S NARENDRA KUMAR AND CO Vs. STATE OF SIKKIM

JUDGEMENT

(1.) By this petition filed under Article 226 of the Constitution of India, the petitioner has challenged the validity of Notification No. 10 HC-HS&FW/PFA dated 15-7-2004 issued by the Food (Health) Authority, Department of Health Care, Human Services and Family Welfare, Government of Sikkim, Gangtok, prohibiting the manufacture and/or sale of (1) Everest Chat Masala manufactured by Everest Company, (2) (a) Stick Candy Ice-cream, and (b) Fancy stick juice in different colours in polythene pack in the State of Sikkim with immediate effect until further orders. The impugned notification has been issued by the concerned authority in exercise of powers conferred on it by clause (iv) of Section 7 of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the "Act") read with Rule 3(1)(a) of the Sikkim Prevention of Food Adulteration Rules, 1991 (hereinafter referred to as the "Rules"). The present writ petition is confined to the ban on the item "Everest Chat Masala".

(2.) The petitioner is a registered partnership firm engaged in the manufacture and trade of various powdered spice preparation under the registered Trade Mark as "EVEREST". The "Everest Chat Masala" which is one of its products is manufactured under a licence obtained from the local Licensing Authority under Rule 50 of the Prevention of Food Adulteration Rules, 1955 and the same is valid as on the date of filing this petition. It has its manufacturing unit located in Maharashtra. The petitioner sells its products including the "Everest Chat Masala" all over India including the State of Sikkim. It is stated that the "Everest Chat Masala" is a salty mixture generally and specially used for sprinkling the same upon fruits, salads or even juices and the same is consumed as taste booster or flavouring agent. This product is not subject to any statutory standard as it does not fall within the purview of Appendix "B" appended to Prevention of Food Adulteration Rules, 1955 which defines and prescribes standard of quality of different items. The product is only covered by a residuary category of food articles classified as "proprietary food" as defined under clause (b) of the explanation appended to Rule 37-A of the abovesaid Rules and as such no restriction of any kind has been prescribed for the formulation of this product except that the label of the product shall bear the names of the ingredients used for blending the same in descending order of the composition by weight or volume as the case may be. It is stated that the Food (Health) Authority of the State of Sikkim (respondent No. 2) vide the impugned notification prohibited the manufacture and/or sale of "Everest Chat Masala" w.e.f. 15-7-2004 till further order thereby violating the fundamental rights of the petitioner guaranteed under Articles 14 and 19 of the Constitution of India. Hence the present petition under Article 226 of the Constitution of India.

(3.) It is contended that the power to declare a substance which is found as injurious to health and to prohibit manufacture and sale of the same lies only with the Central Government under Section 23 of the Act and no power is vested with the State Government in this regard. The scheme of the Act suggests that a decision to ban an article of food injurious to health when used as food or as an ingredient in the manufacture of any article of food can only be the result of a broader policy which has been located only in the Central Government under Section 23(1-A)(f) and not in the State Food (Health) Authority. When the scheme of the Act is analysed in the light of its preamble it becomes clear that there is no independent source of power under Section 7(iv). The power of the State under Section 7(iv) of the Act is statutory; absolute to the extent provided therein and limited to the extent indicated by Section 23(1-A) of the Act. The power of the State Authority being transitory in nature designed to meet local emergencies it has no power to make an order of prohibition either of permanent nature or enduring for such a long time as to be deemed to be permanent. It is also contended that clause (iv) of Section 7 and clause (c) of sub-section (1) of Section 10 of the Act and their interplay unmistakably suggests that the powers conferred on the Food! (Health) Authority and the Food Inspector being derived from the rule made in exercise of the powers under Section 24 of the Act are necessarily subservient to the powers derivable from the rules made under Section 23 of the Act and neither the Food (Health) Authority nor the Food Inspector can be said to have such powers which are available to the Central Government by prescription of rule in exercise of powers under Section 23(1-A)(f) of the Act. It is, therefore, contended that if the provisions of Section 7(iv) of the Act is not read down as conferring power on the Authority only to deal with an urgent situation the section would be conferring arbitrary powers on the authority.