{"id":5281,"date":"2010-06-25T00:00:00","date_gmt":"2010-06-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/whether-vs-state-on-25-june-2010"},"modified":"2015-06-14T22:54:47","modified_gmt":"2015-06-14T17:24:47","slug":"whether-vs-state-on-25-june-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/whether-vs-state-on-25-june-2010","title":{"rendered":"Whether vs State on 25 June, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Whether vs State on 25 June, 2010<\/div>\n
Author: K.A.Puj,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/8977\/2009\t 1\/ 34\tJUDGMENT \n \n \n\n\t\n\n \n\n \n\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 8977 of 2009\n \n\nWITH\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9769 of 2009\n \n\nTO\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9773 of 2009  \n \n\n\n \n\nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE K.A.PUJ\n\t\t\tSd\/- \n \n===================================\n<\/pre>\n
1.<\/p>\n
Whether
\n\t\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n<\/p>\n
YES<\/p>\n
2.<\/p>\n
To
\n\t\t\t\tbe referred to the Reporter or not ?\n<\/p>\n
NO<\/p>\n
3.<\/p>\n
Whether
\n\t\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n<\/p>\n
NO<\/p>\n
4.<\/p>\n
Whether
\n\t\t\t\tthis case involves a substantial question of law as to the
\n\t\t\t\tinterpretation of the constitution of India, 1950 or any order
\n\t\t\t\tmade thereunder ?\n<\/p>\n
NO<\/p>\n
5.<\/p>\n
Whether
\n\t\t\t\tit is to be circulated to the civil judge ?\n<\/p>\n
NO<\/p>\n
FEDERATION
\nOF PACKAGED DRINGING WATER MANUFACTURES, VADODARA – Petitioner<\/p>\n
Versus<\/p>\n
STATE
\nOF GUJARAT & 14   Respondents<\/p>\n
\tAppearance
\n:\n<\/p>\n
1.\t Special
\nCivil Application No.8977 of 2009
\n\tMR
\nR R MARSHALL, SENIOR ADVOCATE WITH MR
\nJAL SOLI \tUNWALA for Petitioner.\n<\/p>\n
\tGOVERNMENT PLEADER for
\nRespondent No. 1.\n<\/p>\n
\tMR DHAVAL G NANAVATI for Respondent Nos.2 to
\n4 <\/span>
\n\tMR AMIT V THAKKAR for Respondent No.5.\n<\/p>\n
\tMR
\nNIRAV C THAKKAR for Respondent Nos.6 to 15.\n<\/p>\n
2.\t Special
\nCivil Application Nos.9769 to 9773 of 2009<\/p>\n
\tMR
\nNIRAV C THAKKAR for Petitioners.\t\t\t\t\tGOVERNMENT PLEADER for
\nRespondent No. 1. \t\t\t\tMR DHAVAL G NANAVATI for Respondent Nos.2 &\n<\/p>\n
3.               \tMR R R MARSHALL, SENIOR ADVOCATE WITH MR JAL SOLI
\n\tUNWALA for Respondent No.5.\n<\/p>\n
===================================<\/p>\n
CORAM
\n\t\t\t:\n<\/p>\n
HONOURABLE
\n\t\t\tMR.JUSTICE K.A.PUJ<\/p>\n
Date
\n: 25\/06\/2010
\nCOMMON CAV JUDGMENT <\/p>\n
Since
\n\tall these petitions are in relation to the same subject matter and
\n\tare inter-connected and since they are heard together, the same are
\n\tbeing disposed of by this common judgment and order.\n<\/p>\n
Special
\n\tCivil Application No.8977 of 2009 is filed by Federation of Packaged
\n\tDrinking Water Manufacturers, Vadodara praying for a direction to
\n\tthe respondent authorities to ensure that the every individual \/
\n\ttrader \/ businessman who is doing the business of manufacturing
\n\tand\/or selling and\/or exhibiting for sale packaged drinking water
\n\twithin the limits of respondent No.2   Surat Municipal Corporation
\n\tshall obtain and possess a valid license \/ certification mark of the
\n\trespondent No.5   Bureau of Indian Standard as per the provisions
\n\tof Section 15 of the Bureau of Indian Standards Act, 1986 as well as
\n\tunder Sub-Rule 28 of Rule 49 of the Prevention of Food Adulteration
\n\t(7th Amendment) Rules, 2000 after following the
\n\tpre-requisites for the grant of license as per Annexure C and
\n\tfurther to ensure that all such individuals \/ traders \/ businessmen
\n\tcarry on their business in conformity with the Indian Standard
\n\tPackaged Drinking Water (other than packaged natural mineral water)
\n\tspecification at Annexure D to this petition and till then, to
\n\trestrain all such persons \/ individuals \/ traders \/ businessmen from
\n\tcarrying on such business.\n<\/p>\n
Special
\n\tCivil Application Nos.9769 to 9773 of 2009 are filed by different
\n\tconcerns praying for quashing and setting aside the impugned notices
\n\tdated 08.09.2009 issued by the respondent No.3.  By way of an
\n\tamended prayer, they have also prayed for quashing and setting aside
\n\tthe illegal action of the respondent Corporation in applying seals
\n\tto the business premises of the petitioners by holding the same to
\n\tbe illegal etc. and seeking further direction to the respondent
\n\tCorporation to forthwith remove the said seals.\n<\/p>\n
In
\n\tSpecial Civil Application No.8977 of 2009, this Court has issued
\n\tnotice on 27.08.2009.  On 08.09.2009, further order was passed by
\n\tthis Court directing respondent No.2   Surat Municipal Corporation
\n\tto keep a responsible Officer present before the Court with an
\n\texplanation as to why the action was not taken, as directed by this
\n\tCourt vide order dated 11.06.2008 in Special Civil Application
\n\tNos.8044 to 8062 of 2008 by the concerned Officer and also with an
\n\texplanation as to why the actions, as contemplated in the order of
\n\tDivision Bench of this Court in Special Civil Application No.7549 of
\n\t2009 dated 10.08.2009 were not taken.  On 09.09.2009, Deputy
\n\tMunicipal Commissioner (Health) of Surat Municipal Corporation was
\n\tpresent before this Court and assured the Court that he would see to
\n\tit that all necessary actions which were required to be taken under
\n\tthe order dated 11.6.2008 passed in Special Civil Application
\n\tNos.8044 to 8062 of 2008 and also under order passed by Division
\n\tBench of this Court in Special Civil Application No.7549 of 2008 on
\n\t10.08.2009 wold be taken in accordance with law.  The petition was
\n\tthereafter admitted on 06.10.2009.  On this date i.e. 06.10.2009,
\n\tSpecial Civil Application Nos.9769 to 9773 of 2009 were also
\n\tadmitted and they were ordered to be heard with Special Civil
\n\tApplication No.8977 of 2009.  On 19.11.2009, the petitioners of
\n\tSpecial Civil Application Nos.9769 to 9773 of 2009 were desirous to
\n\tgo for certificate from the Bureau of Indian Standard and hence,
\n\tonly for the purpose of carrying out those technical tests and
\n\testablishment of the Laboratory and the Factory, they were allowed
\n\tto open the seal of the premises, after filing undertaking by the
\n\tpetitioners that they would not carry out any manufacturing \/
\n\tselling activities without the permission of this Court and would
\n\tnot operate the plant for manufacturing of the product.  They were
\n\talso required to file an undertaking that they would not transfer,
\n\talienate the disputed property in any manner whatsoever.  Lastly on
\n\t09.02.2010, a detailed order was passed by this Court permitting the
\n\tpetitioners to file a representation before the Corporation and
\n\tdirecting the respondent Corporation to decide such representation
\n\twithin a period of 14 days from the date of receipt of such
\n\trepresentation in accordance with law and the respondent Corporation
\n\twas further directed to place the said decision on the record of
\n\tthese petitions.  Since the decision on the petitioners’
\n\trepresentation was not placed on record, this Court has passed
\n\tfurther order on 02.03.2010 directing the respondent Corporation
\n\teither to place the said decision on record or to depute the
\n\tconcerned Authority to remain personally present before the Court on
\n\t03.03.2010.  Accordingly, an affidavit was filed on 03.03.2010 on
\n\tbehalf of the respondent Corporation along with which the decision
\n\ton the petitioners’ representation was placed on record and all the
\n\tmatters were heard on merits.\n<\/p>\n
The
\n\tbrief facts giving rise to Special Civil Application No.8977 of 2009
\n\tare that the petitioner of this petition is a Public Trust having
\n\tits registration No. F-1444\/Vadodara dated 16.04.2003.  Some of the
\n\tmain objects and aims are to promote industries and trade and
\n\tpackaged drinking water industries.  It is a group of individual
\n\tmembers who are carrying on the business of manufacturing and\/or
\n\tselling packaged drinking water, after obtaining necessary license
\n\tfrom the Bureau of Indian Standards as per the provisions prescribed
\n\tunder the Prevention of Food Adulteration Act as well as Rules
\n\tframed thereunder. Bureau of Indian Standards has laid down certain
\n\tspecifications for packaged drinking water (other than packaged
\n\tnatural mineral water which is popularly known as  IS-14543 :
\n\t2004.  In the year 2008, the respondent Corporation had sealed the
\n\tfactory premises of certain individual businessmen who were
\n\tillegally carrying on business of manufacturing and\/or selling
\n\tand\/or exhibiting for sale packaged drinking water without having
\n\tthe requisite certification mark from the Bureau of Indian
\n\tStandards.  Those erring individuals approached this Court by way of
\n\tSpecial Civil Application No.8044 of 2008 to 8062 of 2008, inter
\n\talia, praying to immediately
\n\tremove the seals applied upon the Factory premises.  This Court
\n\tafter hearing all the parties disposed of the said Special Civil
\n\tApplications on 11.06.2008 with certain directions.  Inspite of
\n\tthose directions, many of such individual businessman within the
\n\tlimits of Surat Municipal Corporation were still carrying on the
\n\tbusiness of manufacturing and\/or selling and\/or exhibiting for sale
\n\tpackaged drinking water in total violation of the above mentioned
\n\tprovisions of law as also in total disregard and flagrant violation
\n\tof the order and inspite of this factual situation, the respondent
\n\tCorporation had not taken any action \/ steps against those erring
\n\tindividuals.\n<\/p>\n
It
\n\tis in this background of above mentioned facts and circumstances of
\n\tthe case, the petitioner approached this Court earlier by way of
\n\tSpecial Civil Application No.4642 of 2009.  After hearing the
\n\tadvocate for the petitioner, this Court vide its order dated
\n\t13.05.2009 without going into the merits of the matter and without
\n\texpressing any opinion, disposed of the said petition by reserving
\n\tliberty for the petitioner to make a representation to the
\n\trespondent   Corporation.  It was also directed that if such a
\n\trepresentation was made, it would be considered by the respondent
\n\tauthority in accordance with law and as expeditiously as possible,
\n\tpreferably within the period of one month from the date of receipt
\n\tof the representation from the petitioner.  In due compliance of the
\n\tdirections given by this Court, the petitioner made representation
\n\tdated 26.05.2009 to the Commissioner, Surat Municipal Corporation.
\n\tInspite of the direction given by this Court, the representation of
\n\tthe petitioner was not decided and hence, the petitioner was
\n\tconstrained to file the present petition before this Court.\n<\/p>\n
Mr.\n<\/p>\n
\tR. R. Marshall, learned Senior Advocate appearing with Mr. Jal
\n\tUnwala for the petitioner has submitted that the respondents were
\n\tnot implementing the provisions of Sub-Rule 28 of Rule 49 of the
\n\tPrevention of Food Adulteration (7th Amendment) Rules,
\n\t2000 and Section 15 of the Bureau of Indian Standards Act, 1986.  He
\n\thas further submitted that it is the duty of the respondents to see
\n\tthat the above provisions of Food Adulteration Rules as well as
\n\tBureau of Indian Standards are put into action with equal force and
\n\tthe action on the part of the respondents in allowing such erring
\n\tindividuals to carry on the business of manufacturing and\/or selling
\n\tpackaged drinking water without complying with the provisions of the
\n\tPrevention of Food Adulteration Rules as well as the Bureau of
\n\tIndian Standards Act is required to be deprecated and strict action
\n\tis required to be taken against such authorities.  He has further
\n\tsubmitted that there is no nexus between the classification \/
\n\tdifferent treatment given to such erring individuals and the
\n\tprovisions of the Prevention of Food Adulteration Rules as well as
\n\tBureau of Indian Standards Act.  He has further submitted that the
\n\terring individuals did not confirm to the specifications and the
\n\tprocedures prescribed in Annexure D by the Bureau of Indian
\n\tStandards nor did they purchase certification mark \/ license as per
\n\tAnnexure C and in that view of the matter, it is incumbent upon the
\n\trespondent   Corporation to immediately adhere to the provisions
\n\tof this Act and Rules and should have forthwith restrained such an
\n\terring individuals from carrying on the business in violation of the
\n\tstatutory provisions under the Prevention of Food Adulteration Rules
\n\tand the Bureau of Indian Standards Act.\n<\/p>\n
An
\n\taffidavit-in-reply is filed on behalf of Surat Municipal Corporation
\n\ton 03.11.2009.  Mr. Dhaval G. Nanavati, learned advocate appearing
\n\tfor the Surat Municipal Corporation has raised preliminary objection
\n\tto the maintainability of the petition.  He submitted that the
\n\tpetitioners have failed to show infringement of any of its
\n\tfundamental or legal rights.  The petition does not disclose any
\n\tinfraction of the rights of the petitioners.  He has further
\n\tsubmitted that the petition involves disputed questions of fact
\n\twhich in turn, require detailed fact finding inquiry and leading of
\n\tthe documentary as well as oral evidence.  Such an inquiry is not
\n\tfeasible in the present proceedings under the extra ordinary
\n\tjurisdiction of this Court.  He has further submitted that the
\n\tpetition suffers from inordinate delay and inexplicable laches.  He
\n\thas, therefore, submitted that the petition is not maintainable and
\n\tthe petitioner is not entitled to any relief as prayed for.\n<\/p>\n
So
\n\tfar as merits of the matter are concerned, he has submitted that the
\n\trespondent Corporation, from day one initiated action when it has
\n\tcome to its knowledge and notice that some of the businessmen were
\n\tmanufacturing \/ selling the packaged drinking water in the open
\n\tmarket for the consumption of the public at large without having any
\n\trequisite permission \/ license \/ certification under provisions of
\n\tSection 15 of the Bureau of Indian Standards Act read with Sub-Rule
\n\t28 of Rule 49 of the Prevention of Food Adulteration (7th
\n\tAmendment) Rules, 2000.  He has further submitted that out of all
\n\tthose businessman, 19 Unit holders had initially preferred writ
\n\tpetitions challenging the action of the Corporation on the ground
\n\tthat the action of sealing the units by the Corporation was too
\n\tharsh as the provisions of the Prevention of Food Adulteration Act
\n\tare not applicable to the units as the units are not falling under
\n\tthe definition of packaged drinking water, as the units are not
\n\tengaged in manufacturing or selling the packaged drinking water and
\n\tonly selling the water in the open Jars \/ Kerbas and only tied the
\n\tlid from the top.  The arguments of the Corporation were that the
\n\tCorporation had an authority to take action under the provisions of
\n\tPrevention of Food Adulteration Act as the Units are covered under
\n\tthe definition of packaged drinking water as they put a lid on the
\n\tJars wherein they preserved water.  The Corporation has also
\n\tjustified its action on the ground that it is the responsibility of
\n\tthe Corporation to ensure public health, hygiene and safety against
\n\tthe packaged drinking water.  In absence of any certificate from the
\n\tHealth department or the fitness certificate for the quantity of the
\n\twater from the concerned authority, those businessman were not
\n\tentitled to carry on their business.  Considering the records and
\n\tthe provisions of the Act as well as the Rules, this Court vide its
\n\torder dated 11.06.2008 had issued certain directions.  He has
\n\tfurther submitted that as per the directions of this Court, the
\n\tCorporation had allowed the unit holders to draw the samples so that
\n\tsame could be tested in the Laboratory of the Corporation as well as
\n\tGovt. Laboratory at Vadodara.  The reports of both the Laboratories
\n\twere different and hence, the Corporation had asked all those unit
\n\tholders to stop their activities.  Against this action of the
\n\tCorporation, the unit holders have preferred Misc. Civil Application
\n\tbefore this Court contending therein that though they have supplied
\n\tthe samples for analysis, the report has not been handed over to
\n\tthem by the concerned Laboratories.  However, both the test reports
\n\tso received from the Laboratories were placed before this Court and
\n\tafter considering the submissions of the parties and the reports so
\n\tplaced before the Court, six unit holders who have obtained the
\n\tfavourable reports in their favour were allowed to continue their
\n\tbusiness.  Mr. Nanavati further submitted that the opinion of the
\n\tBIS Plants was permitted to manufacture \/ sell or exhibit for sale
\n\tof water.  He has further submitted that the Corporation is very
\n\tkeen and also duty bound to see that the citizens get clean and
\n\thygiene water to drink and the Corporation was ready and willing to
\n\tobey each and every direction contained in the order of this Court.
\n\tHe has, therefore, submitted that the petition should not be
\n\tentertained by this Court.\n<\/p>\n
An
\n\taffidavit-in-rejoinder is filed on behalf of the petitioner on
\n\t28.01.2010.  Based on this rejoinder affidavit, Mr. Marshall has
\n\tsubmitted that Rule 49 of the Prevention of Food Adulteration (7th
\n\tAmendment) Rules, 2000 is explicitly clear and states that no person
\n\tshall manufacture \/ sell or exhibit for sale packaged drinking water
\n\texcept under the Bureau of Indian Standard certification mark.  In
\n\tview of this position of law, the authorities are bound to stop any
\n\tperson from carrying out the sale of packaged drinking water without
\n\tISI mark.  If the authorities fail in the performance of their duty,
\n\tit is open for the petitioner to pray for a writ of mandamus from
\n\tthis Court seeking direction against authorities to enforce the law
\n\tin its letter and spirit.  The members of the petitioner Association
\n\tare selling packaged drinking water after obtaining ISI mark as
\n\trequired by law.  Acquiring of this mark is a long and extensive
\n\tprocess and after acquiring it, one is subjected to strict test and
\n\tmeasures so that the mark is not taken away.  All those who want to
\n\tdo business in packaged drinking water are bound by the same law and
\n\tcannot be heard to say that they will do business flouting the law.
\n\tIn view of the increased amount of packaged water, i.e. consumed, it
\n\tis absolutely imperative that it shall be manufactured, bottled and
\n\tsold exactly as per the provisions of law so that clean and healthy
\n\tdrinking water is available to the public at large.  He has further
\n\tsubmitted that as per the provisions of the Act, Section 7 puts
\n\tprohibition on the manufacture, sale etc. of certain articles of
\n\tfood and states that no person himself or by any other person on his
\n\tbehalf manufacture for sale or storage, sell or distribute any
\n\tarticle of food in contravention to any other provisions of this Act
\n\tor Rules made thereunder.  He has further submitted that the
\n\tCorporation is permitting sale without ISI mark which is contrary to
\n\tthe Rules.  Section 10(1)(c) of the Act talks about the powers of
\n\tthe Food Inspector.  It clearly states that the Food Inspector shall
\n\thave the powers with the previous approval of local health authority
\n\tor with the previous approval of the Food Authority to prohibit the
\n\tsale of any article of food in the interest of public health.
\n\tUnregulated sale of water without seal and without ISI mark would
\n\tnever be in the interest of public health.  Section 23 of the Act
\n\tgives power to the Central Government to make the Rules and Section
\n\t24 gives powers to the State Government to make Rules.  The Central
\n\tGovernment has enacted Rule 49 Sub-rule 28 which makes it mandatory
\n\tthat no packaged drinking water shall be manufactured or sold or
\n\texhibited for sale without any ISI mark.  He has further submitted
\n\tthat even the Bombay Provincial Municipal Corporation Act empowers
\n\tthe Corporation to crack down on illegal sale of water.  Section 66
\n\t(4) states that the Corporation would look after the organization,
\n\tmaintenance or management of chemical or petrochemical Laboratory
\n\tfor examination or analysis of the Food or Drugs for the detection
\n\tof diseases or for the researches connected with public health.
\n\tSection 387 of the BPMC Act empowers the Commissioner to enter into
\n\tany premises with or without assistance of the workmen.  He has,
\n\ttherefore, submitted that it is imperative in the interest of public
\n\thealth and safety and also in the interest of fair play between
\n\tvarious players competing in the packaged drinking water market and
\n\talso for the purpose of upholding the law that the petition deserves
\n\tto be allowed and no one would be allowed to sell  a commodity as
\n\tsensitive as water without obtaining ISI mark which is the express
\n\trequirement of law.\n<\/p>\n
Lastly,
\n\tMr. Nanavati, learned advocate appearing for the Corporation has
\n\treferred to and relied upon the decision taken on the representation
\n\tmade by the petitioner pursuant to the directions issued by this
\n\tCourt vide its order dated 09.02.2010.  He has submitted that
\n\tpursuant to the order of 09.02.2010 passed by this Court, the
\n\trespondent Corporation had issued notices to all those persons who
\n\twere covered by the order dated 11.06.2008 and requested them to
\n\tremain present to satisfy the respondent Corporation as to why the
\n\tBIA Certificate was not required by them.  Pursuant to the said
\n\tnotice, all those persons remained present and made their oral as
\n\twell as written submissions.  After considering the arguments,
\n\tsubmissions and contentions of the petitioners, the Corporation had
\n\tpassed an order on 22.02.2010 and a decision was taken by the
\n\trespondent Corporation that without BIA Certificate, those persons
\n\twho were not having BIA Certificates would not be permitted to sell
\n\t\/ manufacture or store the drinking water as it is contrary to the
\n\tprovisions of the Act as well as Rules.  He has, therefore,
\n\tsubmitted that nothing further survives in this petition and it can
\n\tbe disposed of accordingly.\n<\/p>\n
Mr.\n<\/p>\n
\tNirav C. Thakkar, learned advocate appears on behalf of the
\n\trespondent Nos.5 to 15 who were subsequently joined as respondents
\n\tin this petition. Some of these respondents are also petitioners of
\n\tSpecial Civil Application Nos.9769 to 9773 of 2009. He has submitted
\n\tthat the petitioners are carrying on the business of selling
\n\tnon-packaged drinking water in Surat.  They extract water by tube
\n\twell and treat it by process known as reverse Osmosis (RO) and sell
\n\tthe same in the area of Surat.  Somewhere in February 2008, a notice
\n\tcame to be issued by the respondent No.2 Corporation stating that
\n\tthe petitioners are required to obtain BIA certificate mark if they
\n\twant to sell the bottle.  Thereafter, on 20.05.2008, a warning
\n\tletter came to be issued by respondent No.2 Corporation stating,
\n\tinter alia, that the petitioners  are required to obtain certificate
\n\tof the health department along with the report of public health
\n\tLaboratory showing that the water supplied by them is fit for human
\n\tconsumption.  Despite the fact that it requires sometime to obtain
\n\treport demanded by the respondent Corporation, on the same day,
\n\tseals were applied on the premises of the petitioners.  The
\n\tpetitioners, therefore, preferred Special Civil Application Nos.8044
\n\tto 8062 of 2008 challenging the action of the respondent No.2.  The
\n\tpetitioners pointed out to this Court that the petitioners are
\n\tselling non-packaged drinking water and are not covered under any
\n\tstatutory mandate, particularly under the provisions of the Act or
\n\tany of the Rules framed thereunder.  On issuance of the notice, the
\n\trespondent Corporation appeared but did not file any reply opposing
\n\tthe petition.  Thereafter, on completion of the pleadings and after
\n\thearing the parties, the petitions came to be disposed of on
\n\t11.06.2008 by issuance of certain directions.  The main anxiety of
\n\tthe Court was to see that the water supplied by the petitioners
\n\tshould be fit for human consumption and accordingly, this Court,
\n\tinter alia, directed that
\n\tunless and until the certificate from health department and fitness
\n\tcertificate by the Public Health Laboratory regarding the quality of
\n\twater is obtained, the petitioner would not carry on the business
\n\tactivities.  The petitioners were further directed to regularly i.e.
\n\ton quarterly basis submit such reports to the Corporation.  It was
\n\talso made clear that the petitioners should satisfy the respondent
\n\tCorporation that the provisions of the BIS Act do not apply to the
\n\tpetitioners and they were not required to comply with the same.
\n\tAfter the disposal of the above petitions, the respondent
\n\tCorporation had drawn samples of water from the premises of each
\n\tpetitioner and sent the same to Public Health Laboratory for
\n\ttesting.  Out of many samples collected by the Corporation, only
\n\tsome had passed the test and had been given the certificate that the
\n\twater sold by the said party is fit for human consumption.  The
\n\tpresent petitioners are part of such
\n\tgroup whose samples had been declared fit for human consumption.\n<\/p>\n
Mr.\n<\/p>\n
\tThakkar has further submitted that the petitioners had pointed out
\n\tbefore the respondent Corporation that the Prevention of Food
\n\tAdulteration Act and Rules do not apply in the case of the
\n\tpetitioners since the petitioners are selling non-packaged drinking
\n\twater.  They have further pointed out that in case of a similarly
\n\tsituated person, criminal case was sought to be instituted under the
\n\tprovisions of Section 7 (3) and Section 16 of the PFA Act by Food
\n\tInspector of respondent No.2.  After hearing both the sides and
\n\tconsidering the settled legal position, JMFC vide his order dated
\n\t31.07.2006 had acquitted the accused, inter alia,
\n\tholding that the definition of Food does not include water and
\n\tnon-packaged drinking water is not included in the definition of
\n\tRules 32-A and 33-A of Schedule B of the PFA Act.  He has further
\n\tsubmitted that the Commissioner of Food Adulteration department had
\n\tissued a letter to the Federation of packaged drinking
\n\twater manufactures expressing an opinion that the non-packaged
\n\tdrinking water is not included in the purview of PFA Act.  From the
\n\treports regularly submitted by the petitioners, it is clear that the
\n\twater supplied by the petitioners is fit for human consumption.\n<\/p>\n
Mr.\n<\/p>\n
\tThakkar has further submitted that the respondent Corporation has
\n\tnot taken any decision on the clarification submitted by the
\n\tpetitioners.  The impugned notices are issued only because the
\n\tpetition was filed by the Federation.  Not only the said petition of
\n\tthe Federation deserves to be dismissed but the notices issued on
\n\tthe basis of the said petition are also required to be quashed and
\n\tset aside.\n<\/p>\n
In
\n\tthis group of five petitions, Federation was also joined as party
\n\tand reply was filed, which is more or less, on the basis of the
\n\taverments made in the petition.  The Corporation has also filed its
\n\treply. However, the contentions remain the same and hence, they are
\n\tnot separately required to be dealt with.\n<\/p>\n
Having
\n\theard the learned counsels appearing for the parties and having
\n\tconsidered their rival submissions in light of the statutory
\n\tprovisions, more particularly, the provisions contained in the
\n\tPrevention of Food Adulteration Act, 1954 and the Rules framed
\n\tthereunder as well as the provisions contained in Bureau of Indian
\n\tStandard Act, 1986 and also in light of various orders passed by
\n\tthis Court from time to time in various petitions, the Court is of
\n\tthe view that there are conflicting interest of two rival groups.
\n\tThe petitioner of Special Civil Application No.8977 of 2009 is the
\n\tFederation of Packaged Drinking Water Manufacturers and is insisting
\n\tstrict compliance of the provisions contained in Section-15 of the
\n\tBureau of Indian Standard Act, 1986 as well as Sub Rule-28 of
\n\tRule-49 of the Prevention of Food Adulteration (7th
\n\tAmendment) Rules, 2000 after following pre-requisite for the grant
\n\tof license as per Annexure-C and
\n\tfurther ensures that all such individuals, traders and businessmen
\n\tshould carry on their business in conformity with Indian Standard
\n\tPackaged Drinking Water (other than packaged natural mineral water
\n\tspecification) as per Annexure-D to the said petition. The
\n\tpetitioners of Special Civil Application No.9769 to 9773 of 2009 on
\n\tthe other hand pleaded that water sold by them is extracted from
\n\tunderground source with the help of tubwell and such water is
\n\ttreated by them with a system known as  Reverse Osmosis  (RO).
\n\tIt is their contention that they use high technique and machinery
\n\tfor the best quality and that after treating water from the
\n\tunderground source the water is treated by RO System by stepping it
\n\tto various filtrations, namely, sand filtration, carbon filtration,
\n\tmicro-carbon filtration etc. In this system, water is passed through
\n\thigh pressure pump and only 40% of the water treated under this
\n\tsystem is made available as final product and rest of 60% water is
\n\twaste water. Even this waste water is being relegated for different
\n\tpurposes other than drinking.  The final product water derived from
\n\tthis process is then stored in clean syntax tank chilled and then
\n\tplaced in water bottle and sold. It is also their contention that
\n\tthe water derived from RO System is one of the purest form of water
\n\tand is generally used in almost all house-hold on a large and
\n\tsmaller scale. The water derived from this system is absolutely fit
\n\tfor human consumption.\n<\/p>\n
To
\n\tappreciate these rival contentions it is necessary to have a look at
\n\tcertain statutory provisions. The Bureau of Indian Standard Act,
\n\t1986 (63 of 1986) came to be enacted mainly with an object to
\n\tprovide for the establishment of the Bureau for harmonious
\n\tdevelopment of the activities of standardization, marking and
\n\tquality certification of good and for matters connected therewith or
\n\tincidental thereto. The main object and the reason for enacting this
\n\tAct was for the general development of the quality and standards of
\n\tthe good sold. As per the provisions of this Act, the Bureau of
\n\tIndian Standards came to be established and incorporated under
\n\tSection-3 and the functions of the Bureau came to be specified under
\n\tthe provisions of Section-10. This Act also provides for the grant
\n\tof license as per the provisions of Section-15 which reads as
\n\tfollows :-\n<\/p>\n
          Section-15 : Grant of
\n\t\tLicense :-\n<\/p>\n
(1)\tThe
\n\t\tBureau may, by order, grant, renew, suspend or \tcancel the license
\n\t\tin such manner as may be \tdetermined by regulations.\n<\/p>\n
(2)\tThe
\n\t\tgrant of renewal of the license under Sub-\tsection (1) shall be
\n\t\tsubject to such conditions and on \tpayment of such fees as may be
\n\t\tdetermined by the \tregulations.\n<\/p>\n
Similarly,
\n\tthe Prevention of Food Adulteration Rules, and the Amendment Rules,
\n\t2000 came to be framed under the Prevention of Food Adulteration
\n\tAct, 1954. This Act came to be enacted mainly with an object to
\n\tprevent the adulteration of food.  In order to further standardize
\n\tand improve the quality of the products under this Act, an amendment
\n\twas inserted in the Rules by way of Sub Rule-28 of Rule-29 in the
\n\tyear 2000 in relation to packaged drinking water. The provisions of
\n\tsub-rules 28 of Rule-49 of the Prevention of Food Adulteration (7th
\n\tAmendment) Rules, 2000 are as under:-\n<\/p>\n
 Rule
\n\t\t\t\t49 Sub-rule 28:\n<\/p>\n
(28)<\/span><\/p>\n
\t\t No person shall manufacture, sell or exhibit for sale \tpackaged
\n\t\tdrinking water except under the Bureau of \tIndian Standard
\n\t\tCertification Mark .\n<\/p>\n
Similarly,
\n\t\t\t\tthe word  PACKAGE  has been defined under Section-2 of
\n\t\t\t\tthe Prevention of Food Adulteration Act, 1954, which reads as
\n\t\t\t\tunder :-\n<\/p>\n
 Section
\n\t\t\t\t2 (x) <\/p>\n
 Package
\n\t\t\t\tmeans a box, bottle, gasket, tin, barrel, case, receptacle, sack,
\n\t\t\t\tbag, wrapper or other thing in which an article of food is placed
\n\t\t\t\tor packed.\n<\/p>\n
It
\n\tis clear from the plain reading of the above provisions that it is
\n\tmandatory for every person who manufactures, sells or exhibits for
\n\tsale packaged drinking water to obtain the certification mark from
\n\tthe Bureau of Indian Standards. A booklet is issued by the Bureau of
\n\tIndian Standards clearly specifies the
\n\tprerequisites for the grant of license, additional
\n\tinformation\/documents in case of packaged drinking water in order to
\n\tobtain a registration from the Bureau of Indian Standards for
\n\tstarting the business of manufacturing and\/or selling packaged
\n\tdrinking water as also the other procedures prescribed after the
\n\tgrant of license. The Bureau of Indian Standards has also laid down
\n\tcertain specifications for packaged drinking water (other than
\n\tpackaged natural mineral water) which is popularly known as IS
\n\t14543:2004.   The Indian standard was adopted by the Bureau of
\n\tIndian Standards after the draft was finalized by the Drinks and
\n\tCarbonated Beverages Sectional Committee and had been approved by
\n\tthe Food and Agriculture Divisional Council and also after giving
\n\tdue consideration to the provisions of the Prevention of Food
\n\tAdulteration Act, 1954 and the Rules framed thereunder. The packaged
\n\tdrinking water is required to confirm to these Indian Standards,
\n\tnamely, the microbiological requirements, labeling prohibitions,
\n\thygienic practices to be followed, maintenance of establishments,
\n\tpersonal hygiene and health requirements etc. The processing of
\n\tpackaged drinking water should be supervised by the technical
\n\tcompetent person.\n<\/p>\n
It
\n\tis also necessary to bear in mind that there is no product like
\n\tnon-packaged drinking water as contemplated under law irrespective
\n\tof the fact whether the petitioners sell the same by process known
\n\tas Reverse Osmosis (RO) It is not absolutely true that the only
\n\tanxiety of this Court in the order dated 11.6.2008 was to see that
\n\tthe water supplied by the petitioner is fit for human consumption
\n\tand it is only because of that this Court had directed that unless
\n\tand until the Certificate from the Health Department and Fitness
\n\tCertificate by the Public Health Authority regarding the quality of
\n\twater is obtained the petitioner would not carry on their business
\n\tactivities. These observations are to be looked in the context of
\n\tfurther directions issued by this Court in para-6 of its judgment
\n\twhich makes it clear that the aforesaid arrangement is made as an
\n\tinterim arrangement
\n\tso as to sub-serve the interest of the petitioners but the
\n\tpetitioners shall have to satisfy the competent authority of the
\n\trespondent Corporation that the provisions regarding BIS (Bureau of
\n\tIndian Standard) do not apply to the petitioners and they are not
\n\trequired to comply with the same.\n<\/p>\n
The
\n\trespondent Corporation for the aforesaid purpose afforded reasonable
\n\topportunity of hearing to the petitioners and also provided them to
\n\tfile written submission along with supporting documents and assured
\n\tthem to take appropriate decision after taking such material into
\n\tconsideration.  It was made clear that if ultimately the competent
\n\tauthority comes to the conclusion, after hearing the petitioners
\n\tthat the petitioners are obliged to fulfill the said requirements
\n\tthen the petitioners must comply with the same. Now the competent
\n\tauthority has come to the conclusion that the petitioners are
\n\trequired to comply with the mandatory requirements with respect to
\n\tpackaged drinking water prescribed by
\n\tBureau of Indian Standard and hence unless and until such
\n\trequirements are fulfilled the petitioners could not be permitted to
\n\tcarry on their business of non-packaged drinking water. Hygienic and
\n\tclean drinking water is an essential part of human existence and is
\n\tpart of fundamental right to live.  If the petitioners’ arguments
\n\twere accepted, it would result in disastrous consequences.
\n\tNon-packaged drinking water could be adulterated at any stage.
\n\tBesides that, there would be no way of ascertaining whether the
\n\twater was adulterated either at the time of manufacture or transit
\n\tor sale because it was not temper proof bottle. If the petitioners
\n\tare permitted to sell the cold water in loose   non-packaged jars
\n\tor kerbas then it would be impossible for the respondent
\n\tCorporation to regulate the quality and to punish those who are
\n\tresponsible for the breach of it. Taking into consideration the
\n\ttotality of the circumstances it clearly emerges that the
\n\tpetitioners are carrying on their business contrary to provisions of
\n\tFood Adulteration Rules and contrary to all norms prescribed by
\n\tBureau of Indian Standard and hence the
\n\tdecision taken by the Corporation in respect of representation made
\n\tby the Federation cannot be interfered with.\n<\/p>\n
Hence
\n\tthe petitioners of Special Civil Application No.8977 of 2009
\n\tsucceeds as their prayers are virtually accepted by virtue of an
\n\torder passed by the Corporation pursuant to this Court’s interim
\n\torder and accordingly that petition is allowed to the above extent
\n\twhereas petitioners of Special Civil Application No.9769 to 9773 of
\n\t2009 fail and the said petitions are accordingly dismissed. Rule is
\n\taccordingly made absolute in Special Civil Application No.8977 of
\n\t2009 whereas rule is discharged in Special Civil Application
\n\tNos.9769 to 9773 of 2009.  There shall be no order as to costs.\n<\/p>\n
\t\t\t\t\t\t\t\t\tSd\/-\n<\/p>\n
\t\t\t\t\t\t\t\t[K. A. PUJ,
\nJ.]\t\t<\/p>\n
Savariya<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Whether vs State on 25 June, 2010 Author: K.A.Puj,&Nbsp; Gujarat High Court Case Information System Print SCA\/8977\/2009 1\/ 34 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8977 of 2009 WITH SPECIAL CIVIL APPLICATION No. 9769 of 2009 TO SPECIAL CIVIL APPLICATION No. 9773 of 2009 For […]<\/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":[16,8],"tags":[],"class_list":["post-5281","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nWhether vs State on 25 June, 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\/whether-vs-state-on-25-june-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Whether vs State on 25 June, 2010 - 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