TMI Blog2007 (1) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... he specifications prescribed in Item A.28.04 of Appendix B containing definitions and standards of quality prescribed under Rule 5 of the Prevention of Food Adulteration Rules, 1955. According to them, ungarbled betel nuts imported by them being a primary food, would not come within the meaning assigned to dry fruits and nuts under Item A.28.04 for which alone standards have been prescribed under the said Act and therefore such goods cannot be subjected to tests for such standards. They would submit that if ungarbled betel nuts are subjected to tests for the standards prescribed under Item A.28.04, nobody can import ungarbled betel nuts into India, since, practically, the ungarbled betel nuts would not satisfy the standards prescribed under Item A.28.04. They would further submit that formerly ungarbled betel nuts imported were not subjected to tests for such standards, and only because of Ext. P1 communication whereby the Director General of Health Services is stated to have opined that Supari (betel nut split or whole) is an item of food in view of the decision of Supreme Court Pyarali K. Tejani v. Mahadeo Ramachandra Dange and Ors. , to which the provision of the Act and the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1962. If the product fails the test, the Customs authorities will ensure that the goods re re-exported out of the country by following the usual adjudication procedure or destroyed as required under the relevant rules. According to them, the respondents have only complied with the said directions which are perfectly in accordance with the provisions of the Prevention of Food Adulteration Act and Rules, in view of the Supreme Court decision declaring betel nut as an item of food. 5. We have considered the rival contentions in detail. 6. Although the learned Single Judge has not decided the Writ Petitions on merit and only relegated the appellants to the adjudication proceedings under the Customs Act, we are inclined to go into the merits of the case since what has been posed before us is a question of law and admittedly betel nuts are susceptible to speedy decay and may not survive the time taken for such adjudication proceedings. Before we go into the contentions of the parties, it would be advantageous to extract the relevant provisions applicable to the subject. The term 'food' is defined in Sub-section (v) of Section 2 of the Act. It is not necessary to discu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purchaser and is to his prejudice, or is not of the nature, substance or quality which it purports or is represented to be; (b) if the article contains any other substance which affects, or if the article is so processed as to affect, injuriously the nature, substance or quality thereof; (c) if any inferior or cheaper substance has been substituted wholly or in part for the article so as to affect injuriously the nature, substance or quality thereof; (d) if any constituent of the article has been wholly or in part abstracted so as to affect injuriously the nature, substance or quality thereof; (e) if the article has been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health; (f) if the article consists wholly or in part of any filthy, putrid, rotten, decomposed or diseased animal or vegetable substance or is insect-infested or is otherwise unfit for human consumption; (g) if the article is obtained from a diseased animal; (h) if the article contains any poisonous or other ingredient in which renders it injurious to health; (i) if the container of the article is composed, whether wholly or in part, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Local (Health) Authority having jurisdiction in the local area concerned, or with the previous approval of the food (Health) Authority, to prohibit the sale of any article of food in the interest of public health. Explanation: for the purposes of Sub-clause (iii) of Clause (a), consignee does not include a person who purchases or receives any article of food for his own consumption. (2) Any Food Inspector may enter and inspect any place where any article of food is manufactured, or stored for sale, or stored for the manufacture of any other article of food for sale, or exposed or exhibited for sale or where any adulterant is manufactured or kept, and take samples of such article of food or adulterant for analysis: Provided that no sample of any article of food, being primary food, shall be taken under this sub-section if it is not intended for sale as such food. xxx xxx xxx 10. Under Rule 5 of the Food Adulteration Rules, 1955, standards of quality of the various articles of food items specified in Appendix B to the Rules are as defined in that Appendix. Appendix B contains the definitions and standards of quality which are prescribed under Rule 5. 11. Item N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the areca or betel palm (areca catechu).... For chewing, the fruits are annually gathered between the months of August and November, before they are quite ripe, and deprived of their husks. They are prepared by boiling in water, cutting up into slices and drying in the sub, by which treatment the slices assume a dark brown or black colour........Betel nuts are used as a source of inferior catechu (g.v.); its chief alkaloid is arecoline, to which anthelmintic properties are attributed. The drug finds some use in veterinary medicine as an anthelmintic. In that decision, the Supreme Court has held that betel nut is not a fruit product. Therefore, betel nut cannot be a dry fruit coming within the standards prescribed under A.28.04. Then the next question would be whether it is a dry nut. For attracting standards under A.28.04, the imported article must be products obtained by drying sound, clean fruits and nuts of proper maturity. It is not disputed before us that the betel nuts imported by the appellants are in the de-husked form but containing an outer layer, which has to be scraped and removed and dried for the purpose of making it fit for making Supari as is usually known to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as food for the purposes of the Act. 'Primary food' is defined in Section 2(xii-a) to mean any article of food, being a produce of agriculture or horticulture in its natural form. As Mr. N. Mohandas, learned Counsel for the respondents contends if the seed without its outer cover is food as defined and if it is a product of agriculture and if it still retains its natural form which it had within the covering, which had been removed. it is primary food. For example, paddy as such will not be food as defined in the Act. But after dehusking the rice that obtained can certainly be considered to be primary food, because it retains its natural form, though the outer covering has been removed by dehusking and it is an article of food and a produce of agriculture. For the same reason Vadaparippu and Thuvaraparippu can be considered to be primary food. These pulses when its outer cover is removed will be articles of food as well as products of agriculture. There cannot be any dispute with regard to that. The only question that will arise is, it is in its natural form. According to Webster's New Collegiate Dictionary natural means, being in accordance with or determined by nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04 as a dry nut. The respondents could not with any material in support could contradict this definite case of the appellants. On the other hand, they categorically admit that it is in the ungarbled form. Further Item A.28.04, speaks of products obtained by drying sound clean fruits and nuts of proper maturity. The respondents have no case that betel nuts imported by the appellants are products so obtained. That being so, the customs officers, by virtue of powers under Section 10 read with Section 6 cannot take samples of the betel nuts imported by the appellants as articles of food or adulterant for analysis, since, going by the proviso to Section 10(2) of the Act, no sample of any article of food, being primary food, shall be taken under the sub-section, if it is not intended for sale as such food. The respondents in their counter affidavit could not bring out either that the betel nut is not a primary food or that it is intended for sale as such food. On the other hand, the appellants have, with sufficient material on record, succeeded in proving that the betel nut imported by them is a primary food and that the same is not intended for sale as such food since for consumption, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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