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Section 7 in The Prevention of Food Adulteration Act, 1954
Section 23 in The Prevention of Food Adulteration Act, 1954
Section 7(iv) in The Prevention of Food Adulteration Act, 1954
The Prevention of Food Adulteration Act, 1954
Section 24 in The Prevention of Food Adulteration Act, 1954
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P.M. Kunhu Bava vs Kadungalloor Grama Panchayat on 29 September, 2008

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Kerala High Court
Pepsico India Holdings Pvt. Ltd vs State Of Kerala on 22 September, 2006
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 22140 of 2006(I)


1. PEPSICO INDIA HOLDINGS PVT. LTD.,
                      ...  Petitioner
2. PEPSI FOODS PVT. LTD.,
3. MR. JYOTI SAGAR,

                        Vs



1. STATE OF KERALA, REPRESENTED BY THE
                       ...       Respondent

2. THE SECRETARY,

3. THE DIRECTOR OF HEALTH SERVICES,

                For Petitioner  :SRI.ANTONY DOMINIC

                For Respondent  :SRI.SAJEEV KUMAR K.GOPAL

The Hon'ble the Chief Justice MR.V.K.BALI
The Hon'ble MR. Justice M.RAMACHANDRAN

 Dated :22/09/2006

 O R D E R
                     V.K.Bali,C.J. &  M.Ramachandran,J.
                    ------------------------------------------------------
               W.P.(C).Nos.22140 of 2006-I & 22141 of 2006-J
                    ------------------------------------------------------


                  Dated, this the 22nd day of September, 2006


                                      JUDGMENT

V.K.Bali,C.J.

Hindustan Coca-Cola Beverages Pvt. Ltd., a Company incorporated under the provisions of the Companies Act, engaged in the business of manufacturing and marketing of non-alcoholic sweetened carbonated beverages, fruit-based drinks and packaged drinking water in the leading brand names of Coca-Cola, Fanta, Sprite, Thumps Up, Limca, Maaza, Kinley, etc., along with its share holder Amit Oberoi, has filed W.P.

(C).No.22141 of 2006 challenging G.O.(Rt.). No.2396/06/H&FWD issued by Government of Kerala dated 10.08.2006 and consequential Order No.PH6/62469/DHS dated 11.08.2006 issued by Food (Health) Authority of State of Kerala whereby the State Government in exercise of the powers under Section 7(iv) of the Prevention of Food Adulteration Act, 1954, hereinafter referred to as 'Act of 1954', prohibited manufacture and sale of Coca-Cola in the whole State of Kerala with immediate effect and for an W.P.(C).Nos.22140 & 22141 of 2006

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indefinite period. By the same very orders manufacture and sale of Pepsi Cola has also been prohibited and, therefore, the same very orders have also been challenged by Pepsico India Holdings Pvt. Limited, again a Company incorporated under the Companies Act, wholly owned subsidiary of PepsiCo Inc. U.S.A. along with Pepsi Foods Pvt. Limited, also a Company incorporated under the Companies Act, a wholly owned subsidiary of PepsiCo Inc. U.S.A., and Mr.Jyoti Sagar, a citizen of India and shareholder of the petitioner Company - Pepsi Foods Pvt. Ltd. The challenge as mentioned above in both petitions is to be common order and by this order, we propose to dispose of both the petitions by a common order as has also been suggested by the learned counsel representing the parties as well.

2. The order passed by the Government dated 10.08.2006 (Exhibit P1) and consequential order passed by Director of Health Services in its powers as State Food (Health) Authority under Section 7(iv) of the Act of 1954 dated 11.08.2006 (Exhibit P1[a]) read as follows:-

Ext.P1 "As per the D.O. letter cited, it was informed by the Ministry of W.P.(C).Nos.22140 & 22141 of 2006

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Health and Family Welfare Department, Government of India to State Government that as per the study conducted by the Centre of Science and Environment (CSE) which was covered in the National News Papers on 3rd August 2006 as well as in the Electronic media that out of 57 samples of 11 soft drinks brands of Coca Cola and Pepsi Cola collected from 25 manufacturing units across 12 States, it was found that these samples contained different pesticides, which are much above the prescribed standards. The CSE has found pesticide residues of organo chlorine pesticides (MCH and derivates and Heptachlor) and organo phosphorous pesticides (Chlopyrifos and Malathion) in the soft drink samples tested and analysed by them.

In the above circumstances and considering the best interest of public health, Government of Kerala have decided to ban the manufacture and sale of Coca Cola and Pepsi Cola in the whole of Kerala as per Section 7(iv) of Prevention of Food Adulteration Act, 1954 and Rules made thereunder.

The State Food Health Authority, i.e., Director of Health Services shall take steps in accordance with relevant provisions of Prevention of Food Adulteration Act, 1954 and Rules made thereunder to prohibit manufacture and sale of Coca Cola and Pepsi Cola in whole of Kerala in the interest of Public Health".

W.P.(C).Nos.22140 & 22141 of 2006

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Ext.P1(a) "As per the order cited, Government of Kerala have decided to ban the manufacture and sale of Coca Cola and Pepsi Cola in the whole of Kerala under section 7(iv) of the Prevention of Food Adulteration Act 1954 and the Rules made thereunder. In this order, it is also specifically directed that the State (Food) Authority, i.e. Director of Health Services shall take steps in accordance with relevant provisions of the Prevention of Food Adulteration Act 1954 and Rules made thereunder to prohibit the same.

In exercise of the powers conferred on me as the Director of Health Services in my capacity as the State Food (Health) Authority under section 7(iv) of the Prevention of Food Adulteration Act 1954, I hereby prohibit the manufacture and sale of Coca Cola and Pepsi Cola in the whole State of Kerala with immediate effect.

Accordingly the Local (Health) Authorities and the Food Inspectors are directed to exercise these powers defined under the Prevention of Food Adulteration Act 1954 and Rules made thereunder to enforce the ban/prohibition of manufacture and sale of Coca Cola and Pepsi Cola in the whole of Kerala in the best of interest of Public Health with immediate effect".

When these two petitions came up for hearing on 24.08.2006, the learned Single Judge, in view of the fact that a public interest litigation, W.P.(C).

23729 of 2005, in which, inter alia, there is a prayer to direct the Union Government also to stop the manufacture and sale of Coca-Cola and Pepsi, is pending before a Division Bench, ordered that these petitions be W.P.(C).Nos.22140 & 22141 of 2006

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listed along with the writ petition filed in the nature of public interest. During the course of arguments, however, we thought it expedient to segregate the public interest litigation as different para-meters may be involved in dealing with the said writ and further because in the present petitions the primary contention is that the State Government would have no power to make an order of prohibition, either of a permanent nature or enduring for such a long time as to be deemed to be permanent in respect of an article of food under the Act of 1954. To be precise, the impugned order has been challenged on the ground that the State Government cannot pass any order to prohibit manufacture and sale of carbonated water and under Section 23(1A)(f) of the Act of 1954, it is the Central Government that can frame rules to prohibit sale of any substance which may be injurious to health. Rule making power of the State Government under Section 24 of the Act of 1954 is in respect of the matters not falling within the purview of Section 23 and, therefore, the ban orders passed by the Government, Exhibits P1 and P1(a), are an outcome of abuse of power by the State Government. Number of grounds have been taken, but the grounds that have been pressed into service during the course of arguments are that the impugned order imposing ban on manufacture and sale of Coca-Cola and W.P.(C).Nos.22140 & 22141 of 2006

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Pepsi Cola amounts to imposing unreasonable restrictions on the rights of the petitioners to carry on business and, therefore, is violative of Articles 14 and 19(1)(g) of the Constitution of India and also that the said orders are wholly arbitrary, illegal and are politically motivated. It is further the case of the petitioners that no provisions of the Act of 1954 or the Prevention of Food Adulteration Rules, 1955, hereinafter referred to as 'Rules of 1955', have been violated, in the absence of which the impugned orders are legally unsustainable.

3. In the context of the legal issues that are involved in the case, it would be appropriate in the first instance to take into consideration the bare minimum facts culminating into filing of these petitions. (Facts have been extracted from W.P.[C] No.22141 of 2006). It is the case of the Hindustan Coca-Cola Beverages Private Limited that in India the standards of quality applicable to soft drinks are prescribed under the Act of 1954 and the Rules of 1955. These standards include maximum residue limits, hereinafter referred to as 'MRLs', specifying the maximum permissible content of pesticide residues, considered individually and collectively, in the water used in carbonated water. Maximum residue limits for pesticides have also been set under the Act and the Rules for other foods, such as W.P.(C).Nos.22140 & 22141 of 2006

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tea, coffee, milk, milk products, eggs, meat and poultry, rice and other food grains and vegetables. Under the Act of 1954, if a product contains pesticide residues or other substances in quantities beyond the limits set by the Rules of 1955, it is an 'adulterated' product. The Centre for Science and Environment, hereinafter referred to as 'CSE', a non-governmental organization, published a report titled 'Analysis of Pesticide Residues in Soft Drinks' on 2.8.2006. The CSE Report stated inter alia that the Bureau of Indian Standards, hereinafter referred to as 'BIS', has finalised a voluntary standard for pesticides in soft drinks, which is not mandatory and is yet not notified. The CSE Report further stated that the CSE collected samples of soft drinks of Coca-Cola and Pepsi Cola available in the market, tested them at its own laboratory and found that the samples contained pesticide residues beyond the voluntary standards proposed by BIS. A copy of CSE Report has been placed on record as Exhibit P3.

The report aforesaid was placed on the CSE's website and released at a press conference held by CSE. The said report generated significant coverage in the print and electronic news media. The impugned orders have been passed on the basis of report Exhibit P3. It is the case of the petitioners that the CSE Report does not even claim to test the samples W.P.(C).Nos.22140 & 22141 of 2006

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drawn against any 'permitted level' under any statute or regulation. CSE claims to test the samples only against proposed voluntary limits of the BIS which have not been notified and which even when notified, would not be a mandatory or statutory standard. The methodology employed in drawing up the proposed standards is not in compliance with the methodology recommended by the JPC after extensive study and investigation into the formulation of the necessary standards. There is no claim or suggestion in the CSE Report that any sample tested was found to be in non-compliance with any statute, rule or regulation in place in India or anywhere else in the world. The impugned orders, it is pleaded, were based on no material other than the CSE Report, without notice to the petitioners and without giving the petitioners or any other soft drink manufacturer any opportunity for a hearing or to make any objections to the CSE Report. The impugned orders, it is the case of the petitioners, were passed as a knee-jerk response without making any independent investigation or enquiry to verify the truth or significance of claims made in the CSE Report. The sequence of events leading up to the passing of the impugned orders, the circumstances in which they have been passed and the content of the impugned orders, all point to the fact that the impugned orders have been W.P.(C).Nos.22140 & 22141 of 2006

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passed for considerations extraneous to the interest of public health. The political parties constituting the present State Government, it is the case of the petitioners, has even in the past carried out various agitations and campaigns against the petitioners. Besides, it had in fact actively supported the Perumatty Grama Panchayat, which had initiated the litigation against the petitioners' plant/factory at Plachimada. This would be clear by the statement made by one of the members of the Plachimada Solidarity Committe in a News Article dated 14.08.2006 (Exhibit P5). The Left Democratic Front, which is in power in the State had, at its Committee Meeting held on 6.8.2006 made a recommendation to the State Government to ban sale of Coke and Pepsi in the State of Kerala and the decision of the State Government is a mechanical implementation of the recommendation. Section 7(iv) of the Act of 1954 was applied only as window dressing for an order of ban that has been made at the behest of the State Government and is motivated by extraneous considerations. The orders were passed in a preconceived and pre-determined manner as made out from the various statements made by the State's Health Minister as found in the report dated 14.08.2006 (Exhibit P5). There it had clearly stated that:

W.P.(C).Nos.22140 & 22141 of 2006

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"Coca-Cola was on its way out even without the revelations made by the Centre for Science and Environment about pesticide content of the soft drink".

"The Health and Family Welfare Department had been prepared for a ban from the moment a communication was sent to it from the Union Health Ministry asking for lifting soft drinks samples for testing".

The very fact that the ban was imposed without even waiting for the results of the testing, as per the case of the petitioner, would show that the respondents have acted with a pre-planned manner.

4. It is the case of petitioners that the presence of pesticide residues in carbonated water or other food articles is not due to the manufacturing process. The Joint Parliamentary Committee in its report dated 04.02.2004 had occasion to comment on the subject in great detail and has clearly acknowledged this aspect. The regulatory authorities like World Health Organization seek to regulate raw agricultural commodities (RACs) and not finished products as it is impossible to regulate pesticide residues in finished products unless and until the use of pesticides in agriculture is controlled. The accepted scientific practice worldwide, W.P.(C).Nos.22140 & 22141 of 2006

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therefore, is to regulate the raw agricultural commodities and water by establishing Maximum Residue Levels by adopting health-based limits with sound science as their foundation. CODEX Alimentarius Commission, an international food standards and food safety body, in association with the World Health Organization, recommended MRLs of pesticides to be legally permitted in or on RACs/foods and such guidelines are followed internationally, including by India. Under the applicable legislation in India, particularly the Act of 1954 and the Rules of 1955, tolerance limits for 121 commonly used pesticides have been prescribed in Rule 65, for various agricultural commodities like food grains, fruits and vegetables, etc. As long as the quantity of these substances is within the safe limits set by regulation, i.e., within the tolerance limits, the manufacturer is permitted to manufacture and sell the produce. Vide notification dated 1.1.2004, the Union Ministry of Health and Family Welfare amended the Rules of 1955 to set specific limits (MRLs) on presence of pesticide residues in packaged drinking water, pursuant to which packaged drinking water could contain not more than 0.0001 mg/litre of pesticide residues on an individual pesticide and not more than 0.0005 mg/litre of total pesticide residues.

Such limits, however, were not extended to cover water used in the W.P.(C).Nos.22140 & 22141 of 2006

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manufacture of carbonated water or to the drinking water available to the masses. Thus, there was a lacuna in the existing regulations. That being so, on 22.8.2003, a Joint Parliamentary Committee was set up to examine the issue of pesticide residues and safety standards for soft drinks, fruit juice and other beverages. On 26.8.2003, the Central Government published a draft amending rules for amending the Rules of 1955 in relation to pesticide residues in carbonated water, fruit juices and other water based beverages. In the final report made by the Joint Parliamentary Committee dated 4.2.2004, the findings of the CSE were accepted that pesticide residues were found in the samples of soft drinks, but rejected the CSE's conclusions as to the quantity of pesticide residues found therein on several grounds. Subsequent to the JPC report, a debate ensued with respect to how and in what manner public health and consumer interest could be best addressed. Thereafter the Central Government finalised draft rules and published a notification in exercise of the powers conferred by Section 23 of the Act of 1954 and after consulting the Central Committee for Food Standards, a statutory body set up under Section 3 of the Act of 1954, amended and substituted the existing para A.01.01 of Appendix B to the Rules relating to carbonated water with the W.P.(C).Nos.22140 & 22141 of 2006

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following:-

"A.01.01. - Carbonated Water means water conforming to the standard prescribed for packaged drinking water under the provisions of the Prevention of Food Adulteration Rules, 1955, impregnated with carbon dioxide under pressure and may contain any of the following singly or in combination:
Sugar, liquid glucose .... ....".

The standard for pesticide residue prescribed for packaged drinking water by the Act of 1954 is that the residue of each individual pesticide should be less than 0.0001 mg/litre and collectively should not exceed 0.0005 mg/litre. The notification to that effect came into being from 15.10.2004.

Thus, the lacuna in the regulation regarding MRLs for pesticide residues in water used for making carbonated water was removed. It is the case of the petitioners that pursuant to amendment in item A.01.01 of Appendix B of the Rules of 1955, the water used for the manufacture of carbonated beverage can contain upto 0.0001 mg/litre of individual pesticide residues and upto 0.0005 mg/litre of total pesticide residues. The MRLs as prescribed signify that consumption of products containing pesticide residues below such levels is safe and no hazard to human health would W.P.(C).Nos.22140 & 22141 of 2006

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be caused even if the product is consumed. It is the case of the petitioners that India's current restrictions on pesticide residues in food products or beverages are in no way any less stringent than restrictions prevailing abroad. In their endeavour to fortify this plea, they compiled the current restrictions on pesticide residues of U.S., Canada, Australia and the European Union. The petitioners have then given details of the manufacturing process adopted by them. It is the case of the petitioners that they are adopting the uniform set of quality standards around the world for cleaning and processing the ingredients, ensuring that they meet the strictest food quality regulations anywhere. It is also their case that the water used by them in the manufacture of beverages not only complies with the standards and specifications as laid down in item A.01.01 of the Rules of 1955 and BIS norms, but also such norms as laid down by World Health Organization and European Union.

5. The petitioners disagree with the report dated 02.08.2006 given by CSE and have enumerated the grounds of disagreement in para 38 (i) to (ix). On the basis of the above and other materials, it is pleaded that CSE report provides no basis whatsoever for the impugned orders, much less without undertaking any independent enquiry or verification of its W.P.(C).Nos.22140 & 22141 of 2006

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finding and without giving an opportunity to the petitioners to raise their objections.

6. The petitioners filed I.A.No.11853 of 2006 for receiving Exhibits P14 to P16. Exhibit P16 is a news report dated 16th August, 2006 in Business Standard, New Delhi Edition, which is an interview held with Minister of Health, Government of Kerala. It is in this interview the Minister is stated to have said that:

"We would have taken the decision anyway, with or without any report on pesticide content by the Centre of Science and Environment (CSE). We have enough evidence on the harmful content of soft drinks. We've always been fighting the cola companies in the State and have been demanding the closure of their bottling plants. Our party was associated with the struggle for the closure of the [Coke's] plant after it was found not only depleting ground water resources of the parched village, but also polluting it. Now that the LDF is in power, the ban is but natural".

The petitioners have also filed I.A.No.11985 of 2006. The prayer in the said application is for receiving documents Exhibits P17 and P18. It is stated in the affidavit accompanying the prayer that a question was raised in the Lok Sabha by few Members of Parliament relating to pesticide in soft drinks, W.P.(C).Nos.22140 & 22141 of 2006

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which was answered by the Union Minister for Health and Family Welfare on 22.8.2006 (Exhibit P17). The answer of the Minister in the Lok Sabha referred to a report of an Expert Committee constituted by the Government of India, Ministry of Health and Family Welfare to review the CSE's report on analysis of pesticide residues in soft drinks. The report was published in Website of Ministry of Health and Family Welfare (Exhibit P18). A perusal of Exhibit P17 would show that one of the questions raised in the Parliament was as to whether the CSE has recently released its study regarding the presence of high level pesticides in soft drinks and if it is so, the facts of the matter reported therein and aso whether the Government had examined the same and if so, whether the government proposed to ban the manufacture and sale of the same. The other question was whether the soft drinks manufacturing companies had disregarded the instructions given by the Union Government regarding the limit of pesticide residue in soft drinks and if so, the action taken/proposed to be taken by the Government in this regard. The reply of the Minister, in so far as the same is relevant, is extracted below:-

"The Centre for Science and Environment (CSE) has released a report on 2.8.06 entitled 'Analysis of W.P.(C).Nos.22140 & 22141 of 2006

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Pesticide Residues in soft Drinks'.

.... .... ....

To examine the report of CSE, the Ministry of Health and Family Welfare constituted an Expert Committee on 04.08.2006 which reviewed all aspects contained in the CSE Report including the methodology adopted by CSE. The conclusion of the Expert Committee is that the report of the CSE does not provide conclusive evidence for presence of different pesticides in the concentration reported. The report of the Expert Committee is placed on the Ministry's website. The specific observations of the Committee are that:-

* The report does not provide details required for the confirmatory interpretation of quantum results.

              *     The residue data reported based on GV-Mass
                    confirmation is inconclusive.


              *     The   prevalence   of   different   isomers   of   HCH

(Hexa chlorocyclohexane) are in contradiction to their biological nature. Further, no confirmatory evidence are provided to support the result as per normal practice.

* Marathion under goes hydrolysis in acidic medium of soft drinks. Hence, its residue in such a concentration is technically unlikely.

Further, GC MS chromatogram provided by CSE also confirms absence of Malathion.

* Heptachlor is banned from 1996. Hence, its presence in such concentration is unlikely. GC MS chromatogram provided by CSE also W.P.(C).Nos.22140 & 22141 of 2006

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confirms absence of Heptachlor.

* Chlorpyrifos - the mass fragmentation pattern of standard (Retention time of 19.36 minutes) and sample (Retention time 18.54 minutes) points towards presence of Chlorpyrifos residues in the sample. However, Retention time of both do not match".

It is then mentioned in Exhibit P17 that in order to develop composite standards for carbonated beverages, on recommendation of JPC, the Ministry of Health and Family Welfare has constituted a National Level Expert Committee to advise on fixation of MRLs of pesticides in Carbonated beverages, fruits and vegetable juices and other finished products. The report of the Expert Committee to review the CSE Report on 'Analysis of Pesticide Residues in Soft Drinks', as mentioned above, has been placed on record as Exhibit P18.

7. Counter affidavit on behalf of respondents 1 to 3 has been filed by C.U.Baby, the Deputy Secretary to Government, Health and Family Welfare Department, wherein it has inter alia been pleaded that by communication dated 3rd August, 2006 from the Ministry of Health and Family Welfare, Government of India informed the State Government about W.P.(C).Nos.22140 & 22141 of 2006

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the report of a study conducted by the CSE (Exhibit R1[a]). The CSE had found pesticides residue or Organochlorine Pesticides (HCH and derivatives and Heptachlor) and Organophosphorous Pesticides (Chlorpyrifos and Malathion) in the soft drinks samples of Coca Cola and Pepsico. The report was published on 2.8.2006. Based on Exhibit R1(a) report, which is also Exhibit P3, the State Government and thereafter the Food (Health) Authority issued the impugned orders. As per Rule 5, Appendix B - A.01.01 of the Rules of 1955 the water used for making these products, manufacture and sale of which was prohibited by Exhibits P1 and P1(a), must conform to the standards prescribed for packaged drinking water. Rule 5, Appendix B, item A 33 has been re-produced. Based thereupon, the respondents plead that the pesticide residue by CSE in Coca-cola and Pepsico was much above the prescribed standard under the Rules of 1955. Hence, going by the provisions contained in the Act of 1954 and the Rules of 1955 and also the report by CSE, the sample tested was found to be adulterated. That being the position, under Section 7(i) of the Act of 1954 the petitioners were prohibited from manufacturing for sale the items banned as per Exhibits P1 and P1(a). The State Government has powers under Article 162 of the Constitution of India. Further, when a food W.P.(C).Nos.22140 & 22141 of 2006

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item was found to be adulterated on the basis of the report submitted by a prestigious institution, the consumption of which adversely affects the life of the citizens thereby depriving them of their right to life guaranteed under Article 21 of the Constitution of India, the State Government has a constitutional obligation to see that the adulterated food item, which is injurious to the health of the citizens, should not be sold in the State. It was in the discharge of this constitutional obligation that the State Government passed the impugned orders invoking the power under Article 162 of the Constitution of India. Even though, in the impugned orders the provision quoted is Section 7(iv) of the Act of 1954, the State Government has power to issue an order under Sections 7(i) and 7(ii) also. Since manufacture and sale of items banned by Exhibit P1 was found to be adulterated and injurious to health, the Food (Health) Authority was competent to issue the order Exhibit P1(a) invoking the powers under Section 7(iv) of the Act of 1954. After seeing the report of CSE, the respondents felt urgency to prohibit the manufacture and sale of Coca-cola and Pepsicola to safeguard public interest. The CSE is considered to be one of India's leading environmental NGOs. The internationally acclaimed Scientist Dr.M.S.Swaminathan is the Chairperson of the Organisation. On coming to W.P.(C).Nos.22140 & 22141 of 2006

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know of the CSE report from the media as also from Exhibit R1(a) communication sent by the Government of India, instructions were issued by the Food (Health) Authority of the State to collect samples of Coca-cola and Pepsico for analysis. Pursuant thereto, the Food Inspectors collected the samples from 5th August, 2006 onwards and those samples were tested by the Public Analyst appointed under the provisions of the Act of 1954 in the State owned Government Analyst Laboratory at Thiruvananthapuram.

The process of analysis started on 7th August, 2006. Usually it would take a duration of 10 to 15 days for getting the result. However, in the meantime since the facts disclosed by the CSE report warranted urgent action to be taken to ban the Coca-cola and Pepsico in the interest of public health, the impugned orders were issued before getting the report from the Public Analyst. After the issuance of the orders, Report No.13 dated 16.8.2006 was received from the Public Analyst regarding Coca cola, copy whereof has been placed on record as Exhibit R1(b). So also, regarding Pepsicola, Report No.14 dated 22.08.2006 was received from the Public Analyst, a copy of which has been placed on record as Exhibit R1(c). The respondents plead that Coca-cola and Pepsicola were found to be adulterated as per Exhibits R1(b) and R1(c) reports. This being the W.P.(C).Nos.22140 & 22141 of 2006

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position, the action taken by the Government is justified. The report has been reproduced, which contains the opinion of the Expert, which reads as follows:-

"The sample contains an insecticide Chlorpyrifos and is therefore adulterated under Section 2(i-a)(h) of Prevention of Food Adulteration Act 1954".

This is with regard to Coca-cola. The other report pertaining to Pepsi cola has also been produced, wherein the opinion of the Public Analyst is as follows:-

"The sample contains an insecticide Carbaryl and is therefore adulterated under Section2(i-a)(h) of Prevention of Food Adulteration Act 1954".

As per report No.13 pertaining to Coca-cola, the test for Chlorpyrifos under clause 8 has been mentioned as 'positive' and the test for concentration of Chlorpyrifos under clause 9 has been mentioned as 0.007 ppm, whereas in the report No.14 pertaining to Pepsicola, concentration of Carbaryl has been mentioned as 0.002 ppm. The samples of Coca-cola and Pepsicola W.P.(C).Nos.22140 & 22141 of 2006

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were already sent to Central Food Laboratory, Government of India, Mysore and the result from the said laboratory is yet to be received. It is the case of the respondent that even without the prohibitory orders, the petitioners are prohibited from manufacture and sale of Coca-cola and Pepsicola under Section 7 of the Act of 1954. After receipt of reports from the Public Analyst, notices were issued to the petitioners on 8.9.2006 directing them to explain why ban should not be imposed. Along with the notices, copies of the reports were also sent and, therefore, the principles of natural justice have been fully complied with. The respondents have then detailed the health hazards attached with Chlorpyrifos with reference to some authoritative statements in that connection. They have also detailed the pitfalls and health hazards of Malathion with reference to several statements. It is further the case of the respondents in opposing the writ that even though the ban order was issued based on CSE Report, subsequently the Government had taken urgent steps to analyze the products in their laboratory and had found that the pesticides residue present in them is much above the level prescribed under the Act of 1954.

The extraneous considerations as alleged by the petitioners have been denied. The orders impugned have been passed in order to safeguard the W.P.(C).Nos.22140 & 22141 of 2006

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public interest. The statement made by the Minister in the interview appeared in Daily Edition of 'Business Standard' has been denied. It is also the case of the respondents that carbonated water as per the amended Rule 5, Appendix-B, A.01.01 means water conforming to the standards prescribed for Packaged Drinking Water under the Rules of 1955, impregnated with Carbon dioxide under pressure and may contain any other combinations mentioned in the counter affidavit. The impugned orders are stated to be temporary in nature till final decision is taken by the Central Government. As far as the State Government is concerned, the test conducted by the Public Analyst, who is the authorised officer to conduct the test under the Act of 1954, can be legally acted upon. The order was, however, temporary in nature till final decision is taken in the matter after giving notice to the petitioners. In the matter, however, final decision shall be taken by the Central Government in exercise of the powers conferred on it under the Act of 1954.

8. From the pleadings of parties as extracted above, it is clear that the basis of the impugned orders is a communication dated 3rd August, 2006 from the Ministry of Health and Family Welfare, Government of India informing the State Government about the report of a study conducted by W.P.(C).Nos.22140 & 22141 of 2006

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CSE (Exhibit R1[a]). The communication aforesaid is, in fact, a letter addressed to Vishwas Mehta, Secretary (Health), Government of Kerala by Rajesh Bhushan, I.A.S., Director, Government of India, Ministry of Health & Family Welfare dated 3rd August, 2006. The same reads as follows:-

"The Attention of the Ministry of Health and Family Welfare has been drawn to report of a study conducted by Centre for Science and Environment (CSE), which have been carried in the National News Papers on 3rd August, 2006 as well as in the electronic media. The gist of the media reports is that CSE has tested 57 samples of 11 soft drinks brands of Coca Coa and Pepsi Co collected from 25 Manufacturing Units across 12 States and has found that these samples contained different pesticides, which were many times above the prescribed standards.
We would be grateful, if you would kindly intimate this Ministry regarding the details of the soft drinks (numbers) lifted for testing, in the last one year in your State, whether these samples have been tested for pesticides residues?, if yes, then what were the findings.
It is requested that the aforesaid information may be made available to the undersigned on a priority basis".

A perusal of the letter aforesaid would manifest that even though in the first un-numbered para there is a reference of a report of a study conducted by CSE and the media report with regard to the said report, in the un-

W.P.(C).Nos.22140 & 22141 of 2006

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numbered para 2 the Government of India, Ministry of Health & Family Welfare required the State Government to intimate the details of the soft drinks (numbers) lifted for testing in the last one year in the State and as to whether the samples collected have been tested for pesticides residues and if so, what were the findings. The Government, instead of intimating the Government of India, Ministry of Health & Family Welfare the details of the soft drinks lifted for testing and the result thereof, rather chose to issue a ban order as reflected in Exhibits P1 and P1(a). Not only thus it is reflected from the impugned orders itself, as mentioned above, it is the conceded position that the ban orders impugned came about on the basis of communication dated 3rd August, 2006 (Exhibit R1[a]). The report of CSE highlighted by the media, it appears, had raised alarm bells all over the country and for that precise reason, it further appears, a question was raised before Lok Sabha by few Members of Parliament which was answered by Union Minister for Health and Family Welfare on 22.08.2006 (Exhibit P17). It would further appear that before the Minister had given answer in the Parliament, an Expert Committee was constituted by the Union Government to review the CSE's report on analysis of pesticide residues in soft drinks. This report has been placed on record as Exhibit W.P.(C).Nos.22140 & 22141 of 2006

- 27 -

P18. The questions raised in the Parliament and the answer thereof by the Minister have already been referred. The conclusion of the Expert Committee is that the report of the CSE does not provide conclusive evidence for presence of different pesticides in the concentration reported.

The specific observation of that Committee has also been re-produced above. During the course of arguments, the respondents-State could not justify the impugned orders on the basis of communication dated 3rd August, 2006 (Exhibit R1[a]). The learned Advocate General, however, still urged that at the time when the impugned orders were passed it could not be anticipated that the Ministry of Health & Family Welfare, Government of India would appoint an Expert Committee which would not confirm the CSE Report. At the time, therefore, the impugned orders were passed, the State Government had before it the CSE Report, according to which the soft drinks manufactured by the petitioners were adulterated. Subsequently, a new sample, of course manufacture elsewhere, was sent in the Laboratory for analysis at Thiruvananthapuram which confirmed the report of CSE with regard to pesticide residues and, therefore, continuation of the ban orders despite the report of the Expert Committee would be justified.

9. Before we may deal with this aspect of the case and W.P.(C).Nos.22140 & 22141 of 2006

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contentions raised by the petitioners as noted above, it would be appropriate to mention that the Government of India issued a notification in exercise of the powers conferred by Section 23 of the Act of 1954 substituting para A.01.01 of Appendix B to the Rules of 1955 relating to carbonated water. Carbonated water as per para A.01.01 means water conforming to the standard prescribed for packaged drinking water under the provisions of the Rules of 1955 impregnated with carbon dioxide under pressure. As per notification dated 15.10.2004, the standard for pesticide residue prescribed for packaged drinking water is that the residue of each individual pesticide should be less than 0.0001 mg/litre and collectively should not exceed 0.0005 mg/litre. There is no dispute on this part of the case projected by the petitioners. The lengthy pleadings made in that connection by the petitioners have not been denied at all. It would be clear from the pleadings and also para A.01.01 of Appendix B that the standard for pesticide residue prescribed is for packaged drinking water which, in other words, would mean that there is no standard prescribed for finished products. It is the case of the petitioners and not controverted in the counter affidavit that the petitioners are using water in the manufacture of beverages with the standards and specifications as laid down in item W.P.(C).Nos.22140 & 22141 of 2006

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A.01.01 of the Rules of 1955 and further that they are adopting a uniform set of quality standards around the world for cleaning and processing the ingredients, ensuring that they meet the strictest food quality regulations anywhere.

10. Having seen the pleadings of parties and the broad and admitted features of the case, time is now ripe to evaluate the contentions on which challenge to the impugned orders is sought to rest. In the context of the first contention that the State Government cannot pass any order to prohibit manufacture and sale of carbonated water under Section 23(1A)(f) of the Act of 1954 and the Central Government alone can frame rules to prohibit sale of any substance which may be injurious to health, it would be, however, necessary to take note of the provisions of the Act of 1954 and the Rules of 1955 in so far as the same may be relevant. 'Adulterant' as per Section 2(i) of the Act means any material which is or could be employed for the purposes of adulteration. An article is deemed to be 'adulterated' if it is covered under clauses (a) to (m) of Section 2(ia).

Clauses (h), (l) and (m) of Section 2(ia) read as follows:-

"(h) if the article contains any poisonous or other ingredient W.P.(C).Nos.22140 & 22141 of 2006

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which renders it injurious to health;

(l) if the quality or purity of the article falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability, but which renders it injurious to health;

(m) if the quality or purity of the article which falls below the prescribed standard or its constituents are present in quantities not within the prescribed limits of variability but which does not render it injurious to health:

Provided that, where the quality or purity of the article, being primary food, has fallen below the prescribed standards or its constituents are present in quantities not within the prescribed limits of variability in either case, solely due to natural causes and beyond the control of human agency, then, such article shall not be deemed to be adulterated within the meaning of this sub-clause.

Explanation.- Where two or more articles of primary food are mixed together and the resultant article of food -

(a) is stored, sold or distributed under a name which denotes the ingredients thereof; and

(b) is not injurious to health, then, such resultant article shall not be deemed to be adulterated within the meaning of this clause".

'Food (Health) Authority' and 'Local (Health) Authority' have been defined in Section 2(vi) and 2(viiia) respectively. The same read as follows:-

W.P.(C).Nos.22140 & 22141 of 2006

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"(vi) 'Food (Health) Authority' means the Director of Medical and Health Services or the Chief Officer in-charge of Health administration in a State, by whatever designation he is known, and includes any officer empowered by the Central Government or the State Government, by notification in the Official Gazette, to exercise the powers and perform the duties of the Food (Health) Authority under this Act with respect to such local area as may be specified in the notification."

"(viiia) 'Local (Health) Authority', in relation to a local area, means the officer appointed by the Central Government or the State Government, by notification in the Official Gazette, to be in-charge of Health administration in such area with such designation as may be specified therein".

'Prescribed' as per Section 2(xii) means prescribed by rules made under the Act. Section 7 provides that no person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute -

      "(i)     any adulterated food;


      (ii)     any misbranded food;


      (iii)    any   article   of   food   for   the   sale   of   which   a   licence   is

prescribed, except in accordance with the conditions of the licence;

(iv) any article of food the sale of which is for the time being prohibited by the Food (Health) Authority in the interest of public health;

W.P.(C).Nos.22140 & 22141 of 2006

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(v) any article of food in contravention of any other provision of this act or of any rule made thereunder; or

(vi) any adulterant".

The Explanation appended to Section 7 reads as follows:-

"For the purposes of this section, a person shall be deemed to store any adulterated food or misbranded food or any article of food referred to in clause (iii) or clause (iv) or clause (v) if he stores such food for the manufacture therefrom of any article of food for sale".

Section 8 authorises either Central Government or State Government to appoint a Public Analyst by notification in the Official Gazette. The Central Government or the State Government by notification in the Official Gazette can appoint Food Inspectors for such local areas assigned to them by the respective Government as per Section 9. The powers of the Food Inspector have been mentioned in Section 10, which includes taking up samples of any article of food and to send the same for analysis by the Public Analyst. What procedure shall be followed by Food Inspectors after taking a sample of food for analysis is prescribed in Section 11. It requires W.P.(C).Nos.22140 & 22141 of 2006

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to be mentioned that as per clause (a) of sub-section (1) of Section 11 when a Food Inspector takes a sample, he has to give notice in writing then and there of his intention to have it so analysed to the person from whom he has taken the sample and the manner in which the sample should be taken. Section 12 deals with the right of dealer or purchaser to have the article analysed by a Public Analyst. Section 13 deals with the way and manner in which the Analyst should give his report. If on analysis the food is found to be adulterated, the Local (Health) Authority may institute prosecution against the person from whom the sample of the article of food was taken. A copy of report of Public Analyst has to be given to the concerned person who has a right to make an application to the Court to have the sample of the article of food taken by the Local (Health) Authority analysed by the Central Food Laboratory. Sub-section (2B) of Section 13 enjoins that on receipt of the part or parts of the sample from the Local (Health) Authority under sub-section (2A), the Court shall first ascertain that the mark and seal or fastening as provided in clause (b) of sub-section (1) of Section 11 are in tact and the signature or thumb impression, as the case may be, is not tampered with. The sample shall be despatched to the Director of Central Food Laboratory. Sub-section (3) of W.P.(C).Nos.22140 & 22141 of 2006

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Section 13 states that the certificate issued by the Director of Central Food Laboratory would supersede the report given by the Public Analyst.

Sections 14, 14A and 15 coming under Chapter captioned as "miscellaneous" may not be relevant. Section 16 deals with penalties. The penalties in so far as manufacture for sale, storage, sale or distribution are concerned, are dealt with in Sub-sections (1) and (1A) of Section 16.

Section 23 deals with power of Central Government to make rules. The Central Government can make rules to carry out the provisions of the Act.

Besides the general power, power to frame specific rules is provided in sub-section (1A) of Section 23, clause (h) whereof is relevant. The same reads as follows:-

"(f) prohibiting the sale of defining the conditions of sale of any substance which may be injurious to health when used as food or restricting in any manner its use as an ingredient in the manufacture of any article of food or regulating by the issue of licences the manufacture or sale of any article of food".

Section 24 deals with power power of the State Government to make rules.

The same reads as follows:-

W.P.(C).Nos.22140 & 22141 of 2006

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"24. Power of the State Government to make rules.- (1) The State Government may, after consultation with the Committee and subject to the condition of previous publication, make rules for the purpose of giving effect to the provisions of this Act in matters not falling within the purview of section 23.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may -

(a) define the powers and duties of the Food (Health) Authority, local authority and Local (Health) Authority under this Act;

(b) prescribe the forms of licences for the manufacture for sale, for the storage, for the sale and for the distribution of articles of food or any specified article of food or class of articles of food, the form of application for such licences, the conditions subject to which such licences may be issued, the authority empowered to issue the same, the fees payable therefor, the deposit of any sum as security for the performance of the conditions of the licences and the circumstances under which such licences or security may be suspended, cancelled or forfeited;

(c) direct a fee to be paid for analysing any article of food or for any matter for which a fee may be prescribed under this Act;

(d) direct that the whole or any part of the fines imposed under this Act shall be paid to a local authority on realisation;

(e) provide for the delegation of the powers and functions conferred by this Act on the State Government or the Food (Health) Authority to subordinate authorities or to local W.P.(C).Nos.22140 & 22141 of 2006

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authorities.

(3) All rules made by the State Governments under this Act, shall, as soon as possible after they are made, be laid before the respective State Legislatures".

11. Rule 5 of the 1955 Rules states that the standards of quality of the various articles of food specified in Appendices B, C and D to the rules are as defined in those Appendices. As already mentioned, by notification dated 15.10.2004 the existing para A.01.01 of Appendix B has been amended. Carbonated water means water conforming to the standard prescribed for packaged drinking water . The standard for pesticide residue prescribed for packaged drinking water by the Act of 1954 is that the residue of each individual pesticide should be less than 0.0001 mg/litre and collectively should not exceed 0.0005 mg/litre. Duties and powers of Public Analysts and Food Inspectors have been enumerated in Rules 7 and 9. The manner of sealing, fastening and despatch of samples has been dealt with from Rules 14 to 21 under Part V.

12. In exercise of the powers vested in it under Section 24 of the Act of 1954, the Government of Kerala framed the Kerala Prevention of Food Adulteration Rules, 1957, hereinafter referred to as 'Rules of 1957'. A W.P.(C).Nos.22140 & 22141 of 2006

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perusal of the Rules aforesaid would show that the Government has not framed any rule which may deal with temporary or permanent prohibition to manufacture or sale.

13. Learned counsel representing the petitioners contend that Section 7 of the Act of 1954 prohibits manufacture for sale, storage or distribution of any adulterated food, any misbranded food, any article of food for the sale of which a licence is prescribed except in accordance with the conditions of the licence, any article of food the sale of which is for the time being prohibited by the Food (Health) Authority in the interest of public health, any article of food in contravention of any other provision of the Act or of any Rule made thereunder and any adulterant. The prohibition for any person to sell, store or distribute any food item coming under any of the categories mentioned in Section 7 may lead to prosecution, but the said provisions does not declare power of any authority to put a ban on sale. In other words, Section 7 declares consequences of the acts mentioned therein, which do not include power to ban sale. By virtue of the provisions contained in Section 24 of the Act of 1954, the State Government has power to frame rules for the purpose of giving effect to the provisions of the Act in matters not falling within the purview of Section 23. The State W.P.(C).Nos.22140 & 22141 of 2006

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Government, in other words, cannot frame rules in the field already occupied by the Central Government under Section 23. The Central Government, in view of clause (f) of sub-section (1A) of Section 23 can make rules to prohibit the sale of defining the conditions of sale of any substance which may be injurious to health when used as food or restricting in any manner its use as an ingredient in the manufacture of any article of food or regulating by the issue of licences the manufacture or sale of any article of food. Prohibition of sale has to be regulated by a rule to be made by Central Government and that being so, a rule to that effect cannot be made by the State Government. Even though it is mentioned in Section 24 of the Act of 1954 that the State Government can make rules for the purpose of giving effect to the provisions of the Act, but it can be only with regard to matters which are not covered under Section 23, thus contend the counsel.

14. Per contra, the learned Advocate General contends that if State Government may not have power to prohibit sale by virtue of the provisions contained in Section 7(iv), it would have power to do so under sub-section (i) of Section 7. Once the food article is found to be adulterated and there being a prohibition to sell an adulterated food, the W.P.(C).Nos.22140 & 22141 of 2006

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ban for sale of such a food item has to necessarily follow and to do that, no specific provision is required. It is further contended that assuming that the Government would have no power to ban sale and manufacture of food article even if it is adulterated by virtue of sub-section (i) of Section 7, it would have the power to do so under Article 162 of the Constitution of India or in any case under Section 31 of the Kerala Interpretation and General Clauses Act, 1125, hereinafter referred to as 'Act VII of 1125'.

15. We have given our anxious thoughts to the rival contentions of the learned counsel as noted above. We find considerable merit in the contention raised by the counsel for the petitioners. The impugned orders have been passed under Section 7(iv) of the Act of 1954.

It is the case of the respondent-State, which has been specifically mentioned in para 4 of the counter affidavit, that 'in Ext.P1, though the provision quoted is Sec.7(iv) of the Act, the power to issue an order like this is available to the State Government under Sec.7(i) and 7(ii) also'. It is no doubt true that a reading of the averments as quoted above would show that the Government is claiming power to pass impugned orders by virtue of Sections 7(i) and 7(ii) in addition to Section 7(iv), but during the course of arguments the learned Advocate General clarified that the orders have W.P.(C).Nos.22140 & 22141 of 2006

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been passed under Sections 7(i) and 7(ii). The shift in the stand as taken in the impugned orders and at a time when counter affidavit is filed or when the arguments were heard appear to be due to the authoritative pronouncement of the Honourable Supreme Court in Godawat Pan Masala Products I.P. Ltd. v. Union of India ([2004] 7 SCC 68), wherein it has been held that Section 7(iv) of the Act is not an independent source of power for the State Government. This proposition of law, it appears, was not known to the State when impugned orders were passed. Be that as it may, if the source of power to pass impugned orders is available to the Government, it would be wholly immaterial if a wrong provision has been mentioned in the impugned orders. We would make a detailed reference to the judgment of the Honourable Supreme Court in Godawat Pan Masala case (supra), but at this stage it would be appropriate to deal with the contention of the learned Advocate General that the source of power is available with the Government under sub-sections (i) and (ii) of Section 7.

16. The object of the Act of 1954 is to make provisions for prevention of adulteration of foods. The Honourable Supreme Court in Dineshchandra Jamnadas Gandhi v. State of Gujarat ([1989] 1 SCC

420) observed that the object and purpose of the Prevention of Food W.P.(C).Nos.22140 & 22141 of 2006

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Adulteration Act, 1954 is to eliminate danger to human life from the sale of unwholesome articles of food. In Municipal Corporation of Delhi v.

Kacheroo Mal ([1976] 1 SCC 412), Supreme Court observed that the Act has been enacted to curb and remedy the widespread evil of food adulteration, and to ensure that the sale of wholesome food to the people.

'Adulterant' as per Section 2(i) of the Act means any material which is or could be employed for the purposes of adulteration. An article of food is deemed adulterated as per Section 2(ia) if it is covered under any of the clauses mentioned as (a) to (m). The words 'adulterant' and 'adulterated' find mention in Section 2 pertaining to definitions. Misbranding food, even though not specifically defined, would be covered under one or other clauses of Section 2(ia). Clauses (i), (ii) and (vi) of Section 7 pertain to adulterated food, misbranded food and any article adulterant, whereas clauses (iii) and (iv) are separate. As per clause (iii) and (iv), no person shall manufacture or sell any article of food for which a licence is prescribed, except in accordance with the conditions of the licence and any article of food, the sale of which is for the time being prohibited by Food (Health) Authority in the interest of public health. Clause (v) prescribes that no person shall manufacture or sell any article of food in contravention of W.P.(C).Nos.22140 & 22141 of 2006

- 42 -

the Act or Rules. Even though, clauses (iii), (iv) and (v) are not covered under 'adulterant' or 'adulterated', by virtue of the Explanation to Section 7 a person shall be deemed to store any adulterated food or misbranded food or any article of food referred to in the said clauses if he stores such food for the manufacture therefrom of any article of food for sale. Section 7 comprehensively prohibits manufacture for sale, store, sell and distribute adulterated, misbranded, any adulterant or any article of food which may be against the prescribed limits or which may be prohibited for the time being or may be in contravention of any other provisions of the Act of 1954.

The scheme of the Act, for appointment of Public Analysts as per Section 8, Appointment of Food Inspectors as per Section 9, powers of Food Inspectors as per Section 10, Procedure to be followed by Food Inspectors as per Section 11, Report of the Public Analyst as per Section 13 culminating into Section 16 pertaining to penalties would clearly manifest that the consequence of violation of Section 7 is prosecution, culminating into the penalties as mentioned in Section 16. The preamble, object and reasons of the Act and the provisions referred to above lead to an irresistible conclusion that violation of Section 7 can lead to prosecution and not ban on sale as such. The contention of the learned Advocate W.P.(C).Nos.22140 & 22141 of 2006

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General that once no person can sell an article of food covered under Section 7, it would automatically vest the State with power to ban such article does not appear to be correct. We would have delved on this issue in more detail if perhaps the matter was not squarely covered against the contention of the learned Advocate General by the Supreme Court in Godawat Pan Masala case (supra), on which heavy reliance has been placed by the learned counsel appearing for the petitioners.

17. The brief facts of the case of the Supreme Court would reveal that the appellants before the Supreme Court were manufacturing gutka within the State of Maharashtra. By notification dated 23.7.2002 issued by the Commissioner, Food and Drug Administration and Food (Health) Authority for the State of Maharashtra, the manufacture, sale, storage and distribution of pan masala and gutka were banned for a period of five years. This notification was challenged before the Bombay High Court, which dismissed the writ petition upholding the validity of the notification. Similarly, in the State of Karnataka also similar notification was issued, which too was subject matter of challenge. Some other notifications were also challenged, but there is no need to make mention thereof. The core issue before the Supreme Court focussed, considered W.P.(C).Nos.22140 & 22141 of 2006

- 44 -

and determined was as to whether the Food (Health) Authority had power to issue an order of prohibition, whether permanently or quasi-permanently under Section 7(iv) of the Act. The two grounds on which the notification was challenged, which are relevant in the present case, were as follows:

"The Act vests the power to declare a substance as injurious to health only with the Central Government under Section 23 of the Act and no such power is vested with the State Government.
The power of the State Government to frame rues under Section 24 of the Act is extremely narrow and limited to the field which is not covered by Section 23, the exclusive domain of the Central Government".

The Honourable Supreme Court after referring to the relevant provisions of the Act and the Rules made a mention of the Maharashtra Prevention of Food Adulteration Rules, 1962 and the Goa, Daman and Diu Prevention of Food Adulteration Rules, 1982. Clause (b) of Rule 3(6) of the Goa Rules reads as follows:-

"If in the opinion of the Food (Health) Authority the outbreak of any infectious disease is due to any article of food, the Food (Health) Authority shall take such measures as W.P.(C).Nos.22140 & 22141 of 2006
- 45 -
it shall deem necessary to prevent the outbreak of such disease or the spread thereof".

The Maharashtra Prevention of Food Adulteration Rules, 1962 were also taken into consideration.

18. The first contention that was raised on behalf of the appellants before the Supreme Court was that Section 7 of the Act is not declaratory of the power of any authority, but merely of the consequences of certain acts. The Section would prohibit manufacture for sale, storage or distribution of food articles covered under clauses (i) to (vi) of Section 7 and although Section 2(vi) defines as to who was a Food (Health) Authority, there was no corresponding provision in the Act which delineates the powers of the Food (Health) Authority. It was also contended that Section 24(2) of the Act empowers the State Government to define the powers and duties of the Food (Health) Authority, local authority and Local (Health) Authority under the Act. The source of powers of Food (Health) Authority, it is further contended, was to be found only under the rules, if any, made under Section 24(2) of the Act, subject to the restriction that it could be made only "for the purpose of giving effect to the W.P.(C).Nos.22140 & 22141 of 2006

- 46 -

provisions of the Act in matters not falling within the purview of Section 23".

It was further contended that in view of the nature of the limitations placed on the power of the State Government under Section 24(1), a reading of Sections 23 and 24 would lead to an irresistible conclusion that the powers exercisable by the State Government under Section 24 could only be in the field not occupied by Section 23. This contention was accepted, as would be made out from paragraph 24 of the judgment. It may be true that the observation as aforesaid has not been specifically dealt with. The contention raised in paragraph 22 by counsel for the appellants, mention whereof has been made above, were, however, accepted as would be clear from paragraph 24 of the judgment. This Court is of the firm view that the acceptance of the contentions mentioned in paragraph 22 would also include the contention that Section 7 of the Act is not declaratory of the power of any authority, but merely of the consequences of certain acts. If, the aforesaid contention was not to be accepted, there would have been no question to make discussion based upon Rules. In that case, it would have been simply mentioned that provisions of Section 7 with regard to sale of food items as mentioned in the clauses thereof would in itself vest power with the State Government to prohibit manufacture and sale of such food W.P.(C).Nos.22140 & 22141 of 2006

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articles. The discussion of the Rules pre-supposes acceptance of the contention of the counsel for the appellants as noted above. That apart, while dealing with the contention of the counsel representing the States that the Government can exercise powers vested in it by Section 7(iv) to prohibit sale, it was observed as follows:-

"On the collocation of the statutory provisions, we are unable to accept the contention of the learned counsel for the States that clause (iv) of Section 7 of the Act is an independent source of power. This conclusion of ours is also supported by the legislative history".

Observations made after taking into consideration the legislative history in paragraph 27 would clinch the issue beyond pale of any argument. The same read as follows:-

"It is unfortunate that, despite the amendment made in clause (iv) of Section 7 of the Act (by Act 49 of 1964), the Rules have not been correspondingly updated. Going strictly by the State Rules, which actually determine the extent of the power of the Food (Health) Authority, it appears to us that the arguments of the State Governments that this amendment was intended to give a carte blanche to the Food (Health) Authority cannot be accepted. On the contrary, the construction canvassed by the appellants appears to be more reasonable. We are inclined to the view that the power of the State authority, which is discernible under Section 24(2)(a) read with the State Rules, operates only for a temporary W.P.(C).Nos.22140 & 22141 of 2006
- 48 -
period during which an emergent situation exists which needs to be controlled. It is not possible to accept the State Governments' contention that clause (iv) of Section 7 of the Act is an independent provision which clothes the Food (Health) Authority with the power to issue an order of ban for a long period".

(emphasis supplied) Reference may also be made to observations made in paragraph 30 while dealing with the contention of the State counsel that Section 7(iv) vested in the State an independent source of power. The same read thus:-

W.P.(C).Nos.22140 & 22141 of 2006

- 49 -

"Against the background of these principles, it is not possible to agree with the view taken by the High Court that Section 7(iv) of the Act is an independent source of power of such amplitude as held. In our view, 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 Honourable Supreme Court also considered the contention of the learned counsel for the appellants that Section 7(iv) of the Act is bad, for it is an unreasonable restriction on the fundamental right to carry on trade or business guaranteed under Article 19(1)(g) of the Constitution of India as also that Section 7(i) of the Act if construed in the manner as contended by the State, then it would become unconstitutional and further that if the power to prohibit manufacture or sale were sought to be from first instance without first taking recourse to the provisions pertained to cancellation or suspension of licence, it would be arbitrary and be hit by Article 14 of the Constitution of India. Violation of principles of natural justice in passing an order of prohibition without hearing the concerned person was also focussed. These contentions were accepted as would be clear from the observations made by the Honourable Supreme Court reproduced below:

W.P.(C).Nos.22140 & 22141 of 2006

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"Thus, in our view, the impugned notification is violative of the fundamental right of the appellants guaranteed under Article 19(1)(g), both because it is unreasonable and also because it is excessive in nature. A contrast with the provisions of Act 34 of 2003 in this regard would drive home the point.

.... .... .... ....

There is also merit in the contention of the appellants that if the provisions of Section 7(iv) of the Act are not read down as conferring powers on the authority to deal with an emergent situation, the section would be conferring arbitrary powers on the authority and would be procedurally unfair. This is particularly so in the face of the statutory provision under which licences have already been granted to the manufacturers of pan masala and gutka for manufacture of the articles. There is already a provision in the statutory scheme for cancellation and suspension of a licence. Without going through such procedure, the power in the State authority to suddenly bring out the result of cancellation or suspension of the licence, without procedural safeguards, would certainly be arbitrary and liable to be hit by Article 14 of the Constitution of India. For this reason also, the power under Section 7(iv) needs to be read down as conferring powers on the authority only to deal with an emergent situation".

The other observations made by the Supreme Court which need to be particularly mentioned are as follows:-

"We are unable to accept the contention of the States. In our view, the scheme of the Act suggests that a decision to ban an article injurious to health, when used as food or as an W.P.(C).Nos.22140 & 22141 of 2006
- 51 -
ingredient in the manufacture of any article of food, can only be the result of broader policy. Hence, this larger power appears to have been located only in the Central Government under Section 23(1-A)(f) and not in the State Food (Health) Authority. As we have already pointed out, the power of the State Food (Health) Authority is only transitory in nature and designed to deal with local emergencies. In our considered view, the impugned notification is certainly an administrative act and not a legislative act. Inasmuch as by an executive act the manufacture for sale, storage, sale or distribution of the article concerned has been banned so as to interfere with the fundamental rights of the appellants guaranteed under Articles 14 and 19 of the Constitution of India, the impugned notification is illegal and unconstitutional.
We are unable to accept that the words "in the interest of public health" used in clause (iv) of Section 7 of the Act can operate as an incantation or mantra to get over all the constitutional difficulties posited. In any event, the collocation of the words in the statutory scheme suggests not a matter of policy, but a matter of implementation of policy. For this reason also, we are of the view that the impugned notification must fail.
.... .... .... ....

There is yet another reason why we are inclined to take the view that Section 7(iv) deals with a situation of emergency with respect to the local area. A decision for banning an article of food or an article containing any ingredient of food injurious to health can only arise as a result of broadly considered policy. If such a power be conceded in favour of a local authority like the Food (Health) Authority, paradoxical results would arise. The same article could be considered injurious to public health in one local area, but not so in another. In our view, the construction of the provision of the statute must not be such as to result in such absurd or paradoxical consequences. Hence, for this reason also, we are of the view that the power of the State (Health) Authority is a limited power to be exercised W.P.(C).Nos.22140 & 22141 of 2006

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locally for temporary duration.

The learned counsel for the State of Maharashtra contended that the power of the Food (Health) Authority discernible in clause (iv) of Section 7 of the Act is an independent power and much wider than the power of the Central Government under Section 23 of the Act. He contended that while the power of the Central Government discernible from Section 23(1-A)(f) is restricted only to prohibiting the manufacture or sale of articles of food or ingredients of food, the power of the State Food (Health) Authority is much wider and could extend even to articles which may not amount to food or ingredients of food, or even if they are not injurious to health, as long as the test of "in the interest of public health" is satisfied.

In our view, this is an argument of desperation. We cannot conceive of such wide-ranging powers vested in a local authority without there being sufficient guidelines as to the manner of deciding the policy and implementing it and elucidated in the statute itself. We may hasten to point out that even the power of the Central Government for making the rules under Section 23 is subject to the condition of consultation with the Central Committee for Food Standards constituted under Section 23 and placing of the rules before Parliament. If the power of the Food (Health) Authority is such as contended by the learned counsel for the State of Maharashtra, then its power would range sky-high without any limitation whatsoever. The authority could ban any article, irrespective of whether it is used as food or otherwise, and irrespective of whether it is injurious to health or otherwise. To take an extreme illustration, if a State Food (Health) Authority in some local area had taken it into its head that consumption of tea, coffee or milk is not "in the interest of public health", it can issue an order of absolute prohibition irrespective of whether it is injurious to health or not. We do not think that the scheme of the Act warrants such an interpretation.

W.P.(C).Nos.22140 & 22141 of 2006

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.... .... .... ....

There is one more facet of the impugned notification which needs consideration. Neither Section 7(iv) of the Act nor any other provision of the Act or the Rules indicates the manner in which an order of prohibition is to be notified by the Food (Health) Authority. The manner of brining into force the Rules made by a delegate of legislative authority would be indicated in the Act itself. There is no indication in the Act as to how the order made by the Food (Health) Authority would be brought into force. This is a pointer to the fact that the orders made by the Food (Health) Authority are only transitory and intended to deal with emergent local situations.

.... .... .... ....

In our view, even if the impugned notification falls into the last of the above category of cases, whatever material the Food (Health) Authority had, before taking a decision on the articles in question, ought to have been presented to the appellants who are likely to be affected by the ban order. The principle of natural justice requires that they should have been given an opportunity of meeting such facts. This has not been done in the present case. For this reason also, the notification is bad in law".

The conclusions consequent to discussion thereof finally made, in so far as the same are relevant for this case, read as follows:-

"1. Section 7(iv) of the Act is not an independent source of power for the State authority.

2. The source of power of the State Food (Health) Authority W.P.(C).Nos.22140 & 22141 of 2006

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is located only in the valid rules made in exercise of the power under section 24 of the Act by the State Government, to the extent permitted thereunder.

3. The power of the Food (Health) Authority under the Rules is only of transitory nature and intended to deal with local emergencies and can last only for a short period while such emergency lasts.

4. The power of banning an article of food or an article used as ingredient of food, on the ground that it is injurious to health, belongs appropriately to the Central Government to be exercised in accordance with the Rules made under Section 23 of the Act, particularly, sub-section (1-A)(f).

W.P.(C).Nos.22140 & 22141 of 2006

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5. The State Food (Health) Authority has no power to prohibit the manufacture for sale, storage, sale or distribution of any article, whether used as an article or adjunct thereto or not used as food. Such a power can only arise as a result of wider policy decision and emanate from parliamentary legislation or, at least, by exercise of the powers by the Central Government by framing rules under Section 23 of the Act".

In view of the conclusions as arrived at above and others, the impugned notifications were quashed. In view of the authoritative pronouncement of the Honourable Supreme Court in Godawat Pan Masala case (supra), there is hardly anything which survives consideration by this Court. On the precise question mooted in these writ petitions the Honourable Supreme Court has already declared law which, in view of the provisions contained in Article 141 of the Constitution of India, is binding on all courts within the territory of India.

19. The petitions in hand, it appears, stand on a better footing inasmuch as, the power of the State Government to impose a temporary ban in an emergent situation was upheld in view of Rule 3(6)(b) of the Maharashtra Prevention of Food Adulteration Rules, 1962, which has been reproduced above. The Rules of 1962 were framed in exercise of the powers vested in the State under Section 24 of the Act of 1954. The said W.P.(C).Nos.22140 & 22141 of 2006

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Rule particularly deals with an emergent situation when in the opinion of the Food (Health) Authority there is likelihood of an outbreak of an infectious disease due to any article of food. Concededly, the Government of Kerala has framed Rules in exercise of the powers vested in it under Section 24 of the Act of 1954, known as "The Kerala Prevention of Food Adulteration Rules, 1957". Concededly, no rule similar or pari-materia to Rule 3(6)(b) has been made by the State of Kerala. Once, it is only by virtue of Rule 3(6)(b) of the Maharashtra Prevention of Food Adulteration Rules, 1962 that it was held that Government would have, in emergent situation, power to prohibit sale of food item even though temporarily, in the present case, in the absence of such a rule, such temporary power would also not available to the Government. Assuming, however, that such power is available, the same has to be resorted in extreme and emergent cases.

The recent event of bird flu which raised alarm bells all over the country, resulting into immediate prohibition of sale of chickens is an illustration of such a power arising on emergency. Such was not the position in hand. It is not even the case of the State Government that the level of pesticide residues found in the sample tested by CSE or the Public Analyst at Trhiruvananthapuram could have resulted in an epidemic like situation, W.P.(C).Nos.22140 & 22141 of 2006

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even though it is the case of State that such pesticide residue level would be injurious to health.

20. The reliance placed by the learned Advocate General on Article 162 of the Constitution is wholly misplaced. Article 162 reads as follows:-

"Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:
PROVIDED that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof".

The provisions of Article 162 would vest the State with the executive power which may extend to matters with respect to which the Legislature of a State has power to make laws. If, however, in a matter with respect to which Legislature of the State and Parliament have concurrent powers, the executive power of the State is subject to, and limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof. We have already held W.P.(C).Nos.22140 & 22141 of 2006

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that the power to prohibit manufacture and sale of food articles vests with the Central Government alone by virtue of Section 23(1A)(f) of the Act of 1954. That apart, the legislation with regard to adulteration of foodstuffs and other goods would be covered under Entry 18, List III of the Seventh Schedule. Entry 18 in List III read as follows:-

"Adulteration of foodstuffs and other goods".

By virtue of the provisions contained in Article 246 of the Constitution, laws with regard to foodstuffs and other goods can be made by the Parliament as well as the State Legislature, being Concurrent List, i.e. List III. By virtue of proviso to Article 162 reproduced above, with regard to any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authorities thereof. If , therefore, the legislation has been made with regard to Entry 18 by Parliament, the State would have no power. It is not the case of the State that by law made by Parliament this power has been expressly conferred W.P.(C).Nos.22140 & 22141 of 2006

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upon the State. Mr.K.Ramakumar, who is a counsel in W.P.(C).No.23729 of 2005, which has been filed as a Public Interest Litigation and which has been segregated, would, however, contend that the legislation in question is covered under Entry 6 of List II, which reads as "public health and sanitation; hospital and dispensaries" and thus legislation on 'adulteration of foodstuffs and other goods' would also be covered under Entry 6 of List II. This contention has to be repelled as, once adulteration of foodstuffs and other goods find a specific mention, it cannot be said to be covered under a general Entry like 'public health and sanitation; hospital and dispensaries'.

21. In so far as the contention of the learned Advocate General with regard to Section 31 of Act VII of 1125 is concerned, the same, for parity of reasons, has to be repelled. Section 31 relied on by the learned Advocate General reads as follows:-

"No Act shall in any manner whatsoever affect the rights of the Government unless it is therein expressly provided, or unless it appears by necessary implication that the Government is bound thereby".

When the field is occupied by Central Government by virtue of Section 23 W.P.(C).Nos.22140 & 22141 of 2006

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of the Act of 1954, it has to be held that the State would have no right to enact on the concerned subject.

22. The next contention raised by the petitioners based upon violation of principles of natural justice has also to be accepted being, once again, covered in favour of the petitioners and against the State by judgment of the Supreme Court in Godawat Pan Masala case (supra).

Concededly, the petitioners were not heard in the matter at all either when order dated 10.8.2006 was passed by the Government of Kerala (Exhibit P1) or when the order dated 11.08.2006 was passed by the Food (Health) Authority (Exhibit P1[a]). The Honourable Supreme Court has held that the want of notice before passing such drastic orders that may entail complete stop on business would violate fundamental rights of a citizen under Article 19(1)(g) of the Constitution of India and cannot be passed without observing the principles of natural justice.

23. In the light of the discussion made above, it may not be necessary to consider the other contentions raised by counsel for the petitioners as noted above as, surely, the impugned orders have necessarily to be set aside on the two grounds fully detailed above, but since it has been strenuously urged that the impugned orders could not be W.P.(C).Nos.22140 & 22141 of 2006

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passed unless there is violation of the statute, i.e., the Act of 1954 or the Rules framed thereunder or any other law for the time being in force, and that the impugned orders are an outcome of extraneous considerations, it would be appropriate to deal the same as well.

24. Standards of quality applicable to any food article are prescribed in the Act of 1954 and the Rules framed thereunder. The case of the petitioners, which has remained unrebutted, is that under the Act of 1954 and the Rules framed thereunder, tolerance limits for 121 commonly used pesticides have been prescribed in Rule 65 for various agricultural commodities like food grains, fruits and vegetables, etc. As long as the quantity of these substances is within the tolerance limits, the manufacture and sale is permitted. For the first time, by notification dated 01.01.2004, the Union Ministry of Health and Family Welfare amended the Rules of 1955 to set specific limits (MRLs) on presence of pesticide residues in packaged water, pursuant to which packaged drinking water could contain not more than 0.0001 mg/litre of pesticide residues on an individual pesticide and not more than 0.0005 mg/litre of total pesticide residues.

These limits are not, however, extended to cover water used in the manufacture of carbonated water or to the drinking water available to the W.P.(C).Nos.22140 & 22141 of 2006

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masses. There was a lacuna in the existing regulations. We have already mentioned in the earlier part of this judgment as to how the lacuna was removed when notification dated 15.10.2004 came into being. So, for the first time when the notification aforesaid came into being that an additional para A.01.01 of Appendix B was substituted. The substituted para has already been reproduced. Pursuant to amendment in item A.01.01 of Appendix B of the Rules of 1955, the water used for the manufacture of carbonated beverage can contain upto 0.0001 mg/litre of individual pesticide residues and upto 0.0005 mg/litre of total pesticide residues. It is once again an unrebutted case of the petitioners that water used by them in the manufacture of beverages is not below the standards and specifications mentioned in item A.01.01 of the Rules of 1955 and further that no standard of pesticide residues has been prescribed with regard to finished products from carbonated water. In so far as CSE is concerned, it is once again conceded position, is a non-governmental organisation even though, respondents would say that it is a prestigious institution, the report of which could be relied upon. Be that as it may, the CSE made the report while taking into consideration the standards as thought proper by Bureau of Indian Standards (BIS) and a standard adopted by BIS is not mandatory W.P.(C).Nos.22140 & 22141 of 2006

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being not statutory nor it has been notified. It is absolutely clear from the narration of facts given above that the sample said to have been analysed by CSE may not have the standard as thought proper by Bureau of Indian Standards (BIS). At the same time, it cannot be said that it was against or in violation of the standard prescribed by the statute. If that be so, it could not be said that the sample that was tested would show the product to be adulterated as per the Act of 1954 and the Rules framed thereunder. In such a situation, it has to be held that no order of ban could be imposed under the provisions of the Act of 1954. There is no other power vesting with the State Government to pass an order of prohibition of manufacture and sale other than the provisions contained in the Act of 1954 if at all, that might have been brought to our notice. The impugned orders, thus, need to be quashed on the ground that the sample analysed by CSE, even if its report is to be accepted, would not be adulterated and, therefore, the State would not be clothed with any power to prohibit manufacture and sale, be it under sub-section (i) or (iv) of Section 7 or any other provisions of the Act of 1954.

25. The last contention of the learned counsel for the petitioners that the impugned orders are an outcome of extraneous W.P.(C).Nos.22140 & 22141 of 2006

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considerations and, thus, mala fide is not based upon a solid wicket even though, it may be true that the orders are harsh, unreasonable and arbitrary. The allegations of mala fide have been specifically denied. The materials brought on record on the basis of newspaper reports cannot be accepted per se as, surely, it is at the best a second-hand secondary evidence. The Honourable Supreme Court in S.N.Balakrishna v.

Fernandez (AIR 1969 SC 1201) observed thus:-

"A news item without any further proof of what had actually happened through witness is of no value. It is at best a second-hand secondary evidence. It is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible".

Likewise, in Laxmi Raj Shetty v. State of Tamil Nadu [(1988) 3 SCC 319] the Supreme Court observed as follows:-

"We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless provided by evidence aliunde. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78(2) of the W.P.(C).Nos.22140 & 22141 of 2006
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Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached under Section 81 of the Evidence Act to a newspaper report cannot be treated as proved of the facts reported therein".

It has been the consistent case of the State Government that the impugned orders were passed keeping in view the human health, which is of paramount importance. Of course, petitioners have highlighted that the samples collected were not manufactured in the State; and the traces of pesticides could belong to the available water sources in the country, and were not contributed by them. Only because proper procedure was not followed and the impugned orders were passed in hurry and notice was not given to the petitioner, the orders cannot be said to be an outcome of any ill-will by the Government. That apart, the Minister, who is stated to have been given an interview, reference whereof has been given above, has not been impleaded as a party respondent. This ground pressed by petitioners has to be repelled.

26. Even though contention noted above has been repelled, it has, however, to be said that the impugned orders are harsh, unreasonable and arbitrary. It may be recalled that the order dated W.P.(C).Nos.22140 & 22141 of 2006

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10.08.2006 (Exhibit P1) was passed only on the basis of letter dated 3rd August, 2006 addressed to the Secretary (Health), Government of Kerala by Rajesh Bhushan, I.A.S., Director, Government of India, Ministry of Health & Family Welfare (Exhibit R1[a]). This letter, after referring to the report of the CSE, had only required the State Government to intimate to it details of the soft drinks (numbers) lifted for testing in the last one year in the State and the result thereof with regard to pesticide residues. There was not even a hint in the letter aforesaid that the pesticide residue found as per CSE report required an order of prohibition. No State Government or Union Territory proceeded to prohibit manufacture or ban the soft drinks but for the State of Kerala and Karnataka. Without even intimating to the petitioners the report of CSE or the letter Exhibit R1(a) or any intention on the part of Government to prohibit manufacture and sale of soft drinks, the impugned orders were passed. If the very basis of passing of the impugned orders is letter Exhibit R1(a), then, surely, the State Government ought to have reversed such orders on clarification given by the Minister on the floor of the House that the CSE report was said not to be providing any details required for the confirmatory interpretation of quantum results. The Minister had reported the matter to the House on the basis of a report given by an W.P.(C).Nos.22140 & 22141 of 2006

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Expert Committee constituted on that behalf. The respondents-State would not budge an inch from its stand based on CSE report which, as per Expert Committee Report, was not providing any details required for the confirmatory interpretation of quantum results. Once the report was not accepted by the Government of India, which alone had a power to ban production and sale, it was not fair for the State to have continued prohibition for manufacture and sale of products of the petitioners. If the CSE report was in any way considered to be correct and thus the products manufactured by the petitioners were found to be injurious to health, surely, the Government of India and other States would have also passed similar orders as impugned in these writ petitions. As mentioned above, but for the State of Kerala and Karnataka, the Union of India and no other States or Union Territories passed such orders. There was no justification, in the circumstances mentioned above, to continue with the ban on manufacture and sale of products of the petitioners. In so far as the report given by the Public Analyst, Thiruvananthapuram in the State of Kerala is concerned, it is surprising that the stand of the State is that a sample for testing was also sent to Central Food Laboratory and if the report may not be the same as that of the State Government, ban orders shall be lifted. It W.P.(C).Nos.22140 & 22141 of 2006

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is conceded position that the report of Central Food Laboratory would supersede the report of Public Analyst in the State. If that be so, the State Government ought to have waited for such a report. The stand of the Government further seems to be unjustified when it is stated that ban order would be made first and hearing to petitioners would be given later. The facts as fully detailed above did not justify passing of the impugned orders at a stage the same were passed.

In view of the discussion as made above, we allow these writ petitions by quashing the order dated 10.08.2006 passed by the Government of Kerala (Exhibit P1) and the consequential Order dated 11.08.2006 passed by the Food (Health) Authority of State of Kerala (Exhibit P1[a]) respectively. In the peculiar facts and circumstances of the case, however, there would be no order as to costs.

Sd/-

V.K.Bali Chief Justice Sd/-

M.Ramachandran Judge vku/-

- true copy -

W.P.(C).Nos.22140 & 22141 of 2006

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