WP/17145/2002 of The Palasa Cashew Manufacturers Association, Vs The Food Inspector, on 30 December 2008

Conclusion

ORDER:

The petitioner is an association of the manufacturers ofcashew nuts at Palasa of Srikakulam District. They seek a writ ofmandamus declaring that the action of the respondents, ininsisting that the cashew manufacturers must possesses a licenceunder the provisions of the Prevention of Foods Adulteration Act,1954 (for short ‘the Act’) and the Prevention of Foods AdulterationRules, 1955 (for short ‘the Rules’), and their action in prosecutingthe members of the association on the ground that they did notpossess such licence; is illegal, arbitrary and unconstitutional. Afurther declaration is sought to the effect that such licences arenot necessary for carrying on the business of processing and saleof cashew nuts.

In the affidavit filed in support of the writ petition, thepetitioner described the process, through which cashew nuts aremade edible. According to it, the cashew nut is a natural productand its members undertake the activity of dehydration of cashewnuts in small establishments and, packing of the final product, intins or packets. It is stated that no mechanical process, muchless, any transformation of the products is involved. The petitionercomplains that the Food Inspector, Srikakulam, the firstrespondent herein, and other officials are visiting the various unitsin the locality and are initiating prosecution on the ground that thelicences are not obtained. Instances of initiation of prosecution, imposition of fine etc., are mentioned.

On behalf of the respondents, a detailed counter-affidavit isfiled. It is stated that the product, cashew nut, answers thedescription of ‘food’ under Section 2(v) of the Act; and that Section7 of the Act, read with Rule 50 of the Rules mandates that themanufacturer of cashew nuts must obtain licence to carry on thetrade in it. According to the respondents, a detailed process isinvolved, before a raw cashew nut, derived from trees is madeedible.

Sri P.Veera Reddy, the learned counsel for the petitioner,submits that the basic object underlying the Act is to preventadulteration of food-stuffs and to ensure that various items of foodand food products conform to the prescribed standards ofmanufacture. He contends that the very purpose of establishing aCentral Food Laboratory, prescription of detailed procedure fordrawl of food samples, analysis thereof on scientific lines,suggests that the only such activities which involve inmanufacture of food and food products by using an altogetherdifferent raw material is covered by the Act. The learned counselsubmits that except that the cashew nut fruits are dried andkernels are removed through manual process, no mechanicalprocess involved and the insistence on obtaining licence for suchactivity is totally outside the scope of the Act and the Rules.

The learned Government Pleader for Medical and Healthsubmits that undisputedly, cashew nuts fall within the definition of‘food’ and Section 7 of the Act, read with Rule 50 makes itmandatory that the manufacturers of cashew nut must obtain licence.

The members of the petitioner association undertake theactivity of collecting the fruits from cashew nut trees and removalof a kernel, which is the actual nut from the fruit. This process, nodoubt, involves a systematic activity of drying and breaking up ofthe fruits and removal of upper layer on the nuts.

Cashew nut, answers the description of ‘food’ as definedunder Section 2(v) of the Act, which reads as under:

“Section 2(v): “Food’ means any article used as food or drinkfor human consumption other than drugs and water andincludes-for human consumption other than drugs and water andincludes- (a)any article which ordinarily enters into, or isused in the composition or preparation of, humanfood,used in the composition or preparation of, humanfood,

(b) any flavouring matter or condiments, and(c)any other article which the CentralGovernment may, having regard to its use,nature, substance or quality, declare, bynotification in the Official Gazette, as food for thepurpose of this Act.”(c)any other article which the CentralGovernment may, having regard to its use,nature, substance or quality, declare, bynotification in the Official Gazette, as food for thepurpose of this Act.”

Section 7 of the Act prohibits manufacture, sale etc., ofcertain articles of food. The prohibition is neither absolute noruniversal. The section reads as under:

“Section 7: Prohibitions of manufacture, sale, etc., of certainarticles of food: No person shall himself or by any personarticles of food: No person shall himself or by any person on his behalf manufacturer 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;except in accordance with the conditions of the licence;

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

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

(vi) any adulterant.”

By itself, this Section does not impose any obligation ofobtaining of licence, for manufacture of any particular item. Itmakes a reference to the licences which are ‘prescribed’ obviouslyunder the Rules. Part ‘IX’ of the Rules comprising of Rules 49 to51-A deals with the procedure for issuance of licences andconditions thereof.

Rule 49 pertains to the sale of various food items and themanner in which the sale can be affected. It comprises of 30 sub-rules. The manner in which the specification of the food item mustbe indicated etc., is mentioned in it. Rule 50, is the one, whichprovides for grant of licence. Sub-rule (1) of Rule 50 of the Rulesreads as under:

“Rule 50(1)-Conditions for Licence: No person shallmanufacture, sell, stock, distribute or exhibit for sale anyarticle of food, including prepared food or remedy to servefood [or irradiated food] except under a licence.”

Rest of the sub-rule contains the procedure for obtaining licence.

Read in isolation, this provision may give an impressionthat every article of food, unless exempted, can be manufactured,sold, stocked, distributed or exhibited for sale; only under alicence. However, if one looks at the other Rules, it becomes clearthat licence is not necessary for manufacture etc., of every articleof food. For instance, Part ‘VIII” of the Rules comprising of Rules44 to 48-E regulates, and in some cases prohibits sale of fooditems. The said provisions make it clear that as long as the prescribed specifications of the items are maintained or observed,there is no prohibition of their sale, without licence. For instance,Rule 44 (a to l) of the Rules reads as under:

“Rule 44 (a to l):Sale of certain admixtures prohibited:-Notwithstanding the provisions of Rule 43, no person shall eitherby himself or by any servant or agent, sell—Notwithstanding the provisions of Rule 43, no person shall eitherby himself or by any servant or agent, sell—

(a) Cream which has not been [prepared exclusively from] milkor which contains less than [25] per cent of milk fat,or which contains less than [25] per cent of milk fat, (b)Milk which contains any added water,

(c) Ghee which contains any added matter not exclusivelyderived from milk fat,derived from milk fat, (d)Skimmed milk (fat abstracted) as milk, (e)A mixture of two or more edible oils as an edible oil, (f)Vanaspati to which ghee or any other substance has beenadded.added.

(g) ***

(h) Turmeric containing any foreign substance,

(i) Mixture of coffee and any other substance except chicory,(j)Dahi or curd not prepared from boiled, pasteurized orsterilized milk,(j)Dahi or curd not prepared from boiled, pasteurized orsterilized milk, (k)***

(l) Milk or a mil product specified in Appendix B containing asubstance not found in milk, except as provided in therules………”substance not found in milk, except as provided in therules………”

It becomes clear that the Rule prohibits sale of milk only ifit contains added water. Similarly, the sale of turmeric ispermitted without licence as long as it does not contain any foreignsubstance. Specifications in respect of various items mentionedin the Rule are self-explanatory. Sale of these items ispermissible without any licence as long as the conditionsmentioned therein are adhered to.

The conditions that govern sale of flavoured tea are stipulatedin Rule 44-G of the Rules, which is extracted below.

“Rule 44-G: Conditions for sale of flavoured tea:-

(i) Flavoured tea shall be sold or offered for sale only by thosemanufacturers who are registered with Tea Board. Registration No. shall be mentioned on the label.

(ii) It shall be sold only in packed conditions with label declarationas provided in clause ‘y’y’ of Rule 42.”

Here again, there is no requirement for obtaining a licencefor this product under the Rules. However, the manufacturer of teamust be registered with the Tea Board. For various items like tiloil, ghee, artificial sweeteners, basic requirements are mentionedin the relevant Rules but no condition is imposed to the effect thatlicence must be obtained for their manufacture. Wherevermanufacturing process is involved, detailed specifications arementioned.

The use of anti oxidants is regulated under Rule 59. Thecategory of anti-oxidants and the quantities that can be mixed infood items are mentioned. From this, it is suggested that if themanufacture of a food item involves addition of anti-oxidants,licence under the Rules may be necessary, to ensure propercompliance with the standards.

It is also relevant to note that it is not as if that food items canbe dealt with by individuals, without any restrictions. Various itemsare governed by different legal regimes. For example, the ControlOrders issued under the Essential Commodities Act, the Drugsand Cosmetics Act and other similar enactments govern theprocess of manufacture, sale etc., of the relevant items. Theobject underlying the Act and the Rules is to ensure that therequired standards are maintained. The statement of object of the Act itself makes this aspect clear; and it reads as under:

“STATEMENT OF OBJECTS AND REASONS

Laws existed in a number of States in India for the prevention ofadulteration of food-stuffs, but they lacked uniformity having beenpassed at different times without mutual consultation betweenStates. The need for Central legislation for the whole country in thismatter has been felt since 1937 when a Committee appointed by theCentral Advisory Board of Health recommended this step. ‘Adulteration of Food-stuffs and other goods’ is now included in theConcurrent List (III) in the Constitution of India. It has, therefore,becomes possible for the Central Government to enact an all Indialegislation on this subject. The Bill replaces all local food adulterationlaws where they exist and also applies to those States where thereare no local laws on the subject. Among others, it provides for-

(i) a Central Food Laboratory to which food samples can be referred to for final opinion in disputed cases (clause 4)

(ii) a Central Committee for Food Standards consisting ofrepresentatives of Central and State Governments to adviseon matters arising from the administration of the Act (clause3), andrepresentatives of Central and State Governments to adviseon matters arising from the administration of the Act (clause3), and

(iii) the vesting in the Central Government of the rule-makingpower regarding standards of quality for the articles of foodand certain other matters.”power regarding standards of quality for the articles of foodand certain other matters.”

It is not necessary that manufacture of every food item needs a licence. Wheat and paddy are grown in fields and withslight process of converting wheat into flour or paddy into rice,they are edible, may be after cooking. Large variety of fruits areeaten directly or with slight treatment. Some of them are capableof being preserved as dry fruits. Even for them, no licence isnecessary under any Control Order or other enactments. Cashewnut is one of the recognized items of dry fruits. No chemical ormechanical process is involved in making it edible.

The Fruit Products Order, 1955 deals with only fruitproducts and not the fruits as such. In other words, fruits as such

are not subjected to any regime of licence. Many trees grow ontheir own accord and bear edible fruits. If it is to be insisted that afood product can emerge only on licence, then a question mayarise as to the enforcement in such cases. At the reductio adabsurdum, the fruit bearing tree may become punishable. Thevery fact that the products covered by Fruit Products Order,Vegetable Oil Products (Regulation) Order, 1998, Meat FoodProducts Order, 1973 are exempted from the licence under Rule50 of the Rules discloses that the other products for which licenceis necessary must involve similar process. The exemption of milkunder second proviso to sub-rule (1) of Rule 50 of the Rules isanother indication that to be covered by a licence. A product mustundergo a process, involving various steps and this is clear fromthe third proviso, to that Rule.

The only regulation of cashew nut under the Rules appearsto be the one provided for under Rule 48-B which insists that theratio of insect eaten product should not exceed 5 per cent bycount. The provision reads as under:

“Rule 48-B: Sale of insect-damaged dry fruits andnuts:- The dry fruits and nuts like raisins, currants, fig,cashewnut, apricot, almonds may contain not more than5 per cent of inspect- damaged fruits and nuts, bycounts.”

Barring this, there is no other regulation vis-à-vis cashewnuts, under the Act or the Rules.

The result of the above discussion is that manufacture,storage and sale of cashew nut, does not need licence under the Act or the Rules made thereunder.

For the foregoing reasons, the writ petition is allowed asprayed for. There shall be no order as to costs.

_____________________

L.NARASIMHA

REDDY,J

Dt:30.12.2008Note: L.R. copy to be marked.kdl