w w w . L a w y e r S e r v i c e s . i n



M/s. Hatsun Agro Product Ltd. v/s The State of Tamil Nadu rep. By Secretary to Government Animal Husbandry & Dairy Development & Others

    Writ Petition No.18234 of 2008 and connected miscellaneous petitions

    Decided On, 30 September 2008

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE P. JYOTHIMANI

    For the Petitioner: R. Krishnamoorthy, Sr. Counsel for V. Ayyadurai, Advocate. For the Respondents: A. Edwin Prabhakar, AGP.



Judgment Text

The proceedings under challenge in this writ petition has been issued by the Public Health Officer, Cheyyar, who, on direction from the Director of Health and Preventive Medicine, Chennai, after inspection made on 22.07.2008 in the chilling as well as manufacturing unit relating to milk allied products belonging to the petitioner along with the Deputy Director of Health, Department of Public Health and Preventive Medicine, Cheyyar, the third respondent and the Food Inspector, the fourth respondent, having found that in the manufacture of milk powder, edible lactose (expired) along with Hatsun skimmed milk powder was mixed and repacked in the form of a new milk powder has taken the following samples, viz.,


"1. MAISTINsP16 No.Cukrus


Edible Lactose ? 25 Kg


Date of Production: 22 Feb 2006


Production No:21 - 1 Bag





2. Hatsun Skimmed Milk Powder


Net Wt ? 25 kg. Batch No.P2-176


D.M.7.7.08 Best Before 18 months


from the date of manufacture - 1 Bag





3. Hatsun Skimmed Milk Powder


Net Wt ? 25 Kg, Batch No.VAN002


Production date ? 12.07.2008


Date of expiry ? No entry


Hatsun Agro Products Ltd.,


5A, Vijayaragahava Road,


T.Nagar, Chennai 600 017. - 1 Bag





4. ADM Cococa BU, Lot Type D-K-4,85,456,


Net ? 25 kg DM 29.3.2007, 29.03.2007. - 1 Bag





5. UN-Know Articles ? 25 kg - 1 Bag"


and obtained an undertaking from the persons in charge of the petitioner's Unit that till inspection report is received, they will not use the expired items in manufacturing the milk powder and till the third respondent passes any further order, the above said items will not be used. In effect, according to the petitioner, it is a search and seizure memo drawn by the 4th respondent and the said action has been taken by the respondents under the provisions of the Tamil Nadu Public Health Act read with the Prevention of Food Adulteration Act, 1954.


2. The impugned proceeding is relating to the search and seizure made in the premises of the petitioner at No. 114, Tindivanam Road, Nadukuppam Village, Vandavasi Taluk, Tiruvannamalai District. The present writ petition is filed to quash the said impugned proceedings and also to forbear the respondents from taking any action in respect of the manufacturing process of skimmed milk powder of cattle feed grade in the guise of exercising their powers under the provisions of the Prevention of Food Adulteration Act, 1954.


3. The case of the petitioner as submitted by Mr. R. Krishnamoorthy, learned senior counsel for the petitioner is that the petitioner is a Company registered under the Indian Companies Act, 1956, engaged in procuring, processing and marketing milk and milk products and the petitioner having six dairies, is the largest private one in the State.


3(a). For establishing six dairies, the Government of India has issued registration certificate to the petitioner Company in terms of Milk and Milk Products Order, 1992. The excess quantity of unsold procured milk has been used by the petitioner in converting into milk powder and in manufacturing of other items like, ice cream, ghee, butter oil, paneer, exporting skimmed milk powder for cattle feed and the petitioner is exporting its various products to more than 25 countries.


3(b). The petitioner Company is having two blending processing units at Kancheepuram and Salem dairies apart from one chilling centre at Nadukuppam village at Vandavasi Taluk, having obtained necessary licence and permission from various authorities. In fact, the third respondent, by his proceedings dated 10.11.2005, has granted permission for construction and installation of certain machinaries at Nadukuppam for the use of the petitioner and the petitioner has also obtained necessary clearance from the Tamil Nadu Pollution Control Board under Air (Prevention and Control) Act, 1994, duly renewed.


3(c). It is also the case of the petitioner that the chilling centre at Nadukuppam Village is used for blending process for its excisable goods to be exported as "Cattle Feed Grade" as per the provisions of Central Excise Act and Rules and registration number has also been assigned by the authorities under the said Act. Therefore, according to the petitioner, what is stored in the blending unit and chilling centre at Nadukuppam is to produce exported item of goods, viz., Cattle Feed Grade, skimmed milk powder, which is not meant for human consumption and the petitioner has been in fact exporting cattle feed grade, skimmed milk powder to Philippines and other countries from 2006, therefore, it does not attract the provisions of the Prevention of Food Adulteration Act, 1954.


3(d). It is also the case of the petitioner that the petitioner is carrying on packaging process of skimmed milk powder in the dairy at Kanchipuram and therefore, according to the petitioner, it is only the Kancheepuram Unit, where the packaging is done for human consumption which is liable for inspection under the provisions of the Prevention of Food Adulteration Act, 1954. Even the skimmed milk powder meant for human consumption is manufactured as per the requirement of the foreign customers apart from the skimmed milk powder manufactured for the purpose of export for cattle feed.


3(e). It is the case of the petitioner that they have imported ingredient in the form of lactose, which is a form of sugar and the shelf life period of lactose is a period of two years for manufacturing the skimmed milk powder for human consumption and for manufacturing of cattle feed grade, etc., the period is five years. Therefore, the use of the skimmed milk powder for the purpose of manufacturing the cattle feed grade to be exported to foreign countries is not injurious.


3(f). According to the petitioner, the Prevention of Food Adulteration Act, 1954 applies only in respect of the food which is to be used for human consumption and as per the said Act, the Food Inspector, has duty bound to take samples and initiate appropriate action if it is found that there is adulteration in the manufacturing of food products. It is the case of the petitioner that even under the Prevention of Food Adulteration Act, 1954, the Food Inspector has no jurisdiction to take samples of cattle feed grade of skimmed milk powder, which is not a food article.


3(g). It is the case of the petitioner that based on the purchase order dated 30.06.2008 received from Philippines for supply of skimmed milk powder for cattle feed grade, necessary blending process was carried on in the chilling centre at Nadukuppam by using the lactose with shelf life period of two years, in February, 2008, though, the required export quality being the cattle feed grade, the period is five years. A team of officials headed by the Food Inspector inspected the chilling centre of the petitioner on 22.07.2008 at Nadukuppam and took samples of skimmed milk powder and lactose which were used in the process of manufacturing cattle feed grade skimmed milk powder at the relevant point of time, without following the provisions of the Prevention of Food Adulteration Act, 1954 as well as the Rules, especially Rule 12 of the Prevention of Food Adulteration Rules, 1955.


3(h). The team of the inspecting officials have also refused to look into the relevant documents including the documents issued by the Central Excise authorities, etc., and therefore, according to the petitioner the search and seizure made on 22.07.2008 by the respondents is highhanded and without jurisdiction. It is also stated that immediately on the next day, i.e., on 23.07.2008, the third and fourth respondents came to the chilling centre at Nadukuppam and sealed the entire blending process unit without any reason.


4. The legal grounds on which the conduct of the respondents is challenged are that the Food Inspector has no jurisdiction or power to seal the premises without taking samples with valid prohibitory order; that under the Prevention of Food Adulteration Act, 1954 and the Rules made thereunder, the authority is entitled only to break open the premises where misbranded foods are kept for sale under Section 10(v) read with Rule 10(4) of the Rules and therefore, the seizure and search memo dated 22.07.2008 is not valid; that no notice of intention to enter upon the premises as mandated in Rule 12 has been given and there is violation of sub-section (3) of Section 10 of the Prevention of Food Adulteration Act; that the shelf life period of lactose for manufacturing skimmed milk products for human consumption is two years and in respect of cattle feed grade, etc. it is five years, and in the instant case the life time expired in February, 2008 at the time of inspection on 22.07.2008 and the said lactose was used for the purpose of manufacturing skimmed milk products, cattle feed grade to be exported to Philippines; that the petitioner has obtained necessary permission from the Central Excise authority and local authority under the Milk and Milk Product Order etc., and hence, the impugned proceedings is vitiated.


5. In the course of hearing it is made clear by the learned Additional Government Pleader appearing for the respondents that the chilling unit belonging to the petitioner at Nadukuppam was not sealed and it was the blending unit wherein the manufacturing process was done with lactose which has expired, in respect of which alone seizure and closure order has been effected and there is no much dispute about the chilling unit of the petitioner at Nedukuppam.


6. A reference to the impugned proceedings issued by the 4th respondent based on the inspection conducted on 22.07.2008 shows that the products have been taken in the presence of the Deputy Director of Health Services, Cheyyar, third respondent herein. According to the learned senior counsel appearing for the petitioner Mr. R. Krishnamoorthy, neither the Prevention of Food Adulteration Act, 1954 nor the Public Health Act is applicable on the facts of the present case and the petitioner is governed by the Milk and Milk Products Order, 1992 issued by the Government of India with effect from 09.06.1992 as per Section 3 of the Essential Commodities Act.


6(a). It is the said Statutory Order which defines Milk and Milk Products and the provision for registering the manufacturing Units and inasmuch as separate registration certificate has been issued to the petitioner as per the Order, which is a self-contained Code, it is the registering authority, who has got power to enter, inspect and seize under Para 15 as per the procedure contemplated therein and the said registering authority is defined under Para 2(l) of the Order as an authority appointed or designated by the Central Government and therefore, the learned senior counsel would submit that the entire act of the respondents in the present case is not sustainable in law, and the same has to be set aside for want of jurisdiction.


6(b). The learned senior counsel would also rely upon Para 32 of the Order, which supersedes any other order passed under Section 3 of the Essential Commodities Act, 1955 in so far as it relates to milk or milk products and therefore, even an order passed under the Essential Commodities Act cannot take away the power of the authorities under the Milk and Milk Products Order, 1992 and therefore, the said Order having become a self-contained Code, governs the entire field since the registration certificate has been issued by the authorities contemplated under the Order after following the due procedure.


6(c). His further submission is that in the Unit at Nadukuppam, no trading activities are conducted by the petitioner and it is carrying on chilling process as per the registration certificate issued by the Government of India dated 14.05.2003. He would also submit that inasmuch as the said Order is passed under the Essential Commodities Act, by virtue of Section 6 of the Essential Commodities Act, the Order being the self-contained Code, it will have overriding effect.


6(d). It is also his submission that the provisions of Tamil Nadu Public Health Act, 1939 cannot be enforced in respect of Milk and Dairy Products and even otherwise, the authorities under the said Act, viz., the Health Inspector/Public Health Officer can only impose a fine and there is no power for seizure and closure. Therefore, when on record it is clear that the skimmed milk powder was retained in the Unit only for the purpose of manufacturing cattle feed grade to be exported to Philippines, the question of applicability of Tamil Nadu Public Health Act, 1939 or the Prevention of Food Adulteration Act, 1954 does not arise, and accordingly, the entire procedure is vitiated.


7. Mr. V. Ayyadurai, learned counsel appearing for the petitioner in addition to the submission made by the learned senior counsel would also submit that inasmuch as the field in respect of the manufacture of milk and dairy products is covered by the Milk and Milk Products Order, 1992, framed as per Section 3 of the Essential Commodities Act, is occupied by the Central Government to be operated by the registering authority contemplated under the Act, who is empowered even for seizure etc., and on the factual situation, when the petitioner was manufacturing cattle feed grade not for sale in India, the activity of the respondents in the petitioner's unit at Nadukuppam is illegal.


7(a). He would also submit that the dairy manufacturing Units for human consumption situated in other places like, Kancheepuram have not been inspected by the authorities, and therefore, according to him, the food not only to be used for human consumption, but also intended for such sale, can only be inspected by the authorities under any other Act.


7(b). He further submits that after coming into force of the Prevention of Food Adulteration Act, 1954, the provisions of the Tamil Nadu Public Health Act, 1939 in so far as it relates to adulteration stand repealed. He would also submit that as per the records, the impugned actions are not taken by the respondents under the Prevention of Food Adulteration Act, 1954. He would also refer to the proceedings of the first respondent dated 04.09.2008, by which the first respondent has appointed one Mr.K.Srinivasan, Health Inspector (Food Inspector), Primary Health Centre, Thatchur, deputing him to inspect in connection with the prevention of food adulteration work and for seizure of milk products at Hatsun Agro Products Ltd., at Nadukuppam village, Cheyyar with immediate effect.


7(c). While the impugned order does not contain any signature of the authority under the Prevention of Food Adulteration Act, 1954, the impugned order has been signed only by the Primary Health Officer under the Tamil Nadu Public Health Act, 1939, who has no jurisdiction to issue such order even if it is under the Prevention of Food Adulteration Act, 1954 and therefore, according to him, either under the Prevention of Food Adulteration Act, 1954 or under the Tamil Nadu Public Health Act, 1939 there is no power to seal the premises.


7(d). It is also his contention that the respondents have not even given any reason for sealing, and therefore, it cannot be held to be a reasonable restriction under Article 19(1)(g) of the Constitution of India. It is further stated that when the petitioner has specifically averred in the affidavit filed in support of the writ petition that the milk products are not meant for local use and for export for cattle feed and the same has not been denied by the respondents in their counter affidavit, it should be taken as an admitted fact. He would also rely upon the judgement of the Supreme Court in the following cases:


(a) National Institute of Technology vs. Niraj Kumar Singh (2007 (2) SCC 481);


(b) Karnataka State Financial Corporation vs. N.Narasimahaiah (2008 (5) SCC 176); and


(c) Deewan Singh and others vs. Rajendra PD.Ardevi and others (2007 (10) SCC 528), to substantiate his contention that the statutory authorities must act within the jurisdiction.


8. On the other hand, the respondents, especially respondents 3 and 4 have filed a counter affidavit dated 05.08.2008, wherein it is stated that the second respondent Director of Health and Preventive Medicine has issued an order dated 03.07.2008, by which he has stated that the milk is a vital food product and rampant adulteration is reported and the adulteration has to be checked since it is a vital food for children and sick people and directed a Milk Raid to be conducted and it was based on the said direction milk raid was conducted on 22.07.2008. It is the case of the said respondents that in the said raid it was found that there has been violation of Tamil Nadu Public Health Act, particularly Sections 107, 112, and 112(a); violation of Prevention of Food Adulteration Act, 1954 and Panchayat Act, 1994 in the conduct of the petitioner in the manufacture of skimmed milk powder and also in blending expired milk powder with fresh skimmed milk powder and packing the same in new 25 Kgs. packs to be sold in the market and for export.


8(a). It is also stated that the licence for the said blending process was not obtained and there was no evidence to show that the petitioner was manufacturing cattle feed grade milk powder. On the other hand, it is found that the ingredients stored are edible for human consumption and it was in those circumstances, the team took samples of 5 types of milk powder and sent the same for analysis to the food testing centre ? King Institute, Guindy, Chennai and seized 61 packs of 25 Kgs. each of expired milk powder and sealed the same in the said premises.


8(b). It is also stated that the petitioner has no valid licence issued under Section 107 of the Tamil Nadu Public Health Act, 1939 or under the Panchayat Act. It is further stated that under the Tamil Nadu Public Health Act, 1939 and Prevention of Food Adulteration Act, 1954, the Health Authorities are entitled to check the premises. It is also stated that subsequent to the seizure on 22.07.2008, the third respondent was informed by the Joint Director (Prevention of Food Adulteration) that the sealed items were being removed from the site, and the respondents sealed the manufacturing unit and the sealing was within the powers.


8(c). It is further stated in the counter affidavit dated 01.09.2008 that the chilling unit has never been sealed by the respondents and a false representation has been made as if the chilling unit was sealed in order to obtain an interim order. It was only the godown along with unauthorised blending unit which was sealed due to the reason that the imported expired lactose were being used in the production of skimmed milk powder, which was manufactured at Chennai unit and re-packed at Chennai without valid licence from local Panchayat and it was sealed only to prevent tampering or destroying the evidence awaiting the results from the King Institute, Guindy, Chennai.


8(d). It is also stated that the third respondent is empowered to act under the Tamil Nadu Public Health Act,1939 as per Sections 108(1)(b) and 112-A(1), to take action under Section 108(b) if any person sells, exposes or hawks about for sale or keeps, stores, manufactures or prepares for sale any food or drug intended for human consumption which is unfit for such purpose. It is also stated that under Section 112-A(1), the Health Officer is empowered to seize and take away or secure such article or utensil, if the food article appears to the Health Officer or to a person duly authorised by him to be unfit for human consumption and as per 112-A(2), no person has any right over such article seized as per Section 112-A(1). Therefore, according to the said respondents, the sealing was done in the public interest and to prevent the petitioner from tampering with the evidence and it is also again reiterated that the milk chilling centre of the petitioner in Nadukuppam village has never been obstructed.


9. It is the contention of the learned Additional Government Pleader Mr. A. Edwin Prabakar that under the Tamil Nadu Public Health Act, 1939 inasmuch as the term "Food" should include milk also, which is consumable by human being, the Health Officers appointed under the said Act are entitled to inspect and make seizure. It is also his case that even in respect of conducting of dairies, the registration stated to have been obtained from the Central Government under the Milk and Milk Products Order,1992 is only in respect of six dairies, which does not include Nadukuppam unit and therefore, the petitioner cannot take advantage of such licence issued in respect of some other premises to protect the unlawful activities which are found by the authorities under the Tamil Nadu Public Health Act, 1939 in the unit at Nadukuppam.


9(a). He would fairly concede that after Prevention of Food Adulteration Act, 1954, came into existence, the Tamil Nadu Public Health Act, 1939 to the extent it relates to adulteration is not applicable, but he would submit that under the Prevention of Food Adulteration Act, 1954 the authorities are entitled to inspect. It is also his submission that in the certificate produced by the petitioner, nowhere it is mentioned as to whether the manufacturing of the products is for export or cattle feed or for human consumption. He would also submit that the King Institute in its report has clearly held that the conduct of the petitioner is adulteration, since the petitioner has used the expired lactose. He would also rely upon the judgement of the Supreme court in Municipal Corporation of Delhi vs. Shiv Shanker (AIR 1971 SC 815) to substantiate his contention that the respondents have authority to inspect and make search and seizure.


9(b). That apart, even in respect of milk and milk products, he would rely upon the judgements of the Supreme Court in Birbal vs. State of Haryana (2002 (1) JT 289) and Laskari Ram vs. State of Himachal Pradesh (2000 (9) SCC 256) apart from Mahendrakumar G.Patel vs. State of Gujarat (AIR 2003 SC 4058) to substantiate his contention that even in respect of milk products the Prevention of Food Adulteration Act, 1954 is applicable and as such the applicability of such Act is upheld by the Supreme Court. He would also submit that when admittedly the chilling unit has not been closed by the respondents, the petitioner has come forward with the false case as if the chilling unit was closed only to obtain interim order. It is also his case that the King Institute, has in fact submitted its report dated 26.08.2008 and as and when the report is communicated to the petitioner, it is always open to the petitioner to take appropriate action especially in the circumstances that the analytical report says that the samples are adulterated ones as per the Prevention of Food Adulteration Act,1954.


10. I have heard the learned senior counsel and other counsel appearing for the petitioner and the learned Additional Government Pleader for the respondents and perused various documents produced before this Court.


11. The impugned proceedings dated 22.7.2008 which is a seizure memo signed by the Health Supervisor belonging to the Public Health and Prevention of Diseases Department. In the counter affidavit filed by the third respondent it is stated that the power of seizure and search was effected under the provisions of the Prevention of Food Adulteration Act and the Rules made thereunder. As admitted by the learned Additional Government Pleader that by virtue of section 25 of the Prevention of Food Adulteration Act, 1954, the portion of the Tamil Nadu Public Health Act, 1939 which relates to the prevention of food adulteration under the Central Act, 1954 stands repealed and therefore, the Tamil Nadu Public Health Act has admittedly no application. This is substantiated by a proceedings of the Director of Public Health and Preventive Medicines, Chennai-6 dated 4.9.2008 under which the Health Inspector of Primary Health Centre, Thatchur was deputed to carry out the prevention of food adulteration work by seizure of milk products at Hatsun Milk Products Unit, Nadukuppam, Cheyyar. The said letter reads as follows:


"R.No.96889/PPA/S2/2008 Office of the Director of Public Health and Preventive Medicine, Chennai 6.


Dated 04/09/2008


Sub: Public Health ? Prevention of Food


Adulteration ? Deputation of Food Inspector ? orders ? issued.


Ref: R.No.4180/E4/2008 dated 4/9/08 of the Deputy Director of Health Services, Cheyyar.


...


Thiru K.Srinivasan, Health Inspector (Food Inspector), Primary Health Centre, Thatchur is temporarily deputed to Primary Health Centre, Thellar in connection with Prevention of Food Adulteration work regarding seizure of milk products at Hatsun Agro Products Ltd. at Nadukuppam village of Cheyyar HUD with immediate effect.


The date of relief and joining of the individual should be reported to the Directorate without fail.





Sd/-xxxxx


(S.ELANGO)


Director of Public Healthand Preventive Medicine, Chennai 6."


12. It is relevant to point out at this stage that a perusal of the impugned seizure memo dated 22.7.2008, which is much before the date of deputation of Mr. K. Srinivasan to effect seizure of milk products in Hatsun Milk Products Unit in Nadukuppam under the Prevention of Food Adulteration Act, shows that there is no document to prove that the Food Inspector who had made search and seizure on 22.7.2008 was authorised to perform the said functions under the Prevention of Food Adulteration Act, 1954.


13. In the light of the same, the submission made by the learned Additional Government Pleader that after the Prevention of Food Adulteration Act, 1954 came into existence, the Tamil Nadu Public Health Act, 1939 in relation to the provision of food adulteration stands repealed and therefore, the third respondent who is empowered to act under the Tamil Nadu Public Health Act, 1939 has jurisdiction as per sections 108 and 112 which relate to the powers of the Public Health Officer to enter into the premises used for food trade has no meaning.


14. Section 25 of the Prevention of Food Adulteration Act, 1954 which takes away the powers of Health Officer in respect of prevention of food adulteration under the Tamil Nadu Public Health Act, 1939 is as follows:


25. Repeal and saving.-(1) If, immediately before the commencement of this Act, there is in force in any State to which this Act extends any law corresponding to this Act, that corresponding law shall upon such commencement stand repealed.


(2) Notwithstanding the repeal by this Act of any corresponding law, all rules, regulations and bye-laws relating to the prevention of adulteration of food, made under such corresponding law and in force immediately before the commencement of this Act shall, except where and so far as they are inconsistent with or repugnant to the provisions of this Act, continue in force until altered, amended or repealed by rules made under this Act."


15. Section 112 of the Tamil Nadu Public Health Act, 1939 under which the Health Officer is stated to have exercised his powers for the purpose of sealing premises and making seizure is as follows:


"112. Power of Health Officer to enter premises used for food trade.-


The Health Officer or any person duly authorised by him may, without notice, enter any place at any time, by day or by night, where any article of food is being manufactured, prepared, exposed or stored for sale, and inspect such article and any utensil or vessel used for manufacturing, preparing or containing the same.


(2) Samples of any article of good or any vessel or utensil, in which such articles of good are kept may be taken and examined by the Health Officer or any person duly authorised by him as often as may be necessary for the detection of unwholesomeness. If on such examination he finds any such article of food to be unwholesome he may condemn it and forbid its sale.


(3) Whoever obstructs the Health Officer or person duly authorised by him in the discharge of his duties under this section shall be punishable with fine which may extend to one hundred rupees."


16. On the legal position as stated above, if really the third respondent functioning as Health Officer under the Tamil Nadu Public Health Act, 1939, has made seizure and conducted inspection under section 112 of the said Act, the said conduct of the third respondent resulting in the impugned proceedings has no legs to stand in the eye of law.


17. The contention raised by Mr. R. Krishnamoorthy, learned senior counsel appearing for the petitioner that the activities of the petitioner in dealing with milk and milk products are covered by the Milk and Milk Products Order, 1992 framed under section 3 of the Essential Commodities Act, 1955 deserves to be considered in detail. The said Milk and Milk products Order, 1992 was issued by the Government of India by notification dated 9.6.1992 as per the powers conferred under the Essential Commodities Act, especially under section 3. A reference to the Statement of objects and reasons which enabled the Government of India to pass Essential Commodities Act, as amended by the Essential Commodities (Amendment) Act, 2006, effective from 12.2.2007 makes it clear that the object of the original Act, 1955 as well as the Amendment Act is to provide for the control on production, supply and distribution of essential commodities. The term, 'essential commodity' which was defined in section 2(a) of the Act, 1955 was omitted by the Amendment Act, 54/06. By virtue of the said amendment, a new section 2-A has been introduced in which the 'essential commodities' have been narrated in detail. Further, it enables the Central Government to declare in public interest any commodity in the Schedule as essential commodity or to remove any commodity from the Schedule of essential commodities. Section 2-A of the Essential Commodities Act inserted with effect from 12.2.2007 is as follows:


"Section 2-A. Essential commodities declaration, etc.-(1) For the purposes of this Act, "essential commodity" means a commodity specified in the Schedule.


2) Subject to the provisions of sub-section (4), the Central Government may, if it is satisfied that it is necessary so to do in the public interest and for reasons to be specified in the notification published in the Official Gazette, amend the Schedule so as to -


(a) add a commodity to the said Schedule;


(b) remove any commodity from the said Schedule, in consultation with the State Governments.


(3) Any notification issued under sub-section (2) may also direct that an entry shall be made against such commodity in the said Schedule declaring that such commodity shall be deemed to be an essential commodity for such period not exceeding six months to be specified in the notification.


Provided that the Central Government may, in the public interest and for reasons to be specified, by notification in the Official Gazette, extend such period beyond the said six months.


(4) The Central Government may exercise its powers under sub-section (2) in respect of the commodity to which Parliament has power to make laws by virtue of Entry 33 in List III in the Seventh Schedule to the Constitution.


(5) Every notification issued under sub-section (2) shall be laid, as soon as may be after it is issued, before both Houses of Parliament.


SCHEDULE


(1) DRUGS.


Explanation.- for the purposes of this Schedule, "drugs" has the meaning assigned to it in clause (b) of section 3 of the Drugs and Cosmetics Act,1940 (23 of 1940);


(2) fertilizer, whether inorganic, organic or mixed;


(3) foodstuffs, including edible oilseeds and oils;


(4) hank yarn made wholly from cotton;


(5) petroleum and petroleum products;


(6) raw jute and jute textiles;


(7) (i) seeds of food-crops and seeds of fruits and vegetables.


(ii) seeds of cattle fodder; and


(iii) jute seeds."


In the Schedule, Item No.3 speaks about foodstuffs which can be considered to include milk and milk products.


18. Section 3 of the Essential Commodities Act, 1955 which enables the Central Government to pass orders makes it clear that such order is made for maintaining or increasing supply of essential commodities or for securing their equitable distribution and availability at fair price and in that regard, the order may contain provisions for regulating and prohibiting the production, supply and distribution thereof. The said section enables the Government to include in the said Order various powers for regulating licence, prohibiting sale of essential commodities, etc. which includes incidental and supplementary powers like, entry, search, examination of premises and seizure by a person authorised in cases where in respect of an article any contravention has been made. Even in respect of foodstuff, the power of Central Government in such Order is relating to the controlling of price and making regulations therefor. The said section 3 is as follows:


"Section 3. Powers to control production, supply, distribution, etc., of essential commodities.- (1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, [or for securing any essential commodity for the defence of India or the efficient conduct of military operations], it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.


(2) Without prejudice to the generality of the powers conferred by sub-section (1), an order made thereunder may provide,-


(a) for regulating by licences, permits or otherwise the production or manufacture of any essential commodity;


(b) for bringing under cultivation any waste or arable land, whether appurtenant to a building or not, for the growing thereon of food-crops generally or of specified food-crops, and for otherwise maintaining or increasing the cultivation of food-crops generally, or of specified food-crops;


(c) for controlling the price at which essential commodity may be bought or sold;


(d) for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use of consumption of, any essential commodity;


(e) for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale;


(f) for requiring any person holding in stock, or engage in the production, or in the business of buying or selling, of any essential commodity,_


(a) to sell the whole or a specified part of the quantity held in stock or produced or received by him, or


(b) in the case of any such commodity which is likely to be produced or received by him, to sell the whole or a specified part of such commodity when produced or received by him,


to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government or to such other person or class of persons and in such circumstances as may be specified in the order.


Explanation 1._ An order made under this clause in relation to food grains, edible oilseeds or edible oils, may, having regard to the estimated production, in the concerned area, of such food grains, edible oilseeds and edible oils, fix the quantity to be sold by the producers in such area and may also fix, or provide for the fixation of, such quantity on a graded basis, having regard to the aggregate of the area held by, or under the cultivation of, the producers.


Explanation 2._ For the purposes of this clause, "production" with its grammatical variations and cognate expressions includes manufacture of edible oils and sugar;


(g) for regulating or prohibiting any class of commercial or financial transactions relating to foodstuffs which, in the opinion of the authority making the order, are, or, if unregulated, are likely to be detrimental to the public interest;


(h) for collecting any information or statistics with a view to regulating or prohibiting any of the aforesaid matters;


(i) for requiring persons engaged in the production, supply or distribution of or trade and commerce in, any essential commodity to maintain and produce for inspection such books, accounts and records relating to their business and to furnish such information relating thereto, as may be specified in the order;


[(ii) for the grant or issue of licences, permits or other documents, the charging of fees therefor, the deposit of such sum, if any, as may be specified in the order as security for the due performance of the conditions of any such licence, permit or other document, the forfeiture of the sum so deposited or any part thereof for contravention of any such conditions, and the adjudication of such forfeiture by such authority as may be specified in the order;]


(j) for any incidental and supplementary matters, including, in particular, the entry, search or examination of premises, aircraft, vessels, vehicles or other conveyances and animals, and the seizure by a person authorised to make such entry, search or examination,-


(i) of any articles in respect of which such person has reason to believe that a contravention of the order has been, is being, or is about to be, committed and any packages, coverings or receptacles in which such articles are found;


(ii) of any aircraft, vessel, vehicle or other conveyance or animal used in carrying such articles, if such person has reason to believe that such aircraft, vessel, vehicle or other conveyance or animal is liable to be forfeited under the provisions of this Act;


(iii) of any books of accounts and documents which in the opinion of such person, may be useful for, or relevant to, any proceeding under this Act and the person from whose custody such books of accounts or documents are seized shall be entitled to make copies thereof or to take extracts therefrom in the presence of an officer having the custody of such books of accounts or documents.


(3) Where any person sells any essential commodity in compliance with an order made with reference to clause (f) of sub-section (2), there shall be paid to him the price therefor as hereinafter provided,_


(a) where the price can, consistently with the controlled price, if any, fixed under this section, be agreed upon, the agreed price;


(b) where no such agreement can be reached, the price calculated with reference to the controlled price, if any;


(c) where neither clause (a) nor clause (b) applies, the price calculated at the market rate prevailing in the locality at the date of sale.


[(3-A)(i) If the Central Government is of opinion that it is necessary so to do for controlling the rise in prices or preventing the hoarding, of any foodstuff in any locality, it may, by notification in the Official Gazette, direct that notwithstanding anything contained in sub-section (3), the price at which the foodstuff shall be sold in the locality in compliance with an order made with reference to clause (f) of sub-section (2) shall be regulated in accordance with the provisions of this sub-section.


(ii) Any notification issued under this sub-section shall remain in force for such period not exceeding three months as may be specified in he notification.


(iii) Where, after the issue of a notification under this sub-section, any person sells foodstuff of the kind specified therein and in the locality so specified in compliance with an order made with reference to clause (f) of sub-section (2), there shall be paid to the seller as the price therefor_


(a) where the price can, consistently with the controlled price of the foodstuff, if any, fixed under this section, be agreed upon, the agreed price;


(b) where no such agreement can be reached, the price calculated with reference to the controlled price, if any;


(c) where neither clause (a) nor clause (b) applies, the price calculated with reference to the average market rate prevailing in the locality during the period of three months immediately preceding the date of the notification.


(iv) For the purposes of sub-clause (c) of clause (iii), the average market rate prevailing in the locality shall be determined by an officer authorised by the Central Government in this behalf, with reference to the prevailing market rates for which published figures are available in respect of that locality or of a neighbouring locality; and the average market rate so determined shall be final and shall not be called in question in any Court.]


[(3-B) Where any person is required, by an order made with reference to clause (f) of sub-section (2), to sell to the Central Government or a State Government or to an officer or agent of such Government or to a Corporation owned or controlled by such Government, any grade or variety of food grains, edible oilseeds or edible oils in relation to which no notification has been issued under sub-section (3-A), or such notification having been issued, has ceased to be in force, there shall be paid to the person concerned, notwithstanding anything to the contrary contained in sub-section (3), an amount equal to the procurement price of such food grains, edible oilseeds or edible oils, as the case may be, specified by the State Government, with the previous approval of the Central Government having regard to_


(a) the controlled price, if any, fixed under this section or by or under any other law for the time being in force for such grade or variety of food grains, edible oilseeds or edible oils;


(b) the general crop prospects;


(c) the need for making such grade or variety of food grains, edible oilseeds or edible oils available at reasonable prices to the consumers, particularly the vulnerable sections of the consumers; and


(d) the recommendations, if any, of the Agricultural Prices Commission with regard to the price of the concerned grade or variety of food grains, edible oilseeds or edible oils.]


[(3-C) Where any producer is required by an order made with reference to clause (f) of sub-section (2) to sell any kind of sugar (whether to the Central Government or a State Government or to an officer or agent of such Government or to any other person or class of persons) and either no notification in respect of such sugar has been issued under sub-section (3-A) or any such notification, having been issued, has ceased to remain in force by efflux of time, then, notwithstanding anything contained in sub-section (3), there shall be paid to that producer an amount therefor which shall be calculated with reference to such price of sugar as the Central Government may, by order, determine, having regard to -


(a) the minimum price, if any, fixed for sugarcane by the Central Government under this section;


(b) the manufacturing cost of sugar;


(c) the duty or tax, if any, paid or payable thereon; and


(d) the securing of a reasonable return on the capital employed in the business of manufacturing sugar, and different prices may be determined from time to time for different areas or for different factories or for different kinds of sugar.


Explanation.- For the purposes of this sub-section, "producer" means a person carrying on the business of manufacturing sugar.]


[(3-D) The Central Government may direct that no producer, importer or exporter shall sell or otherwise dispose of, or deliver any kind of sugar or remove any kind of sugar from the bonded godowns of the factory in which it is produced, whether such godowns are situated within the premises of the factory or outside, or from the warehouses of the importers or exporters, as the case may be, except under and in accordance with the direction issued by the Government.


Provided that this sub-section shall not affect the pledging of such sugar by any producer or importer in favour of any scheduled bank as defined in clause (e) of section 2 of the Reserve Bank of India Act, 1934 (2 of 1934) or any corresponding new bank constituted under section 3 of the Banking Companies (Acquisition and Transfer of Undertaking) Act, 1970 (5 of 1970), so, however, that no such bank shall sell the sugar pledged to it except under and in accordance with a direction issued by the Central Government.


(3-E) The Central Government may, from time to time, by general or special order, direct any producer or importer or exporter or recognised dealer or any class of producers or recognised dealers, to take action regarding production, maintenance of stocks, storage, sale, grading, packing, marking, weighment, disposal, delivery and distribution of any kind of sugar in the manner specified in the direction.


Explanation.- For the purposes of sub-section (3-D) and this sub-section,-


(a) "producer" means a person carrying on the business of manufacturing sugar;


(b) "recognised dealer" means a person carrying on the business of purchasing, selling or distributing sugar;


(c) "sugar" includes plantation while sugar, raw sugar and refined sugar, whether indigenously produced or imported.]


4. If the Central Government is of opinion that it is necessary so to do for maintaining or increasing the production and supply of an essential commodity, it may by order, authorise any person (hereinafter referred to as an authorised controller) to exercise, with respect to the whole or any part of any such undertaking engaged in the production and supply of the commodity as may be specified in the order such functions of control as may be provided therein and so long as such order is in force with respect to any undertaking or part thereof,-


(a) the authorised controller shall exercise his functions in accordance with any instructions given to him by the Central Government, so, however, that he shall not have any power to give any direction inconsistent with the provisions of any enactment or any instrument determining the functions of the persons in-charge of the management of the undertaking, except insofar as may be specifically provided by the order; and


(b) the undertaking or part shall be carried on in accordance with any directions given by the authorised controller under the provisions of the order, and any person having any functions of management in relation to the undertaking or part shall comply with any such directions.


(5) An order made under this section shall,-


(a) in the case of an order of a general nature or affecting a class of persons, be notified in the Official Gazette; and


(b) in the case of an order directed to a specified individual be served on such individual-


(i) by delivering or tendering it to that individual, or


(ii) if it cannot be so delivered or tendered, by affixing it on the outer door or some other conspicuous part of the premise in which that individual lives, and a written report thereof shall be prepared and witnessed by two persons living in the neighbourhood.


(6) Every order made under this section by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament, as soon as may be, after it is made."


19. A reading of the entire section makes it clear that the powers of the Central Government to enable it to pass various controlling orders are basically in respect of production, supply and distribution of essential commodities. It is no doubt true that under section 6 of the Essential Commodities Act, 1955 any order made by the Government under section 3 will have a overriding effect notwithstanding any inconsistency in any other enactment and the said section 6 is as follows:


?6. Effect of Orders inconsistent with other enactments.- Any order made under Section 3 shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or any instrument having effect by virtue of any enactment other than this Act."


The said overriding effect is given to the orders passed by the Government of India by virtue of powers under section 3 of the Act for the purpose of production, supply and distribution of essential commodities.


20. Under the Milk and Milk Products Order, 1992, the object for passing such order is stated as follows:


"Whereas the Central Government is of the opinion that for maintaining and increasing the supply of liquid milk of the desired quality in the interest of the general public, it is necessary to provide for regulating the production, supply and distribution of milk and milk product".


21. In the Order, the following definitions are relevant:


"2(c). "business in milk and milk product" means sale or purchase of milk or milk product and includes manufacturing, processing, handling or controlling of milk and milk product.


2(f). "milk" means milk of cow, buffalo, sheep, goat, or a mixture thereof, either raw or processed in any manner and includes pasteurised, sterilized, recombined, flavoured, acidified, skimmed, toned, double toned, standardised or full cream milk.


2(g). "milk product" means cream, malai, curd, yogurt, skimmed milk curd, shrikhand, paneer or channa, skimmed milk panner or skimmed milk channa, cheese, processed cheese and cheese spread, ice cream, milk ices, condensed milk (sweetened and unsweetened), condensed skimmed milk (sweetened and unsweetened), whole milk powder, skimmed milk powder, partly skimmed milk powder, khoya, rubri, kulfi, kulfa, casein, sweets made from khoya;


paneer and channa, infant milk food, table butter, deshi butter, ghee or butter oil, and includes any other substance containing on a dry weight basis not less than fifty per cent of milk solids (excluding added sugars), or any other substance declared by the Central Government, by notification as a milk product;


2(h). "Dairy establishment" means a place where milk collection, processing, manufacturing, storage and handling of Milk and Milk Product is carried out and any type of container or vessel which is used for storage and transportation of milk and milk product.


2(k). "registration certificate" means a registration certificate issued under this Order.


2(l). "Registering Authority" means an authority appointed or designated, subject to the provision of sub-paragraph 31, by the Central Government to make registration and to issue registration certificates under this Order."


22. The Milk and Milk Products Advisory Board constituted as per Paragraph 3 of the said Order is having various functions including advising the Central Government in the matters relating to establishing proper standards and norms for the control and analysing milk and milk products.


"4. Functions of the Board.-


(1) ......


(2) Without prejudice to the generality of the provisions of sub-paragraph (1), the Board may advise the Central Government on matters relating to,-


(a) facilitation of the supply of availability of liquid milk, by balancing uneven supplies in different regions and seasons;


(b) maintenance or increase in the supply of milk, and equitable distribution and availability thereof;


(c) establishment of proper standards and norms for control and handling of milk and milk product;


(d) maintenance of high standards of sanitary and hygienic conditions in the manufacture of milk and milk product;


(e) establishment, promotion or registration of any industry which is relatable to milk product; and


(f) such other purposes as are necessary or incidental to the effective implementation of the Order."


23. Paragraph 5 of the Order which relates to registration mandates that after commencement of the Order on 9.6.1992, no new plant shall be installed or expanded for manufacturing without obtaining registration by the registering authority and the registration certificate shall consist of various terms and conditions including sanitary, hygienic conditions, quality and safety as it is stated in the Fifth Schedule to the said Order. It also provides for inspection by the authorities before installing, commissioning the plant and thereafter, the registering authority issues the certificate as per the Fifth schedule. The said Paragraph is as follows:


"5. Registration:- (1) On and from the date of commencement of this Order, no person or manufacturer shall set up a new plant or expand the capacity of the existing plant without obtaining registration/permission as the case may be from the concerned Registering Authority. For this purpose, such person may make an application in the form specified in the first Schedule along with the prescribed fee to the Registering Authority for obtaining registration certificate.


(2) The provisions contained in sub-paragraph (1) shall apply to such person who handles or is equipped to handle or who has in the establishment or unit under his ownership or control (or where he has more than one such establishment, all the establishments put together) installed capacity for handling milk in excess of ten thousand litres per day, or milk product containing milk solids in excess of five hundred tonnes per annum.


(3) In the registration certificate referred to in sub paragraph (1), the terms and conditions of the registration under this Order shall cover sanitary, hygienic conditions; quality and food safety as specified in the Fifth Schedule.


(4) Omitted.


(5) Omitted.


5(A) Omitted.


5(B)(a) The plant set up shall not be allowed to be commissioned unless an inspection has been carried out to ascertain sanitary and hygienic condition as specified in the Fifth Schedule and as per the instructions issued by the Central Government from time to time.


(b) The inspection shall be carried out by a team of three experts constituted by the applicant from a panel of experts or by a firm of quality auditors having professional experience of at least ten years in the fields of food technology, dairy technology, dairy engineering, animal husbandry and dairying and pollution control employed in institutions of repute in these fields. Such panels shall be notified by the Central Government from time to time.


(c) Soon after the inspection the experts shall submit an inspection report in sealed cover to the concerned registering authority.


(d) Such inspection shall be valid for a period not exceeding one year and the applicant shall be bound to arrange for re-inspection of the dairy plant before the expiry of the said period.


6. In respect of applicant referred to in sub paragraph (1), the registering authority shall make the registration and issue the registration certificate to the applicant in the form specified in the Second Schedule.


7(a). Every application for registration, complete in all respect shall be disposed of by the registering authority within a period of ninety days from the date of receipt of the application.


(b) Notwithstanding the period specified in clause (a), if the registering authority requires any additional information with respect to any application or if any application is incomplete in any respect, the registering authority may in writing require the applicant within such period mentioned therein to supply such additional information or complete the application in all respect, as the case may be.


(c) on receipt of any additional information or the complete application under clause (b), the registering authority shall dispose of the application within forty five days from the date of receipt of such completed application or additional information as the case may be.


(8) Omitted.


(9) Omitted.


(10) Separate registration certificate shall be obtained in respect of each undertaking or establishment or unit if the holder of the registration certificate carries on business in milk or milk product in more than one premises; provided that there shall be no need of separate registration as long as no independent business activities are carried on in these premises.


(11) ....


(12) ...."


24. The appointment and functioning of registering authority are explained in paragraph-13 which is as follows:


"13. Appointment and functions of registering authority.


(1) The Central Government may, by notification in the Official Gazette, appoint or designate as many officers of the Central or State Government or a statutory body set up by an Act of Parliament or State Legislature, as it may deem fit, as registering authority and specify their respective jurisdiction.


Provided that the registration of unit handling up to 2.00 lakh litres of milk per day or 10,000 MT of milk solids per annum where the entire activity of procurement, processing and marketing of the Unit lies within the State or Union territory, the registering authority shall be an officer of the concerned State Government or Union Territory.


(2) The registering authority shall deal with applications for registration and issue registration certificates under this Order and perform, within its jurisdiction, all functions in connection therewith for compliance with the terms and conditions of the registration."


The proviso to the Paragraph-13 of said Order makes it clear that in cases where the entire activities of procurement and processing units lie within the State or Union Territory, the registering authority shall be an Officer of the concerned State Government or the Union Territory.


25. Under paragraph-15 of the Order, the registering authority is empowered to enter, inspect and make seizure, as follows:


"15. Power to enter, inspect and seize. - The registering authority or any other officer authorised by it, may carry out periodic inspection of any premises in which manufacture or process, or business in milk or any milk product is carried on, with a view to ensuring compliance with the provisions of this Order or of any direction issued in pursuance thereof or supply of genuine and proper material to consumers, and where the registering authority, otherwise considers it necessary by general or special order, it may -


(a) require any holder of the registration certificate or any other person to give any information in his possession with respect to his business.


(b) require, by notice in writing, any holder of the registration certificate or any other person to furnish samples of any milk or milk product or of any material used in the manufacture of the same.


(c) require any holder of the registration certificate or any other person dealing with or manufacturing or processing or handling milk or milk product, in writing, to produce books, documents or the registration certificate issued to him;


(d) inspect or cause to be inspected any of the books or documents in the possession of or under the control of such persons;


(e) inspect or cause to be inspected any stock or any such vehicle, vessel or receptacle, if he has reason to believe that goods procured are in violation of the terms and conditions of the registration or in contravention of the provisions of this Order;


(f) enter and search any premises and seize any article to which this Order applies and in respect of which he has reason to believe that contravention of this Order has been or is being or is about to be committed and take or authorise to take all measures necessary for securing the production of stocks with reference to milk or milk product so seized in the Court or for their safe custody, pending such production.


(2) The authority or the officer referred to in sub-paragraph (1) may,-


(a) detain, on giving a proper receipt, raw materials, documents account books, or other relevant evidence connected with the handling or processing or dealing with or manufacture of milk or milk product in respect of which he has reason to believe that a contravention of this Order has taken place;


(b) collect, from the holder of the registration certificate, on giving a proper receipt, samples of milk or milk product or any ingredient used in the preparation of such milk or milk product from the premises of the holder of the registration certificate in respect of which he has reason to believe that a contravention of this Order has taken place;


(c) collect, on payment, from any person samples of milk or milk product sold, or intended to be sold or kept for despatch or delivery to any dealer, agent or broker for the purpose of sale, and get such samples analysed at a recognised laboratory specified under sub-paragraph (6) of Paragraph 23.


(3) The provisions of Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974) shall, as far as may be, apply to every search under this Order."


26. It is true that in Paragraph-26(1)(iv), while dealing with certification, packing, marketing and labelling, it is stated as follows:


"the constituent ingredients of milk and milk products shall conform to the standards prescribed by the Central Government".


Again, in paragraph-26, clause 6, it is stated,


"Nothing contained in this paragraph shall apply to milk and milk products imported into India"


27. Paragraph-28 deals with the powers of prosecution by the authority, which is as follows:


"28. Prosecution.- Any person


(a) handling or processing or controlling or manufacturing milk or any milk product without obtaining a registration certificate as required under this Order, or


(b) continuing to manufacture or process or handle or pack milk or milk product after suspension or revocation or expiry of registration certificate issued or,


(c) handling, processing, manufacturing, controlling or packing milk or milk product in contravention of the provisions of this Order or of the terms and conditions of the registration certificate or


(d) producing any item in excess of the quantity specified for that item in the registration certificate or


(e) making any manufacturing facility in contravention of the provisions of sub paragraph (1) of Paragraph 5, shall, in addition to suspension, revocation, or cancellation of his registration certificate, be liable to prosecution for the contravention of the provisions of this Order."


28. It is also relevant to point out that paragraph-32 which speaks about repeal, saving or superseding of any order of the Government passed under section 3 of the Essential Commodities Act insofar as it relates to milk and milk products and the said paragraph-32 is as follows:


"32. Repeal and savings.- (1) The provisions of this Order and instructions issued thereunder, shall supersede any order made under Section 3 of the Essential Commodities Act, 1955 (10 of 1955) in so far as it relates to milk or milk product.


(2) Notwithstanding such supersession, anything done or any action taken or initiated under those Orders shall be deemed to have been done, taken or initiated under the corresponding provisions of this Order."


29. The contention of the learned senior counsel for the petitioner Mr. R. Krishnamoorthy is that the said Order is a self-contained code which includes the powers of the registering authority to insist that the quality of milk and milk products should be maintained and in the event of quality having not been maintained, there are powers vested on the authority under paragraph-15 to enter, inspect and make seizure and therefore, according to him, it is only the registering authority who is empowered under the said Order who is having the power of making search and seizure. In the light of the stand taken by the petitioner that in the unit of the petitioner at Nadukuppam, apart from having a chilling unit, the petitioner is manufacturing skimmed milk products for the purpose of export to Philippines as cattle food and for that purpose the petitioner imported lactose from abroad and in respect of use of lactose for cattle food, the permissible period is five years, the learned senior counsel, placing reliance on the paragraph-26(6) of the Order, would submit that even the order does not apply to the milk products imported into India. His further submission is that even otherwise, the skimmed milk products and lactose which were seized had been kept for the purpose of manufacturing cattle food and therefore, it cannot be deemed to be milk and milk products. According to him, the respondents have no jurisdiction to make search and seizure and therefore, the entire proceedings of the respondents are to be set aside as wholly arbitrary and without jurisdiction.


30. The petitioner would also rely upon the various registration certificates issued by the Government of India, Ministry of Agriculture. The various copies of registration certificates produced by the petitioner which relate to the Unit at Kancheepuram dated 15.03.2003, in respect of the dairy plant and milk products manufactured with the installed capacity are as follows:


"5. Installed capacity of the Dairy Plant and Milk Products proposed to be manufactured.


a) Milk Processing capacity 5,000 LLPD (Five Lakh litters per day of milk).


b) Milk Products (specify he name of the product proposed to be manufactured within the overall processing capacity of liquid milk stated to be in (a) above.


Toned Milk, Double Toned Milk, Standardised Milk, Full Cream Milk, Flavoured Milk, Skimmed Milk, Butter Milk, Lassi, Peda, Paneer, Ghee, Butter, Cheese, Curd and Cream."


It is no doubt true that the certificate is given as per Second Schedule to the Milk and Milk Products Order, 1992.


31. Another registration certificate issued by the Ministry of Agriculture, Government of India dated 20.08.2008, on which reliance was placed by the petitioner is relating to six dairy Units and their location, which are as follows:


"(i) Salem Attur Main Road, Vill.Karumapuram Distt. Salem, (TN) 636 106.


(ii) 144, Timmasamudiram Vill.Chennai Bangalore Highway, Kanchipuram (TN) 631 502.


(iii) S.No.76/1-B, 76/2-B, 75/2B3, Dindigul National Highway, Nagari Village, Vadipati Taluka Madurai (TN) 624 221.


(iv) Village 21, Sengam Basvandalav, Marandahalli, Palakode Taluka, Dharmapuri (TN) 636 808.


(v) 277/2, Desur Village, Delgaum 590 014 (Karnataka)


(vi) 109/2, Kundur Village, Honnali Davangere Distt.(Ktka)."


The certificate was issued along with the installed capacity of milk products and dairy products with usual conditions.


32. Even though some of the documents have been produced to show that the petitioner has requested permission based on the said certificate of registration for manufacturing cattle feed grade to be exported, there is no record produced to show that such permission has been in fact granted by the authority under the Milk and Milk Products Order, 1992 and therefore, at this stage, it is not possible to decide as to whether the materials which have been seized and sent for analysis to the King Institute were either permitted to be kept or kept for the purpose of manufacturing cattle feed for export and there is also no reason to believe that the lactose, seized on the basis that the period of two years has expired, has been kept for the purpose of making skimmed milk product for cattle feed to be exported, which permits the lactose to be kept even for five years. All these facts in the absence of prima facie materials cannot be ascertained by this Court at this stage and therefore, it is not possible to decide as to whether the registration which has been given in favour of the petitioner under the Milk and Milk Products Order,1992 includes the power of the petitioner to manufacture the cattle feed for export along with skimmed milk powder and such issue can only be decided in a proper adjudicatory method by the authority concerned.


33. The object of the Essential Commodities Act,1955 as enumerated by the Delhi High Court in Delhi Administration vs. M/s.Munshi Ram Ram Niwas, Delhi and others (1985 Crl.L.J. 1230), is as follows:


"7. The E.C. Act was passed by the Parliament in 1955 and as the preamble says it is an Act to provide, in the interests of general public, for the control of production, supply and distribution of, and trade and commerce in, certain commodities. The preamble of a statute is a recital of the intent of its framers and can be considered as a key to the purpose of the E.C.Act is of controlling the production, supply and distribution of, and trade and commerce in certain commodities. Section 3 confers powers on the Central Government who may by order provide for regulating or prohibiting the production, supply and distribution of essential commodities and trade and commerce therein. This power is intended to be exercised for the purpose of maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices or for securing any essential commodity for the defence of India or the efficient conduct of military operations. Sub-sec.(2) of S.3 enumerates various matters which can be provided for in that Order. Clause (d) says that the order may provide for regulating by licenses, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity. These measures are devised for the maintenance of supplies of essential commodities to the community."


34. While considering the distinct object under the Essential Commodities Act, 1955 as that of the Delhi Agricultural Produce Marketing (Regulation) Act, 1976 which provides for better regulation of purchase, sale, storage and processing of agricultural produce and the establishment of market for agricultural produces in the Union Territory of Delhi and which is intended to eliminate middlemen in agricultural produce, including the horticulture, animal husbandry, apiculture or pisciculture etc., the High Court has reiterated in no uncertain terms about the object of the Essential Commodities Act, 1955, in the following words:


"12. ..... The object and purpose of the Act is entirely different from the E.C. Act. The language of each statute is restricted to its own objects and subject. They operate in their own field in the matter of licensing."


35. The judgement of the Full Bench of Punjab & Haryana High Court rendered in Chint Ram and another vs. State of Punjab (AIR 1971 Panjab & Haryana 310) relied upon by the learned senior counsel for the petitioner relates to an order passed under the Essential Commodities Act, 1955 and Fruit Products Order, 1955, the manufacturing of which should be in conformity with the Schedule of the said Order, wherein it was held that no prosecution can be laid against the registration holder under the Order under Section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954, on the factual situation that the petitioner therein has complained that the using of coal, tar, dye in the table sauce as per the quantum permitted under the provisions of the Fruit Products Order,1955 cannot be prosecuted under the provisions of the Prevention of Food Adulteration Act, 1954. In the factual matrix of the present case and especially in the absence of any order by the authority under the Milk and Milk Products Order, 1992, permitting the petitioner to use lactose, for which the time of two years has expired or to produce cattle food with skimmed milk powder for export, it is not possible to accept the contention of the learned senior counsel for the petitioner that by virtue of the judgement of the Full Bench of Punjab and Haryana High Court, except the authority, viz., the registering authority contemplated under Milk and Milk Products Order, 1992, no other person has jurisdiction on the complaint of alleged adulteration effected by the petitioner.


36. Again another Full Bench judgement of the Panjab & Haryana High Court in Capt.Kanwaljit Singh and others vs. Union of India and another (AIR 1994 P & H 248) relied upon by the learned senior counsel for the petitioner also relates to the Milk and Milk Products Order,1992, about which we are concerned in this writ petition, and the Full Bench, while by treading it as a Control Order on the basis of the object of the said Order, has observed as follows:


"5. A bare reading of the provisions of the Control Order reveals that no person who handles or is equipped to handle or has in his establishment, or establishments, as the case may be, installed capacity to handle milk in excess of 10,000 litres per day or milk products containing milk solids in excess of 500 tonnes per days (annum) can do so without obtaining a registration certificate/licence, he can handle produce and deal with milk or milk products only to the extent of the licensed/registered capacity as per the registration certificate and that too from within the milkshed area only specified in the registration certificate, though the Registering certificate to collect and procure milk as specified under registered limit and from outside milkshed area for a period of a specified duration in the public interest. Consequently, the Control Order restricts purchase of milk and milk products by bulk purchasers up to the licensed quantity and from the licensed area."


37. In that case, the High Court was dealing with the grievance of the milk producers who are not registered under the said Order that they are deprived of their right to sell milk to such persons as they like and after taking into consideration the contention of the Union of India that the object of issuing the said Order is to ensure the continuous and ready supply of milk and that the supply of liquid milk gets severely affected by conversion of milk into milk products, it was held that there was a need to issue the said Order with primary objective of restricting large scale conversion of milk into milk products and therefore, it was in the interest of society at large by holding that the milk and milk products are coming within the definition of "foodstuff" under Section 2(a)(v) of the Essential Commodities Act and ultimately upheld the validity of the said Order. Therefore, the said judgement relied upon by the learned senior counsel for the petitioner is not of any use to the petitioner in this case who has contended that except the authority under the Milk and Milk Products Order, 1992, no other authority in the State has any right or jurisdiction to search and effect seizure.


38. That apart, as explained in the above said judgements, while reading the object of the Milk and Milk Products Order, 1992 in consonance with the basic object of the Essential Commodities Act, 1955, which is to control the production, supply and distribution of commodities, there is no difficulty to come to the conclusion that the said order does not contain any mechanism or provision for the purpose of prevention of adulteration of milk, which is admittedly a "foodstuff" as per the Essential Commodities Act, 1955.


39. On the other hand, the overall reading of the Order makes it clear that the object is to control the production, supply and distribution of milk and milk products and the power of seizure and search conferred on the authorities under the Order is only incidental to the basic object of the Order stated above, which is not intended for the purpose of prevention of adulteration. The mere use of the words in one of the paragraphs of the Order to the effect that 'the constituent of milk and milk product should be conformed to the standards prescribed by the Central Government' is not sufficient to hold that the authority constituted under the said Order can exercise its powers in order to prevent adulteration of food. A reference to the provision relating to the registration under the Order makes it clear that the registration certificate is issued for the purpose of regulating and controlling the trading activities in milk and milk products.


40. It is relevant to note that even in the registration certificate issued by the authority under the said Order in favour of the petitioner, there are no details about the conditions of "food" about the sanitary, hygienic condition and quality of food. Fifth Schedule to the Order which relates to the conditions for registration of dairy establishments imposing various conditions speaks about the requirement of approval by Pollution Control Board in respect of hygienic condition, maintenance of various construction in the unit including cleaning, disinfecting tanks, storing of raw materials in a proper place, etc. having equipments and other instruments to be distinct from microbiologically stable dairy products, hygienic conditions imposed to the staff; hygienic conditions/requirements for storage and the conditions for the purpose of wrapping and packaging are as follows:


"FIFTHSCHEDULE

(See Para 5 and 25)


CONDITIONS FOR REGISTRATION OF DAIRY ESTABLISHMENTS


A. GENERAL CONDITIONS OF SANITARY AND HYGIENE FOR DAIRY ESTABLISHMENTS.


1. Dairy Establishments shall have the following:


(a) facilities for the hygienic handling and protection of raw materials and of non-packed or non-wrapped dairy products during loading and unloading;


(b) appropriate arrangements for protection against pests;


(c) instruments and working equipment intended to come into direct contact with raw materials and dairy products which are made of corrosion-resistant material and which are easy to clean and disinfect;


(d) special watertight, non-corrodible containers in which to put raw materials or dairy products intended for human consumption. Where such raw materials or dairy products are removed through conduits, these shall be constructed and installed in such a way so as to avoid any risk of contamination of other raw materials or dairy products;


(e) appropriate facilities for the cleaning and disinfecting of equipment and instruments especially cleaning in place (CIP) system;


(f) an adequate waste water disposal system which is hygienic and approved by Pollution Control Board;


(g) a supply of potable water. However a supply of non-potable water is also permitted provided that it is intended only for the cooling of equipment, steam production, fire-fighting and refrigeration equipment, and provided that the pipes installed for this purpose preclude the use of this water for other purposes and present no direct or indirect risk of contamination of the dairy products. Non-potable water pipes shall be clearly distinguished from those used for potable;


(h) an appropriate number of changing rooms with smooth, waterproof, washable walls and floors and within the room or in its immediate vicinity, wash basins with non hand-operable taps, hygienic hand-drying facilities and flush lavatories. The lavatories shall not open directly on to the work rooms;


(i) a lockable room or a secure place for the storage of detergents, disinfectants and similar substances;


(j) a rack or cupboard for storing cleaning and maintenance material;


(k) adequate facilities for cleaning disinfecting tanks used for transporting dairy products. However such facilities shall not be compulsory if alternative facilities which are acceptable to the registering authority are available to the dairy establishment for such purpose; and


(l) room with adequate capacity for storing raw materials and dairy products.


2. (1) Dairy establishments shall have working areas of sufficient size for work to be carried out under adequate hygienic conditions; their design and layout shall be such as to preclude contamination of the raw materials and the dairy products.


(2) The production of heat-treated milk or the manufacture of milk-based products, which might pose a risk of contamination to other dairy products, shall be carried out in a clearly separated working area.


(3) In areas where raw materials are handled and dairy products are manufactured, the areas shall have the following:


(a) solid, waterproof flooring which is easy to clean and disinfect and which allows water to drain away, and equipment to remove water;


(b) walls which have smooth surfaces and are easy to clean, are durable and impermeable and which are covered with light-coloured coating;


(c) ceilings or roof linings which are easy to clear in those areas where exposed or non-packaged raw materials or Dairy products are handled;


(d) doors made of non-corrodible materials which are easy to clean;


(e) adequate ventilation and, where necessary, good steam and water vapour extraction facilities in accordance with Factory Act, 1948;


(f) adequate natural or artificial lighting in accordance with Factory Act, 1948;


(g) an adequate number of facilities with hot and cold running water, or water pre-mixed to a suitable temperature, for cleaning and disinfecting hands; taps in work rooms and lavatories for cleaning and disinfecting hands which shall be non hand-operable, these facilities shall be provided with cleaning and disinfecting materials and a hygienic means of drying hands; and


(h) facilities for cleaning tools, equipment and installations.


3. (1) Subject to sub-paragraph (2) of this paragraph, the rooms where raw materials and dairy products are stored shall comply with the requirements specified in paragraph 2(3)(a)to(f) above.


(2) Raw Materials and dairy products shall not be stored in rooms which do not comply with all or any of the requirements of paragraph 2(3)(a) to (f) above.


4. Rodents, insects and any other vermin shall be systematically destroyed in the dairy establishment and any creature, including any harmful animal shall be prevented from entering rooms in which dairy products are manufactured or stored.


5. Instruments and equipment used for working on raw materials and dairy products, floors, ceilings or roof linings, walls and partitions shall be kept in a satisfactory state of cleanliness and repair, so that they do not constitute a source of contamination to raw materials or dairy products.


6. Equipment, containers and installations which come into contact with dairy products or perishable raw materials used during production shall be cleaned and if necessary disinfected according to a cleaning programme based on risk analysis principles.


7. Equipment, containers, instruments and installations which come into contact with microbiologically stable dairy products and the rooms in which they are stored shall be cleaned and disinfected according to a cleaning programme based on risk analysis principles drawn up by the occupier of the dairy establishment.


8. Any container or tank used for transporting and storage of raw milk shall be cleaned and disinfected before re-use.


9. The processing establishment shall in principle be cleaned according to a cleaning programme based on risk analysis principles.


10. The occupier of a dairy establishment shall take appropriate measures to avoid cross-contamination of dairy products in accordance with the cleaning programme specified in paragraph 7 above.


11. Disinfectants and similar substances used shall be used in such a way that they do not have any adverse effects on the machinery, equipment, raw materials and dairy products kept at the dairy establishment. They shall be in clearly identifiable containers bearing labels with instructions for their use and their use shall be followed by thorough rinsing of such instruments and working equipment with potable water.


12. Where a dairy establishment produces foodstuffs containing dairy products, together with other ingredients, which have not undergone heat-treatment, or other treatment having an equivalent effect, such dairy products and ingredients shall be stored separately to prevent cross-examination.


B. GENERAL CONDITIONS OF HYGIENE APPLICABLE TO STAFF.


1. The registrant of a dairy establishment shall employ those persons only in such an establishment to work directly with and handle raw materials or dairy products if those persons have proved to the occupier's satisfaction by means of a medical certificate, on recruitment, that there is no medical impediment to their employment in that capacity.


2. Persons working directly with and handling raw materials or dairy products shall maintain the highest standards of personal cleanliness at all times. In particular they shall-


(a) wear suitable, clean working clothes and headgear which completely encloses their hair;


(b) not smoke, spit, eat or drink in room where raw materials and dairy products are handled or stored;


(c) wash their hands at least each time work is resumed and whenever contamination of their hands has occurred; and


(d) cover wounds to the skin with a suitable waterproof dressing.


3. The occupier shall take all necessary measures to prevent persons liable to contaminate raw materials and dairy products from handling them until the occupier has adequate evidence that such persons can do so without risk of contamination.


C. SANITARY AND HYGEINIC REQUIREMENTS FOR STORAGE


1. Immediately after procuring, raw milk shall be placed in a clean place, which is suitably equipped so as to prevent the raw milk suffering from any adverse effect.


2. (1) Where raw milk is -


(a) collected daily from a producer shall, if not collected and brought to the dairy plant within four hours of milking, be cooled as soon as practicable after procuring to a temperature of 8 C or lower and maintained at that temperature until processed;


3. Upon acceptance at a processing establishment milk shall, unless heat-treated within four hours of acceptance, be cooled to a temperature of 4 C or lower, if not already at such temperature, and maintained at that temperature until heat-treated.


4. When the pasteurization process is completed, pasteurized milk shall be cooled immediately to a temperature of 4 degree Celsius or lower.


5. Subject to paragraph 7 below, any dairy product not intended to be stored at ambient temperature shall be cooled as quickly as possible to the temperature established by the manufacturer of that product as suitable to ensure its durability and thereafter stored at that temperature.


6. Where Dairy products other than raw milk are stored under cooled conditions, their storage temperatures shall be registered and the cooling rate shall be such that the products reach the required temperature as quickly as possible.


7. The maximum temperature at which pasteurised milk may be stored until it leaves the treatment establishment shall not exceed 5 degree Celsius.


D. WRAPPING AND PACKAGING


1. The wrapping packaging of dairy products shall take place under satisfactory hygienic conditions and in rooms provided for that purpose.


2. The manufacture of dairy products and packaging operations may take place in the same room if the following conditions are satisfied:-


(a) the room shall be sufficiently large and equipped to ensure the hygiene of the operations;


(b) the wrapping and packaging shall have been brought to the treatment or processing establishment in protective cover in which they were placed immediately after manufacture and which protects the wrapping or packaging from any damage during transport to the dairy establishment, and they shall have been stored there under hygienic conditions in a room intended for that purpose;


(c) the rooms for storing the packaging material shall be free room vermin and from amounts of dust which could constitute an unacceptable risk of contamination of the product and shall be separated from rooms containing substances which might contaminate the products. Packaging shall not be placed directly on the floor;


(d) packaging shall be assembled under hygienic conditions before being brought into the room, except in the case of automatic assembly or packaging, provided that there is no risk of contamination of the products;


(e) packaging shall be brought into the room under hygienic conditions and used without delay. It shall be handled by staff handling unwrapped products, if there is a risk of cross-contamination; and


(f) immediately after packaging, the dairy products shall be placed in the rooms provided for storage.


3. Bottling or filling of containers with heat-treated milk and milk product shall carried out mechanically and the sealing of the containers shall be carried out automatically.


4. Wrapping or packaging may not be re-used for dairy products, except where the containers are of a type which may be re-used after thorough cleaning and disinfecting.


5. Sealing shall be carried out in the establishment in which the last heat-treatment of drinking milk or liquid milk-base products has been carried out, immediately after filling, by means of a sealing device which ensures that the milk is protected from any adverse effects of external origin on its characteristic. The sealing device shall be so designed that once the container has been opened, the evidence of opening remains clear and easy to check."


41. No provision of Fifth Schedule contains any clause relating to adulteration. On the other hand, the overall picture of the Order makes it clear that the intention behind the order is to regulate the trade activities in respect of milk and milk products, of course, with a condition that the quality of the products should be maintained. Therefore, there is no substance in the contention raised on behalf of the petitioner that any action even in respect of adulteration in milk and milk products can only be taken under the said Milk and Milk Products Order, 1992. As far as the effect of the said order passed against another order by the Government of India under section 3 of the Essential Commodities Act is concerned, by applying section 6 of the Essential Commodities Act, the overriding effect of the Act can be only in respect of overall object of the Order, viz., Control over Production, Supply and Distribution in the Trade and Commerce and not relating to the prevention of adulteration.


42. On the other hand, if we look into the object of the Prevention of Food Adulteration Act, 1954 which is an act enacted before the Essential Commodities Act, 1955 (Central Act), the object is mentioned as follows:


'Adulteration of foodstuffs is so rampant and the evil has become so wide-spread and persistent that nothing short of a somewhat drastic remedy provided for in the Bill can hope to change the situation. Only a concerted and determined onslaught on this most anti-social behaviour can hope to bring relief to the nation'


While the object of the Essential Commodities Act, 1955 is in respect of regulation and control over the production, supply and distribution of trade and commerce, the object of the Prevention of Food Adulteration Act, 1954 is totally different to avoid the menace or erase the menace of adulteration which is an anti-social behaviour.


43. There is one other latest development of law relating to the food related laws which appears to have missed the attention of both the learned counsel. The Parliament having found that Multiplicity of food laws, standard setting and enforcement agencies pervades different sectors of food, which creates confusion in the minds of consumers, traders, manufacturers and investors and taking into consideration that the standards laid down are rigid and non-responsive to scientific advancements and modernisation and also considering that various implementing agencies under various laws are detrimental to the growth of nascent food processing industry and is not conducive to effective fixation of food standards and their enforcement, has enacted the Food Safety and Standards Act, 2006 (Central Act 34/06) to consolidate the laws relating to food and to establish the Food Safety and Standards Authority of India, which will fix food standards and regulate/monitor the manufacturing, import, processing, distribution and sale of food, so as to ensure safe and wholesome food for the human consumption and for matters connected therewith or incidentally thereto. The said Act which was assented by the President of India on 23.8.2006 was published in the Gazette on 24.8.2006.


44. Section 99 of the Food, Safety and Standards Act, 2006, merges the Milk and Milk Products Order, 1992 by deeming it as regulation under the said Act. The said section 99 is as follows:


"Section 99. Milk and Milk Products Order, 1992 shall be deemed to be regulations made under this Act.-


(1) On and from the date of commencement of this Act, the Milk and Milk Products Order, 1992 issued under the Essential Commodities Act,1955 (10 of 1955) shall be deemed to be the Milk and Milk Products Regulations, 1992 issued by the Food Authority under this Act.


(2) The Food Authority may, with the previous approval of the Central Government and after previous publication, by notification, amend the regulations specified in sub-section (1) to carry out the purposes of this Act."


45. Further, section 89 of the Food Safety and Standards Act, 2006, gives overriding effect to all other food related laws and the said section 89 is as follows:


"Section 89. Overriding effect of this Act over all other food related laws.-


The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."


46. Even though the said Act in fact incorporates various provisions of the Prevention of Food Adulteration Act, 1954, the said Act has not expressly superseded the Prevention of Food Adulteration Act, 1954. By applying section 89 of the Food Safety and Standards Act, 2006, it has to be construed that the provisions of the Prevention of Food Adulteration Act, 1954 and the Rules made thereunder will continue to have operation in so far as its provisions are not inconsistent with the Food Safety and Standards Act, 2006.


47. The definition of the term, 'food' under the Prevention of Food Adulteration Act, 1954 in section 2(v) is as follows:


"2(m)(b)(v) "food" means any article used as food or drink for human consumption other than drugs and water and includes-


(a) any article which ordinarily enters into, or is used in the composition or preparation of, human food,


(b) any flavouring matter or condiments, and


(c) any other article which the Central Government may, having regard to its use, nature, substance or quality, declare, by notification in the Official Gazette, as food for the purposes of this Act;"


48. The term 'food' defined under section 3(j) of the Food Safety and Standards Act, 2006 makes it clear that while under the Prevention of Food Adulteration Act, 1954 the predominant factor is human consumption, under the Food Safety and Standards Act, 2006, apart from the human consumption being the predominant factor, the term, 'food' specifically excludes any animal food, living animals unless they are prepared or processed for placing on the market for human consumption.


49. Likewise, the term, 'food health authority' under Section 2(vi) of the Prevention of Food Adulteration Act, 1954 authorises any Chief Officer in-charge of health administration of a State by whatever designation he is called including any other officer empowered by the State or Central Government as food health authority, in the following words:


"2(m)(b)(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;"


50. Under section 9 of the Prevention of Food Adulteration Act, 1954, the Food Inspectors are appointed by the notification issued by the Central Government as well as State Government and the said section 9 is as follows:


"9. Food Inspectors.- (1) The Central Government or the State Government may, by notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications to be Food Inspectors for such local areas as may be assigned to them by the Central Government or the State Government, as the case may be:


Provided that no person who has any financial interest in the manufacture, import or sale of any article of food shall be appointed to be a Food Inspector under his section.


(2) Every Food Inspector shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code (45 of 1860) and shall be officially subordinate to such authority as the government appointing him, may specify in this behalf."


51. It is true that under section 10 of the Prevention of Food Adulteration Act, 1954, the Food Inspectors so appointed are empowered to take samples of any article of food and inspect any place where any article of food is manufactured, stored for sale, stored for manufacture, etc., and when it appears to the Inspector of food that the article of food is adulterated or misbranded, he has the right to seize or carry away or keep in safe custody of the vendor such article in order to deal with it in accordance with the Act under section 10(4), and in such a situation, as per section 10(7), the Food Inspector has to call one or more persons to be present at that time and take their signatures. The said section 10 of the Act is as follows:


"10. Powers of Food Inspectors.- (1) A Food Inspector shall have power-


(a) to take samples of any article of food from -


(i) any person selling such article;


(ii) any person who is in the course of conveying, delivering or preparing to deliver such article to a purchaser or consignee;


(iii) a consignee after delivery of any such article to him; and


(b) to send such samples for analysis to the public analyst for the local area within which such sample has been taken;


(c) with the previous approval of the Local (Health) Authority having jurisdiction in the local area concerned, or with the previous approval of the Food (Health) Authority, to prohibit the sale of any article of food in the interest of public health.


[Explanation.- For the purposes of sub-clause (iii) of clause (a), "consignee" does not include a person who purchases or receives any article of food for his own consumption.


(2) Any Food Inspector may enter and inspect any place where any article of food is manufactured, or stored for sale, or stored for the manufacture of any other article of food for sale, or exposed or exhibited for sale or where any adulterant is manufactured or kept, and take samples of such article of food or adulterant for analysis:


Provided that no sample of any article of food, being primary food, shall be taken under this sub-section if it is not intended for sale as such food.


(3) Where any sample is taken under clause (a) of sub-section (1), or sub-section (2), its cost calculated at the rate at which the article is usually sold to the public shall be paid to the person from whom it is taken.


(4) If any article intended for food appears to any Food Inspector to be adulterated or misbranded, he may seize and carry away or keep in the safe custody of the vendor such article in order that it may be dealt with as hereinafter provided [and he shall, in either case, take a sample of such article and submit the same for analysis to a public analyst]:


[Provided that where the Food Inspector keeps such article in the safe custody of the vendor he may require the vendor to execute a bond for a sum of money equal to the value of such article with one or more sureties as the Food Inspector deems fit and the vendor shall execute the bond accordingly.]


(4-A) Where any article of food seized under sub-section (4) is of a perishable nature and the Local (Health) Authority is satisfied that such article of food is so deteriorated that it is unfit for human consumption, the said Authority may, after giving notice in writing to the vendor, cause the same to be destroyed.


5. The power conferred by this section includes power to break open any package in which any article of food may be contained or to break open the door of any premises where any article of food may be kept for sale:


[Provided that the power to break open the package or door shall be exercised only after the owner or any other person in charge of the package or, as the case may be, in occupation of the premises, if he is present therein, refuses to open the package or door on being called upon to do so, and in either case after recording the reasons for doing so:]


Provided further that the Food Inspector shall, in exercising the powers of entry upon, and inspection of any place under this section, follow, as far as may be, the provisions of the [Code of Criminal Procedure,1973 (2 of 1974)] relating to the search or inspection of a place by a police officer executing a search-warrant issued under that Code.


(6) [Any adulterant found in the possession of a manufacturer or distributor of, or dealer in, any article of food or in any of the premises occupied by him as such] and for the possession of which he is unable to account to the satisfaction of the Food Inspector, [and any books of account or other documents found in his possession or control and which would be useful for, or relevant to, any investigation or proceeding under this Act, may be seized by the Food Inspector] and [a sample of such adulterant] submitted for analysis to a public analysts:


[Provided that no such books of account or other documents shall be seized by the Food Inspector except with the previous approval of the authority to which he is officially subordinate.] (7) Where the Food Inspector takes any action under clause (a) of sub-section (1), sub-section (2), sub-section (4) or sub-section (6), he shall [call one or more persons to be present at the time when such action is taken and take his or their signatures.]


[(7-A) where any books of account or other documents are seized under sub-section (6), the Food Inspector shall, within a period not exceeding thirty days from the date of seizure, return the same to the person from whom they were seized after copies thereof or extracts therefrom as certified by that person in such manner as may be prescribed have been taken:


Provided that where such person refuses to so certify, and a prosecution has been instituted against him under this Act, such books of account or other documents shall be returned to him only after copies thereof or extracts therefrom as certified by the Court have been taken.


(7-B) When any adulterant is seized under sub-section (6), the burden of providing that such adulterant is not meant for purposes of adulteration shall be on the person from whose possession such adulterant was seized.


(8) Any Food Inspector may exercise the powers of a police officer [under section 42 of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of ascertaining the true name and residence of the person from whom a sample is taken or an article of food is seized.


(9) Any Food Inspector exercising powers under this Act or under the rules made thereunder who-


(a) vexatiously and without any reasonable grounds of suspicion seizes any article of food [or adulterant]; or


(b) commits any other Act to the injury of any person without having reason to believe that such Act is necessary for the execution of his duty;


shall be guilty of an offence under this Act and shall be punishable for such offence [with fine which shall not be less than five hundred rupees but which may extend to one thousand rupees]."


52. It is mentioned in the impugned seizure memo itself, that one of the Officers who have inspected and made seizure is a Food Inspector. Even though it is not known whether such appointment is under Prevention of Food Adulteration Act, 1954 or any other Act, the procedure to be followed by a Food Inspector is described under section 11 which is more important. A reading of the section 11 of the Act makes it conveniently clear that first of all the Food Inspector shall give a notice in writing of his intention to have the sample analysed to a person whose name, address and other particulars have been disclosed under section 14A of the Act. Further, he must divide the sample into three parts and mark and seal or fasten up each part and take the signature or thumb impression of the person from whom the sample has been taken and send one part for analysis to the public analyst and the remaining two parts to the local health authority out of which one can be utilised when the first sample is lost or damaged during the course of sending sample to the public analyst. The said section 11 is as follows:


?11. Procedure to be followed by Food Inspectors.-[(1) When a Food Inspector takes a sample of food for analysis, he shall-


(a) 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 to the person if any, whose name, address and other particulars have been disclosed under section 14-A;


(b) except in special cases provided by rules under this Act, divide the sample then and there into three parts and mark and seal or fasten up each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken in such place and in such manner as may be prescribed.


Provided that where such person refuses to sign or put his thumb impression, the Food Inspector shall call upon one or more witnesses and take his or their signatures or thumb impressions, as the case may be, in lieu of the signature or thumb impression of such person;


(c) (i) send one of the parts for analysis to the public analyst under intimation to the Local (Health) Authority; and


(ii) send the remaining two parts to the Local (Health) Authority for the purposes of sub-section (2) of this Section and sub-sections (2-A) and (2-E) of section 13.


(2) Where the part of the sample sent to the public analyst under sub-clause (i) of clause (c) of sub-section (1) is lost or damaged, the Local (Health) Authority shall, on a requisition made to it by the public analyst or the Food Inspector despatch one of the parts of the sample sent to it under sub-clause (ii) of the said clause (c) to the public analyst for analysis.]


(3) When a sample of any article of food [or adulterant] is taken under sub-section (1) or sub-section (2) of section 10 [the Food Inspector shall, by the immediately succeeding working day, send a sample of the article of food or adulterant or both, as the case may be,] in accordance with the rules prescribed for sampling to the public analyst for the local area concerned.


[(4) An article of food seized under sub-section (4) of section 10, unless destroyed under sub-section (4-A) of that section, and any adulterant seized under sub-section (6) of that section shall be produced before a Magistrate as soon as possible and in any case not later than seven days after the receipt of the report of the public analyst:]


provided that if an application is made to the Magistrate in this behalf by the person from whom any article of food has been seized, the Magistrate shall by order in writing direct the Food Inspector to produce such article before him within such time as may be specified in the order.


[(5) If it appears to the Magistrate on taking such evidence as he may deem necessary-


(a) that the article of food produced before him under sub-section (4) is adulterated or misbranded, he may order it-


(i) to be forfeited to the Central Government, the State Government or the local authority, as the case may be; or


(ii) to be destroyed at the cost of the owner or the person from whom it was seized so as to prevent its being used as human food; or


(iii) to be so disposed of as to prevent its being again exposed for sale or used for food under its deceptive name; or


(iv) to be returned to the owner, on his executing a bond with or without sureties, for being sold under its appropriate name or, where the Magistrate is satisfied that the article of food is capable of being made to conform to prescribed standards for human consumption after reprocessing, for being sold after reprocessing under the supervision of such officer as may be specified in the order;


(b) that the adulterant seized under sub-section (6) of section 10 and produced before him is apparently of a kind which may be employed for purposes of adulteration and for the possession of which the manufacturer, distributor or dealer, as the case may be, is unable to account satisfactorily, he may order it to be forfeited to the Central Government, the State Government or the local authority, as the case may be.]


(6) [If it appears to the Magistrate that any such-


(a) article of food is not adulterated;or


(b) adulterant which is purported to be an adulterant is not an adulterant,


the person from whose possession the article of food or adulterant was taken shall be entitled to have it restored to him and it shall be in the discretion of the Magistrate to award such person from such fund as the State Government may direct in this behalf, such compensation not exceeding the actual loss which he has sustained as the Magistrate may think proper."


53. After report of the analyst on the sample sent to him is received as per section 13 of the Act, a copy of such report has to be sent to the person whose name and address is furnished under section 14-A of the Act and after launching prosecution, also inform him that if he so desires, he can make an application to the Court within 10 days from the date of receipt of copy of the report to get the sample of article of food kept by the local authority to be analysed by the Central Food Laboratory and on such application made by the person, the sample has to be forwarded to the Court within five days from the date of such requisition and thereafter, the Court shall ascertain the mark and seal or fastening provided as per Section 11(1)(b) and the same are intact with thumb impression or signature, etc. and not tampered with and thereafter, the Court shall send the same to the Director of Central Food Laboratory who thereupon send a certificate to the Court in the prescribed form within one month. The said procedures are found in sections 13(1), (2), (2-A) and (2-B), which are as follows:


"13. Report of Public Analyst.- (1) The Public Analyst shall deliver, in such form as may be prescribed, a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis.


(2) On receipt of the report of the result of analysis under sub-section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the persons from whom the sample of the article of food was taken and the person, if any, whose name, address and other particulars have been disclosed under section 14-A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the Court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.


(2-A) When an application is made to the Court under sub-section (2), the Court shall require the Local (Health) Authority to forward the part or parts of the sample kept by the said Authority and upon such requisition being made, the said Authority shall forward the part or parts of the sample to the Court within a period of five days from the date of receipt of such requisition.


(2-B) On receipt of the part or parts of the sample from the Local (Health) Authority under sub-section (2-A), 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 intact and the signature or thumb impression, as the case may be, is not tampered with, and despatch the part or, as the case may be, one of the parts of the sample under its own seal to the Director of the Central Food Laboratory who shall thereupon send a certificate to the Court in the prescribed form within one month from the date of receipt of the part of the sample specifying the result of the analysis."


54. Section 14-A which is also relevant is as follows:


"14-A. Vendor to disclose the name, etc., of the person from whom the article of food was purchased.- Every vendor of an article of food shall, if so required, disclose to the Food Inspector the name, address and other particulars of the person from whom he purchased the article of food."


55. Therefore under the Prevention of Food Adulteration Act, 1954, the abovesaid procedure contemplated under section 11 in taking sample has to be followed which is a mandatory requirement since a combined reading of the entire section shows that a fair chance has to be given to the person from whom the sample has been taken in order to arrive at a conclusion that the food adulteration has in fact been done. A reference to the seizure memo does not show that any such procedure has been followed.


56. Even as on date, it is not known as to whether the sample said to have been taken from the petitioner on 22.7.2008 has been sent to the public analyst created as per section 8 of the Prevention of Food Adulteration Act, 1954 which is as follows:


"8. Public Analysts.- The Central Government or the State Government may, by

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notification in the Official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications to be public analysts for such local areas as may be assigned to them by the Central Government or the State Government, as the case may be: Provided that no person who has any financial interest in manufacture, import or sale of any article or food, shall be appointed to be a public analyst under this section: [Provided further that different public analysts may be appointed for different articles of food.]" 57. It is also not known as to whether as per section 11(4) of the Act the seized adulterant has been produced before the Magistrate after receipt of report from the public analyst. In the absence of any of the procedures that should have been followed by the respondents, it is not possible for this Court to accept the contention of the learned counsel for the respondents that the seizure has been effected as per the provisions of the Prevention of Food Adulteration Act, 1954 and the Rules made thereunder, even if it is accepted that the Food Inspector or any other authority who has signed the seizure mahazar which is impugned in this writ petition, is an officer authorised under the Prevention of Food Adulteration Act, 1954. 58. The law laid down by the Hon'ble Apex Court in Municipal Corporation of Delhi v. Shivsankar [AIR 1971 SC 815] to the effect that the Prevention of Food Adulteration Act, 1954 cannot be held to be repealed by the Essential Commodities Act, 1955 or any other Order passed under the Essential Commodities Act, is actually not an issue in this case, especially after the advent of Food Safety and Standards Act, 2006 (Central Act 34/06) by which the Prevention of Food Adulteration Act, 1954 has not been superseded even though Milk and Milk Products Order, 1992 framed as per section 3 of the Essential Commodities Act, 1955 has been deemed to be a regulation under the Act 34/2006. It is relevant to point out that even under the Food Safety and Standards Act, 2006, the food authority as well as the State food authority constituted under the Act and the Commissioner of Food Safety created under section 30 of the Act not only have the powers of licensing the food business, but also the Food Safety Officers appointed under the Act have right of search, seizure, investigation and prosecution and the procedure as per section 41 which is as follows: "41. Power of search, seizure, investigation, prosecution and procedure thereof.- (1) Notwithstanding anything contained in sub-section (2) of section 31, the Food Safety Officer may search any place, seize any article of food or adulterant, if there is a reasonable doubt about them being involved in commission of any offence relating to food and shall thereafter inform the Designated Officer of the actions taken by him in writing: Provided that no search shall be deemed to be irregular by reason only of the fact that witnesses for the search are not inhabitants of the locality in which the place searched is situated. (2) Save as in this Act otherwise expressly provided, provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to search, seizure, summon, investigation and prosecution, shall apply, as far as may be, to all action taken by the Food Safety Officer under this Act." 59. Even under the Food Safety and Standards Act, 2006, the samples are to be sent to the Food Analyst as constituted under section 45 and the Food Safety Officers have to follow the procedure for the purpose of taking sample under section 47 which also resembles the procedure to be followed by the Food Inspectors under the Prevention of Food Adulteration Act, 1954. The said section 47 of the Food Safety and Standards Act, 2006 which is as follows: "47. Sampling and analysis.-(1) (1) When a Food Safety officer takes a sample of food for analysis, he shall ? (a) give notice in writing of his intention to have it so analysed to the person from whom he has taken the sample and to the person, if any, whose name, address and other particulars have been disclosed; (b) except in special cases as may be provided by rules made under this Act, divide the sample into four parts and mark and seal or fasten up each part in such a manner as its nature permits and take the signature or thumb-impression of the person from whom the sample has been taken in such place and in such manner as may be prescribed by the Central Government: Provided that where such person refuses to sign or put his thumb-impression, the Food Safety Officer shall call upon one or more witnesses and take his signature or thumb-impression, in lieu of the signature or thumb-impression of such person; (c)(i) send one of the parts for analysis to the Food Analyst under intimation to the Designated Officer; (ii) send two parts to the Designated officer for keeping these in safe custody; and (iii) send the remaining part for analysis to an accredited laboratory, if so requested by the food business operator, under intimation to the Designated Officer: Provided that if the test reports received under sub-clauses (i) and (iii) are found to be at variance, then the Designated Officer shall send one part of the sample kept in his custody, to referral laboratory for analysis, whose decision thereon shall be final. (2) When a sample of any article of food or adulterant is taken, the Food Safety Officer shall, by the immediate succeeding working day, send the sample to the Food Analyst for the area concerned for analysis and report. (3) Where the part of the sample sent to the Food Analyst is lost or damaged, the Designated Officer shall, on a requisition made to him by the Food Analyst or the Food Safety Officer, despatch one of the parts of the sample sent to him, to the Food Analyst for analysis. (4) An article of food or adulterant seized, unless destroyed, shall be produced before the Designated Officer as soon as possible and in any case not later than seven days after the receipt of the report of the Food Analyst: Provided that if an application is made to the Designated Officer in this behalf by the person from whom any article of food has been seized, the Designated Officer shall, by order in writing, direct the Food Safety Officer to produce such article before him within such time as may be specified in the order. (5) In case of imported articles of food, the authorised officer of the Food Authority shall take its sample and send to the Food Analyst of notified laboratory for analysis who shall send the report within a period of five days to the authorised officer. (6) The Designated Officer, the Food Safety Officer, the authorised officer and the Food Analyst shall follow such procedure as may be specified by regulations. " Even the procedure under the said provision appears to have not followed in this case. 60. Likewise, in the judgement of the Supreme Court relied upon by the learned counsel for the respondents rendered in Beerbal v. State of Haryana (JT 2002 (1) SC 289), it was observed that milk is a primary food and therefore, it is covered under the Prevention of Food Adulteration Act, 1954, about which there is no dispute. 61. Even in Laskari Ram vs. State of Himachal Pradesh [(2000) 9 SCC 256], in respect of the prosecution under section 16(1)(a)(i) of the Prevention of Food Adulteration Act, 1954 regarding the milk sold which was found to have contained fat as well as non-fat contents below the prescribed standards, the Hon'ble Supreme Court has held that the milk being a primary food, it is expected to maintain the standards which are prescribed since it is consumable by human beings. 62. Likewise, the Supreme Court in Mahendrakumar G.Patel vs. State of Gujarat [AIR 2003 SC 4058] relied upon by the learned counsel for the respondents, has held that the conviction is proper, accepting the public analyst's finding in respect of a milk product under the Prevention of Food Adulteration Act, 1954. But the issue involved in the present case is as to whether the respondents have followed the procedures even under the Prevention of Food Adulteration Act, 1954. 63. It is well settled that a statutory authority must act within four corners of the statute as it was enunciated in the English case in Tailor v. Tailor [(1875) 1 ChD 426] and the same has been reiterated by the Apex Court with approval in Deewan Singh vs. Rajendra PD.Ardevi [(2007) 10 SCC 528] in the following words: "40. A statutory authority, as is well known, must act within the four corners of the statute. Any action by a statutory authority contrary to or inconsistent with the provisions of the statute, thus, would be void. In the matter of construction of a statute, therefore, the court shall not take recourse to a principle which would render the acts of a statutory authority void in law." Again the same has been followed by the Apex Court in the recent judgement in Karnataka State Financial Corporation vs. N.Narasimahaiah [(2008) 5 SCC 176]. While dealing with sections 29 and 31 of the State Financial Corporations Act, 1951, the Supreme Court, in that case, has reiterated the legal position as follows: "15. A lender of money under the common law has the remedy to file a suit for realisation of the amount lent if the borrower does not repay the same. The Act, however, provides for a special remedy in favour of the financial corporation constituted thereunder enabling it to exercise a statutory power of either selling the property or take over the management or possession or both belonging to the industrial concern. Section 29, therefor, confers an extraordinary power upon the "corporation". It, being "State" within the meaning of Article 12 of the Constitution of India, is expected to exercise its statutory powers reasonably and bona fide. 16. Apart from the said constitutional restrictions, the statute does not put any embargo upon the corporation to exercise its power under Section 29 of the Act. Indisputably, the said provision was enacted by Parliament with a view to see that the dues of the corporation are realised expeditiously. When a statutory power is conferred, it is a trite law that the same must be exercised within the four corners of the statute. Power of a lender to realise the amount lent either by enforcing the charged and/or hypothecated or encumbrance created on certain property and/or proceeding simultaneously and/or independently against the surety/guarantor is a statutory right. Different statutes provides for different remedies. We may by way of example refer to Pawan Kumar Jain vs. Pradeshiya Industrial and Investment Corpn. of U.P. Ltd., where a statutory mandate has been given to realise the dues from sale of the mortgaged properties and then to sell other properties of the borrower. We are, however, not concerned with such a situation." 64. It is also relevant to point out that by the impugned order the blending unit of the petitioner was sealed and no reason was given, and in spite of lapse of nearly two months, nothing has been made known about the seized materials and the petitioner was not allowed to enter the sealed place of business. Even though it is true that the right to carry on business as enshrined under Article 19(1)(g) of the Constitution of India is subject to reasonable restrictions, such restrictions can be imposed by a validly passed order and the authority who enforces the same is expected to act within the four corners of the law, in the absence of which it can be termed as arbitrary and unfair. This Court is aware of the importance of the product about which the petitioner is concerned and if there is material to show that the petitioner has imported time-lapsed lactose and used the same for the purpose of producing milk products for human consumption, certainly, the same has to be viewed seriously as the same would be injurious to health. In spite of the seriousness of the same, it is unfortunate that the respondents have not been vigilant and they have not taken steps in the manner known to law. The respondents have in casual manner entered into the place of the petitioner and seized the materials which can only be treated as an emotional outburst and not as per law. 65. In view of the above said position, the writ petition stands allowed and the impugned seizure memo dated 22.7.2008 is set aside. It is made clear that it is always open to the respondents to act as per law, especially after the advent of the Food Safety and Standards Act, 2006 by virtue of which the Milk and Milk Products Order, 1992 itself got merged with the said Act as a regulation and therefore, it is open to the respondents to take appropriate action against the petitioner in the new situation as stated above. No costs. Connected miscellaneous petitions are closed.
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