- (1.) This special leave petition is directed against the judgment and order of the Bombay High Court dated November 24, 1987 declining to issue a writ in the nature of mandamus and other appropriate writs, directions or orders under Art. 226 of the Constitution as prayed for by the petitioners to direct the respondents to forbear from releasing 7500 cartons (200 MT) of Irish butter imported into India under the EEC Grant-in-Aid for Operation Flood Programme, supplied to the Greater Bombay Milk Scheme by respondent No. 2 National Dairy Development Board, on the ground that the butter was contaminated by nuclear fallout.
(2.) From the counter-affidavits filed on behalf of respondent No. 1 Union of India and respondent No. 2 National Dairy Development Board it appears that soon after the Chernobyl disaster when it was realised that the imported milk and food products particularly from the EEC countries had the possibility of radio-active contamination, and so the Bhabha Atomic Research Centre took up the matter with the respective agencies and advised them to get the representative samples for radio-active analysis before releasing them for public distribution in India. It further appears that the Atomic Energy Regulatory Board which is a statutory body, has set limits for radio- activity for the imported foodstuffs. In disallowing the writ petition, the High Court observed : "We are satisfied that the best scientific brain available in the country has applied itself to the question. The question is whether in the product with which we are concerned here there is radioactivity above the permissible limit. This question has been sought to be answered by the respondents on the basis of laboratory tests conducted on their behalf. Fixation of the permissible limit of radioactivity in a product naturally, is for the scientists to decide, but the tests themselves are carried on by persons working in the laboratory, naturally, again under the guidance of the scientists concerned. We have not found that any defect is disclosed in the material which has been placed before us in the manner of testing. We have also not been shown that any other better method is available. Mr. Setalvad appearing for respondent No. 2 has told us that if any other method of sampling is suggested the respondents will willingly examine the same and conduct the tests accordingly."
(3.) At one stage, the High Court felt disturbed about the concept of the 'permissible limit' and asked counsel appearing for both the sides to examine the question in the light of certain queries which arose in its mind. It wanted to know on what basis the permissible limit of radio-activity was determined, and in particular, whether this permissible limit had been determined on the basis of consumption by human beings of any natural food in which radio-activity was present or was it based upon the external irradiation, and added : "This question can, naturally, be answered if there is also answer to the question whether natural foods contain radioactivity under normal circumstances." The High Court relied upon a letter dated November 13, 1987 from the Secretary, Atomic Energy Regulatory Board produced along with an affidavit which furnished an answer to the question. As regards the contention that the radio-activity that is found naturally in articles of human consumption and the radio-activity that is found in such articles acquired by pollution are qualitatively different, and therefore, the concept of permissible limit evolved by the scientists in India should not be accepted, and further that the permissible limit so evolved based upon studies on articles for human consumption, which include articles such as Potassium was a dangerous concept because Potassium and Caesium-137 have different radio-active properties, the High Court declined to be drawn into the controversy which was of a highly technical naturel placing reliance on the words of caution administered by this Court in Vincent v. Union of India, AIR 1987 SC 990. In conclusion, the High Court observed : "We have already broadly, indicated the complicated nature of the questions involved. We are also satisfied that the authorities concerned are fully aware of the problem at the highest level. They have adopted methods regarded by them as best suited methods which have been approved by scientists. In these circumstances, we do not see how in a petition under Art. 226 of the Constitution it is possible for us to resolve this controversy.";