1. Heard Sri S.P. Gupta, learned senior counsel for the petitioners, Sri Rudro Chatterjee along with Sri Aseem Goswami for the respondents No. 2 and 3 and Sri H.P. Srivastava, learned Additional Chief Standing Counsel for the State as well as Sri Pandey, learned Assistant Solicitor General of India.

2. This petition was entertained by a Division Bench of this Court by the following order:-

"Hon'ble Shabihul Hasnain, J.

Hon'ble Devendra Kumar Upadhyaya, J.

Heard Sri S.P. Gupta, Senior Advocate assisted by Ms. Pushpila Bisht for the petitioner.

Sri Gupta, at the very outset, has made a statement at Bar that he does not want to press prayer No. '(d)' which is on page 50 of the petition. Accordingly, he is allowed to delete prayer clause '(d)' of the prayer made in the writ petition during the course of the day.

The petitioner has challenged the impugned suspension order dated 2nd July, 2015, as contained in Annexure No. 1 to this writ petition. An objection has been taken by the opposite parties, namely by the Standing Counsel as well as Assistant Solicitor General of India that against the said suspension order an appeal lies under Section 32(4)(C) of the Food Safety and Standards Act, 2006. Sri Gupta has submitted that he has already preferred an appeal but an objection has been taken by the opposite parties vide their reply on behalf of Food Safety and Standards Authority of India Act that appeal is not maintainable in the case of the petitioner. For the reasons enumerated in the reply there appears contradictory standard between statutory provision as well as the grounds taken by the Central Licensing Authority viz-a-viz Food Safety and Standards Authority of India.

Sri S.B. Pandey, learned Assistant Solicitor General of India prays for and is granted ten days' time to seek instructions as to how contradictory stands against the statutory provision has been taken by the opposite party No. 2.

List/put up on 12th October, 2015 as fresh to enable learned Assistant Solicitor General of India to seek complete instructions including the specific query.

Learned Standing counsel may also seek instructions till that date.

Order Date:-24.9.2015"

3. The main challenge raised in this petition is to the order passed on 2.7.2015 by the Central Licensing Authority under the provisions of the Food Safety and Standards Act, 2006 read with 2011 Rules and 2011 Regulations framed thereunder. The order proceeds to suspend the license for manufacturing vanaspati by the petitioner on the ground that the sample which was collected by the respondents was found to be sub-standard and unsafe and had tested positive for rancidity. The powers seem to have been exercised under sub-section (3) of Section 32 of the 2006 Act. A further direction has been given to the Food Safety Commissioner as per Section 42(3) of the said Act for sanctioning prosecution under Section 59 of the said Act.

4. The other relief claimed in the writ petition is that the respondents should not interfere with the manufacturing rights of the petitioner which has come to a stand still on account of the passing of the impugned order. A prayer to quash the order dated 9.7.2015 prohibiting the petitioner's business has been made. The petitioner has also questioned the interim order dated 16.7.2015 of the learned Commissioner to the extent a limited permission has been given to the petitioner.

5. Sri Gupta, learned senior counsel for the petitioners, has advanced his submissions, firstly contending that the impugned order is in violation of the procedure prescribed under the 2006 Act read with the rules and regulations framed thereunder, inasmuch as principles of natural justice statutorily incorporated in the said provisions have been clearly violated. He further submits that nothing exists to attract the ingredients so as to warrant suspending of the licence. He then submits that even otherwise the petitioner has been adversely affected and his right to freedom of practicing a trade under Article 19(1)(g) of the Constitution of India also stands violated. He, therefore, submits that even if the petitioner has approached the Appellate Authority by filing of an appeal, the same does not take away his right to maintain this writ petition in the aforesaid background when the entire unit has come to a stand still and not only the manufacturing process has been stopped but all others involved with the said unit including labourers and consumers have been unnecessarily been put to a loss.

6. Learned counsel further submits that in the wake of the said background this petition has been filed and this Court should come forward to protect the interest of the petitioner keeping in view the submissions that have been advanced, particularly, the non-fulfillment of the conditions and the procedure having not been followed as envisaged in law. Sri Gupta in order to substantiate his submissions has invited the attention of the court to Section 32 of the Act to contend that the requirement under Section 32 is for giving of an improvement notice and in such a situation the other consequences of at least 14 days time follows. This is necessary as the petitioner has a right under the 2006 Act read with the 2011 rules framed thereunder to seek a remedy in relation to sample analysis and testing and raise objections in this regard. This having not been done and not having been established either by any recital contained in the impugned order or in the order of withdrawal dated 7.5.2015, the procedure has admittedly been violated and, therefore, even if an appeal is filed the said orders deserves to be quashed.

7. Sri Gupta then contends that apart from this the provision meant for sampling under Section 47 of the Act has to be applied in terms of the 2011 Rules which makes a provision under Clause 2.4.1 for putting the manufacturer to notice. He has invited the attention of the Court to the averment categorically made in this regard in paragraph Nos. 25 to 39 of the writ petition to contend that no opportunity of any kind whatsoever has been given at any stage. In the said background Sri Gupta submits that the statutory provision having been violated and clearly established and there being nothing in the impugned order or the order of withdrawal to contradict the same, the writ petition deserves to be entertained under Article 226 of the Constitution of India. The appellate authority also having failed to appreciate the same and having not granted the interim relief as desired has resulted in serious prejudice to the petitioners.

8. He has then invited the attention of the Court to the various provisions to contend that even otherwise on merits such grounds have already been taken in the memo of appeal to challenge the very foundation of the report of the public analyst as also the entire procedure adopted by the respondents in proceeding to pass an order of suspending the licence.

9. The matter had been adjourned by us yesterday to enable the learned Additional Chief Standing Counsel, learned ASGI for the Union of India and the learned counsel for the respondents No. 2 and 3 to assist the Court on the issue as to whether the procedure had been followed.

10. The learned counsel have invited the attention of the court to the various provisions to contend that the maintainability of the appeal has to be considered as to whether it lies before the State Food Safety Commissioner or not. On this issue learned counsel for the respondents No. 2 and 3 Food Safety and Standards Authority Sri Chatterjee and the learned Additional Chief Standing Counsel for the State are at variance. Sri Gupta for the petitioner also submits that the appeal is maintainable before the State Food Safety Commissioner on a plain reading of the provisions of sub-section (4) of Section 32 read with Section 30 and the definition as contained in 3 (1)(e) and (q) of the 2006 Act.

11. Learned counsel for the respondents No. 2 and 3, however, submit that in terms of sub-section (5) of Section 10, the Chief Executive Officer also exercises the powers relating to Food Safety Matters which includes the Appellate powers as well keeping in view the fact that the licence has been suspended by the Central Licensing Authority. The contention, therefore, is that the State Food Commissioner would not be the Appellate Authority in so far as the present impugned action of the Central Licensing Authority is concerned.

12. Learned Additional Chief Standing Counsel for the State of U.P., on the other hand, contends that keeping in view the definition of Food Safety and the provisions of Section 32(4) read with Section 30 itself the State Food Safety Commissioner is empowered and has rightly entertained the appeal filed on behalf of the petitioner.

13. At this juncture there is one argument on behalf of the petitioner by Sri Gupta, learned Senior Counsel which deserves to be noted. He submits that the issue of the maintainability of the appeal is not the issue that requires to be dealt with but if the same is being considered then he should not be presumed to have given up his relief of challenge raised for declaring the Regulations 1.2.1.1. and 1.2.1.3 of the 2011 Regulations being ultra vires to the provisions of Section 32(4)(c) of the 2006 Act. This relief was prayed for as Relief No. (d) but the same was deleted when the petition was entertained and amendment was made to that effect on 24.9.2015.

14. Sri Gupta may be right in his contention, inasmuch as, if an issue raised on the ground of a constitutional challenge touching fundamental rights then a judicial review remedy being part of the basic structure of the Constitution cannot be said to have been waived when the writ petition is still pending even if the prayer was deleted earlier. A person can renew his plea if it is in relation to violation of a fundamental right because there is no concept of waiver of a fundamental right. Even though Sri Gupta submits that this issue does not require to be answered if his other contentions are accepted, we find it necessary to deal with the issue of the maintainability of an appeal and exercise of appellate powers in the light of the submissions which have been raised by the learned counsel for the respondent No. 2 and 3. This is also necessary because there is an inter se contest on this issue between the respondent State Government and the Respondent Nos. 2 and 3. The said fact is also evident from the objection taken by the Food Safety Authority before the State Food Safety Commissioner about his jurisdiction to entertain the appeal.

15. The first question, therefore, is as to whether the provision of appeal should be given a go by in the light of what has been submitted by Sri Gupta and the procedure allegedly not having been followed and principles of natural justice having been violated. We repeatedly called upon the learned Additional Chief Standing Counsel for the State to inform us on the basis of instructions about service of any such notice as envisaged under Section 47 read with Clause 2.4.1 by the Food Safety Officer. In response Sri H.P. Srivastava, learned Additional Chief Standing Counsel has invited the attention of the Court to Annexure 6 to the writ petition to contend that there is a compliance and in such circumstances the petitioner will be presumed to have been served with a notice.

16. On the first flush the said notice does indicate that a copy of the notice was also marked to the petitioner but on a closer scrutiny we do not find any such evidence of the said notice having been served on the manufacturer, namely, the petitioner in terms of Clause 2.4.1. In the absence of any such material which could be shown by the learned Additional Chief Standing Counsel we cannot presume that such a notice, which has to be mandatory served on the petitioner in terms of Clause 2.4.1 (4) of 2011 Rules read with Section 47, had been served. This point also deserves notice and will have to be taken care of by the appellate authority, inasmuch as, the purpose which appears to be for the sending of said notice and which is mandatory is that the aggrieved manufacturer also has a right to get the sample analyzed and it is for this reason that now under the 2006 Act and 2011 Rules, the procedure for sampling and analysis requires collection and preservation of the sample to be tested in four parts, one part for the aforesaid purpose of an opportunity to the aggrieved manufacturer or affected person under the Act to get the sample analyzed and tested by a laboratory. This is also necessary because whether it is suspension or cancellation of licence or future prosecution, in both proceedings the very foundation of the allegations is the chemical report of the food analyst. The proceedings so initiated has both civil and penal consequences and therefore the notice envisaged at that stage of sample collection and analysis has to be tendered by the Food Safety Officer which is a condition precedent for either the designated officer or any other authority to take action on such a foundation. If this opportunity is denied then the protection given under the Act would be rendered nugatory. It is well settled that a procedure prescribed in law has to be followed and no deviation can save an action in relation to a statute where the consequences are both civil and penal in nature as in the present case. The petitioner has made clear statements in the writ petition to the effect that no such opportunity at this stage was given by the Food Safety Officer and therefore the same deserves to be considered.

17. The question of giving improvement notice by the designated officer is the next stage after the aforesaid procedure has been complied with. Even assuming for the sake of submissions that the competent designated officer had sent a notice on 7th of May, 2015 then a reply had been sent by the petitioner alleging compliance to the same by withdrawing the entire products of that particular batch number. This issue also therefore requires to be gone into before the appropriate forum as and when raised in accordance with law. At present the present petition concerns the suspension of licence and proposed prosecution. The Appellate Authority while hearing any appeal against the order dated 2nd July, 2015 will therefore have to take into consideration the aforesaid submissions raised on behalf of the petitioner.

18. Coming to the issue of the status of the prohibition order dated 7.5.2015 and the impugned order dated 2.7.2015 what we find from a perusal of the provisions of Section 32(3) of the Act that the proviso clearly authorizes the Designated Officer to suspend any licence forthwith in the interest of public health for reasons to be recorded in writing. The order impugned on a bare perusal to our mind does comply with the said provision and the reasons have been recorded, may be the reasons are subject to appeal. In such circumstances, the grounds taken in the appeal are still available to the petitioner to be pressed before the Appellate Authority and he does not suffer from any prejudice in raising the issues dealing with the merits of the order dated 2.7.2015.

19. So far as the issue relating to withdrawal is concerned, we also find that the petitioner in compliance of the order dated 7.5.2015 had withdrawn his products as alleged by him on 4.6.2015. This would however, be subject matter of inquiry and consideration by the Appellate Authority in the event the appeal is grounded on such facts that may be available to the petitioner for the said purpose.

20. The question as to whether the appeal would be maintainable before the State Food Commissioner or not is still to be determined as that would go to the root of the matter. After having heard the learned counsel for the parties including the learned Additional Chief Standing Counsel for the State we find it appropriate to extract sub-section (5) of Section 10 of the 2006 Act which is hereinunder:-

"(5) The Chief Executive Officer shall exercise the powers of the Commissioner of Food Safety while dealing with matters relating to food safety of such articles."

21. Further, Section 3(1)(e) defines the Commissioner of Food Safety as follows:-

"(e) "Commissioner of Food Safety" means the Commissioner of Food Safety appointed under Section 30."

22. Then comes Section 3(1)(q) which defines Food Safety which is reproduced hereinunder:-

"(q) "food safety" means assurance that food is acceptable for human consumption according to its intended use;"

23. The Food Safety Commissioner is appointed under Section 30 of the 2006 Ac. The said Section is extracted hereinunder:-

"30. Commissioner of Food Safety of the State - (1) The State Government shall appoint the Commissioner of Food Safety for the State for efficient implementation of food safety and standards and other requirements laid down under this Act and the rules and regulations made thereunder.

(2) The Commissioner of Food Safety shall perform all or any of the following functions, namely:-

(a) prohibit in the interest of public health, the manufacturer, storage, distribution or sale of any article of food, either in the whole of the State or any area or part thereof for such period, not exceeding one year, as may be specified in the order notified in this behalf in the Official Gazette;

(b) carry out survey of the industrial units engaged in the manufacture or processing of food in the State to find out compliance by such units of the standards notified by the Food Authority for various articles of food;

(c) conduct or organize training programmes for the personnel of the office of the Commissioner of Food Safety and on a wider scale, for different segments of food chain for generating awareness on food safety;

(d) ensure an efficient and uniform implementation of the standards and other requirements as specified and also ensure a high standard of objectivity, accountability, practicability, transparency and credibility;

(e) sanction prosecution for offences punishable with imprisonment under this Act;

(f) such other functions as the State Government may, in consultation with the Food Authority, prescribe.

(3) The Commissioner of Food Safety may, by order, delegate, subject to such conditions and restrictions as may be specified in the order, such of his powers and functions under this Act (except the power to appoint Designated Officer, Food Safety Officer and Food Analyst) as he may deem necessary or expedient to any officer subordinate to him."

24. The appeal according to the petitioner and the learned Additional Chief Standing Counsel for the State would lie necessarily before the State Food Safety Commissioner itself.

25. If we construe the provisions, namely, Section 10(5) read with the aforesaid provisions, what we find is that sub-section (5) clearly defines that the Chief Executive Officer shall exercise the powers of the Commissioner of Food Safety while dealing with matters relating to food safety of such articles. What the petitioner and the State contend is that the word 'Food Safety' as defined would not include any such power which may confer authority on the Chief Executive Officer to ascribe himself also the appellate powers as conferred under Section 32(4). We do not agree with the said proposition for the simple reason that the words used in sub-section (5) of Section 10 clearly indicate the utilization of powers which are available to the Food Safety Commissioner in matters of Food Safety exclusively, particularly, where the Central Licensing Authority has passed the orders. The definition of Food Safety also includes the issue of sub-standard and unsafe material. The Appellate Authority while exercising powers of appeal also exercises co-extensive powers of the Licensing Authority which also includes the assessment of a product being unsafe or sub-standard. In such a situation there cannot be an ouster of the jurisdiction of the authority under sub-section (5) of Section 10 of the Act for entertaining an appeal.

26. The further reasons for the aforesaid conclusions are also supported by the statutory provisions as to our mind the entire scheme of the Act, the 2011 Rules and the 2011 Regulations, if read harmoniously, would lead to the said conclusion. For this, it is necessary to refer to the different sections and the clauses in the said statutory provisions in order to understand their interplay to arrive at the aforesaid conclusion. On a plain reading, it does appear that the forum of an appeal against an order of the designated officer in relation to suspension, cancellation or revocation is appealable before the Commissioner of Food Safety. The Chief Executive Officer of the Food Authority is an officer appointed under Section 9 of the 2006 Act and the functions of the said authority are defined under Section 10 of the Act. As noted above, Sub-Section (5) of Section 10 is the charging section whereby the Chief Executive Officer also exercises powers of the Commissioner of Food Safety. Thus the Chief Executive Officer also acts as the Commissioner of Food Safety in dealing with matters of food safety. The Chief Executive Officer under Section 9 is not below the rank of Additional Secretary, Government of India. The Commissioner of Food Safety as defined under Section 30 who is the State Food Safety Commissioner is the rank of a Commissioner or a Secretary to the State Government.

27. An appeal is envisaged against the order of a designated officer who is empowered to pass orders under Section 32. Under the 2011 Rules a designated officer under Clause 2.1.2 is defined to be an officer who shall not be below the rank of a Sub Divisional Magistrate. It may be mentioned that the Sub Divisional Magistrate is the Incharge of a sub division of a district and is the next officer lower in rank to the Collector of a District. Thus construing the said provisions, if an order passed by a designated officer who is not the below the rank of a Sub Divisional Magistrate then his order is obviously appealable before the Commissioner of Food Safety who is the Commissioner of a division or of the rank of a Secretary to the State Government which is a higher rank than the designated officer. To that extent there cannot be any dispute about the exercise of such powers and the appellate powers by the State authorities.

28. The interpretation however takes a different dimension with the aid of Section 10(5) of the 2006 Act and the provisions of Food Safety and Standards (Licensing and Registration of Food Businesses), Regulations 2011. It is in the background of the said provisions that on the facts of the present case it would be evident that the conclusion drawn by us hereinabove is supported by the statute. In the present case the issue is of suspension of licence. The order by which the petitioner is ultimately aggrieved is the order dated 2nd of July, 2015 which suspends the licence of the petitioner and also calls for a prosecution. This order has been passed by Dr. Manisha Narayan, the Central Licensing Authority. The regulations of 2011 have been framed in exercise of the powers under Section 92(2)(o) read with Section 31 of the 2006 Act. It should be kept in mind that licensing is separately governed by the 2011 Regulations whereas the 2006 Act and 2011 Rules prescribe other procedures of prosecution as well.

29. Section 31 empowers the designated officer to grant licence on terms and conditions as may be specified by Regulations. This is evident from a perusal of sub-section (3) of Section 31. It is in this context that the Regulations have been framed by the Food Safety and Standards Authority of India in the year 2011. Under these regulations, which have already been enforced, a licence is required from the Central Licensing Authority which is defined as the designated officer under Clause 1.2.1.1. In the present case it is the Central Licensing Authority which has suspended the licence granted by it in relation to such a licence which in the present case falls under the First Schedule as per Regulation 2.1.2 of the said Regulations. Consequently, the petitioner is enjoying the running of a business on such a licence and therefore the power to suspend or cancel this licence vests with the designated officer as defined under the 2011 Regulations. The impugned order dated 2.7.2015 therefore is clearly covered under the aforesaid regulations. It is for this reason that a challenge had been raised to the above provisions in Clause (d) of the relief clause of the petition to declare it to be inconsistent with the provisions of Section 32(4)(c) but was deleted.

30. We on a consideration of the said provisions do not find any such inconsistency and such a challenge is not even available to the petitioner on any such legal ground for the reason that once the Central Licensing Authority is the designated officer then in that event such a designated officer is un

der the control of the Chief Executive Officer of the Food Safety and Standards Authority of India who by virtue of Sub Section (5) of Section 10 also exercises the powers of the Commissioner of Food Safety which as indicated above would ultimately include the appellate powers as understood under Section 32(4)(c) of the Act. 31. We may put on record that there is no challenge raised to the extent of powers to be exercised by the Chief Executive Officer as the Commissioner of Food Safety under sub-section (5) of Section 10. Only the regulations are being alleged to be inconsistent with the provisions of Section 32(4)(c). At this stage, once the petitioner had deleted the prayer for such challenge but since the same point has been urged on behalf of the respondent Nos. 2 and 3 and has been contested by the State Authorities, we have proceeded to answer the question without prejudice to the rights of the petitioner to raise this question before a higher forum, but for the purpose of the present controversy, once on facts it is undisputed that the impugned order has been passed by the Central Licensing Authority, then in that event, in our consider opinion, the appeal would be maintainable before the Chief Executive Officer under sub-section (5) of Section 10 of the 2006 Act. 32. We are, therefore, of the opinion that the appeal filed before the State Food Safety Commissioner was not the forum available to the petitioner and the petitioner ought to have approached the authority as referred to hereinabove in terms of Section 10(5) of the Act. 33. Having said so and having found that the appeal before the State Food Safety Commissioner to be not maintainable against the order of the Central Licensing Authority dated 2.7.2015 the proceedings before him, therefore, are without authority and without jurisdiction. Consequently, we provide that it shall be open to the petitioners to file an appropriate appeal before the authority concerned as noted above within a period of ten days from the date of availability of the certified copy of this order. In the event the petitioners also apply for an interim relief the same shall be considered and orders passed in accordance with law within a week thereafter. 34. However, in view of the fact and the findings that we have arrived at hereinabove and the urgency of the matter we also provide that as directed under the impugned order further prosecution of the petitioners shall not be undertaken unless the said application is finally disposed of by the Appellate Authority as directed hereinabove. 35. The relief of challenge to the interim order dated 16.7.2015 is rendered infructuous in view of what has been concluded above. 36. With the aforesaid directions the writ petition stands disposed of.