n
    made:\n<\/p><\/blockquote>\n
                   “…………. Best before means that in all weathers it<\/p>\n
            is to be used before six months. It is only recommendatory
\n            but not mandatory. Therefore, it cannot be said that the
\n            shelf life of the said beverage expires after the date of best
\n            before. Shelf life means the time for which a stored thing<\/p>\n
            remains usable……..”\n<\/p><\/blockquote>\n
            ………………\n<\/p><\/blockquote>\n
            “…….. According to Rule 32(i) of the Rules read with<\/p>\n
            Explanation VIII (i) best before means the date which
\n            signifies the end of the period under any stated storage
\n            conditions during which the product will remain fully
\n            marketable and will retain any specific qualities for which<\/p>\n
            tacit or express claims have been made. However, provided
\n            that beyond that date the food may still be perfectly<\/p>\n
            satisfactory, which means the date before date only signifies
\n            that the said food article contains specific qualities in all
\n            circumstances of any weather cold, dry or rainy weather.
\n            Therefore, there is no prohibition for human consumption<\/p>\n
            even after the best before, if that be so, the only question
\n            that arises for consideration is as to whether the said food
\n            article is adulterated or not.\n<\/p><\/blockquote>\n
                   Without adducting any evidence and without availing<\/p>\n
            the opportunity under Section 13(2) of the Act for sending
\n            the second sample to the Central Food Laboratory it cannot
\n            be said that the shelf life of the said food article has expired.
\n            The said rule prescribing best before is not mandatory to
\n            make use of the said food item before the date of the best
\n            before, but it is only recommendatory or directory. The
\n            best before is only as guaranteed period for carrying
\n            specific qualities in all weathers for that particular period.\n<\/p><\/blockquote>\n
                                                              ::: Downloaded on – 09\/06\/2013 16:43:18 :::<\/span>
\n                                         20<\/span><\/p>\n
    upa                                                     wp3998-10-final.sxw<\/p>\n
          Therefore, it cannot be said that the shelf life of the said<\/p>\n
          beverages have been expired….”\n<\/p><\/blockquote>\n
          ………………..\n<\/p><\/blockquote>\n
          “66. Whether the sample remains fit for analysis or has
\n          become unfit can only be ascertained when it is, in fact, sent
\n          for analysis to Central Food Laboratory and it is certified as<\/p>\n
          to whether the sample is fit or unfit for analysis. Rule 4(5)
\n          of the Prevention of Food Adulteration Rules, read with
\n          Form II of Appendix A thereof, requires the Central Food
\n          laboratory to certify, in its report, as to whether the sample<\/p>\n
          of the food sent for analysis is fit or unfit for analysis and
\n          the reasons therefore. Whether a sample has, on expiry of<\/p>\n
          its “Best Before” date or its shelf life, become unfit for
\n          analysis on account of its being decomposed is a matter of
\n          evidence and not a matter of inference in proceedings under<\/p>\n
          section 482 Cr.P.C. It is only when a sample is sent for
\n          analysis, can the Central Laboratory on examination certify
\n          whether or not the sample has decomposed rendering it
\n          unfit for analysis.”\n<\/p><\/blockquote>\n
    26.          While interpretation placed by Andhra Pradesh High Court
\n    on the explanation VII(i) to Rule 32 cannot be faulted with and therefore,<\/p>\n
    though we hold that expiry of “best before” period does not mean that
\n    beyond that date, the food can never be satisfactory, the question that
\n    arises for consideration is whether, for the purposes of suspension of
\n    license, the burden is on the authority to show that beyond the best before<\/p>\n
    period, the food is unsatisfactory or that the burden is on the licensee to
\n    show that beyond the “best before” period, the food is satisfactory.\n<\/p><\/blockquote>\n
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\n                                             21<\/span><\/p>\n
    upa                                                    wp3998-10-final.sxw<\/p>\n<\/blockquote>\n
    27.          Rule 32 of The Prevention of Food Adulteration Rules,<\/p>\n
    1955, in so far as the same is relevant for the purposes of this petition,
\n    reads as under :-\n<\/p><\/blockquote>\n
          “32. Every prepackaged food to carry a label.-\n<\/p><\/blockquote>\n
          (a) General.-\n<\/p><\/blockquote>\n
                 (1) Prepackaged food shall not be described or presented
\n          on any label or in any labelling manner that is false, misleading or<\/p>\n
          deceptive or is likely to create an erroneous impression regarding
\n          its character in any respect.\n<\/p><\/blockquote>\n
                 (2)      ...   ...   ...\n                 (3)      ...   ...   ...\n                                 \n                 (4)      ...   ...   ...\n\n<\/pre>\n
          (b) Labelling of prepackaged foods.- Every package of food
\n          shall carry the following information on the label.-\n<\/p><\/blockquote>\n
                (1) The name of the food.- The name of the food shall<\/p>\n
          include trade name or description of food contained in the package<\/p>\n
                (2) List of ingredients.- A list of ingredients shall be
\n          declared on the label and shall be in the following manner :-\n<\/p><\/blockquote>\n
                 ...      ...   ...\n\n          (c)    ...      ...   ...\n\n\n\n\n\n          (d)    ...      ...   ...\n\n          (e)    ...      ...   ...\n\n          (f)    Date of manufacture or packing.- The date, month and year\n<\/pre>\n
          in which the commodity is manufactured, packed or pre-packed,
\n          shall be given on the label;\n<\/p><\/blockquote>\n
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\n                                         22<\/span><\/p>\n
    upa                                                     wp3998-10-final.sxw<\/p>\n
                 Provided that the month and the year of manufacture,<\/p>\n
          packing or pre-packing shall be given if the “Best Before Date” of
\n          the products is more than three months’<\/p>\n
                Provided further that in case any package contains
\n          commodity which has a short shelf life of less than three months,
\n          the date, month and year in which the commodity is manufactured
\n          or prepared or pre-packed shall be mentioned on the label.\n<\/p><\/blockquote>\n
          (g) Use by date\/recommended last consumption date\/expiry
\n          date.- The use by date\/recommended last consumption date\/expiry
\n          date shall be given,-\n<\/p><\/blockquote>\n
                (i)   in case of package of Aspertame, which shall be not<\/p>\n
          more than three years from the date of packing;\n<\/p><\/blockquote>\n
                (ii)   in case of infant milk substitute and infant foods.\n<\/p><\/blockquote>\n
          (h)   ...    ...   ...\n\n          (i)    The month and year in capital letters upto which the product\n            \n\n\n<\/pre>\n
          is best for consumption, in the following manner, namely :-\n<\/p><\/blockquote>\n
                \"BEST BEFORE ......       MONTH AND YEAR\"\n                                         OR\n                \"BEST BEFORE ......       MONTHS FROM\n                                         PACKAGING\"\n\n\n\n\n\n                                         OR\n                \"BEST BEFORE ......       MONTHS FROM\n                                         MANUFACTURE\"\n\n\n\n\n\n          (j)   ...    ...   ...\n          (k)   ...    ...   ...\n          (l)   ...    ...   ...\n          (m)   ...    ...   ...\n\n<\/pre>\n
               Explanation VIII :- (i) “Best Before” means the date
\n          which signifies the end of the period under any stated storage<\/p>\n
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\n                                         23<\/span>
\n    upa                                                     wp3998-10-final.sxw<\/p>\n
          conditions during which the product will remain fully marketable<\/p>\n
          and will retain any specific qualities for which tacit or express
\n          claims have been made beyond that date the food may still be
\n          perfectly satisfactory.\n<\/p><\/blockquote>\n
                 (ii) In addition to the date of best before, any special
\n          conditions for the storage of the food shall be declared on the label
\n          if the validity of the date depends on such storage.”\n<\/p><\/blockquote>\n
                Explanation VIIIC : “use – by date” or “recommended last
\n          consumption date” or “expiry date” means the date which signifies
\n          the end of the estimated period under any stated storage conditions,<\/p>\n
          after which product probably will not have the quality attributes
\n          normally expected by the consumers and the food shall not be<\/p>\n
          marketable.”\n<\/p><\/blockquote>\n
    28.          Before going on to analyze the above provisions, it is
\n    necessary to refer to the factual background of the instant case. As far as<\/p>\n
    Spinach Powder is concerned, the manufacturing date was 19 August<\/p>\n
    2008. It’s manufacturer had mentioned that best before period over six
\n    months from the date of manufacture meaning thereby that the best
\n    before period was to come to an end on 19 February 2009. The Spinach<\/p>\n
    Powder was used by the petitioner as a raw material for making the
\n    Potato Chips.    The material on record does not indicate that the best
\n    before date was mentioned by the petitioner on the wrapper containing<\/p>\n
    the potato chips manufactured from the above Spinach Powder. We are
\n    informed at the bar that the best before period mentioned on such
\n    wrapper is three months.       Mr.Dwarkadas, learned counsel for the
\n    petitioner submitted that since the best before period for the Potato Chips
\n    made on 12 May 2009 from the Spinach Powder in question was three
\n    months, the same would come to an end on 12 August 2009. But the<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 16:43:18 :::<\/span>
\n                                          24<\/span>
\n    upa                                                       wp3998-10-final.sxw<\/p>\n
    manufacturer of the Spinach Powder had already certified in the<\/p>\n
    certificate dated 2 January 2009 that the Spinach Powder manufactured
\n    on 19 August 2008 had best before period of six months from the date of<\/p>\n
    manufacture but the material was well acceptable in terms of quality
\n    attributes and safe and fit for human consumption 12 months from its<\/p>\n
    date of manufacture when stored in original sealed packs at ambient
\n    conditions. Therefore, the Spinach Power was satisfactory till 19 August
\n    2009. It is submitted that as “the best before” period of Potato Chips<\/p>\n
    made from the said Spinach Powder was to come to an end on 12 August<\/p>\n
    2009, the Potato Chips made from the said Spinach Powder was a safe
\n    food for human consumption and satisfactory till 19 August 2009.\n<\/p><\/blockquote>\n
    29.          However, in absence of any reference to the date of
\n    manufacture of the Potato Chips as indicated on the wrapper containing<\/p>\n
    Potato Chips made on 12 May 2009 that the Spinach Powder was<\/p>\n
    manufactured on 19 August 2009, it would not be possible to give any
\n    specific finding whether the Potato Chips were satisfactory as
\n    contemplated in Explanation VIII(i) above. There is also discussion in<\/p>\n
    the impugned order as to whether in special conditions what should be
\n    mentioned on the wrapper of the Spinach Powder for its storage. It is
\n    obvious that even if the matter were to be remanded now, in absence of<\/p>\n
    any label on the wrapper of the Spinach Powder, it would not be possible
\n    either for the licensing authority or for the petitioner to throw any light on
\n    the issue being discussed.\n<\/p>\n
    30.          In view of Explanation VIII(i) to Section 32(b)(m), as
\n    interpreted in the case of Gangaiahnaidu Rama Krishna Vs. State of A.P.,<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 16:43:18 :::<\/span>
\n                                         25<\/span>
\n    upa                                                     wp3998-10-final.sxw<\/p>\n
    2005 (2)-ALD (Cri)-889       and in case of M\/s.Hyderabad Beverages<\/p>\n
    Pvt.Ltd. Vs. State of A.P., 2006- Cri.L.J.-3988, the petitioner will get
\n    benefit of doubt on the questions whether the Potato Chips in question<\/p>\n
    were satisfactory till the date of expiry of the best before period for its
\n    raw material Spinach Powder.\n<\/p>\n
    31.          However, as far as Besan is concerned, it’s supplier had
\n    specified that the life of the Besan was only two months. The Besan was<\/p>\n
    manufactured on 3 March 2009 with best before period of 60 days i.e. 2<\/p>\n
    months. Hence, on the date of inspection on 12 May 2009, the best
\n    before period of Besan was already over.\n<\/p>\n
    32.          The petitioner’s defence, however, is that as held by the
\n    Andhra Pradesh High Court in the cases above referred, the expiry of best<\/p>\n
    before period does not mean that even after the expiry of the best before<\/p>\n
    period, the food was satisfactory and that the burden of showing that the
\n    food was not satisfactory was on the respondent authority.\n<\/p>\n
    33.          Having carefully considered the rival submissions, we are of
\n    the view that while in a criminal proceeding which may entail the
\n    sentence of imprisonment, the burden would be on the authority to show<\/p>\n
    that beyond the “best before” period, the food was unsatisfactory and that
\n    can be done only by getting their food samples tested in the Central Food
\n    Laboratory, we see no reason why the manufacturer of the Potato Chips
\n    or any other final product should be permitted to use the raw material\/s
\n    beyond their “best before” date without getting raw materials tested to
\n    ensure that they are satisfactory. It could never have been the intention of<\/p>\n
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\n                                          26<\/span>
\n    upa                                                      wp3998-10-final.sxw<\/p>\n
    the Legislature or Rule making authority that the manufacturer of the<\/p>\n
    final product could use the raw materials beyond their “best before” date
\n    without getting raw materials tested to see that they are satisfactory. It is<\/p>\n
    nobody’s case, not ever the petitioner’s case that the manufacturer has a
\n    right to manufacture the final product by using raw materials which are<\/p>\n
    unsatisfactory. Hence, for the purpose of complying with the conditions
\n    of license issued under Rule 50 of the PFA Rules, 1955 read with Rule 5
\n    of the Maharashtra Prevention of Food Adulteration Rules, 1962 in<\/p>\n
    conjunction with Rule 32 of the PFA Rules, 1955, it is only the<\/p>\n
    manufacturer who has to be fastened with the responsibility of ensuring
\n    that the raw materials are satisfactory at the time of making the final<\/p>\n
    product.\n<\/p>\n
    34.          Having examined the scheme of the Rules and the conditions<\/p>\n
    of license, we are of the view that even though for the purposes of<\/p>\n
    prosecution under section 16 of the Prevention of Food Adulteration Act,
\n    1954 read with Rule 32(g)(i) (Explanation-VII), it may be necessary, as
\n    held by the Andhra Pradesh High Court in M\/s.Hyderabad Beverages<\/p>\n
    Pvt.Ltd. Vs. State of A.P., 2006-Cri.L.J.-3988, for the Food Inspector to
\n    get the sample of the raw material being used on the date of inspection
\n    and the finished product on the date of inspection and get tested from the<\/p>\n
    Central Food Laboratory. For the purposes of inquiry as to whether there
\n    is adherence to the rules for issuance of license and the conditions of
\n    license are complied with or not, it is not necessary for the licensing
\n    authority to get the sample of the raw material and the finished product
\n    tested and it is for the licensee to ensure that the raw material being used
\n    by the licensee for making the food article beyond the “best before” date<\/p>\n
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\n                                            27<\/span>
\n    upa                                                         wp3998-10-final.sxw<\/p>\n
    of the raw material is satisfactory on the date of manufacturing the food<\/p>\n
    article (final article) and that the final product will also be satisfactory till
\n    the “best before” date of the final product.\n<\/p>\n
    35.           In view of the fact that it is for the first time that we are<\/p>\n
    interpreting the provisions of Explanation-VIII to Rule 32(m) of the
\n    Prevention of Food Adulteration Rules, 1955, we are of the view that the
\n    petitioner may not be visited with the consequence of suspension of<\/p>\n
    license only on the ground of using the Spinach Powder and the Besan on<\/p>\n
    the date of inspection beyond best before period indicated by their
\n    respective manufacturers.\n<\/p>\n
    36.           Rule 50 of the PFA Rules, 1955 provides that no person
\n    shall manufacture, sell, …… any article of food except under a license.\n<\/p>\n
    Rule 50 provides for various conditions of licence, some of which are as<\/p>\n
    under :-\n<\/p>\n
           “(5) Before granting a licence for manufacture, stock or<\/p>\n
           exhibition of any of the articles of food in respect of which
\n           a licence is required, the licensing authority shall inspect
\n           the premises and satisfy itself that it is free from sanitary
\n           defects. The applicant for the licence shall have to make
\n           such alteration in the premises as may be required by the<\/p>\n
           licensing authority for the grant of a licence:\n<\/p><\/blockquote>\n
                  Provided that the licensing authority may for reasons
\n           to be recorded in writing, refuse to grant a licence, if it is
\n           satisfied that it is necessary to do so in the interest of public
\n           health.\n<\/p><\/blockquote>\n
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\n                                         28<\/span><\/p>\n
    upa                                                     wp3998-10-final.sxw<\/p>\n
          (9) No licensee shall employ in his work any person<\/p>\n
          who is suffering from infectious, contagious or loathsome
\n          disease.”\n<\/p><\/blockquote>\n
    37.         Rule 5 of the Maharshtra Prevention of Food Adulteration<\/p>\n
    Rules, 1962 provides that any person desiring for the manufacture for
\n    sale of articles for food in respect of which a licence is required under
\n    Rule 50 of the PFA Rules, 1955 shall apply for a licence in Form A to the<\/p>\n
    licensing authorities appointed by the Local Authority.          Rule 5 also<\/p>\n
    makes detailed provisions for the conditions to be incorporated in the
\n    licence, some of which are as under :-\n<\/p>\n
          “5.    Licenses –\n<\/p><\/blockquote>\n
                 xxxxx              xxxxx        xxxxx<\/p>\n
          (3) On receipt of such application the licensing authority<\/p>\n
          shall if on inspecting the said premises is satisfied that the
\n          premises are free from sanitary defects and the applicant
\n          complies with other conditions for holding license, grant
\n          the applicant a license in Form B on payment of fees laid<\/p>\n
          down in Appendix I, Appendix II [Appendix III or
\n          Appendix IV] in the Schedule.\n<\/p><\/blockquote>\n
                 Xxxxx              xxxxx        xxxxx<\/p>\n
          (5) The licensee shall abide by the provisions of the Act
\n          and the rules made thereunder, and the conditions of the
\n          license granted to him. The licensing authority may
\n          suspend or cancel the license for breach of any of the
\n          provisions of the Act or rules made thereunder or the
\n          conditions of license.”\n<\/p><\/blockquote>\n
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\n                                         29<\/span><\/p>\n
    upa                                                     wp3998-10-final.sxw<\/p>\n<\/blockquote>\n
    38.          The license dated 9 August 2001 issued in favour of the
\n    petitioner and renewed from time to time including the last renewal dated<\/p>\n
    18 February 2008 for the period upto 31 December 2012 contains various
\n    conditions including the following :-\n<\/p><\/blockquote>\n
           “(1) The licensee and his employees who manufacture the
\n           said food products, store the same, distribute them or
\n           exhibit the same for sale or offers for sale such (1) potato<\/p>\n
           chips, (2) Baked Corn products and (3) snacks food
\n           products shall disclose in detail from which source the said<\/p>\n
           articles were obtained along with its name and address to
\n           the Food Inspector or licensing authority or Health Officer,
\n           on demand.\n<\/p><\/blockquote>\n
           (4) (a)      xxxxx        xxxxx        xxxxx<\/p>\n<\/blockquote>\n
           (b) The licensee shall arrange to get each room paved so<\/p>\n
           that the same could be cleaned and washed in appropriate
\n           manner.\n<\/p><\/blockquote>\n
           (c) The licensee shall arrange to maintain each such<\/p>\n
           room or paved places wherein utensils used for keeping
\n           licensed food articles in a cupboard or on bench in a good
\n           and clean manner.\n<\/p><\/blockquote>\n
                        Xxxxx        xxxxx        xxxxx<\/p>\n
           (9) Surface of the internal walls of the above place be
\n           glazed with impregnable tiles or made smooth by cement
\n           concrete upto 1 meter height from the floor. If this facility
\n           is not provided at present, the same be then provided within
\n           the time the licensing officer specifies.”\n<\/p><\/blockquote>\n
                                                          ::: Downloaded on – 09\/06\/2013 16:43:18 :::<\/span>
\n                                          30<\/span><\/p>\n
     upa                                                    wp3998-10-final.sxw<\/p>\n<\/blockquote>\n
    39.          The allegations (E) and (G) about manufacturing area and<\/p>\n
    the packaging area show that the petitioner had not maintained the
\n    required cleanliness in the manufacturing and the packaging areas. The<\/p>\n
    petitioner’s explanation that during inspection the areas were under
\n    cleaning process and hence dirt accumulation was observed was not<\/p>\n
    accepted as satisfactory because the Licensing Officer observed that some
\n    tiles were in broken condition in manufacturing area and food items had
\n    accumulated in it and therefore there was violation of Rule 5(3) and<\/p>\n
    permission condition 4(b).      Similarly, it was found by the Licensing<\/p>\n
    Officer at the time of visit that plastic covers (packaging film) and food
\n    items were spilled on the floor and, therefore, there was violation of Rule<\/p>\n
    5(3) and condition 4(c).\n<\/p><\/blockquote>\n
    40.          Even while declining to interfere with the findings of the<\/p>\n
    licensing authority, as confirmed by the appellate authority, that the
\n    petitioner had committed breach of Rule 5(3) condition Nos.4(b) and (c)
\n    of the license issued under Rule 5 of the Maharashtra Prevention of Food<\/p>\n
    Adulteration Rules, 1962, we are not sure whether the authority would
\n    have suspended the petitioner’s license for a period of two days on the
\n    ground of breach of the said conditions of the licence.       Hence, we are<\/p>\n
    inclined to remit the matter to the appellate authority for considering this
\n    question afresh.\n<\/p><\/blockquote>\n
                                                          ::: Downloaded on – 09\/06\/2013 16:43:18 :::<\/span>
\n                                         31<\/span><\/p>\n
    upa                                                     wp3998-10-final.sxw<\/p>\n<\/blockquote>\n
    41.          Another violation alleged by the authority is that the<\/p>\n
    petitioner had violated Rule 50(9) of the Prevention of Food Adulteration
\n    Rules which reads as under :-\n<\/p><\/blockquote>\n
          “50. Conditions for license.-\n<\/p><\/blockquote>\n
          (9) No licensee shall employ in his work any person who
\n          is suffering from infectious, contagious or loathsome
\n          disease.”\n<\/p><\/blockquote>\n<\/blockquote>\n
    The learned counsel for the petitioner submits that the petitioner company<\/p>\n
    had not employed any contract labour who was suffering from any
\n    infectious, contagious or loathsome diseases. The petitioner had also
\n    produced before the appellate authority a chart (Exhibit-K, Page-70 of the<\/p>\n
    petition) showing medical check-up of the workers. However,it appears<\/p>\n
    from the appellate order that no reference is made to the said chart
\n    reflecting the medical check-up of the workers.\n<\/p><\/blockquote>\n
    42.          Having regard to the allegations made in the petition and the
\n    explanation given by the petitioner company, which was not found to be<\/p>\n
    satisfactory, the licensing authority gave findings against the petitioner.
\n    However, the appellate order does not indicate that the appellate authority
\n    had dealt with the material which was produced by the petitioner at the
\n    hearing of the appeal. The appellate authority is not required to confine
\n    its attention to the material which was placed before the licensing
\n    authority.   The appellate authority is bound to consider the material<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 16:43:18 :::<\/span>
\n                                         32<\/span>
\n    upa                                                     wp3998-10-final.sxw<\/p>\n
    placed before the appellate authority. Of course, it is for the appellate<\/p>\n
    authority to examine and hold whether the additional material produced
\n    before the appellate authority is credible and deserves to be accepted.\n<\/p>\n
    However, the appellate authority cannot refuse to consider the additional
\n    material placed by the licensee before the appellate authority merely on<\/p>\n
    the ground that it was not placed before the licensing authority. Of
\n    course, the fact that some material is produced by the licensee before the
\n    inspecting officer as soon as show cause notice is issued, will certainly<\/p>\n
    carry much greater weightage so also the material which may be placed<\/p>\n
    by the licensee at the hearing before the licensing officer will also carry
\n    much greater weightage than the material which the licensee may seek to<\/p>\n
    produce before the appellate authority. But it is not that the material
\n    which may be placed before the appellate authority should not at all be
\n    considered by the Appellate Authority.\n<\/p>\n
    43.          Having heard the learned counsel for the parties, we are of
\n    the view that the matter deserves to be remitted to the Appellate<\/p>\n
    Authority to give a fresh hearing to the petitioner and to consider the
\n    matter afresh in the light of the material which may now be placed before
\n    the appellate authority and in the light of the observations made in this<\/p>\n
    judgment.\n<\/p>\n
    44.          In view of the above discussion, the petition is partly
\n    allowed. The impugned order dated 17th April 2010 of the Food (Health)
\n    Officer and Commissioner, Food & Drug Administration (M.S.), Mumbai<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 16:43:18 :::<\/span>
\n                                         33<\/span>
\n    upa                                                     wp3998-10-final.sxw<\/p>\n
    passed in Appeal No.14 of 2009 is hereby quashed and set aside and the<\/p>\n
    matter is remitted to the appellate authority for hearing Appeal No.14 of
\n    2009 afresh. It will be open to the petitioner herein to place such further<\/p>\n
    material as the petitioner may seek to produce and it will be for the
\n    appellate authority to consider what weightage should be attached to such<\/p>\n
    material. The appellate authority shall re-hear the appeal and decide
\n    Appeal No.14 of 2009 afresh in accordance with law and after taking into
\n    consideration the observations made in the judgment within three months<\/p>\n
    from the date of receipt of this judgment.\n<\/p>\n
                                                 CHIEF JUSTICE<\/p>\n
                                       DR. D.Y.CHANDRACHUD, J.\n<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 16:43:18 :::<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Xcellency Chamber vs State Of Maharashtra on 23 December, 2010 Bench: Dr. D.Y. Chandrachud 1 upa wp3998-10-final.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3998 OF 2010 PepsiCo India Holdings Limited, ) A company duly incorporated under the ) Companies Act, 1956, having its ) registered […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-108298","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nXcellency Chamber vs State Of Maharashtra on 23 December, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/xcellency-chamber-vs-state-of-maharashtra-on-23-december-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Xcellency Chamber vs State Of Maharashtra on 23 December, 2010 - 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