BOMBAY ORDINARY
ORIGINAL CIVIL JURISDICTION
WRIT PETITION
(L) NO. 1688 OF 2015
M/s Nestle India
Limited a Company incorporated under the provisions of the Companies Act, 1956
-Petitioner.
Versus
1. The Food
Safety and Standards Authority of India- Respondent 1
2. The Chief
Executive Officer, The Food Safety and Standards Authority of India -Respondent
2
3. State of
Maharashtra, through the Ministry of General Administration Department,
Mantralaya, Mumbai -Respondent 3
4. Commissioner
of Food Safety, State of Maharashtra, -Respondent 4
Brief Facts
The petitioner
namely, Nestle India Limited, a food company has instituted a writ petition in
the High Court of Mumbai, against the Food Safety and Standard Authority of
India (FSSAI) (R1), CEO of FSSAI (R2), the State of Maharashtra (R3) and the
Commissioner of Food Safety Maharashtra (R4).
The writ is
filed for quashing and setting aside of the ban orders passed by R2 on 05/06/2015
due to which the petitioner had to stop the sale and manufacture of 9 varieties
of its noodle product.
Chronology of Events
1. January
2015:Food inspector UP sends a packet of Maggi Noodles to a lab for testing as
product claims no added MSG
2.
The
State Food Lab at Gorakhpur UP tests positive for MSG
3.
Same
is intimated to R1, R2 and the Petitioner. Same sample is sent to Kolkatta’s
referral lab on insistence of Petitioner
4.
Referral
Lab finds 17ppm of lead as against prescribed limit of 2.5ppm in sample
5.
On
this information 3 out of 9 varieties of petitioner s noodle products tested
across various batches in labs across Delhi and 9 other states
6.
Food
Analyst reported high lead in samples tested in (1) Delhi, (2) UP, (3) Tamil Nadu,
(4) Gujarat (5) Maharashtra, (6) Punjab (7) Meghalaya, permissible limit in
samples tested at Goa and Kerala to R2 and that out of 72 samples tested, 30
samples contained lead in excess of 2.5ppm. petitioner intimated same on
04.06.2015
7.
Petitioner
in a press conference held on 04.06.2015 withdraws product on its own accord
8.
A
meeting is held with representatives of petitioner and R2 on 05.06.2015,
wherein petitioner is informed of high lead content is tested samples and
misbranding of product. Allegedly no opportunity or notice to be heard was
given. Same day R2 passed orders as annexed in Exhibit A
9.
On
06.06.2015 R4 passed an order banning all 9 varieties of Petitioners product in
Maharashtra on the basis of high lead content in 5 out of 20 samples tested.
Tested samples included 4 of 9 variants of product
10.
Present
petition filed to dismiss and set aside orders passed on 05.06.2015 and
06.06.2015
11.
the
Petition came up for hearing on ad-interim and interim relief, the Court,
declined to grant any ad-interim order in view of the press release given by
the Petitioner on 4.06.2015
Contentions
Petitioner:
1.
That
there is violation of PNJ as orders are arbitrary, without sufficient show
cause, without substantial reasons and passed in haste
2.
That
orders passed by the Commissioner of Food Safety, State of Maharashtra were
arbitrary as testing of products under section 43 FSS Act, was carried out by
unaccredited laboratories of FSSAI
3.
That
the reports of such laboratories were unreliable as end use of product not
considered
o
Beyond
jurisdiction of FSSA to pass such orders
4.
That
the product of the petitioner when
tested in own accredited laboratories, did not contain lead in excess
5.
That
the analysis of the Food Analyst was not challenged by an appeal as per section
46(4) of the FS Act, as R1 and R2 had pre-determined the issue
Submissions of Respondents
1.
That
the petitioner had an alternate remedy that is of filing an appeal under
section 46(4) of the Act, as a result the present petition should not be
entertained
2.
That
show cause was issued to the petitioner, asking them why their product approval
should not be cancelled, however no response instead the present petition was
filed
3.
That
the contention of unaccredited lab results was raised in the rejoinder for the
first time as an after thought
4.
That
the petitioner engaged in destruction of evidence
5.
That
the petitioner violated terms of product approval, wherein it was stated that
the lead limit would be less than 1ppm, however the product contained more than
1ppm of lead on analysis. Thus the petitioner engaged in misrepresentation.
(Notwithstanding that permissible limit of lead is up to 2.5ppm)
6.
That
the FSSAI was acting in public interest
7.
That
the orders passed were in pursuance of section 30 of the Act- R3
8.
That
the orders passed were in pursuance of section 10(5), 16(1), 16(5), 22, 26 and
28 of the Act- R1 and R2
Issues
1.
Whether
the writ petition filed under Article 226, is maintainable: Affirmed
2.
Whether
the Petitioner has attempted destruction of evidence: Negative
3.
Whether
FSSA can ban the product in the basis of lead content being higher than
submitted for product approval:
Negative
4.
Whether
FSSA has the authority and jurisdiction to pass orders and regulate standards
of manufacturers of proprietary foods:
Negative
5.
Whether
as per section 22 of FSS Act, a ban was imposed upon the Petitioners: Does not arise
6.
Whether
the Principles of Natural Justice were violated :Affirmative
a.
On
account of no show cause
b.
On
account of violation of petitioners right to Audi Alteram Partem
7.
Whether
orders could have been passed : Negative
8.
Whether
analysis of product in equipped and accredited laboratories: Negative
9.
Whether
reliance can be placed upon reports of such laboratories: Negative
10.
Whether
Food Analyst entitled to test samples in such laboratories: Negative
11.
Whether
FSSA established lead content beyond permissible limit and product being
misbranded by Petitioner: Negative
12.
Whether
ban on all varieties of products of Petitioner violative of PNJ, as tests
conducted on only 3 varieties: Affirmative
Conclusion/Judgement
1.
The
Court dismissed the impugned orders and allowed the petition
2.
The
Court held that Petitioner should send the 5 samples of each batch which are in
their possession to three Food Laboratories accredited and recognized by NABL
as per the provisions of section 3(p) and section 43 of the Act, before
commencing sale of product. After results show that lead within permissible
limits, Petitioner can begin manufacturing.
3.
The
court concluded that
o
Impugned
orders were violative of principles of natural justice
o
Food
Testing labs were not accredited and recognised as per the Act, thus no
reliance can be placed
o
Mandatory
procedure as per section 47(1) of the Act was not followed
o
Orders
are arbitrary and violative of Articles 14 and 19(1)(g) of the Constitution
4.
Petitioner
to obtain product approvals for tastemaker and Maggi Oats Masala Noodles
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