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TMI Blog2015 (2) TMI 1137X X X X Extracts X X X X X X X X Extracts X X X X ..... tment before Custom's clearance of 'cocoa bean'. Exts.P6 and P7 are the test reports. Direction was also sought for to release the consignment covered under Ext. P1 without insisting for a test to be conducted by the authorities under the FSS Act and the Rules and for other consequential reliefs. 3. The facts involved in the writ petition would indicate that the petitioner imported 'cocoa bean' from Indonesia through Cochin port. The 3rd respondent, Commissioner of Customs issued Ext. P4 stipulating that the 'cocoa bean' has to be tested as per Food Safety Standards or else a no objection certificate has to be obtained from the competent authority under the FSS Act. The 2nd respondent subjected the 'cocoa bean' to test under Clause 2.2 of the Food Safety and Standards (Contaminants, Toxins and Residues) Regulations, 2011 and a further test was conducted under the category of 'Dry Fruits and Nuts' under clause 2.3.47.5 of the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011, (hereinafter referred as the Regulations). It was found that the 'cocoa bean' does not satisfy the specification of approved standards and accordingly they issued Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) The petitioner shall pay such cost as may be required for the purpose of analysis." 6. It is not in dispute that based on the judgment of the learned Single Judge, the goods had been released. However, it is awaiting analysis of the Bureau of Indian Standards, as the learned Single Judge had observed that the 'cocoa bean' shall not be released for human consumption without appropriate report and analysis from the Bureau of Indian Standards. It is, impugning the above judgment, that the appeal has been filed by the petitioner. 7. Heard Sri Mehmood Pracha, learned counsel for the appellant and Sri P. Ravindran, learned senior counsel appearing on behalf of the 1st respondent/writ petitioner and learned Assistant Solicitor General of India appearing on behalf of the 2nd respondent. The appellant makes specific reference to the various provisions of the Act which defines what is food, primary food, ingredient, etc., with specific emphasis on Sections 25 and 47 of the FSS Act. It is argued that the word 'food' and 'primary food' is wide enough to include all the food articles which are intended to be used for manufacturing food, to be used for human consu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sofar as 'cocoa bean' has to undergo further process to make it fit for human consumption and since no standard has been prescribed for 'cocoa bean', import of the same cannot be restricted. Petitioner further argues that BIS has prescribed certain specification for 'cocoa bean' which alone is required to be complied with and the learned Single Judge had directed the imported commodity to be verified by the authorities under the BIS and only after such an analysis, the petitioner is permitted to use the 'cocoa beans' for the intended purpose. It is therefore, argued that no modification is required to the judgment of the learned Single Judge. 9. Having heard the learned counsel on either side, the short issue to be considered is whether the imported cocoa beans should satisfy any of the specification or standards under the FSS Act or the Rules framed thereunder. 10. There cannot be any dispute regarding the fact that certain consignment of 'cocoa bean' have been imported by the petitioner as an item of food. As rightly contended by the learned counsel for the appellant, the import licence of the petitioner permits only import of the product allowed under FSS Act, 2006. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng a component of or otherwise affecting the characteristics of such food but does not include "contaminants" or substances added to food for maintaining or improving nutritional qualities; Section 3(y) "ingredient" means any substance, including a food additive used in the manufacture or preparation of food and present in the final product, possibly in a modified form; If, according to the petitioner, 'cocoa bean' extract is being used for the purpose of manufacture of chocolates and other products, there is no doubt regarding the identity of the goods as a 'food' item within the meaning given under the FSS Act. 11. The question therefore, will be whether any standards have been fixed for 'cocoa bean'. The learned counsel for the appellant was unable to point out any specific provision under the regulations which prescribes the standards for 'cocoa bean'. Regulations are fixed for beans, dry fruits and nuts, cocoa powder, etc. The FSS authorities have, for the purpose of analysis, treated the product as 'Dry Fruits and Nuts'. Clause 2.3.47(5) of the regulations gives specification for the products obtained by drying sound, clean fruits and nuts of proper maturity. What is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bean is treated as a seed which is used as 'food' either whole or prepared as dal. There is no material to indicate 'cocoa bean' as the seed of a legume. At any rate, in its present form, it cannot be used as food. 13. Perusal of clause 2.3.47 and its different derivatives are also useful to form an opinion as to whether 'cocoa bean' is a dried nut or not. Clause 2.3.47 by itself categorizes various commodities under general head "nuts and raisins". Specific commodities are mentioned in various sub-items. Item (1) refers to Ground nut kernel, Item (2) refers to raisins, item (3) refers to pistachio nuts which is obtained from mature seeds of Pistachio Vera L which have been sun dried and their shell opened naturally or mechanically. Item (4) are different varieties of dates and item (5) is of general nature referring to dry fruits and nuts. In fact, in Regulation 2.3, the heading given is Fruit and Vegetable products and various types of fruits, vegetables, its formulations are given depending upon the nature of the product available in the market. There cannot be any dispute that 'cocoa bean' is derived from a fruit, but its seed cannot be termed as a substance obtained by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eleterious substances; or (ii) by the article consisting, wholly or in part, of any filthy, putrid, rotten, decomposed or diseased animal substance or vegetable substance; or (iii) by virtue of its unhygienic processing or the presence in that article of any harmful substance; or (iv) by the substitution of any inferior or cheaper substance whether wholly or in part; or (v) by addition of a substance directly or as an ingredient which is not permitted; or (vi) by the abstraction, wholly or in part, of any of its constituents; or (vi) by the article being so coloured, flavoured or coated, powdered or polished, as to damage or conceal the article or to make it appear better or of greater value than it really is; or (vii) by the presence of any colouring matter or preservatives other than that specified in respect thereof; or (viii) by the article having been infected or infested with worms, weevils or insects; or (ix) by virtue of its being prepared, packed or kept under insanitary conditions; or (x) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o him, by the Food Analyst or the Food Safety Officer, despatch one of the parts of the sample sent to him, to the Food Analyst for analysis. (4) An article of food or adulterant seized, unless destroyed, shall be produced before the Designated Officer as soon as possible and in any case not later than seven days after the receipt of the report of the Food Analyst : Provided that if an application is made to the Designated Officer in this behalf by the person from whom any article of food has been seized, the Designated Officer shall by order in writing direct the Food Safety Officer to produce such article before him within such time as may be specified in the order. (5) In case of imported articles of food, the authorised officer of the Food Authority shall take its sample and send to the Food Analyst of notified laboratory for analysis who shall send the report within a period of five days to the authorised officer. (6) The Designated Officer, the Food Safety Officer, the authorised officer and the Food Analyst shall follow such procedure as may be specified by regulations. Sub-section (5) of Section 47 clearly gives power to the Food Safety Officer to ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P10 Indian Standard for cocoa bean which also treats mouldy bean as defective. Similarly a cocoa bean which shows skaty colour of half or more of the surface exposed by the method described in ISO/R 1114 is also treated as defective. Learned counsel relied upon a Division Bench judgment of this Court in Al Marwa Traders v. Asst. Commissioner of Imports [(2007) 1 KLT 381], wherein this Court observed that though there is no prescribed standards, it could be ensured that betel nuts imported by the party is not injurious to the health of ultimate consumers. Paragraph 17 of the said judgment is relevant which reads as under : "17. However, in public interest, we make it clear that although betel nuts imported by the appellants cannot be subjected to test for the standards prescribed under Item A.29.04, certainly, the respondents can ensure that the same is not adultered in the sense mentioned in 5.2(b), (e) and (t) so as to see that the appellants are not importing betel nuts which are not injurious to the health of the ultimate consumer, who may consume the product made of betel nuts imported by the appellants. We are told by the counsel for the appellants that the inspection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts available in the market contain insecticides or pesticides residues, beyond the tolerable limits, causing serious health hazards. We notice, fruit based soft drinks available in various fruit stalls, contain such pesticides residues in alarming proportion, but no attention is made to examine its contents. Children and infants are uniquely susceptible to the effects of pesticides because of their physiological immaturity and greater exposure to soft drinks, fruits based or otherwise. 24. We, therefore, direct the Food and Safety Standards Authority of India, to gear up their resources with their counterparts in all the States and Union Territories and conduct periodical inspections and monitoring of major fruits and vegetable markets, so as to ascertain whether they conform to such standard set by the Act and the Rules. 25. Penal provisions are also provided in the Act. It is, therefore, of utmost importance that the provisions of the Acts are properly and effectively implemented so that the State can achieve an appropriate level of human life and health, safeguarding the right to life guaranteed under Article 21 of the Constitution of India." 22. Though the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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