TMI Blog2015 (2) TMI 1139X X X X Extracts X X X X X X X X Extracts X X X X ..... port made by the Appellant). Therefore, the view taken in the impugned order to the effect that the petitioner had miserably failed to make it any case for granting the relief claimed by the petitioner and suffers from no material irregularity or patent illegality in the eye of law. Therefore, No Objection Certificate is not to be granted. - Decided against the appellant - W.A.No.1491 of 2014 And M.P.Nos.1 & 2 of 2014 - - - Dated:- 12-2-2015 - Mr. SATISH K. AGNIHOTRI AND Mr. M.VENUGOPAL, JJ For the Petitioner: Mr.J.Sivanandaraaj For the Respondent-: Mr. SV. Srinivasan, M/s. Tasneem Ahmadi for K. Surendranath And Mr. S. Xavier Felix (SCGSC) ORDER M.VENUGOPAL, J. The Appellant/Petitioner has projected the instant intra Court Writ Appeal before this Court as against the order dated 10.10.2014 passed by the Learned Single Judge in W.P.No.24999 of 2014. 2.The Learned Single Judge while passing the impugned order on 10.10.2014 in W.P.No.24999 of 2014 (filed by the Appellant/Writ Petitioner) in para 18 among other things it is observed that Admittedly, the Areca Nut (Betel-Nuts) is an agriculture product include to fall within the definition of primary food ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai on 19.06.2014 passed an 'Examination Order' on 19.06.2014, in and by which, a direction was issued to the Appellant/Firm that in order to obtain customs clearance for the consignment, it must obtain a test report and a No Objection Certificate from the Second Respondent/Authorised Officer, Food Safety Standards Authority of India, Ministry of Health and Family Welfare, Chennai. 4.The Learned counsel for the Appellant/Petitioner strenuously submits that the Appellant's consignment comprises of 'Ungarbled Betel Nuts' which are neither intended for, nor commonly used for human consumption and in order to transform it into marketable commodity, 'Ungarbled Betel Nuts' required to undergo a series of multi-stage processes over a period of time that include, inter-alia, cleaning, drying and boiling and in fact, the consignment of import of 'Ungarbled Betel Nuts' would be subjected to the Plant Quarantine Test (PQ Test) in terms of the provision of Clause 3 (16) of the Plant Quarantine (Regulation of Import into India) Order, 2003 which is issued under Sub Section (1) of the Destructive Insects and Pests Act, 1914 and it is needless to state that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 'Ungarbled Betel Nuts' cannot be tested in its current form. 10.The Learned counsel for the Appellant forcefully contends that the Referral Laboratory in the present case reported that the samples that from the Appellant's consignment did not conform to the standards set in the FSS Regulations and the report identified two defects in the Appellant's sample-the presence of mold on the split of the betel nuts and a higher percentage of damaged pieces can be allowed under regulations. Apart from that stand of the Appellant that since 'Ungarbled Betel Nuts' are not meant nor commonly used for human consumption in any market in our country, there is no question of a food safety concern arising on account of clearance being granted for the Appellant's shipment. 11.The core contention advanced by the Learned counsel for the Appellant is that even assuming but not conceding 'Ungarbled Betel Nuts' do fall within the ambit of food for the purposes of the Food Safety And Standards Act, they are certainly within the purview of primary food, being agricultural produce. 12.In this regard, the Learned counsel for the Appellant/Petitioner adverts to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Not more than 30 parts per billion Also refers to ITC (HS), 2012 Schedule I of Import Policy, Section II, Chapter 8 and the relevant portion is extracted as under: 0802 80 Areca nuts: 0802 80 10 Whole Free Import permitted freely provided cif value is ₹ 35/- per kilogram and above 0802 80 20 Spilt Free Import permitted freely provided cif value is ₹ 35/- per Kilogram and above. 0802 80 30 Ground Free Import permitted freely provided cif value is ₹ 35/- per Kilogram and above. 15.The Learned counsel for the Appellant cites the order of W.P.(c) No.20920 of 2014(L) dated 15.10.2014 of High Court of Kerala between wherein in paragraphs 11 to 14 it is observed and held as follows: 11.Thus, in the light of the above, betel nuts are of heterogeneous class from dry fruits and nuts. This Court is of the view that the standards prescribed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f interpretation of the guarantee of gender equality, right to work with human dignity and in Articles 14, 15, 19(1) (g) and 21 of the Constitution of India and further, held that any international convention, not inconsistent in the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. The World Trade Organisation (WTO) agreement on the application of sanitary and phytosanitary measures (SPS Agreement) provides that in cases where relevant scientific evidence is insufficient, a Member State may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information. The above agreement is for providing measures to protect human/animal/plant life or health. SPS Agreement provides different types of precautionary measures and clearly permits the Government to take a final decision when sufficient scientific evidence does not exist on the safety of a product. Therefore, absence of standard does not prevent Government or Food Authority from exercising their power for bona fide reasons in terms of SPS Agreement, which in the li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es) Regulation 2011 under 2.3.47(5) provides for authorized laboratory analysis of the sample of imported betel nut (supari) and in reality, Section 3(j) of the Food Safety and Standards Act, 2006 defines 'Food' as under: 3(j) Food means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food to the extent defined in clause (zk), ......, and any substance including water used into the food during its manufacture, preparation or treatment .... narcotic or psychotropic substances . 17.The Learned counsel for the Second Respondent adverts to Section 3(zk) of the Food Safety and Standards Act, 2006 of 'primary food' and the same enjoins as follows: primary food means an article of food, being a produce of agriculture or horticulture or animal husbandry and dairying or aquaculture in its natural form, resulting from the growing, raising, cultivation, picking, harvesting, collection or catching in the hands of a person other than a farmer or fisherman. 18.The Learned counsel for the Second Respondent points out to Section 2(V) of the Prevention of Food Adulteration Act, 195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Regulation 2.3.47(5) of the Food Safety and Standards (Food Product Standards Food Additives) Regulation 2011 and it came to be known soon after receipt of analysis report that the sample of betel nuts was found to be damaged/discoloured units beyond the prescribed limit and mould growth was observed on the split of areca nut. Therefore, the authorized officer of the Food Authority of India declined to issue No Objection Certificate for clearance of the betel nuts consignment, inasmuch as the consignment failed to confirm to the standards laid down by the notified laboratory and the referral laboratory. 22.At this stage, this Court worth recalls and recollects the decision of the Hon'ble Supreme Court in Dineshchandra Jamnadas Gandhi Vs. State of Gujarat and another, 1989 (1) Supreme Court Cases at page 420 and page 421 whereby and whereunder it is observed and held as follows: The object and the purpose of the Act are to eliminate the danger to human life from the sale of unwholesome articles of food. It is enacted to curb the widespread evil of food adulteration and is a legislative measure for social defence. It is intended to suppress a social and economic mischi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of justice: (i)In the decision of the Hon'ble Supreme Court in The State of Tamil Nadu Vs. R.Krishnamurthy [AIR 1980 Supreme Court 538] it is observed and held as under: In order to be 'food' for the purposes of the Act, (Prevention of Food Adulteration Act, 1954) an article need not be 'fit' for human consumption; it need not be described or exhibited as intended for human consumption; it may even be otherwise described or exhibited; it need not even be necessarily intended for human consumption, it is enough if it is generally or commonly used for human consumption or in the preparation of human food. Gingelly oil, mixed or not with groundnut oil or some other oil, whether described or exhibited as an article of food for human consumption or as an article for external use only is 'food' within the meaning of the definition contained in S.2 (v) of the Act. 1971 Cri LJ 1556 (SC) and 1975 Cri LJ 1868 (SC), Explained. (ii) In the decision of the Delhi High Court in Bishan Das Mehta and others Vs. Union of India and others [Air 1970 Delhi 267 (V 57 C 58)] wherein it is held as follows: In order that an article should be food within the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the fact that it was also used or sold for other purposes. 26.In so far as the present case is concerned, it is to be borne in mind that in the decision of the Division Bench of Kerala High Court in Al Marwa Traders Vs. Assistant Commissioner of Imports [2007 (1) KLT 381] 'Ungarbled Betel Nuts' was the subject matter in issue, but in case on hand, the Appellant in the 'Bill of Entry' had not mentioned the product as 'Ungarbled Betel Nuts'. However, in the affidavit filed in support of the Writ Petition, the Appellant/Petitioner had endeavour to mention that the product is as 'Ungarbelled Betel Nuts'. It is not in dispute that the Appellant/Petitioner, in the 'Bill of Entry' for home consumption dated 19.06.2014 in B.E.No.5853707 and it described the item as areca nuts (betel nuts). Admittedly, the product was imported from Srilanka. When the Appellant/Petitioner had applied to FICS which specifies inspection of the goods by drawing samples to find out/examination as to whether meets the required standards prescribed under Food Safety and Standards (Food Product Standards Food Additives) Regulation 2011. In this connection, this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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