‘Presence Of Magnesium Carbonate Itself Does Not Make A Food Article Prohibited’: Jharkhand High Court

The Jharkhand High Court has delivered a crucial judgment regarding the presence of magnesium carbonate in food products, stating that it does not inherently make a food article prohibited under the Food Safety and Standards Act, 2006 (FSS Act).The Division Bench of Chief Justice Sanjaya Kumar Mishra and Justice Ananda Sen observed, “...the respondents have taken a decision to ban certain Pan Masalas as on three consecutive years by three consecutive notifications to that effect on the ground that it contained Magnesium Carbonate. From the aforesaid analysis, we are of the opinion that presence of Magnesium Carbonate itself does not make a food article prohibited. An attempt has been made by the learned Senior Counsel appearing for the State-respondents that nicotine was found in certain laboratory analysis.”“However, it is not the case of the respondents that the Pan Masala in question does have any nicotine or tobacco in it. In fact, it is the consistent case of the petitioners that the said Pan Masala does not have any tobacco or nicotine in it. A report to that effect is also annexed in the supplementary affidavit whereby the State Government was in know of the fact that the Central Food Laboratory, Kolkata has come to the conclusion it does not contain nicotine, but they did choose not to act upon it and passed orders in clear ignorance of scientific proven facts.,” the bench added.The above ruling came in a petition filed by a private limited company, Dharampal Satyapal Limited and its director, seeking declaration that Section 30(2)(a) of the Food Safety and Standards Act, 2006, is ultra vires of the said Act and suffers from vice of excessive delegation as it confers an independent source of legislation and power of policy decision upon the Commissioner of Food safety and empowers him to prohibit completely, without issuing any show-cause notice, the Trade and Commerce and other allied activities in the food products permanently which is contrary to the substantive provisions of the aforesaid Act.The petitioners also sought a declaration that that the impugned provision, as mentioned above, is in the teeth of the constitutional prohibition as contained in Article 13(2) of the Constitution of India, 1950 and is also violative of constitutional guarantee regarding right of freedom of Trade and Commerce in the territory of India under Article 301, Part XIII of the Constitution of India, 1950.The FSS Act was enacted in 2006 and came into force in 2011. The Ministry of Health and Family Welfare introduced the Food Safety and Standards (Food Products and Food Additives) Regulations, 2011, and the Jharkhand Food Safety and Standards Rules, 2000, were enforced with a notification amending the 2011 Regulations. Furthermore, the Food Safety and Standards (Food Recall Procedure) Regulation, 2017, was enacted. During this time, the Goods and Services Tax (Compensation to States) Act, 2017, was also implemented, leading the State Government to impose a prohibition on the manufacture, storage, distribution, and sale of Rajnigandha Pan Masala, along with ten other Pan Masala brands, for a one-year period. Hence, a writ application was filed by the petitioners seeking the aforesaid reliefs.Key Questions Addressed by the Court:(i) Whether the Commissioner of Food Safety in exercise of powers under Section 30(2)(a) of the Food Safety and Standards Act, 2006 can take a decision which is contrary to the specific provision of the Parent Act and Regulations made thereunder? (ii) Whether an order under Section 30(2)(a) of section 34 of the FSS Act should precede by notice to show cause contemplating such an action? (iii) Whether the action of completion prohibition on manufacture, sale, transport, distribution of any brand for an indefinite period is contemplated under any of the provisions of the FSS Act, 2006? (iv) Whether the permission under the relevant Regulation with regard to Magnesium Carbonate to be used as food addictive leads to a natural corollary that the same is not injurious to health? (v) Whether the Commissioner, Food Safety can base any prohibitory order for indefinite period on account of an ex parte collection of samples and food collected in the years 2019 and 2020? (vi) Whether the issuance of prohibitory orders on year to year basis for the third time in succession by the Commissioner of Food Safety amounts to a fraud upon the Statute and amounts to colourable exercise of powers? In addressing the first three questions before it, the Court examined Section 30(2)(a) of the FSS Act, which grants the Commissioner of Food Safety the authority to take actions in the interest of public health, such as prohibiting the manufacture, storage, distribution, or sale of a food product, either in the entire state or a specific area, for a period not exceeding one year as specified in an official Gazette notification.The court opined, “The “Designated Officer” as appointed by the Commissioner of Food Safety has...

‘Presence Of Magnesium Carbonate Itself Does Not Make A Food Article Prohibited’: Jharkhand High Court

Bhavya Singh

Tags