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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 office at 3-B, DLF, Corporate Park, )
"S" Block, Qutub Enclave, Phase-III, Gurgaon and )
having its one of the Plants at Plot No.5, Ranjangaon,
ig )
MIDC, Taluka-Shirur, District-Pune, through its )
Authorised representative and Finance Manager )
Shri Mayank Jaju, having his office at )
Xcellency Chamber, Sion-Trombay Road, )
Bombay- 400 088. ).. Petitioner
Versus
1. State of Maharashtra, )
through the Secretary, Food and Drug )
Admiinstration, Consumer Protection Department, )
Mantralaya, Mumbai - 400 032. )
2. The Commissioner, Food and Drug )
Administration, Maharashtra, having his )
Office at Bandra-Kurla Complex, )
Bandra (E), Mumbai- 400 051. ).. Respondents
Mr. Janak Dwarkadas, Senior Advocate with Mr. Rajeev V. Talasikar for
the petitioner.
Mr. S.N. Patil, Assistant Government Pleader for respondent Nos.1 and 2.
CORAM : MOHIT S. SHAH, C. J. AND
DR. D.Y. CHANDRACHUD, J.
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JUDGMENT RESERVED ON : 01 OCTOBER 2010
JUDGMENT PRONOUNCED ON : 23 DECEMBER 2010
JUDGMENT (Per Chief Justice)
What is challenged in this petition under Article 226 of the
Constitution of India is the order dated 17 April 2010 of the Food
(Health) Officer & Commissioner, Food & Drug Administration
(Maharashtra State), Mumbai, dismissing Appeal No.14/2009 and
confirming the order dated 11 June 2009 of the Licensing Officer &
Officer (Food) Food & Drug Administration, Pune, suspending the
license of the petitioner-factory for a period of two days. The license was
issued under Rule 5 of the Maharashtra Prevention of Food Adulteration
Rules, 1962. During pendency of this writ petition, the said orders of the
authorities were stayed.
2. By consent of the parties, petition was taken up for final
disposal.
3. The facts leading to filing of this writ petition, briefly stated,
are as under:
One complaint was received by the office of Food Inspector,
Pune on 7 October 2008 regarding infection of larves in “oats Break Fast
special” manufactured by the petitioner. The Food Inspector, Pune
inspected the petitioner-factory on 8 October 2008 and 12 May 2009. On
the basis of inspection reports of the above dates, the Licensing
Authority, Pune sent a show cause notice to the petitioner on 15 May
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2009 at Exhibit `B’. The petitioner submitted its explanation dated 1 June
2009 at Exhibit `C’. By order dated 11 June 2009 at Exhibit `D’, the
Licensing Officer suspended the petitioner’s license for two days.
4. For the sake of convenience, we have given the allegations
in the show-cause notice, the explanation in the reply and finding given
by the Licensing Officer item wise.
5. Allegation -A : Use of raw materials beyond “Best
Before” date: Spinach powder Manufacturer- Sensienf Production date
14.08.08, Best buy -Feb.2009, stock 52 nos. The said food product is
stored for production even after expiry of Best buy date. It was observed
that you have used for production the raw food items which are out of
date. You have not confirmed by taking test of said food items whether it
is proper to eat out of date food product. Hence you have violated Rule
32(i) of the Prevention of Food Adulteration Rules, 1955 (hereinafter
referred to as “PFA Rules, 1955)
Besan – Manu. Rajdhani Flour Mill Ltd., Delhi, 35 Kg.
Packing Mfg. Date : 03.03.09, Best before 60 days, Stock 77 nos. It is
observed that this out of date raw food item is used for production by
you. You have not confirmed by taking test of said food item whether it
is proper to eat such out of date food product or how. Hence you have
violated Rule 32(i) of PFA Rules, 1955.
Out of date stock of food item like (i) Kesar flavour (ii)
Strawberry flavour was observed at the time of inspection on 8.10.2008.
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Explanation : For materials Spinach powder and Besan,
the suppliers have specified shelf life as 6 months and 3 months
respectively. On the basis of the nature of the product and processing, the
R&D department which technically controls quality of the product, has
defined the shelf life as 1 year and 4 months respectively. Hence as
recommended by you, in future usage, validation for best before date
materials will be validated by respective suppliers only and we have
already started the process. In addition we are in the process of having
single shelf life as recommended by suppliers in our internal system.
The supplier validated shelf life for best before materials
certificate was also furnished with the reply.
Finding given by the Licensing Officer : It has been
observed that Spinach powder manufactured by Sensient with
manufacturing date 14.08.08 and “Best Before by Feb 09” has been used
for manufacturing. You have not done any testing to find out whether it
is good for consumption. Because of that you have violated Rule 32(i)
under the PFA Rules, 1955.
It has been observed as regards material Besan,
manufacturer, Rajdhani Flour Mills Ltd., Delhi, product date 03.03.09
“Best Before 60 days”, that the said raw material has been used by you
even after the expiry date. You have not carried out any testing to prove
whether the said item is good for consumption. It is a violation of Rule
32(i) under PFA Rules, 1955.
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6. Allegation B – Absence of manufacturing details on fiber
plus pack : Fiber Plus WF 600, 20 Kg. Bag : on this raw food item the
name of manufacturer and address is not mentioned on the packing.
Hence there is violation of Rule 32(i) of PFA Rules, 1955 and you have
stored this food item for production.
Explanation : Fiber pulp- WF 600, 20 Kg is an imported
item from Australia. We have received a confirmatory note from our
principal supplier and importer for all the manufacturing details.
However, we have highlighted this issue to our principal supplier at
Australia and it has been agreed the future supply will carry the
manufacturing details on all individual bags.
Finding given by the Licensing Officer : It has been
observed that the name and address of the manufacturer is not mentioned
on the raw material, Fiber plus WF 600, 20 Kg bags. It is a violation of
rule 32(c) under food adulteration administration. For the same the
explanation given by you is not satisfactory.
7. Allegation C : Century Refined Table iodized Salt Mfg.
Date 6/08, 50 Kg bags stock 120 bags on which “Best Before date” not
mentioned. Hence violated Rule 32(i) of PFA Rules, 1955 by storing raw
food items for production of food items by you.
Explanation : The reference to Rule 32(i) is misplaced and
is not maintainable. The package iodized salt shown to the visiting
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officials did contain the declaration of “best before”. The package will be
shown during the hearing to the satisfaction of this Ld. Authority.
Finding given by the Licensing Officer : It has been
observed that best before date has not been mentioned on raw material
Centurian refined iodized salt, product date 06.08 of 60 kg and 120 kg
bags. This is the violation of Rule 32(i). The explanation given by you is
not satisfactory.
8. Allegation D – Non availability of Food Grade Certificate
for GMS (Glycerol Mono Stearate) : GMS (Glycol mono separate) this
item is stored, this items is used in the product of Baked Corn. There is
no permission to use said item in Baked Corn Product. Hence you have
violated Section 2(1a)(a), 2(in)(m) of PFA Act, 1954; also made
violation of Rule 81.
Explanation : The said material is used as a lubricant for
extruder start up process and not as an ingredient of the product. We
have already taken up with the vendor and the required food grade
certificates are available with us now.
Along with the reply, Food Grade Certificate for Glycerol
Mono Stearate was also supplied.
Finding given by the Licensing Officer : It has been
observed that you are using GMS (Glycerol mono stearate) in your baked
corn products. You are not authorized to use the said material in baked
corn products. You have violated section 2(1a)(a), 2(ia)(m) and Rule 81.
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9. Allegation E – Manufacturing Area : In the production
department, the tiles are broken in between, where food particles are
kept. Therefore you have violated Rule 5(3) of Maharashtra Prevention of
Food Adulteration Rules, 1962, read with License condition No.4 B.
In the Production Department unclean tiles in between, in
which stored on some times. Therefore you have violated Rule 5(3) of
Maharashtra Food Adulteration Prevention Rule 1962, read License
condition No.4 B.
Explanation : 1. Repairing of broken tiles: We do have
regular maintenance system for carrying out the repair work of building
structures. The broken and damaged tiles are periodically replaced or
repaired. The places identified are already replaced and in future we will
plan it in our regular maintenance system and as ongoing activity.
2. During inspection the lines were under cleaning process
as a part of sanitation, hence dirt accumulation was observed during the
visit. For effective cleaning we have provided high pressure jet cleaning
machines and the actions are being taken for minimizing the product
spillages during production. Post sanitation line will be audited by
Quality Control Department and will be cleared for production.
Finding given by the Licensing Officer : It has been
observed that some tiles are in broken condition in manufacturing area
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and food items have been accumulated in it. It is a violation of rule no.
5(3) and permission condition 4(b).
10. Allegation F – Workers medically not checked: There are
Contract Labours for handling food items in the production department,
but not medical checking of said labours. Not produced certificate
regarding labours whether they are free from skin & contagious disease
& how, hence your have violated Rule 50(9) of Food Adulteration
Prevention Rule, 1955.
Explanation : We do have medical records for contract
work force for packaging area. We do conduct medical test for contract
employees on every year. However, some people change due to non
availability/ absenteeism. Hence, in future we will place only medically
examined contract labourers in food handling area and the medical
examination of the current contract employees will be completed by June
09 end.
The petitioner also enclosed with the reply, sample medical
examination report of contract employee.
Finding given by the Licensing Officer : It has been
observed that you have not carried out medical examination with respect
to contractual labours. This is the violation of rule no.50(9) under food
adulteration administration.
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11, Allegation G - Packaging Area not clean : Plastic
wrapper and food particles fallen on tiles in the Packing Department.
Hence you have violated Rule 5(3) read with License condition No.4 C of
Maharashtra Food Adulteration Prevention Rule 1962.
Explanation : During inspection the packaging area was
under cleaning process as a part of sanitation programme, hence the
observation on fallen plastic wrappers and food particles on floor. The
same was cleaned as a part of sanitation operation. During regular runs,
the area will be clean and the production will be continued post clearance
of line audit by Quality Control Department.
Finding given by the Licensing Officer : It has been
observed that plastic covers (packaging film) and food items have been
spilled on floor. This is violation of rule no.5(3) under food adulteration
administration and manufacturing permission condition 4(c).
12. Allegation H – Plastic Wrappers : Not produced the
certificate regarding Plastic wrapper used for food packing whether these
are good graded or how to Inspector. Hence you have violated Rule
49(v) of Food Adulteration Prevention Rule 1955.
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Explanation : We do have vendor development system for
supplying materials to us. Materials will be procured only from approved
vendors by Corporate purchase department. We do take food grade
certificate from packaging materials suppliers during first supply (the
food grade certificate from film supplier M/s. Positive Packaging was
shown to you during the visit). However as per your recommendation, in
future we will get the same on yearly basis. We have already contacted
our suppliers to issue a fresh food grade certificates which is expected in
a week’s time.
Finding given by the Licensing Officer : During the
inspection the food grade certificate of packaging material was not
presented and the certificate presented afterwards, is not clear. So you
have violated rule 49(5) of food adulteration administration.
13. Aggrieved by the above order dated 11 June 2009, the
petitioner preferred appeal before the Commissioner, Food and Drug
Administration, Maharashtra State, Mumbai contending that the
petitioner has been operating the license for manufacturing of potato
chips and other food products in the manufacturing facility which is a
state of the art facility accorded safety certification and environmental
certification as per the certificate enclosed. That the total annual turn
over of the facility within Maharashtra was exceeding Rs.90 crores and
that the petitioner was contributing through this facility local taxes to the
tune of Rs.9 crores or more per year, that the facility provides average
daily employment to 335 regular employees and about 580 contract
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workmen and that the plant also provides indirect employment to
associated services for about 500 people and there are about 3600 farmers
who are involved in the contract farming activity initiated by the
petitioner through who grow potatoes for consumption by the petitioner
in manufacturing of the products. The petitioner raised various legal
contentions and factual defences. The appellate authority, however,
dismissed the appeal by the impugned order dated 17 April 2010. Hence
this petition.
14.
Mr. Janak Dwarkadas, learned Senior counsel for the
petitioner raised the following contentions:
The authorities have erred in passing the impugned orders on
the ground of violation of Rule 30(i) and Rule 32(i) of the Prevention of
Food Adulteration Rules, 1955. He submitted that respondent-authorities
erred in not considering the scope and ambit of explanation VII (i) to
Rule 32 defining “best before”. The authorities erred in not considering
that “best before” date is not akin to expiry date and that the product
beyond the “best before” date may still be perfectly satisfactory. The
petitioner had produced at the hearing of the appeal various certificates
issued by the vendors/suppliers of respective produces confirming the
above aspect. This fact was also informed to the visiting officials during
the course of inspection. For instance, the specification sheet dated 28
April 2009 (Exhibit `G’ at page 38 of the petition) indicated the
certificate dated 2 January 2009 read as under:
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"Date : 02-01-2009
TO WHOMSOEVER IT MAY CONCERN
Sub : Shelf life extension.
Produce : 1327 Spinach Powder
Lot No. : 264151
Manufacturing Date : 19th August, 2008
The Best before of 6 months from date of manufacture
provided for Spinach Powder was conservative. This
material is well acceptable in terms of quality attributes and
safe and fit for human consumption 12 months from its date
of manufacture when stored in original sealed packs at
ambient conditions.
Sensient India Private Limited”
15. It is submitted by the learned counsel for the petitioner that
Spinach Powder in question was manufactured on 19 August 2008 and
that six months “best before” period came to an end on 19 February 2009
but as mentioned in the certificate, the material was fit for human
consumption for 12 months from the date of its manufacture when stored
in original sealed packs at ambient conditions and was, thus, safe and fit
for human consumption till 19 August 2009. Hence, when the material
was used on the date of inspection i.e. on 12 May 2009, it was well
within the safe and fit period and also shelf life product of potato chips
made for spinach powder used on 12 May 2009 which was given three
months best before period was also within the safe and fit period. In
other words, the potato chips made was safe and fit for human
consumption till 19 August 2009. The respondent-authorities, therefore,
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erred in holding that the petitioner had violated rule 30(i) of the Rules.
The learned counsel placed strong reliance on the decision of the learned
Single Judge of Andhra Pradesh High Court in Hyderabad Breverages
Pvt.Ltd. v. State of Andhra Pradesh, 2006 Cri.L.J. 3988, in support of
the respondent-authorities who erred in suspending the petitioner’s
license under the Prevention of Food Adulteration Act, 1954 without
sending any sample of the raw material (spinach powder/Besan or all the
finished product potato ships etc.) for analysis to the Central Food
Laboratory. Without getting any such analysis done by the Central Food
Laboratory, it is not open to the respondents to hold or even to allege that
without a certificate from such laboratory that the sample has
decomposed or that the sample is fit or unfit for analysis etc, the
respondent authorities could not have held that the petitioner had violated
the provisions of rule 30 or rule 32 of the Prevention of Food
Adulteration Rules, 1955.
16. The learned counsel heavily relied upon the decision of the
learned Single Judge of Andhra Pradesh High Court in Hyderabad
Breverages case (supra) in support of the contention that expiry of “best
before” date or shelf life of product would only enable the manufacturer
to disclaim the liability regarding marketability and the specific qualities
of the product but it would not automatically render the sample unfit for
analysis or consumption.
17. The learned counsel further submitted that the authorities
have erred in not considering the petitioner’s defence that in Turbo
Extrusion machines, Glycerol Mono Stearate (GMS) is used as a
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lubricant in a machine manufacturing certain food items and the
petitioner relies on the certificate (Exhibit `I’ at page 42) issued by the
supplier manufacturer of the machine Schaaf Technologies GmbH, a
Germane company which explains the important function of the schaaf
knows for a successful start of a turbo extruder machine used for making
potato chips and other food items. The learned counsel further submitted
that during the course of hearing of the appeal, the appellate authority
was also informed that tiles were replaced in the manufacturing area and
accordingly, necessary documents were also brought to his notice, for
instance, the check list reflecting maintenance in the process area,
packaging area and raw material area and packaging material dispatch
area for May and June 2009.
18. The learned counsel further submitted that the petitioner is
not employing any contract labour which is suffering from any
infectious, contagious or loathsome disease. The petitioner has an
established protocol in the factory to ensure health check up regularly as
soon as the contract labour commences work from established hospitals
and/or registered medical practitioners. The contractual employees
supplied by a registered labour contractor are assigned work involving
packaging etc. The petitioner-company and the registered labour
contractor execute a contract and the labour contractor is bound to supply
the petitioner-company fit workers. The petitioner had produced before
the appellate authority a chart (Exhibit `K’ at page 70 of the petition)
reflecting the medical check up of the workers.
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19. The learned counsel further submitted that at the hearing of
the appeal, the petitioner had also relied upon the food grade certificate
reflecting compliance to the respective standard regarding plastic
packaging material. The learned counsel further submitted that the
visiting officials were shown that the package had a proper sticker affixed
to it indicating all the relevant details with reference to the commodities
known as “Fiber Plus” used by the petitioner in one of its products. The
learned counsel also relied upon the certificate dated 28.5.2009 issued by
the supplier of Glycerol Mono Stearate (GMS) indicating that the said
material is manufactured from materials obtained from vegetable oil and
that the product is food grain in nature.
20. On the other hand, the learned counsel for the respondent-
authorities has opposed the petition and pointed out that during the
inspection, the Food Inspector had noticed all the illegalities / non-
compliance of the relevant statutory provisions and conditions of license
at the time of inspection on 8 October 2008 as under:
“1. On the mezzanine floor 13 bags of quick oat’s were
stored which were imported from Australia, but did not
bear the name of importer & it’s address, manufacturing
date, batch no. and Best Before date.2. On the said mezzanine floor, keshar masala flavour was
found stored in 14 boxes on which manufacturing date
01/2008 Best Before six months from manufacturing was
found. The said food article was used after its before date
without pre-analysis.3. On the platform & steps food articles were found.
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4. In the packing section, the packing material was used
which did not disclose the certificate to verify whether
the said packing material was of food grade quality or
not.”21. The learned counsel for the respondents further submitted
that even at the time of second visit on 12 May 2009, the Food Inspector
noticed 52 bags of spinach powder bearing manufacturing date 14/8/2008
and best before date February 2009 was being used after its “best before”date for the production of various food articles without verification of
pre-analysis. Similarly, 77 bags of 35 kg. each of Besan (Gram Flour)
which was manufactured on 3 March 2009 and which was to be usedwithin a period of 60 days i.e. by 3 May 2009, was being used after
expiry of the best before period and without verification of pre-analysis.22. It is also submitted that 20 kg. bags of fiber plus articles
were found stored for use in manufacturing of various food articles but
the container did not mention name and address of the manufacturer, so
also 120 bags of 50 kg. each of centurian refined iodized salt hadmanufacturing date of July 2008 but did not mention the best before
date. It was also submitted by the learned counsel for the respondent-
authorities that at the time of inspection, the flooring in manufacturingarea was found unclean and dirt was found accumulated on the tiles and
that various food articles were handled by the contract labour without
medical examination of all those workers to assure that they were free
from contagious diseases. The learned counsel for the respondent –
authorities further submitted that the certificates relied upon by the
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the petitioner had not discharged the onus to show that the petitioner had
got verification of pre analysis of the raw material at the time of using thesame for manufacturing the food products after the expiry of its ‘best
before’ period.23. As regards the judgment of the learned Single Judge of
Andhra Pradesh High Court, the learned counsel for the respondentssubmitted that the said judgment does not bind this Court and that even
otherwise, the burden of proof on the licensing authority for the purpose
of suspending the license cannot be as high as that in criminal trial forproving the offence which would have the consequence of sending the
manufacturer to jail.24. In rejoinder, the learned counsel for the petitioner submitted
that the Andhra Pradesh High Court has placed correct interpretation on
explanation VII (i) to Rule 32 and that the interpretation of such a
statutory provision cannot vary depending on whether the licensee isfacing a criminal trial or whether he is being proceeded against for
suspension of license. The learned counsel submitted that suspension of
license is also a penal measure and that license cannot be suspendedunless all the ingredients of the Act constituting an offence are fully
satisfied.25. While the learned counsel for the petitioner devoted
considerable time for canvassing the interpretation on explanation VII (i)
to rule 32 of the Prevention of Food Adulteration Act, 1955 and we::: Downloaded on – 09/06/2013 16:43:18 :::
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proceedings in question are for suspension of a license under the
Prevention of Food Adulteration Rules where mens rea is not required tobe proved unlike in an ordinary criminal trial. Even the statutes
providing for criminal liability may dispense with the proof for mens rea.Since the decision rendered by the learned Single Judge of Andhra
Pradesh High Court was in the proceedings for quashing the complaint,
one must keep in mind that perspective while appreciating the principleslaid down in the said decision. In Hyderabad Beverages (supra), the
learned Single Judge of Andhra Pradesh High Court interpreted
explanation VII (i) to Rule 32 in the following words:“61. All that the prescription of “Best Before”, under Rule
32(i) and Explanation VII thereunder entail is that, till theend of the period “Best Before”, the manufacturer certifies
that the product will remain fully marketable and will retainits specific qualities. This requirement is an additional
precaution to consumers informing them that it is safe for
them to consume the food article before the “Best Before”
date. Expiry of the “Best Before” date, as is clear fromExplanation VIII itself, does not mean that beyond that date
the food is not satisfactory. The only obligation cast on the
manufacturer is to ensure that under the stated storage
conditions, the product retains its marketability and its
specific qualities before the “Best Before” date. The rulesdo not provide, by legal fiction, that after the “Best Before”
date or the expiry of the shelf life of the product, the food
decomposes and is rendered unfit for analysis, or even that
the food becomes adulterated. It is not for Courts to read
something more than what has specifically been provided in
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In the said decision, reliance was placed upon the decision of
Andhra Pradesh High Court in Gangaiahnaidu Rama Krishna v. State of
A.P.. 2005 (2) ALD (Crl) 889, wherein the following observations weremade:
“…………. Best before means that in all weathers it
is to be used before six months. It is only recommendatory
but not mandatory. Therefore, it cannot be said that the
shelf life of the said beverage expires after the date of best
before. Shelf life means the time for which a stored thingremains usable……..”
………………
“…….. According to Rule 32(i) of the Rules read with
Explanation VIII (i) best before means the date which
signifies the end of the period under any stated storage
conditions during which the product will remain fully
marketable and will retain any specific qualities for whichtacit or express claims have been made. However, provided
that beyond that date the food may still be perfectlysatisfactory, which means the date before date only signifies
that the said food article contains specific qualities in all
circumstances of any weather cold, dry or rainy weather.
Therefore, there is no prohibition for human consumptioneven after the best before, if that be so, the only question
that arises for consideration is as to whether the said food
article is adulterated or not.Without adducting any evidence and without availing
the opportunity under Section 13(2) of the Act for sending
the second sample to the Central Food Laboratory it cannot
be said that the shelf life of the said food article has expired.
The said rule prescribing best before is not mandatory to
make use of the said food item before the date of the best
before, but it is only recommendatory or directory. The
best before is only as guaranteed period for carrying
specific qualities in all weathers for that particular period.::: Downloaded on – 09/06/2013 16:43:18 :::
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Therefore, it cannot be said that the shelf life of the said
beverages have been expired….”
………………..
“66. Whether the sample remains fit for analysis or has
become unfit can only be ascertained when it is, in fact, sent
for analysis to Central Food Laboratory and it is certified asto whether the sample is fit or unfit for analysis. Rule 4(5)
of the Prevention of Food Adulteration Rules, read with
Form II of Appendix A thereof, requires the Central Food
laboratory to certify, in its report, as to whether the sampleof the food sent for analysis is fit or unfit for analysis and
the reasons therefore. Whether a sample has, on expiry ofits “Best Before” date or its shelf life, become unfit for
analysis on account of its being decomposed is a matter of
evidence and not a matter of inference in proceedings undersection 482 Cr.P.C. It is only when a sample is sent for
analysis, can the Central Laboratory on examination certify
whether or not the sample has decomposed rendering it
unfit for analysis.”26. While interpretation placed by Andhra Pradesh High Court
on the explanation VII(i) to Rule 32 cannot be faulted with and therefore,though we hold that expiry of “best before” period does not mean that
beyond that date, the food can never be satisfactory, the question that
arises for consideration is whether, for the purposes of suspension of
license, the burden is on the authority to show that beyond the best beforeperiod, the food is unsatisfactory or that the burden is on the licensee to
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27. Rule 32 of The Prevention of Food Adulteration Rules,
1955, in so far as the same is relevant for the purposes of this petition,
reads as under :-“32. Every prepackaged food to carry a label.-
(a) General.-
(1) Prepackaged food shall not be described or presented
on any label or in any labelling manner that is false, misleading ordeceptive or is likely to create an erroneous impression regarding
its character in any respect.(2) ... ... ... (3) ... ... ... (4) ... ... ...(b) Labelling of prepackaged foods.- Every package of food
shall carry the following information on the label.-(1) The name of the food.- The name of the food shall
include trade name or description of food contained in the package
(2) List of ingredients.- A list of ingredients shall be
declared on the label and shall be in the following manner :-... ... ... (c) ... ... ... (d) ... ... ... (e) ... ... ... (f) Date of manufacture or packing.- The date, month and yearin which the commodity is manufactured, packed or pre-packed,
shall be given on the label;::: Downloaded on – 09/06/2013 16:43:18 :::
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Provided that the month and the year of manufacture,
packing or pre-packing shall be given if the “Best Before Date” of
the products is more than three months’Provided further that in case any package contains
commodity which has a short shelf life of less than three months,
the date, month and year in which the commodity is manufactured
or prepared or pre-packed shall be mentioned on the label.(g) Use by date/recommended last consumption date/expiry
date.- The use by date/recommended last consumption date/expiry
date shall be given,-(i) in case of package of Aspertame, which shall be not
more than three years from the date of packing;
(ii) in case of infant milk substitute and infant foods.
(h) ... ... ... (i) The month and year in capital letters upto which the productis best for consumption, in the following manner, namely :-
"BEST BEFORE ...... MONTH AND YEAR" OR "BEST BEFORE ...... MONTHS FROM PACKAGING" OR "BEST BEFORE ...... MONTHS FROM MANUFACTURE" (j) ... ... ... (k) ... ... ... (l) ... ... ... (m) ... ... ...Explanation VIII :- (i) “Best Before” means the date
which signifies the end of the period under any stated storage::: Downloaded on – 09/06/2013 16:43:18 :::
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upa wp3998-10-final.sxwconditions during which the product will remain fully marketable
and will retain any specific qualities for which tacit or express
claims have been made beyond that date the food may still be
perfectly satisfactory.(ii) In addition to the date of best before, any special
conditions for the storage of the food shall be declared on the label
if the validity of the date depends on such storage.”Explanation VIIIC : “use – by date” or “recommended last
consumption date” or “expiry date” means the date which signifies
the end of the estimated period under any stated storage conditions,after which product probably will not have the quality attributes
normally expected by the consumers and the food shall not bemarketable.”
28. Before going on to analyze the above provisions, it is
necessary to refer to the factual background of the instant case. As far asSpinach Powder is concerned, the manufacturing date was 19 August
2008. It’s manufacturer had mentioned that best before period over six
months from the date of manufacture meaning thereby that the best
before period was to come to an end on 19 February 2009. The SpinachPowder was used by the petitioner as a raw material for making the
Potato Chips. The material on record does not indicate that the best
before date was mentioned by the petitioner on the wrapper containingthe potato chips manufactured from the above Spinach Powder. We are
informed at the bar that the best before period mentioned on such
wrapper is three months. Mr.Dwarkadas, learned counsel for the
petitioner submitted that since the best before period for the Potato Chips
made on 12 May 2009 from the Spinach Powder in question was three
months, the same would come to an end on 12 August 2009. But the::: Downloaded on – 09/06/2013 16:43:18 :::
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upa wp3998-10-final.sxwmanufacturer of the Spinach Powder had already certified in the
certificate dated 2 January 2009 that the Spinach Powder manufactured
on 19 August 2008 had best before period of six months from the date ofmanufacture but the material was well acceptable in terms of quality
attributes and safe and fit for human consumption 12 months from itsdate of manufacture when stored in original sealed packs at ambient
conditions. Therefore, the Spinach Power was satisfactory till 19 August
2009. It is submitted that as “the best before” period of Potato Chipsmade from the said Spinach Powder was to come to an end on 12 August
2009, the Potato Chips made from the said Spinach Powder was a safe
food for human consumption and satisfactory till 19 August 2009.29. However, in absence of any reference to the date of
manufacture of the Potato Chips as indicated on the wrapper containingPotato Chips made on 12 May 2009 that the Spinach Powder was
manufactured on 19 August 2009, it would not be possible to give any
specific finding whether the Potato Chips were satisfactory as
contemplated in Explanation VIII(i) above. There is also discussion inthe impugned order as to whether in special conditions what should be
mentioned on the wrapper of the Spinach Powder for its storage. It is
obvious that even if the matter were to be remanded now, in absence ofany label on the wrapper of the Spinach Powder, it would not be possible
either for the licensing authority or for the petitioner to throw any light on
the issue being discussed.30. In view of Explanation VIII(i) to Section 32(b)(m), as
interpreted in the case of Gangaiahnaidu Rama Krishna Vs. State of A.P.,::: Downloaded on – 09/06/2013 16:43:18 :::
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upa wp3998-10-final.sxw2005 (2)-ALD (Cri)-889 and in case of M/s.Hyderabad Beverages
Pvt.Ltd. Vs. State of A.P., 2006- Cri.L.J.-3988, the petitioner will get
benefit of doubt on the questions whether the Potato Chips in questionwere satisfactory till the date of expiry of the best before period for its
raw material Spinach Powder.31. However, as far as Besan is concerned, it’s supplier had
specified that the life of the Besan was only two months. The Besan wasmanufactured on 3 March 2009 with best before period of 60 days i.e. 2
months. Hence, on the date of inspection on 12 May 2009, the best
before period of Besan was already over.32. The petitioner’s defence, however, is that as held by the
Andhra Pradesh High Court in the cases above referred, the expiry of bestbefore period does not mean that even after the expiry of the best before
period, the food was satisfactory and that the burden of showing that the
food was not satisfactory was on the respondent authority.33. Having carefully considered the rival submissions, we are of
the view that while in a criminal proceeding which may entail the
sentence of imprisonment, the burden would be on the authority to showthat beyond the “best before” period, the food was unsatisfactory and that
can be done only by getting their food samples tested in the Central Food
Laboratory, we see no reason why the manufacturer of the Potato Chips
or any other final product should be permitted to use the raw material/s
beyond their “best before” date without getting raw materials tested to
ensure that they are satisfactory. It could never have been the intention of::: Downloaded on – 09/06/2013 16:43:18 :::
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upa wp3998-10-final.sxwthe Legislature or Rule making authority that the manufacturer of the
final product could use the raw materials beyond their “best before” date
without getting raw materials tested to see that they are satisfactory. It isnobody’s case, not ever the petitioner’s case that the manufacturer has a
right to manufacture the final product by using raw materials which areunsatisfactory. Hence, for the purpose of complying with the conditions
of license issued under Rule 50 of the PFA Rules, 1955 read with Rule 5
of the Maharashtra Prevention of Food Adulteration Rules, 1962 inconjunction with Rule 32 of the PFA Rules, 1955, it is only the
manufacturer who has to be fastened with the responsibility of ensuring
that the raw materials are satisfactory at the time of making the finalproduct.
34. Having examined the scheme of the Rules and the conditions
of license, we are of the view that even though for the purposes of
prosecution under section 16 of the Prevention of Food Adulteration Act,
1954 read with Rule 32(g)(i) (Explanation-VII), it may be necessary, as
held by the Andhra Pradesh High Court in M/s.Hyderabad BeveragesPvt.Ltd. Vs. State of A.P., 2006-Cri.L.J.-3988, for the Food Inspector to
get the sample of the raw material being used on the date of inspection
and the finished product on the date of inspection and get tested from theCentral Food Laboratory. For the purposes of inquiry as to whether there
is adherence to the rules for issuance of license and the conditions of
license are complied with or not, it is not necessary for the licensing
authority to get the sample of the raw material and the finished product
tested and it is for the licensee to ensure that the raw material being used
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upa wp3998-10-final.sxwof the raw material is satisfactory on the date of manufacturing the food
article (final article) and that the final product will also be satisfactory till
the “best before” date of the final product.35. In view of the fact that it is for the first time that we are
interpreting the provisions of Explanation-VIII to Rule 32(m) of the
Prevention of Food Adulteration Rules, 1955, we are of the view that the
petitioner may not be visited with the consequence of suspension oflicense only on the ground of using the Spinach Powder and the Besan on
the date of inspection beyond best before period indicated by their
respective manufacturers.36. Rule 50 of the PFA Rules, 1955 provides that no person
shall manufacture, sell, …… any article of food except under a license.Rule 50 provides for various conditions of licence, some of which are as
under :-
“(5) Before granting a licence for manufacture, stock or
exhibition of any of the articles of food in respect of which
a licence is required, the licensing authority shall inspect
the premises and satisfy itself that it is free from sanitary
defects. The applicant for the licence shall have to make
such alteration in the premises as may be required by thelicensing authority for the grant of a licence:
Provided that the licensing authority may for reasons
to be recorded in writing, refuse to grant a licence, if it is
satisfied that it is necessary to do so in the interest of public
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(9) No licensee shall employ in his work any person
who is suffering from infectious, contagious or loathsome
disease.”37. Rule 5 of the Maharshtra Prevention of Food Adulteration
Rules, 1962 provides that any person desiring for the manufacture for
sale of articles for food in respect of which a licence is required under
Rule 50 of the PFA Rules, 1955 shall apply for a licence in Form A to thelicensing authorities appointed by the Local Authority. Rule 5 also
makes detailed provisions for the conditions to be incorporated in the
licence, some of which are as under :-“5. Licenses –
xxxxx xxxxx xxxxx
(3) On receipt of such application the licensing authority
shall if on inspecting the said premises is satisfied that the
premises are free from sanitary defects and the applicant
complies with other conditions for holding license, grant
the applicant a license in Form B on payment of fees laiddown in Appendix I, Appendix II [Appendix III or
Appendix IV] in the Schedule.Xxxxx xxxxx xxxxx
(5) The licensee shall abide by the provisions of the Act
and the rules made thereunder, and the conditions of the
license granted to him. The licensing authority may
suspend or cancel the license for breach of any of the
provisions of the Act or rules made thereunder or the
conditions of license.”::: Downloaded on – 09/06/2013 16:43:18 :::
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38. The license dated 9 August 2001 issued in favour of the
petitioner and renewed from time to time including the last renewal dated18 February 2008 for the period upto 31 December 2012 contains various
conditions including the following :-“(1) The licensee and his employees who manufacture the
said food products, store the same, distribute them or
exhibit the same for sale or offers for sale such (1) potatochips, (2) Baked Corn products and (3) snacks food
products shall disclose in detail from which source the saidarticles were obtained along with its name and address to
the Food Inspector or licensing authority or Health Officer,
on demand.(4) (a) xxxxx xxxxx xxxxx
(b) The licensee shall arrange to get each room paved so
that the same could be cleaned and washed in appropriate
manner.(c) The licensee shall arrange to maintain each such
room or paved places wherein utensils used for keeping
licensed food articles in a cupboard or on bench in a good
and clean manner.Xxxxx xxxxx xxxxx
(9) Surface of the internal walls of the above place be
glazed with impregnable tiles or made smooth by cement
concrete upto 1 meter height from the floor. If this facility
is not provided at present, the same be then provided within
the time the licensing officer specifies.”::: Downloaded on – 09/06/2013 16:43:18 :::
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39. The allegations (E) and (G) about manufacturing area and
the packaging area show that the petitioner had not maintained the
required cleanliness in the manufacturing and the packaging areas. Thepetitioner’s explanation that during inspection the areas were under
cleaning process and hence dirt accumulation was observed was notaccepted as satisfactory because the Licensing Officer observed that some
tiles were in broken condition in manufacturing area and food items had
accumulated in it and therefore there was violation of Rule 5(3) andpermission condition 4(b). Similarly, it was found by the Licensing
Officer at the time of visit that plastic covers (packaging film) and food
items were spilled on the floor and, therefore, there was violation of Rule5(3) and condition 4(c).
40. Even while declining to interfere with the findings of the
licensing authority, as confirmed by the appellate authority, that the
petitioner had committed breach of Rule 5(3) condition Nos.4(b) and (c)
of the license issued under Rule 5 of the Maharashtra Prevention of FoodAdulteration Rules, 1962, we are not sure whether the authority would
have suspended the petitioner’s license for a period of two days on the
ground of breach of the said conditions of the licence. Hence, we areinclined to remit the matter to the appellate authority for considering this
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41. Another violation alleged by the authority is that the
petitioner had violated Rule 50(9) of the Prevention of Food Adulteration
Rules which reads as under :-“50. Conditions for license.-
(9) No licensee shall employ in his work any person who
is suffering from infectious, contagious or loathsome
disease.”
The learned counsel for the petitioner submits that the petitioner company
had not employed any contract labour who was suffering from any
infectious, contagious or loathsome diseases. The petitioner had also
produced before the appellate authority a chart (Exhibit-K, Page-70 of thepetition) showing medical check-up of the workers. However,it appears
from the appellate order that no reference is made to the said chart
reflecting the medical check-up of the workers.
42. Having regard to the allegations made in the petition and the
explanation given by the petitioner company, which was not found to be
satisfactory, the licensing authority gave findings against the petitioner.
However, the appellate order does not indicate that the appellate authority
had dealt with the material which was produced by the petitioner at the
hearing of the appeal. The appellate authority is not required to confine
its attention to the material which was placed before the licensing
authority. The appellate authority is bound to consider the material
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upa wp3998-10-final.sxw
placed before the appellate authority. Of course, it is for the appellate
authority to examine and hold whether the additional material produced
before the appellate authority is credible and deserves to be accepted.
However, the appellate authority cannot refuse to consider the additional
material placed by the licensee before the appellate authority merely on
the ground that it was not placed before the licensing authority. Of
course, the fact that some material is produced by the licensee before the
inspecting officer as soon as show cause notice is issued, will certainly
carry much greater weightage so also the material which may be placed
by the licensee at the hearing before the licensing officer will also carry
much greater weightage than the material which the licensee may seek to
produce before the appellate authority. But it is not that the material
which may be placed before the appellate authority should not at all be
considered by the Appellate Authority.
43. Having heard the learned counsel for the parties, we are of
the view that the matter deserves to be remitted to the Appellate
Authority to give a fresh hearing to the petitioner and to consider the
matter afresh in the light of the material which may now be placed before
the appellate authority and in the light of the observations made in this
judgment.
44. In view of the above discussion, the petition is partly
allowed. The impugned order dated 17th April 2010 of the Food (Health)
Officer and Commissioner, Food & Drug Administration (M.S.), Mumbai
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upa wp3998-10-final.sxw
passed in Appeal No.14 of 2009 is hereby quashed and set aside and the
matter is remitted to the appellate authority for hearing Appeal No.14 of
2009 afresh. It will be open to the petitioner herein to place such further
material as the petitioner may seek to produce and it will be for the
appellate authority to consider what weightage should be attached to such
material. The appellate authority shall re-hear the appeal and decide
Appeal No.14 of 2009 afresh in accordance with law and after taking into
consideration the observations made in the judgment within three months
from the date of receipt of this judgment.
CHIEF JUSTICE
DR. D.Y.CHANDRACHUD, J.
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