-1WPL/1688/2015

Versus

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1. The Food Safety and Standards
Authority of India, having its
Head Office at FDA Bhawan, Kotla
Road, New Delhi – 110002 and
having its Western Region
office at Minitry of Health and
Family Welfare, 902, Hallmark
Business Plaza, Opp. Gurunanak )
Hospital, Bandra (East),
Mumbai – 400051

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2. The Chief Executive Officer,
The Food Safety and Standards
Authority of India, FDA Bhawan,
Kotla Road, New Delhi- 110002

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…..Petitioner.

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M/s Nestle India Limited
a Company incorporated under
the provisions of the Companies
Act, 1956 and having its
registered Office at M-5A,
Connaught Circus, New Delhi 110001

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 1688 OF 2015

3. State of Maharashtra, through
the Ministry of General
Administration Department,
Mantralaya, Mumbai – 400 032
4. Commissioner of Food Safety,
State of Maharashtra,
Survey No.341, Bandra Kurla
Complex, Madhusudan Kalkekar
Marg, Bandra (East),
Mumbai – 400 051.

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Mr. Iqbal Chagla, Senior Counsel alongwith Mr. Amit Desai,
Senior Counsel, Mr. Riyaz Chagla, Mr. Rajesh Batra, Ms.
Pallavi Shroff, Ms. Sonia Kukreja, Ms. Meghna Rajadhyaksha,
Mr. Umang Singh i/b Ameya Gokhale of Shardul Amarchand
Mangaldas & Co. for the Petitioner.
Mr. Anil Singh, Additional Solicitor General alongwith Mr.
Advait M. Sethna, Mr. Firoz Shah, Mr. D.P. Singh, Miss Ruju
Thakker for Union of India – Respondent No.1.

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Mr. Mehmood Pracha alongwith Mr. T.W. Pathan, alongwith
Ms. Pranali Dixit, i/b Ms Yogita Singh for Respondent No.2.

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Mr. Darius J. Khambatta, Senior Counsel alongwith Ms. Geeta
Shastri, AGP & Mr. Aditya Mehta for State of Maharashtra for
Respondent Nos. 3 and 4.

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Mr. Ahmad Abdi alongwith Mr. S.Y. Sharma and Mr. L.J.
Mishra i/b Abdi & Co. for Intervenor consumer online
Foundation.

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CORAM:

V. M. KANADE &
B. P. COLABAWALLA, JJ.

Date of reserving the judgment: 31/7/2015
Date of pronouncing the judgment: 13/8/2015

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JUDGMENT: (Per V.M. Kanade, J.)
1.

Heard.

2.

Rule. Rule is made returnable forthwith. Respondents

waive service. By consent of parties, Petition is taken up for
final hearing.

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Petitioner – Company is seeking an appropriate writ,

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3.

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CHALLENGE:

order and direction for quashing and setting aside the order
passed by the

Chief Executive Officer – Respondent No.2

herein dated 05/06/2015 whereby Petitioner was directed to
stop manufacture, sale and distribution etc of nine types of

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variants of noodles manufactured by them

and also gave

other directions by the impugned order which is at Exhibit-A
to the Petition.

Petitioner is also challenging the impugned

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order passed by the Commissioner of Food Safety, State of
Maharashtra – Respondent No. 4 which is at Exhibit-B.
Petitioner has

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4.

challenged these two impugned orders

principally on the following five grounds:-

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(i) Firstly, it was contended that the said two
impugned

orders

have

been

passed

in

complete violation of principles of natural
justice since Respondent Nos. 2 and 3 had not
issued any show cause notice to the Petitioner
and had not given any particulars on the basis
of which they proposed to pass the impugned
orders. It was contended that Petitioner's
representatives

were

called by Respondent

No.2 at his Office on 05/06/2015 and they were

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informed about the result of analysis made by

the Food Laboratories and, thereafter, the

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impugned order (Exhibit-A) was passed. It was
contended that the said order was completely

arbitrary, capricious and it was passed in
undue haste.
it

was contended

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(ii) Secondly,

that the

reports of the Food Laboratories on the basis of
which the impugned order (Exhibit-A) was

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passed were either not accredited by NBAL or
notified under section 43 of the Food Safety
and Standards Act, 2006 (“the Act”) and even

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if some Food Laboratories were accredited,
they did not have accreditation for the purpose

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of testing lead in the product.
(iii)

Thirdly, it

was contended that

the

product had to be tested according to the
intended use and this was not done and,
therefore, no reliance could be placed on the
said reports.
(iv) Fourthly, the Petitioner contended that it
had tested the samples of batches in its own
accredited laboratory and the results showed

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that the lead contained in the product was well

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within the permissible limits.

(v) Lastly, it was contended that there was no
question of challenging the analysis made by

the Food Analyst in the Food Laboratory by
filing an appeal under section 46(4) of the Act

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since by the final impugned orders Respondent
Nos. 1 and 2 had already pre-determined the
issue and, therefore, Petitioner had no other

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option but to challenge the orders at Exhibit-A
and Exhibit-B.

On the other hand, Respondent Nos. 1, 2 and 3 have

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5.

made the following submissions:-

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(i) Firstly, the Petitioner

had an alternative

remedy of filing an appeal under section 46(4)
of the Act and, therefore, Petition should not
be entertained.
(ii) Secondly, it was submitted that the show
cause notice had been issued to the Petitioner
asking the Petitioner to show cause why
product approval which was granted to it
should not be cancelled and the Petitioner,

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instead of giving reply to the show cause
notice and satisfying the Food Authority that

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there was nothing wrong in its product, had
directly approached this Court by filing a
Petition under Article 226 of the Constitution

of India. Petition challenging the show cause
dismissed.
(iii)

Thirdly,

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notice therefore, it was urged, was liable to be

it

was

submitted

that

the

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objection to the analysis by non-accredited
/non-notified Food Laboratories was raised for
the

first

time

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afterthought.

in

rejoinder

and

was

an

It was urged by the learned

Senior Counsel for Respondent Nos.3 and 4
that there was suppression of material facts

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by the Petitioner

and the results of the

Laboratory from Pune were suppressed in the
Petition filed by the Petitioner and therefore
on that ground the Petition was liable to be
dismissed.
(iv) Fourthly, it was submitted by the learned
Counsel for Respondent No. 1 and 2 and
adopted by Senior Counsel for Respondent
Nos.

3

and

4

that

the

Petitioner

was

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the

evidence

by

burning

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destroying

manufactured goods in order to avoid further
It was also urged on behalf of

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prosecution.

Respondent Nos. 1 and 2 that the Food

Authority had a discretion in prescribing the
standards for proprietary food and that they
were not bound even by the

Regulations

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which were framed in respect of additives and
contaminants which were found in proprietary

(v)

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foods.

Fifthly, it was also urged that the

Petitioner had violated the terms which were

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imposed upon it. It was submitted that in the
application

for

product

approval

a

representation was made by the Petitioner

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that the content of lead would be less than 1
ppm (parts-per-million). It was contended that
therefore even if Regulations prescribe 2.5
ppm as the maximum amount of lead which
was permissible, if the lead contained in the
product of the Petitioner was above 1 ppm,
the Food Authority could still ban the product
since the lead contained

in the Petitioner's

product was contrary to the representation
made

by

the Petitioner

about

the lead

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its

notwithstanding

product.
that

the

permitted lead upto 2.5 ppm
(vi)

Sixthly

it

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in

Regulations

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content

was urged on

behalf of

Respondent Nos. 1 to 3 that the Food
Authority had to act in

lead was found in one sample,

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even if

public interest and

exceeding the permissible limit, the order of

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prohibition could be passed in public interest.
(vii) Lastly, according to Respondent Nos. 1
and 2, the said order (Exhibit-A) had been

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passed under sections 10(5), 16(1), 16(5),
22, 26 and 28 of the Act.

According to

Respondent No.3, the order passed by it (at

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Exhibit-B) is under section 30 of the said Act.

These are the broad submissions which have been

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urged by either side, apart from other detailed arguments
which

were

made

by

both,

the

Petitioner

and

the

Respondents.
FACTS:
6.

Brief facts which are germane for the purpose of

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Nestle S.A of Switzerland is a Company which is

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deciding this Petition are as under:-

registered and incorporated under the Laws of Switzerland
and is carrying on business of manufacture, sale and
distribution of food products.

Petitioner – Company is its

subsidiary in India and is registered under the provisions of

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Companies Act, 1956. Petitioner is carrying on its business in
India for more than 30 years.

One of the products which has been manufactured by

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8.

the Petitioner

is known as “MAGGI Noodles”. Petitioner had

been manufacturing and selling this product for more than

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30 years and at no time they had come to the adverse notice
of the Food Authorities in the past and also at no point of
time

criminal

prosecution

was

launched

against

the

Petitioner either for violation of the old Act or the new Act

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after it came into force in 2006 till the impugned order of
ban was passed on 05/06/2015. Petitioner manufactured 9

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variants of these noodles which are known as under:-

Serial
No.

MAGGI Noodles Variants

1.

● MAGGI Xtra Delicious Chicken Noodles

2.

● MAGGI Thrillin Curry Noodles

3.

● MAGGI Cuppa Mania Chilly Chow Masala YO

4.

● MAGGI Cuppa Mania Masala YO

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● MAGGI 2 Minutes Masala Noodles / MAGGI
Hungroo Noodles

6.

● MAGGI Vegetable Multigrainz Noodles

7.

● MAGGI Vegetable Atta Noodles

8

● MAGGI Xtra Delicious Magical Masala Noodles

9.

● MAGGI 2 Minute Masala Dumdaar Noodles

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5.

These noodles are pre-cooked products. The purchaser is

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instructed to cook the noodles alongwith the taste maker
which is separately packed inside the packed product and it
has to be mixed in water and boiled for two minutes and, if

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necessary, the purchaser can add other vegetables to the
noodles and consume them as a food supplement. Petitioner
was granted license to manufacture these products even

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prior to the New Act coming into force in 2006. License was
granted to the Petitioner under the old Act viz Prevention of
Food Adulteration Act in the year 1983.

After 2006,

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Petitioner continued to manufacture noodles and in the year
2012 certain advisories were issued by the Food Authority –
Respondent Nos. 1 and 2 introducing a regime which was

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called a product approval regime.

Petitioner,

accordingly,

applied for product approval and the product approval was
granted to 8 out of the 9 variants of noodles.
9.

So far as one of the

Variants is concerned viz “ MAGGI

Oats Masala Noodles”, at the relevant time, when the said

product was to be introduced in the market, the advisory viz

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of obtaining product approval was stayed by the High Court

in Writ Petition No.2746 of 2013 in the case of Vital

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Nutraceuticals & Ors vs. Union of India & Ors. According to
the Petitioner, since the stay order was in operation, they did

not apply for product approval. However, the judgment and
order of this Court was stayed by the Apex Court by its order
dated 13/08/2014 passed in SLP (Civil) No.8372-8374 of 2014
Safety

Standards

Authority

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(Food

of

India

vs.

Vital

Nutraceuticals Private Limited & Ors)

The Petitioner, after the Apex Court granted stay to the

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10.

order passed by this Court, applied for product approval.
However, certain clarifications were sought by Respondent

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Nos. 1 and 2, which clarifications

were given by the

Petitioner within the prescribed period of 30 days. However,
thereafter, Petitioner's application was not processed and it

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was closed without giving reasons.
CHRONOLOGY OF EVENTS IN RESPECT OF PRESENT

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DISPUTE:
11. Some time in the month of January, 2015, Food
Inspector Barabanki, UP, became suspicious, after he saw
packet of Maggi Noodles on which it was claimed that there
was “No added MSG”.

Since the Food Inspector became

suspicious about the said claim, he sent the packet to Food

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Laboratory viz State Food Laboratory, Gorakhpur in UP. The
result of the analysis showed that there was MSG in the said

He therefore

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product which was found in the said packet.

informed Respondent Nos. 1 and 2 and the Petitioner. At the
instance of the Petitioner, the said sample was sent to
Referral Laboratory at Kolkata which is a Laboratory which
again tests the product if there is a dispute about

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authenticity of the Food Laboratory analysis.
12. This product which was seized, was a packet containing

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Maggi Noodles manufactured on 15/01/2014. The shelf life of
the product was nine months and there was a declaration
made on the packet that the food can be best used for 9 th

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months after the date of manufacture.
therefore was over on 15/09/2014.

The best use

After the product was

seized, on 22/01/2015 it was sent for analysis to the Referral
Laboratory at Kolkata where it remained till 29/03/2015 and

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almost after 3 months the report was submitted.

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13. The Referral Laboratory at Calcutta which was supposed
to test the result regarding MSG found in the product also
gave a report that the lead contained was 17 ppm which was
much higher than the permitted lead content of 2.5 ppm as
per the Regulations.
14. Food Authorities were alarmed by the said results and

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therefore they tested the samples from other batches in

Delhi and 9 other States. We must mention here that out of

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the 9 Variants of MAGGI Noodles only 3 Variants were tested.

15. The Food Analyst gave a report and Respondent No.2
found that out of 72 samples which were tested, in 30
samples there was lead

in excess of 2.5 ppm, though 42
was within the

permissible limits.

viz,

(2)

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samples showed that the lead content
Similarly in 7 States

UP, (3) Tamilnadu, (4) Gujarat

(1) Delhi,

(5) Maharashtra,

(6)

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Punjab (7) Meghalaya the lead content in the product of the
Petitioner was found above 2.5 ppm, whereas in Goa and
Kerala the

lead content was found to be within the

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permissible limits.

The said results were made known to

Respondent No.2 on telephone on 04/06/2015.
16. According to the Petitioner, after

reading the

news

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items which were published in media regarding the excess
lead in its product, Petitioner - Company immediately made

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an announcement on 4th June, 2015 and press release was
given in which the Petitioner stated that though according to
it its product was safe, the Petitioner was withdrawing its
product from the market till its name was cleared.

The

following press release was given by the Petitioner –
Company.

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“PRESS RELEASE

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NESTLE HOUSE , Gurgaon, 5th June, 2015, MAGGI
Noodles are completely safe and have been trusted
in India for over 30 years.

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The trust of our consumers and the safety of our
products is our first priority. Unfortunately, recent
developments and unfounded concerns about the
product have led to an environment of confusion for
the consumer, to such an extent that we have
decided to withdraw the product off the shelves,
despite the product being safe.
We promise that the trusted MAGGI Noodles will be
back in the market as soon as the current situation
is clarified.”

17. Thereafter, the Petitioner's representatives were called

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upon to meet Respondent No.2 on 05/06/2015 at 1 pm in the
afternoon at his Office. According to Respondent No.2 when
representatives of the Petitioner arrived, they were informed

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about the excess lead contained and misbranding of the
product and explanation was asked from them. According to
the

Petitioner,

no

opportunity

was

given

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representatives of the Petitioner to give their

to

the

explanation

and there was only a general discussion and they were
informed about the excess lead found in some of the
samples. After the meeting was over on 05/06/2015, on the
same day, the impugned order was passed by Respondent
No.2 which is at Exhibit-A.

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18. Respondent No.4 – Commissioner of Food Safety also
passed the impugned order dated 6/6/2015 which is at

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Exhibit-B banning the product in the State of Maharashtra. In

Maharashtra, 20 samples were taken out of which in 5, lead
was found in excess of 2.5 ppm, whereas in other 15, lead
was found within the permissible limits. Here also we must
mention that only 4 Variants of MAGGI Noodles were tested

19. Being

aggrieved

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and not all the nine Variants.
by

these

orders

dated 5/6/2015

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(Exhibit-A) and dated 6/6/2015 (Exhibit-B), the Petitioner has
filed the present Petition, challenging the same on various

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grounds.

20. Respondent No.1 filed their reply on 26/06/2015.
Respondent No.2 filed their reply on 29/06/2015. Respondent
No.3 and 4 filed their reply on 26/06/2015. Rejoinder was

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filed by the Petitioner on 10/07/2015. The affidavit in Surrejoinder was filed by Respondent No.2 on 28/07/2015 and

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by Respondent Nos. 3 and 4 on 16/07/2015 during the course
of hearing.
21. When the Petition came up for hearing on ad-interim
and interim relief, this Court, after hearing both sides,
declined to to grant any ad-interim order in view of the press
release which was given by the Petitioner on 4th June, 2015

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and directed the parties to file their reply, rejoinder etc. so
that the Petition could be disposed of finally at the stage of

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admission, taking into consideration the fact that apart from
being a commercial dispute, the issue related to the safety of
food

that was being sold in

the market for

SCHEME OF THE ACT:

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consumption.

human

22. Before we consider the rival submissions, in our view, it

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would be necessary to take a brief look at the provisions of
the Food Safety and Standards Act, 2006 and the Rules and

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relevant Regulations framed under the Act.
23. The present Act received the Assent of the President on
23rd August, 2006 and various provisions thereof came into
force on various dates before 2007 and 2010. The

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and Acts

mentioned in the Second Schedule

Orders

of the Act

were repealed with effect from such date as the Central

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Government appointed in that behalf after the Act came into
force.

The Repealed Orders and

Acts mentioned in the

Second Schedule are as under:“THE SECOND SCHEDULE
(See section 97)
1.

The Prevention of Food Adulteration

Act, 1954 (37 of 1954)

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2. The Fruit Products Order, 1955.
3. The Meat Food Products Order, 1973.
The Vegetable Oil Products (Control)

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4.

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WPL/1688/2015

Order, 1947.

5. The Edible Oils Packaging (Regulation)
Order, 1998.

6. The Solvent Extracted Oil, De oiled

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Meal, and Edible Flour (Control) Order,
1967.

7. The Milk and Milk Products Order, 1992

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8. Any other order issued under the
Essential Commodities Act, 1955 (10 of

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1955) relating to food.”

24. The Statement of Objects and Reasons of the Act
reveals that the Legislature felt that it was necessary to

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make the procedure for applying for license for manufacture
and sale of food products easier and, at the same time,

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regulate the quality of food in order to ensure that the food
which is supplied to the consumers is safe and wholesome.
The Act makes provision for the purpose of framing
regulations laying down the standards which have to be
adhered to and followed by the manufacturers of food.
Section 16(2) of the Act empowers the Food Authority to
prepare regulations. These regulations assume force of law

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after they are placed before both the Houses of Parliament

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under section 93 of the Act.

25. Perusal of various provisions of the Act disclose that the
Food Authority and the Commissioner of Food as well as the
designated Officer and Food Inspector

have been given

powers which can be exercised by them in ascending degree

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of coercion.

26. The Act also envisages various actions which could be
three parts viz.

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taken by the Food Authority and which can be divided in

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(i) Suspension, cancellation of license of
the manufacture, sale and supply of

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food product.
(ii)

Prohibition/ban

imposed

on

which

manufacture,

can
sale

be
and

supply etc. of food product.
(iii) Launch criminal prosecution for
violation of provisions of the Act and
Rules

and

Regulations

framed

thereunder.

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At the same time, the Act also imposes certain obligations
and duties on the manufacturers etc. of food products and
of

these

obligations/duties

can

entail

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non-compliance

adverse civil as well as penal consequences.

27. The Act also creates a hierarchy of authorities and these
authorities

are given various powers to implement the

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provisions of the Act and Rules and Regulations framed
thereunder.

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28. The Act also provides for various remedies which are
available for persons who are aggrieved by the action taken

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by the Authorities under the Act.
29. The Act has defined the “food laboratory”

for the

purpose of carrying out analysis of food product in which the

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food is analysed by the Food Analyst and other authorities.
30. The Food Authority is given power to give final

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recognition to particular Laboratories having accreditation
from NABL.
31. Chapter VIII of the Act deals

with qualification,

appointment and powers of the Food Analyst and also lays
down

the

procedure

of

taking

samples.

Rules

and

Regulations framed under the said Chapter give further

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details about the procedure and purpose for carrying out
analysis of food products and the manner in which it has to

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be done.

32. Section 30 of the Act gives power to the Commissioner
of Food Safety of the State and Food Authorities to take
decisions in case of emergent situation and the procedure

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which is to be followed before passing the order under the
said provision.

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33. In the present case, according to the Petitioner, the
analysis of food by Food Analyst was not in accordance with
the Rules and Regulations and, secondly, the tests were not

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carried out in laboratory which was accredited by NABL and
therefore the results declared on analysis made by the Food
Analyst cannot be relied upon. Whereas, on the other hand,
according to Respondent Nos. 1 to 3, these laboratories had

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an authority to carry out the analysis and therefore the Food

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Authority could rely on the analysis made by them.

34. From the rival submissions, issues which now fall for
consideration before this Court can be summed up as under:-

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ISSUES
Whether the Writ Petition filed by

the Petitioner – Company

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(I)

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WPL/1688/2015

under

Article 226 of the Constitution of India

is maintainable, particularly when the
impugned orders, according to the
and

that

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Respondents, are show cause notices
the

Petitioner

has

an

alternative remedy of filing an appeal

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under section 46(4) of the Act?
(II) Whether there was suppression

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of fact on the part of the Petitioner
and whether the Petitioner had made
an attempt to destroy the evidence

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disentitling

the

Petitioner

from

claiming any relief from this Court?
(III) Whether Respondent No.2 could
impose a ban on the ground that the
lead found in the product of the
Petitioner

was beyond what the

Petitioner

had represented in its

application

for

product

approval,

though it was below the maximum

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permissible limit laid down under the

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Regulations?

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WPL/1688/2015

(IV) Whether the Food Authority had

an unfettered discretion to decide
what are the standards which have to

be maintained by the manufacturers

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of proprietary food and whether in
respect of the proprietary food, the
Food Authority was not bound by the

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permissible limits of additives and
contaminants
Regulations

mentioned

and

the

in

the

Schedules

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appended thereto?
(V) Whether in view of the provisions

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of Section 22, there was a complete
ban on the manufacture of sale and
products

mentioned

in

the

said

section?
(VI) Whether there is violation of
principles of natural justice on the
part of Respondent Nos. 1 to 4 on
account of the impugned orders being
passed

without

issuance

of

show

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 -23-

cause notice and without giving the
Petitioner

an opportunity to explain

Food

Authority

in

C
ou

the discrepancy pointed out by the

rt

WPL/1688/2015

respect

product of the Petitioner?

of

the

(VII) What is the source of power

ig
h

under which the impugned orders
were passed and whether such orders
could

have

been

passed

under

H

sections 10(5), 16(1), 16(5), 18, 22,
26, 28 and 29 of the Act?

ba
y

(VIII) Whether the analysis of the
product

Petitioner

manufactured

by

the

could have been made in

B

om

the Laboratories in which the said
product

was

Authority

tested

and

Laboratories
Laboratories

by

the

whether
are

by

Food
these

accredited

the

NABL

and

whether the reports submitted by
these

Laboratories

can

be

relied

upon?
(IX) Whether reliance can be placed

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 -24-

on

the

reports

Petitioner

obtained

by

the

from its Laboratory and

C
ou

other accredited Laboratories?

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WPL/1688/2015

(X) Whether the Food Analyst was
entitled to test the samples in any
Laboratory,

even

if

it

was

not

ig
h

accredited and recognized by the
Food Authority?

Whether it was established by

H

(XI)

the Food Authority that the lead
beyond

the

permissible

limit

was

ba
y

found in the product of the Petitioner
and the product of the Petitioner was
misbranded

on

account

of

a

B

om

declaration made by the Petitioner
that the product contained “No added
MSG”?
(XII) Whether Respondent Nos. 2 to 4
were not justified in imposing the ban
on all the 9 Variants of the Petitioner,
though tests were conducted only in
respect of 3 Variants and whether
such

ban

orders

are

arbitrary,

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unreasonable and violative of Article

REASONS AND FINDINGS:
FINDING ON ISSUE NO.(I)

C
ou

14 and 19 of the Constitution of India?

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WPL/1688/2015

H

ig
h

(I) Whether the Writ Petition filed by the Petitioner –
Company under Article 226 of the Constitution of
India is maintainable, particularly when the
impugned orders, according to the Respondents, are
show cause notices and that the Petitioner has an
alternative remedy of filing an appeal under section
46(4) of the Act?
learned

Counsels

appearing

on

behalf

of

ba
y

35. The

Respondents have raised a preliminary objection regarding
maintainability of the Petition under Article 226 of the
Constitution of India. It was urged by Mr. Darius Khambatta,

om

the learned Senior Counsel appearing on behalf of State of
Maharashtra and also by the learned Additional Solicitor
General appearing on behalf of Respondent No.1 and Mr.

B

Mehmood Pracha, the learned Counsel appearing on behalf
of Respondent No.2 that the Petition has been filed
prematurely and instead of approaching the Food Authority,
Petitioner has filed this Petition in this Court under Article
226 of the Constitution of India. Mr. Darius Khambatta, the
learned Senior Counsel appearing for State of Maharashtra
submitted that if the Petitioner was aggrieved by the result

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rt

of samples which were tested in the Laboratory by the Food

Analyst, the Petitioner could have challenged the same under

C
ou

section 46(4) of the Act. It was submitted by Mr. Mehmood

Pracha the learned Counsel appearing for Respondent No.2
that, in fact, there was no ban order and only a show cause
notice had been issued to the Petitioner

as to why its

product approval should not be cancelled and the Petitioner

ig
h

was asked to file reply within 15 days.

36. Mr. Anil Singh the learned Additional Solicitor General
the

learned

H

appearing on behalf of Respondent No.1 and Mr. Khambatta,
Senior

Counsel

appearing

on

behalf

of

Respondent Nos. 3 and 4 relied upon the judgment of the

ba
y

Division Bench of this Court in Aamir Khan Production Pvt. Ltd
vs. Union of India in Writ Petition No.358 of 2010 alongwith
Writ Petition No.526 of 2010 decided on 18/08/2010. It was
submitted that in the said matter also show cause notices

om

issued by the Competition Commission of India were
challenged and the Division Bench after relying on the

B

judgment of the Apex Court held that the Petitions were filed
prematurely.
37. On the other hand, Mr. Iqbal Chagla, the learned Senior
Counsel appearing on behalf of the Petitioner, after inviting
our attention to the impugned order, submitted that the Food
Authority – Respondent Nos. 1 and 2 had already directed the

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and had given

rt

Petitioner not to manufacture, sale, distribute Maggi Noodles
reasons why they felt that this ban order

C
ou

should be passed. He submitted that Respondent Nos. 1 & 2

therefore had finally determined the issue without giving any
opportunity to the Petitioner by issuing show cause notice
and, therefore, the impugned order was a ban/prohibition
order and the Petitioner was entitled to challenge the same

ig
h

on various grounds under Article 226 of the Constitution of
India which grounds would not have been available if appeal
under section 46(4) would have been filed.

It was also

H

submitted that there was a clear violation of principles of
natural justice and therefore, in such cases, Petitioner had a
right to approach this Court under Article 226 of the

ba
y

Constitution of India.
38. In our view, there is much substance in the submissions
made by Mr. Iqbal Chagla, the learned Senior Counsel

om

appearing on behalf of the Petitioner. Perusal of the order
clearly indicates that Respondent No.2, in its impugned

B

order at Exhibit-A, had banned the product and had given
reasons for doing the same.

Respondent No.2 in the said

order (Exhibit-A) has observed in para 7 as under:“7.
Keeping the aforesaid in view,
without prejudice to the rights of the
respective Commissioners of Food Safety
and the Food Safety establishments of
various States and Union Territories and

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ig
h

C
ou

the consumers to file prosecutions
against the Company for various
violations, and in exercise of powers
vested in the Food Authority under
Section 16(1) of the FSS Act, read with
the general principles enshrined under
clauses (a), (b), (c ), (f) and (g) of Subsection (1) of Section 18, further read
with the provisions contained in Sections
26 and 28 and the powers vested in me
under Section 10(5) read with Section 29
of the FSS Act, 2006, the Company is
hereby directed to :

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WPL/1688/2015

B

om

ba
y

H

(i) Withdraw and recall all the 09
approved variants of its Maggi instant
Noodles from the market having been
found unsafe and hazardous for human
consumption,
and
stop
further
production,
processing,
import,
distribution and sale of the said product
with immediate effect;
(ii) As already agreed by the Company
during the hearing in respect of the
rectification of label and removal of “No
added MSG”, the Company is directed to
comply with the related labelling
regulations in this behalf forthwith;
(iii)
Withdraw and recall the food
product, “Maggie Oats Masala Noodles
with Tastemaker” for which risk/safety
assessment has not been undertaken
and Product Approval has not been
granted.
(iv)
In case any other food product
falling under Section 22 of the Act is

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C
ou

being manufactured and marketed by
the Company, for which risk assessment
has not been undertaken by way of grant
of product Approval/NoC by the FSSAI,
the same be withdrawn from the market
with immediate effect and the FSSAI be
informed about such products within 24
hours
of
the
receipt
of
this
communication, and

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WPL/1688/2015

H

ig
h

(v)
Take appropriate action to reascertain the safety of its products in
compliance of the obligations cast upon
the Company in terms of provisions
contained in Section 26 of the Act under
intimation to the FSSAI.”
From the above observation, it is clear that contention of

ba
y

Respondent Nos. 1 and 2 that there was no ban order is
totally incorrect since the order, in terms, imposes a ban on
the Petitioner's production, sale etc of its product. Secondly,
the penultimate

para of the said order states that the

om

Petitioner should show cause why its product approval
should not be cancelled and the Petitioner should show
cause within 15 days from the date of the said order. The

B

said show cause notice also had been issued after the order
banning the product was already passed in the preceding
paragraph of the impugned order. Having passed the ban
order, further show cause notice for cancellation of the
product approval which was already granted, was only a
consequential order.

Lastly, as rightly pointed out by Mr.

Iqbal Chagla, the learned Senior Counsel appearing on

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rt

behalf of the Petitioner, that the Petitioner had approached
this Court under Article 226 of the Constitution of India inter

C
ou

alia on the ground of violation of principles of natural justice

and the Petitioner was therefore entitled to approach this
Court directly even assuming that an alternative remedy
was available.

ig
h

39. It is quite well settled that the alternative remedy by
way of appeal is not always a bar in approaching the High
Court under Article 226, particularly when the Petitioner

H

challenges the order on the ground of violation of principles
of natural justice. The Apex Court in Whirpool Corporation
v. Registrar of Trade Marks, Mumbai and others 1 has

B

om

ba
y

observed in para 15 as under:“15.
Under Article 226 of the
Constitution, the High Court having
regard to the facts of the case, has a
discretion to entertain or not to
entertain a Writ Petition. But the High
Court has imposed upon itself certain
restrictions one of which is that if an
effective and efficacious remedy is
available, the High Court would not
normally exercise its jurisdiction. But the
alternative
remedy
has
been
consistently held by this Court not to
operate as a bar in at least three
contingencies, namely, where the writ
petition has been filed for the
enforcement of any of the Fundamental

1 AIR 1999 SC 22

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 -31-

ig
h

C
ou

Rights
or where there has been
violation of the principle of natural
justice
or
where
the
order
of
proceedings
are
wholly
without
jurisdiction or the vires of an Act is
challenged There is a plethora of caselaw on this point put to cut down this
circle of forensic Whirpool, we would
rely on some old decisions of the
evolutionary era of the constitutional
law as they still hold the field.”

rt

WPL/1688/2015

It is, therefore, quite well settled that whenever allegation is
made that there is violation of principles of natural justice the

H

Petitioner is entitled to challenge the said order and,
secondly, in the present case, the impugned order (Exhibit-

ba
y

A) cannot be strictly said to be a show cause notice since the
order imposes a ban on manufacture, sale, distribution of 9
variants of Maggi Noodles. It, therefore, imposes a complete

om

ban on the product.

40. In our view, ratio of the judgment in Aamir Khan
Production Pvt. Ltd. (supra) will not apply to the facts of the

B

present case since in that case the Petitioner had challenged
the show cause notices and not the final order. Hence the
ratio of the said judgment can be distinguished on facts.
41. In our view, therefore, Petition filed by the Petitioner
under Article 226 of the Constitution of India is maintainable.
Issue No.(I) is, therefore, answered in the affirmative.

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WPL/1688/2015

C
ou

FINDING ON ISSUE NO.(II)

ig
h

(II) Whether there was suppression of fact on
the part of the Petitioner
and whether the
Petitioner had made an attempt to destroy the
evidence disentitling the Petitioner
from
claiming any relief from this Court?

42. During the course of arguments, Mr. Darius Khambatta,
the

learned

Respondent

Senior
Nos.3

Counsel

and

4

appearing

vehemently

on

behalf

urged

that

of
the

H

Petitioner had suppressed material facts from this Court and
had not annexed the reports obtained by the Food Analyst

ba
y

after carrying out the analysis of the product of the
Petitioner.

It was urged that the Petitioner had tried to

suppress this fact from the Court and therefore the Petitioner
was not entitled to claim any relief from this Court.

om

Secondly, it was submitted by Respondent Nos. 1 and 2 (and
which argument was adopted by Mr. Khambatta) that the
Petitioner had tried to destroy the evidence by burning all

B

food packets without seeking permission from this Court.
They submitted that on these two grounds, the Petitioner
was not entitled to claim any relief from this Court as justice
did not lie on the side of the Petitioner. They relied upon
the judgment of Division Bench of this Court delivered by
M.C. Chagla, C.J. in the State of Bombay vs. Morarji Cooverji 1
1 (1958) BLR VOL LXI page 318

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rt

in support of this submission and more particularly upon the

observations made by the Division Bench in the first

43.

C
ou

paragraph on page 332.

On the other hand Mr. Iqbal Chagla, the learned

Senior Counsel appearing on behalf of the Petitioner
submitted that the said submission was palpably false and it
that the learned Senior Counsel appearing on

ig
h

indicated

behalf of Respondent Nos. 3 and 4 was not given the
instructions properly. He submitted that so far as the first

H

submission regarding suppression of fact is concerned, the
said submission was incorrect.

He submitted that the

samples were tested by Analyst in Pune on 06/06/2015 and

ba
y

these reports were dispatched by post only on 10/06/2015.
These reports were received by the Petitioner on 15/06/2015
and 17/06/2015. He submitted that the Petition was filed on
11/06/2015 and on that date the reports which were given

om

by the Food Analyst were not available to the Petitioner and
therefore they were not annexed. He submitted that reports

B

of the Food Analyst which were available with the Petitioner
were

annexed

to

the

Petition.

He

relied

on

the

acknowledgement showing that the said reports were made
available to the Petitioner after the Petition was filed.
Secondly, he submitted that so far as the submission
regarding destruction of evidence is concerned, the same is

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rt

also palpably incorrect because the Petitioner had, from the

date the impugned ban order was passed, in coordination

C
ou

and according to the direction given by the Food Authority,

taken steps to destroy its product. He invited our attention
to the minutes of the meetings which were held from time to
time with Respondent No.2, which were signed by the
Petitioner and Respondent No.2 which clearly gave direction

ig
h

to the Petitioner to destroy all food packets and

preserve

only 2000 cases which was later on modified and the

44.

H

Petitioner was asked to preserve 750 cases.
We have perused the tracking record of the Postal

Department and also seen the the acknowledgement of the

ba
y

reports by the Petitioner, which clearly indicate that these
reports were received after the Petition was filed by the
Petitioner

on

11/06/2015.

Tracking

reports

and

the

acknowledgements also clearly indicate that the said reports

om

were received by the Petitioner much later and, in any case,
they were not received before the Petition was filed.

The

B

submission made by Mr. Khambatta, the learned Senior
Counsel appearing on behalf of Respondent Nos. 3 and 4
regarding suppression of fact, therefore, is not correct.
Incidentally, in the afternoon session of the day, Mr.
Khambatta candidly then pointed out that his submission
regarding suppression of fact was not correct and he had
made the said submission on instructions and later on he

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rt

realized from the record which was available that the said

45. So far as

C
ou

submission was not well founded.

the submission regarding destruction of

evidence is concerned, in our view, the said submission is
also without any substance. It is obvious that Respondent
Nos.1 to 4 have not given proper instructions to their

ig
h

respective Counsel who were appearing on their behalf. The
minutes of various meetings which were produced by the
Petitioner clearly indicate that the Petitioner had taken every

H

step as per the directions given by the Food Authority. The
minutes of the meetings which had been tendered across the
bar and which were not disputed and which were admitted

ba
y

by the Counsel appearing for Respondent Nos. 1 and 2
indicate that the Petitioner was directed to destroy the food
packets which were manufactured by the Petitioner. The
minutes of the meeting held on 08/06/2015 prepared by the

om

Food

Safety

and

Standards

Authority

of

India

dated

B

09/06/2015 are as under:“Proceedings of the meeting are as follows:
1.
M/s. Nestle India Limited briefed the CEO,
FSSAI about the action taken on the recall
procedure.
Representatives from Nestle India
Limited informed that there were around 40 crore
packets of the products which were required to be
recalled from 39 lakh direct outlets and 88 lakh
indirect outlets. A stock of about 17,000 tonne
was with Nestle India Limited and approximately

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rt

10,000 tonne was with various distributors and in
the retail market.

ig
h

C
ou

2.
They apprised about the action taken on
recall by stating that approximately 400-600 tonne
material wold be destroyed on a daily basis at five
locations identified for destruction, commencing
from 08th June, 2015. It was also informed that
these products would be transported in closed
sealed containers for destruction at the designated
locations. The destruction will take place in the
incinerators of the identified cement plants
keeping in view the environmental requirements.
A site-wise report regarding the products
destroyed along with the photographs will be
submitted on a daily basis.

ba
y

H

3............................
4............................
5...........................
6...........................”

The minutes of the meetings

indicate that, though,

initially, the Petitioner was asked to preserve 2000 cases, the
Petitioner was then directed to reduce it to 750 in the said

B

om

minutes.

The

minutes

of

weekly

review

meeting

held

on

20/07/2015 with the representatives of M/s Nestle India,
have been signed by Respondents and representatives of the
Petitioners and in Clause 4 of the said minutes of the
meeting it has been observed as under:“4. M/s Nestle also enquired about the
decision regarding storing of 750 cases

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 -37-

There

is,

therefore,

absolutely

C
ou

and mirror samples for FSSAI which are
currently stored at the company's Moga
manufacturing unit. It was informed to
the representative that a decision shall
be communicated to them at the
earliest.”

rt

WPL/1688/2015

no

substance

in

the

submissions made by the learned Senior Counsels appearing

ig
h

on behalf of Respondent Nos. 1 and 4 that there was
suppression of fact and an attempt to destroy the evidence

46.

H

by the Petitioner.

We are surprised at the vehemence with which the

Petition is opposed by Respondent Nos. 1 to 4 because the

ba
y

Food Regulator is not expected to take an adversarial stand
in such matters.

Issue No.(II) is therefore answered in

B

om

the negative.

FINDING ON ISSUE NO.(III)
(III) Whether Respondent No.2 could impose a
ban on the ground that the lead found in the
product of the Petitioner was beyond what the
Petitioner had represented in its application for
product approval, though it was below the
maximum permissible limit laid down under the
Regulations?

47. Mr.

Mehmood

Pracha,

the

learned

Counsel

for

Respondent No.2, vehemently urged that the obligation was

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on the Petitioner or the food manufacturer to

rt

cast

manufacture the food which was safe and wholesome and an

C
ou

element of trust therefore was created on the basis of
assurances given by the manufacturer. He submitted that if
the trust was broken, the Food Authority could then act and
impose the ban on the product of the manufacturer.

He

submitted that the Petitioner had made representation in its

ig
h

application for product approval that the lead contained in
its product, both, in the noodles and taste maker, was less
than 0.1 ppm. He submitted that the Food Authority could

H

impose a ban on the Petitioner's product if it was found that
the lead contained was more than 0.1 ppm though the
permissible limit was 2.5 ppm. He submitted that the Food

ba
y

Authority could so order the ban because the representation
which was made by the Petitioner in its application for
product approval was incorrect and though the permissible
limit may be 2.5 ppm and the lead contained was less than

om

2.5 ppm, yet, such a ban order could be imposed and
justified. He invited our attention to the averments made in

B

the reply of Respondent No.1 to that effect in para 13.

It

would be fruitful to reproduce the said paragraph wherein it
is mentioned as under:“13.
The said product with its 9 approved
variants are admittedly covered under Section
22 of the FSS Act and which, being nonstandardised, have to undergo risk and safety
assessment from the Food Authority through the

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B

om

ba
y

H

ig
h

C
ou

rt

process of product approval. The petitioner's
company had submitted the composition of the
'Noodle Cake' along with the composition of
'Tastemaker' for each variant as part of the
Product Approval applications.
The package
contains the 'Noodle Cake' and the 'Tastemaker'
is placed inside the main package as a sealed
Sachet, which is removable as an independent
pack once the main package is opened. As such,
both are liable to be tested separately. The
Certificate of Analysis (CoA) furnished with the
application for Maggi 2-Minute Noodles Masala
variant showed 0.0153 ppm lead as against the
maximum permissible limit of 2.5 ppm. The
petitioner is trying to create confusion by
making reference to different standards
prescribed for 'Lead' under the FSS regulations,
fully knowing that the Standards prescribed in
the FSS Regulations cannot be applied to a
Section 22 Product on a selective basis. Once it
is Section 22 Product, the Safety assessment is
undertaken on the basis of averments made in
the application. The petitioner Company cannot
go back on its own commitments in the
application wherein it annexed the Codex
Standards for Instant Noodles (wherein the
maximum permissible limits for lead is far less
than the limit prescribed under the FSS Act,
2006 Rules and Regulations). Even, if assumed,
but not admitted, that the certificate of analysis
was for the entire product, then the final product
should have lead content of 0.0153 ppm or as
promised in PA Applications. The contention of
the petitioner that the product should be tested
in the form as it is finally ready for consumption
is not tenable because the final consumption
ready product would include water therein which
is not being supplied by the petitioner company
as part of the product.”

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 -40-

48.

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WPL/1688/2015

We are surprised and astonished at the stand

C
ou

taken by Mr. Pracha, the learned Counsel appearing on
behalf of Respondent No.2 which is also reflected from the
averments made in the affidavit in reply filed by Respondent
No.1. The said submission is preposterous to say the least.
The Scheme of the Act and provisions of the Rules and

ig
h

Regulations framed thereunder clearly indicate that the
Regulations have been framed by the Food Authority giving
various standards which are to be maintained by the food
Most of these Regulations were placed

H

manufacturers.

before both the Houses of Parliament and they were
approved.

It is difficult to understand as to how such a

ba
y

submission therefore could be made which does not find any
support from the provisions of the Act and the Rules and
Regulations framed thereunder. If this is the interpretation
which is sought to be made by Respondent No.2 then there is

om

something inherently wrong in the manner in which the Rules
and Regulations are being interpreted by the Food Authority.

B

Such interpretation cannot be given by any standard or
cannons of interpretation or rules of interpretation which
have been formulated by the Apex Court over the last six
decades. If the arguments of Mr. Pracha are to be accepted,
it would effectively mean that for proprietary foods, the FSS
Regulations would not apply and the food authority granting
the product approval would decide what would be the limits

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rt

prescribed for additives, contaminants and other substances

that may be contained in a proprietary food. To our mind,

C
ou

this argument is wholly fallacious and would run contrary to
the provisions of Section 22 of the Act itself. Section 22 inter
alia deals with proprietary foods and explanation (4) to the
said section defines “proprietary and novel food”.

The

proviso appearing after explanation (4) clearly stipulates that

ig
h

such food should not contain any of the foods and
ingredients prohibited under the Act and the regulations
framed thereunder. If we are to accept the argument of Mr.

H

Pracha, this proviso would be rendered otiose. The said
submission is therefore
rejected.

wholly without merit and stands

Issue No.(III) is therefore answered in the

ba
y

negative.

B

om

FINDING ON ISSUE NO.(IV)

(IV) Whether the Food Authority had an
unfettered discretion to decide what are the
standards which have to be maintained by the
manufacturers of proprietary food and whether in
respect of the proprietary food, the Food Authority
was not bound by the permissible limits of
additives and contaminants mentioned in the
Regulations and the Schedules appended thereto?

49. Mr. Mehmood Pracha, the learned Counsel appearing on
behalf of Respondent No.2, taking his argument further from
the point which he has argued on the earlier question, then

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rt

seriously contended that in respect of proprietary food, the
Food Authority had an unfettered discretion to decide what

C
ou

standards have to be maintained by the manufacturers of
proprietary food and the Food Authority was not bound by

permissible limits of additives/contaminants mentioned in the
Schedule given in the Act.

We are again amazed and

astonished by the submission made by the learned Counsel

ig
h

for Respondent No.2. The FSS Act no doubt gives power to
the Food Authority to regulate and monitor the manufacture,
storage, distribution, sale and import of food and for that

H

purpose can frame Regulations under section 16(2) of the
Act. After the Regulations so framed under section 92 of the
Act, they

are to be placed before both the Houses of

ba
y

Parliament under section 93 of the Act for approval and once
the Regulations so framed are approved by both the Houses
of Parliament then it cannot be said that the Food Authority
has an unfettered discretion to decide what are the

om

standards which are to be maintained by the manufacturers

B

of proprietary food.
50. It

is

not

manufactured

in
by

dispute
the

that

Petitioner

the

product

viz Maggi

which

is

Noodles is

proprietary food. The limits of quantities and contaminants,
heavy metals etc. also are prescribed under the Regulations
which are framed under section 92 of the Act and this is
applicable even in the case of proprietary food.

Limit of

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various additives including contaminants is mentioned in the

said Regulations. Limit of lead is also mentioned in the said

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Regulations. If the submission made by the learned Counsel

for Respondent No.2 is accepted then these Regulations
which are framed as per the procedure prescribed under
section 93 namely of placing

the same before both the

Houses of Parliament wold be rendered otiose.

If this

ig
h

submission is to be accepted, it would mean that the Food
Authority is not bound by the Regulations which are framed
and approved after they are placed before both the Houses

H

of Parliament and become lawful Regulations, having the
force of law and it would also mean that the Food Authority is
a law unto itself and which can take any decision according

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to its discretion. In fact, in exercise of powers conferred by
Section 92(2)(i) read with Sections 20 and 21 of the Food
Safety and Standards Act, 2006, Regulations have been
framed regarding contaminants, toxins and residues known

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as the Food Safety and Standards (Contaminants, Toxins and
Residues) Regulations, 2011. Regulation 2.1.1.(2) inter alia

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stipulates that no article of food specified in column (2) of
the Table appended thereto can contain any metal specified
in excess of quantities specified in the corresponding entry in
column (3) thereof. At Sr. No.1 of the said table is lead and
under the column Article of Food at (iii), there is an entry
which states “Foods not specified”.

As far as this entry is

concerned, under the Regulations, the lead level permissible

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If the argument of Mr. Pracha is to be

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is up to 2.5 ppm.

accepted that in respect of proprietary food (i.e. in respect of

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foods where no standards have been set out) the food
authority had unfettered discretion to decide what standards
have to be maintained by the manufacturers of proprietary
food for lead, Entry (iii) in the table appended to Regulation
2.1.1.(2) would be rendered otiose.

These Regulations

ig
h

specifically contemplate different tolerance level of lead in
different products. As a residuary item “foods not specified”
finds place at item (iii) of Sr. No.1 of the table appended to

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regulation 2.1.1.(2) and specifies the permissible limit of lead
in “foods not specified” would be 2.5 ppm.

Such a

proposition is therefore absolutely unacceptable. Issue No.

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(IV) is therefore answered in the negative.

B

om

FINDING ON ISSUE NO.(V)

(V) Whether in view of the provisions of Section
22, there was a complete ban on the
manufacture of sale and products mentioned in
the said section?

51. Mr. Mehmood Pracha, the learned Counsel appearing on
behalf of Respondent No.2 submitted that section 22
imposes a complete ban on the manufacture, sale etc of the
products mentioned in the said section and it was only after
the approval was granted by the Food Authority, the said
categories of food could be manufactured, sold etc by

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anyone. He submitted that almost 95% of standardized food

has been regulated by the Regulations. He submitted that in

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respect of standardized food, the quality of food was clearly

prescribed under these Regulations. He invited our attention
to the products like milk etc in the said Regulations.

He

submitted that, however, 5% of the products were products
which were mentioned in section 22 viz. proprietary food etc

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which were not regulated since those products were
incapable of being regulated.

He submitted that in respect

of traditional food such as 'Samosa', 'Bhel' etc., by virtue of

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Advisories these traditional foods were exempted from
maintaining any specific standards.

However, the other

foods could be manufactured only after the product approval

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was granted and the standards which were required to be
maintained would be determined only by the Food Authority
and no one else.

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52. On the other hand, Mr. Iqbal Chagla, the learned Senior
Counsel appearing on behalf of the Petitioner, submitted that

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the said submission was unfounded and unacceptable.

He

submitted that section 22, on its proper interpretation,
prohibits only those categories of food contained therein as
may be notified by the Central Government and, in fact, the
Central

Government

has

notified

various

foods

and

ingredients as being prohibited. Reliance was placed on the
Food Safety and Standards (Prohibition and Restrictions)

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Regulations, 2011. It was submitted that if the contention of

the Food Authority was to be accepted then various

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categories of food including organic food was completely

prohibited. It was submitted that prohibition by the Act on
any category of food could not be raised by the Food
Authority by virtue of its administrative orders viz by
granting product approval. It was submitted that, thus, if the

ig
h

said interpretation was to be accepted then the prohibition
imposed by virtue of the

statute on some of the products

could be raised by the Food Authority on the basis of its

H

administrative orders. He submitted that such interpretation
should not be given to section 22.

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53. In our view, the submission made by Mr. Mehmood
Pracha,

the

learned

Counsel

appearing

on

behalf

of

Respondent No.2 and the interpretation which is sought to be
given to section 22 is without any legal foundation and it has

om

to be stated to be rejected.

It would be relevant in this

context to see the provisions of section 22 of the Act which

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read as under:“22. Genetically modified foods, organic foods,
functional foods, proprietary foods, etc..-Save as
otherwise provided under this Act and regulations made
thereunder, no person shall manufacture, distribute,
sell or import any novel food, genetically modified
articles of food, irradiated food, organic foods, foods for
special dietary uses, functional foods, neutraceuticals,
health supplements, proprietary foods and such other

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articles of food which the Central Government may
notify in this behalf.

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Explanation.--For the purposes of this section,--

(1) "foods for special dietary uses or functional
foods or nutraceuticals or health supplements"
means:

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H

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(a) foods which are specially processed or
formulated
to
satisfy
particular
dietary
requirements which exist because of a particular
physical or physiological condition or specific
diseases and disorders and which are presented
as such, wherein the composition of these
foodstuffs must differ significantly from the
composition of ordinary foods of comparable
nature, if such ordinary foods exist, and may
contain one or more of the following ingredients,
namely:-(i) plants or botanicals or their parts in the form
of powder, concentrate or extract in water, ethyl
alcohol or hydro alcoholic extract, single or in
combination;
(ii) minerals or vitamins or proteins or metals or
their compounds or amino acids (in amounts not
exceeding the Recommended Daily Allowance
for Indians) or enzymes (within permissible
limits);
(iii) substances from animal origin;
(iv) a dietary substance for use by human
beings to supplement the diet by increasing the
total dietary intake;

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(b) (i) a product that is labelled as a "Food for
special dietary uses or functional foods or
nutraceuticals or health supplements or similar
such foods" which is not represented for use as
a conventional food and whereby such products
may be formulated in the form of powders,
granules, tablets, capsules, liquids, jelly and
other dosage forms but not parenterals, and are
meant for oral administration;

H

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(ii) such product does not include a drug as
defined in clause (b) and ayurvedic, sidha and
unani drugs as defined in clauses (a) and (h) of
section 3 of the Drugs and Cosmetics Act,
1940(23 of 1940) and rules made thereunder;

B

om

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(iii) does not claim to cure or mitigate any
specific disease, disorder or condition (except
for certain health benefit or such promotion
claims) as may be permitted by the regulations
made under this Act;
(iv) does not include a narcotic drug or a
psychotropic substance as defined in the
Schedule of the Narcotic Drugs and Psychotropic
Substances Act, 1985(61 of 1985) and rules
made thereunder and substances listed in
Schedules E and EI of the Drugs and Cosmetics
Rules, 1945;

(2) "genetically engineered or modified food"
means food and food ingredients composed of or
containing genetically modified or engineered
organisms
obtained
through
modern
biotechnology, or food and food ingredients
produced from but not containing genetically
modified or engineered organisms obtained

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through modern biotechnology;

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(3) "organic food" means food products that have
been produced in accordance with specified
organic production standards;

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(4) "proprietary and novel food" means an article
of food for which standards have not been
specified but is not unsafe:

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Provided that such food does not contain any of
the foods and ingredients prohibited under this
Act and the regulations made thereunder.

On proper and plain reading and interpretation of section 22
of the Act and after hearing the learned Senior Counsel Mr.

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y

Chagla for the Petitoner and the learned Counsel Mr. Pracha
for Respondent No.2 at some length, we find, at least prima
facie, that there is considerable
by

Mr.

Chagla

the

om

advanced

force in the arguments
learned

appearing on behalf of the Petitioner.

Senior

Counsel

In the facts of the

present case, however, we find that product approval has, in

B

fact, been granted to 8 out of 9 Variants of MAGGI Noodles
manufactured by the Petitioner. In this view of the matter,
the issue as to what would be the interpretation of section 22
does not really arise for consideration before us in the facts
of the present case and, therefore, we leave it open to be
argued in an appropriate case.

The

Issue No.(V),

therefore, does not arise.

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WPL/1688/2015

54. We find that in number of cases which have come

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before us, this is a standard argument which has been

advanced on behalf of the Food Authority, though we find
that in support of the orders which are passed banning any
food article or restraining the manufacturer from importing
consignment after it has reached the customs warehouse,

ig
h

some other reason is given for not clearing the goods.
However, in the Court reliance is placed on section 22 and
this is the argument which is sought to be advanced in
In our view,

H

support of the action of the Food Authority.

there is something fundamentally wrong in the approach of
the Food Authority and in the interpretation which is sought

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to be given by it to several provisions of the Act, including

B

om

section 22 of the Act.

FINDING ON ISSUE NOS.(VI) & (VII) WICH CAN BE
DECIDED TOGETHER:
(VI) Whether there is violation of principles of
natural justice on the part of Respondent Nos. 1
to 4 on account of the impugned orders being
passed without issuance of show cause notice
and without giving the Petitioner an opportunity
to explain the discrepancy pointed out by the
Food Authority in respect of the product of the
Petitioner?
(VII) What is the source of power under which
the impugned orders were passed and whether

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such orders could have been passed under
sections 10(5), 16(1), 16(5), 18, 22, 26, 28 and
29 of the Act?

55. Mr. Iqbal Chagla, the learned Senior Counsel appearing
on behalf of the Petitioner submitted that the impugned
orders were passed in utter violation of principles of natural
justice since no show cause notice was given to the

ig
h

Petitioner and, secondly, though the representatives of the
Petitioner were called for the meeting which was held on
05/06/2015 at 1.00 P.M., they were not given copies of the

H

analysis reports signed by the Food Analyst and of the
reports of the Food Laboratories.

He submitted that the

impugned orders had resulted in severe adverse civil

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y

consequences as the Petitioner had to destroy food packets
of thousands of tonnes which had caused huge financial loss
of more than Rs 100 crores to the Petitioner. He submitted
that as a result of the impugned orders, goodwill and

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reputation of the Petitioner – Company had been damaged
irreparably.

He further submitted that the Petitioner is

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carrying of business of Maggi in India for more than 30 years
and such a complaint was never made against the Petitioner
by anyone in the past. He relied upon the judgment in M/s
Dharampal Satyapal Ltd. vs. Deputy Commissioner of Central
Excise, Guhati & Ors.1
56. On the other hand, all the three learned Counsels
1 2015 SCC OnLine SC 489

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appearing on behalf of Respondent Nos. 1 to 4 submitted
that the Food Authority had passed the order without issuing

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a show cause notice since it had found that the product

manufactured by the manufacturer i.e. Petitioner – Company
was unsafe for human consumption. It was submitted that
Maggi Noodles were consumed even by children of the age of
one year and above and looking to the internal damage

ig
h

which would be caused to the human body on account of
presence of lead, necessitated immediate ban on the product
of the Petitioner. It was submitted that the Food Authority

H

had power to impose ban even without giving show cause
notice. Lastly, it was submitted that the representatives of
the Petitioner were called to attend the meeting on

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05/06/2015 at 1.00 P.M., and they were heard and they had
given replies to the queries made by the Food Authority. It
was submitted that the impugned order clearly reflects that
hearing was given, objections of the representatives of the

om

Petitioner were considered and overruled by giving reasons.
It was submitted that therefore there was no question of

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violation of principles of natural justice.
57. Before we consider these rival submissions, it will be
necessary again to have a look at the events which had
taken place before the impugned order was passed.
In January, 2015,

one sample of the

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Petitioner's product was analysed in Food
Laboratory in Gorakhpur, UP. It was found

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that though a declaration was given on the

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WPL/1688/2015

food packet of the Petitioner that there was
“No added MSG”, on analysis it was found
that MSG was found in the sample.

ig
h

At the behest of the Petitioner, the
sample was sent to the Referral Laboratory
in Kolkata. This was done on 22/01/2015.

H

The sample was with the Kolkata Referral
Laboratory till 29/03/2015 and thereafter a
report was submitted in which it was stated

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that the lead to the extent of 17 ppm. was
found in the sample.

B

om

Thereafter, the Food Authority asked

the Food Analyst of several States to
analyse the food packets manufactured by
the Petitioner and in 7 States, it was found
that the lead content was more than the
permissible limit and in two States viz Goa
and Kerala it was found that the lead
content in the sample was within the
permissible limit. Wide publicity was given
by the media to the reports which were

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given by various Laboratories regarding

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product of the Petitioner.

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WPL/1688/2015

In view of the reports which appeared

in media, Petitioner – Company gave a
press release, stating therein that the
Petitioner would stop manufacture, sale,

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h

distribution etc of Maggi Products and on
05/06/2015, the representatives of the
Petitioner were invited for a meeting which
Petitioner was not

H

was held at 1.00 P.M.

specifically informed about the intention of
the Food Authority to ban the product and

ba
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on the same day thereafter the impugned
order was passed. Perusal of the impugned
order (Exhibit-A) indicates that Respondent

B

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No.2 has recorded submissions made by
the representatives of the Petitioner and
thereafter the Food Authority had given
reasons why they were not accepted and
the impugned order was passed.

58. Two questions under these circumstances are required
to be considered viz.
(i) Whether the meeting which was

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held on 05/06/2015 in which the
representatives

of

the

Petitioner

compliance

of

the

natural justice?

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were heard could be said to be the

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WPL/1688/2015

principles

of

(ii) Whether the contention of the

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Petitioner was right that there was
violation of the principles of natural
justice before passing the impugned
give

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order OR it was not necessary to
hearing to the Petitioner

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before passing the impugned order?
59. It would be fruitful to examine the law on this point.
The phrase audi alteram partem means no man can be
condemned without being heard has been evolved in the last

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two to three decades. The Apex Court taking a clue from
the law laid down by the English Courts in Ridge vs. Baldwin

B

and others1 and in A.K. Kraipak and others vs. Union of India
and others2 has held that over a period of time the dividing
line between the orders passed by quasi judicial authorities
and the administrative authorities had diminished and
disappeared. The Apex Court in A.K. Kraipak (Supra) has
observed in para 13 as under:1 [1963] 2 ALL E.R. 66
2 AIR 1970 SC 150

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B

om

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H

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“13.
The dividing line between an
administrative power and a quasi-judicial
power is quite thin and is being gradually
obliterated.
For determining whether a
power is an administrative power or a quasijudicial power one has to look to the nature
of the power conferred, the person or
persons on whom it is conferred, the
framework of the law conferring that power,
the consequences ensuing from the exercise
of that power and the manner in which that
power is expected to be exercised. In a
welfare State like ours it is inevitable that
the organ of the State under our Constitution
is regulated and controlled by the rule of
law.
In a welfare State like ours it is
inevitable
that the jurisdiction
of the
administrative bodies is increasing at a rapid
rate. The concept of rule of law would lose
its validity if the instrumentalities of the
State are not charged with the duty of
discharging their functions in a fair and just
manner. The requirement of acting judicially
in essence is nothing but a requirement to
act justly and fairly and not arbitrarily or
capriciously.
The procedures which are
considered inherent in the exercise of a
judicial power are merely those which
facilitate if not ensure a just and fair
decision. In recent years the concept of
quasi-judicial power has been undergoing a
radical change. What was considered as an
administrative power some years back is
now being considered as a quasi-judicial
power............................”

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WPL/1688/2015

The Apex Court has, therefore, held that even if the order is

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passed by the administrative authority and particularly when

it entails adverse civil consequences the person against

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whom such an order is passed should be given an
opportunity to explain and should be heard. This principle
has been enunciated in subsequent judgments by the Apex
Court.

It is well settled that even before passing the

administrative order which may lead to

adverse civil

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h

consequences, party who is going to be affected should be
heard before passing such order.

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60. In the recent judgment in M/s Dharampal Satyapal Ltd.
vs. Deputy Commissioner of Central Excise, Gauhati & Ors. 1,
the Apex Court after taking into consideration the evolution

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of the said principle in English Common Law and its Indian
origin as explained in Mohinder Singh Gill vs. The Chief
Election Commissioner, New Delhi [(1978) 1 SCC 405 : Air
1978 SC 851] and referring to definition of the term by the

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Jurists De Smith and Wade and taking into consideration the
other judgments of the Apex Court has finally observed in

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the facts of the said case as under:“Therefore, we are inclined to hold that
there was a requirement of show-cause
notice by the Deputy Commissioner
before passing the order of recovery
irrespective of the fact whether Section
11A of the Act is attracted in the instant
case or not.
1 2015 SCC Online SC 489

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B

om

ba
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H

ig
h

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But that is not the end of the matter.
While the law on the principle of audi
alteram partem has progressed in the
manner mentioned above. At the same
time, the Courts have also repeatedly
remarked that the principles of natural
justice are very flexible principles. They
cannot be applied in any straight-jacket
formula. It all depends upon the kind of
functions performed and to the extent to
which a person is likely to be affected. For
this reason, certain exceptions to the
aforesaid principles have been invoked
under certain circumstances. For example,
the Courts have held that it would be
sufficient to allow a person to make a
representation and oral hearing may not
be necessary in all cases, though in some
matters, depending upon the nature of the
case, not only full-fledged oral hearing but
even cross-examination of witnesses is
treated as necessary concomitant of the
principles of natural justice. Likewise, in
service
matters
relating
to
major
punishment by way of disciplinary action,
the requirement is very strict and fullfledged opportunity is envisaged under
the statutory rules as well. On the other
hand, in those cases where there is an
admission of charge, even when no such
formal inquiry is held, the punishment
based on such admission is upheld. It is
for this reason, in certain circumstances,
even post-decisional hearing is held to be
permissible. Further, the Courts have held
that
under
certain
circumstances,
principles of natural justice may even be
excluded by reason of diverse factors like

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WPL/1688/2015

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time, place, the apprehended danger and
so on.”

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WPL/1688/2015

61. From the conspectus of these cases, it can be seen that
there is no straight-jacket formula which can be used in each
and every case to decide a question as to whether

the

affected party has to be given hearing or not and that would

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depend upon facts and circumstances of each case.
62. In this context, therefore, it will be necessary to see the
scheme of the Act and the powers which are vested in

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various authorities constituted under the Act so that after
understanding the scheme of the Act and the powers which
are vested in these authorities, we can then examine

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whether the impugned orders which had been passed could
have been passed without issuing the show cause notice to
the Petitioner and without giving proper hearing to the

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Petitioner.

63. If we examine the scheme of the Act, as has been done

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hereinabove, it can be seen that the authorities can pass
orders and impose penalties in ascending degree of coercion.
The Act envisages that the authorities can pass orders which
have

adverse

civil

consequences

and

they

can

also

prosecute those who violate the provisions of the Act and
Rules and Regulations framed thereunder which may then
result in imposition of fine and sentence on the accused. In

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cases of emergency, order banning the product can also be
passed and, obviously, in such cases, question of giving

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hearing does not arise. The principal object in passing these

orders is to protect public interest at large and to see the
public welfare and to ensure that the food which is sold is not
unsafe for human consumption.

ig
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64. According to Respondent Nos. 1 and 2 the impugned
order at Exhibit-A has been passed while exercising powers
vested in them under sections 10(5), 16(1), 16(5), 18, 22, 26,

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28 and 29 of the Act, whereas, according to Respondent Nos.
3 and 4, the impugned order at Exhibit-B has been passed
under section 30 of the Act. It will be necessary therefore to
the contention of the Respondents that the

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examine

impugned orders are passed under the aforesaid provisions
before it can be accepted.

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65. In our view, from the perusal of the aforesaid provisions
it is difficult to accept that the Food Authority can pass the

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impugned orders under these provisions.

It is difficult to

trace the origin of the power to ban the product on
emergency basis to sections 10(5), 16(1), 16(5), 18, 22, 26,
28, 29 of the Act.
66. Section 10(5) enumerates that the Chief Executive
Officer shall exercise the powers of the Commissioner of

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Food Safety while dealing with matters relating to food

safety of such articles. This section therefore empowers the

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Chief Executive Officer to exercise the powers which are
exercised by the Commissioner of Food Safety and, to that
extent, Respondent No.2 was authorized to pass the said
order. However, the section does not specify as to whether
the principles of natural justice have to be followed or not

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and, for that purpose, the powers vested in Commissioner of
Food Safety will have to be examined. Section 10(5) of the

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Act reads as under:-

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“10(5) The Chief Executive Officer shall
exercise the powers of the Commissioner
of Food Safety while dealing with matters
relating to food safety of such articles.”

67. Section 16(1) only imposes duty on the Food Authority
to regulate and monitor the manufacture, processing,

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distribution, sale and import of the food so as to ensure safe
and wholesome food. Sub-section (1) of section 16 is an

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omnibus provision which casts a duty and obligation on the
part of the Food Authority to regulate the food business to
ensure food safety. To our mind, Section 16(1) does not
empower the Food Authority to ban any product or article of
food. That power would be found elsewhere. Section 16(1) of
the Act reads as under:-

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“16(1) It shall be the duty of the Food
Authority to regulate and monitor the
manufacture, processing, distribution, sale
and import of food so as to ensure safe and
wholesome food.”

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WPL/1688/2015

68. Section 16(5) also speaks about the directions which
can be given by the Food Authority to the Commissioner of

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Food Safety. Section 16(5) of the Act reads as under:-

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“16(5) The Food Authority may, from time
to time give such directions, on matters
relating to food safety and standards, to
the Commissioner of Food Safety, who
shall be bound by such directions while
exercising his powers under this Act.”
69. It is difficult to accept the contention of Respondent
Nos. 1 and 2 that the impugned order at Exhibit-A has been

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passed under section 16(1) or under section 16(5) since
section 16(1) only speaks about the duty cast on the Food
Authority and section 16(5) authorizes Food Authority to give

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directions to the Commissioner of Food Safety who is bound
by such directions.

Therefore, in our view, the impugned

order at Exhibit-A could not have been passed under these
provisions.
70. The next section on which the reliance is placed by
Respondent Nos.1 and 2 is section 18 which is found in

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Chapter-III of the Act which deals with general principles of

food safety and sub-section (1) of section 18 enumerates the
principles

which

are

to

be

followed

while

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guiding

implementing the provisions of the Act. Sub-section (2) of
section 18 lays down guiding principles which are to be kept
in mind by the Food Authority while framing regulations and
specifying standards under the Act. We fail to understand as

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to how these guiding principles can be said to give power to
the Food Authority or Commissioner of Food Safety in
passing the impugned order at Exhibit-A. This section also

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cannot be said to be a source of power since it only lays
down the guidelines. Section 18 of the Act reads as under:-

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“18. General principles to be followed in
administration of Act.- The Central Government,
the State Governments, the Food Authority and other
agencies, as the case may be, while implementing the
provisions of this Act shall be guided by the following
principles, namely:-(1) (a) endeavour to achieve an appropriate level of
protection of human life and health and the
protection of consumers' interests, including fair
practices in all kinds of food trade with reference to
food safety standards and practices;
(b) carry out risk management which shall include
taking into account the results of risk assessment,
and other factors which in the opinion of the Food
Authority are relevant to the matter under
consideration and where the conditions are relevant,
in order to achieve the general objectives of

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regulations;

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(c) where in any specific circumstances, on the basis
of assessment of available information, the possibility
of harmful effects on health is identified but scientific
uncertainty persists, provisional risk management
measures necessary to ensure appropriate level of
health protection may be adopted, pending further
scientific information for a more comprehensive risk
assessment;

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(d) the measures adopted on the basis of clause (c)
shall be proportionate and no more restrictive of
trade than is required to achieve appropriate level of
health protection, regard being had to technical and
economic feasibility and other factors regarded as
reasonable and proper in the matter under
consideration;
(e) the measures adopted shall be reviewed within a
reasonable period of time, depending on the nature
of the risk to life or health being identified and the
type of scientific information needed to clarify the
scientific uncertainty and to conduct a more
comprehensive risk assessment;
(f) in cases where there are reasonable grounds to
suspect that a food may present a risk for human
health, then, depending on the nature, seriousness
and extent of that risk, the Food Authority and the
Commissioner of Food Safety shall take appropriate
steps to inform the general public of the nature of the
risk to health, identifying to the fullest extent
possible the food or type of food, the risk that it may
present, and the measures which are taken or about
to be taken to prevent, reduce or eliminate that risk;
and

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(g) where any food which fails to comply with food
safety requirements is part of a batch, lot or
consignment of food of the same class or description,
it shall be presumed until the contrary is proved, that
all of the food in that batch, lot or consignment fails
to comply with those requirements.
(2) The Food Authority shall, while framing regulations
or specifying standards under this Act--

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(a) take into account--

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(i) prevalent practices and conditions in the
country including agricultural practices and
handling, storage and transport conditions; and

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(ii) international standards and practices, where
international standards or practices exist or are in
the process of being formulated,

unless it is of opinion that taking into account of such
prevalent practices and conditions or international
standards or practices or any particular part thereof
would not be an effective or appropriate means for
securing the objectives of such regulations or where
there is a scientific justification or where they would
result in a different level of protection from the one
determined as appropriate in the country;
(b) determine food standards on the basis of risk
analysis except where it is of opinion that such
analysis is not appropriate to the circumstances or
the nature of the case;
(c) undertake risk assessment based on the available
scientific evidence and in an independent, objective

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and transparent manner;

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(d) ensure that there is open and transparent public
consultation, directly or through representative
bodies including all levels of panchayats, during the
preparation, evaluation and revision of regulations,
except where it is of opinion that there is an urgency
concerning food safety or public health to make or
amend the regulations in which case such
consultation may be dispensed with:
Provided that such regulations shall be in force for
not more than six months;

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(e) ensure protection of the interests of consumers
and shall provide a basis for consumers to make
informed choices in relation to the foods they
consume;
(f) ensure prevention of--

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(i) fraudulent, deceptive or unfair trade practices
which may mislead or harm the consumer; and
(ii) unsafe or contaminated or sub-standard food.

(3) The provisions of this Act shall not apply to any
farmer or fisherman or farming operations or crops or
livestock or aquaculture, and supplies used or produced
in farming or products of crops produced by a farmer at
farm level or a fisherman in his operations.”

71. Section 22 quoted above on which reliance is placed by
Mr. Mehmood Pracha, the learned Counsel appearing on
behalf of Respondent No.2, is a provision which is found in

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Chapter-IV of the Act which deals with general provisions as
to articles of food and it clarifies that the categories of food

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mentioned in the said section viz novel food, genetically
modified articles of food, irradiated food, organic food, foods
for special dietary uses, functional foods, neutraceuticals,
health

supplements,

proprietary

food

etc

cannot

be

manufactured by any person save and otherwise provided

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under the Act and Rules and Regulations framed thereunder.
The impugned order at Exhibit-A also does not in terms state
that the order is passed under section 22 of the Act. This

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argument is advanced for the first time by Mr. Mehmood
Pracha, the learned Counsel appearing on behalf of the
Respondent No.2.

The learned Additional Solicitor General

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appearing on behalf of Respondent No.1 or Mr. Darius
Khambatta appearing on behalf of Respondent Nos. 3 and 4
have not argued that the the order has been passed under
section 22. Even otherwise, from the aforesaid provisions, it

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can be seen that this order (Exhibit-A) could not have been
passed under section 22 as canvassed by Mr. Mehmood

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Pracha,

the

learned

Counsel

appearing

on

behalf

of

Respondent No.2.
72. The other provisions which are mentioned in the
impugned order at Exhibit-A are sections 26 and 28 of the
Act which are found in Chapter VI

which deals with special

responsibilities as to food safety. Section 26 and 28 of the

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Act read as under:-

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“26. Responsibilities of the food business
operator.- (1) Every food business operator shall
ensure that the articles of food satisfy the requirements
of this Act and the rules and regulations made
thereunder at all stages of production, processing,
import, distribution and sale within the businesses
under his control.

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(2) No food business operator shall himself or by any
person on his behalf manufacture, store, sell or
distribute any article of food--

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(i) which is unsafe; or

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(ii) which is misbranded or sub-standard or contains
extraneous matter; or

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(iii) for which a licence is required, except in
accordance with the conditions of the licence; or
(iv) which is for the time being prohibited by the Food
Authority or the Central Government or the State
Government in the interest of public health; or
(v) in contravention of any other provision of this Act
or of any rule or regulation made thereunder.

(3) No food business operator shall employ any person
who is suffering from infectious, contagious or
loathsome disease.
(4) No food business operator shall sell or offer for sale
any article of food to any vendor unless he also gives a

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guarantee in writing in the form specified by regulations
about the nature and quality of such article to the
vendor:

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Provided that a bill, cash memo, or invoice in respect
of the sale of any article of food given by a food
business operator to the vendor shall be deemed to
be a guarantee under this section, even if a
guarantee in the specified form is not included in the
bill, cash memo or invoice.

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(5) Where any food which is unsafe is part of a batch,
lot or consignment of food of the same class or
description, it shall be presumed that all the food in that
batch, lot or consignment is also unsafe, unless
following a detailed assessment within a specified time,
it is found that there is no evidence that the rest of the
batch, lot or consignment is unsafe:
Provided that any conformity of a food with specific
provisions applicable to that food shall be without
prejudice to the competent authorities taking
appropriate measures to impose restrictions on that
food being placed on the market or to require its
withdrawal from the market for the reasons to be
recorded in writing where such authorities suspect
that, despite the conformity, the food is unsafe.”

“28. Food recall procedures.- (1) If a food business
operator considers or has reasons to believe that a food
which he has processed, manufactured or distributed is
not in compliance with this Act, or the rules or
regulations, made thereunder, he shall immediately
initiate procedures to withdraw the food in question
from the market and consumers indicating reasons for
its withdrawal and inform the competent authorities
thereof.

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(2) A food business operator shall immediately inform
the competent authorities and co-operate with them, if
he considers or has reasons to believe that a food which
he has placed on the market may be unsafe for the
consumers.

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(3) The food business operator shall inform the
competent authorities of the action taken to prevent
risks to the consumer and shall not prevent or
discourage any person from co-operating, in accordance
with this Act, with the competent authorities, where this
may prevent, reduce or eliminate a risk arising from a
food.

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(4) Every food business operator shall follow such
conditions and guidelines relating to food recall
procedures as the Food Authority may specify by
regulations.”

Perusal of sections 26 and 28 shows that these sections
impose a duty and obligation on the food business operator
to ensure that articles of food satisfy the requirements of the

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Act and the rules and regulations made thereunder at all

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stages of food business viz manufacture, sale etc.
73. Sub-section (2) of section 26 specifies some of the
duties of food business operator viz not to manufacture,
store, sell or distribute unsafe food or food which is
misbranded or substandard or for which a license is required,
except in accordance with the conditions of the license or
food which is for the time being prohibited by the Food

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Authority etc. Sub-section (3) of section 26 mentions that the
food business operator should not employ any person who is

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suffering from infectious, contagious or loathsome disease.
Sub-section (5) of section 26 on which reliance is placed
clarifies that when any food which is unsafe is part of a
batch, lot or consignment of food then it has to be presumed
that all food in that batch, lot or consignment is also unsafe.

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This provision also, in our view, only casts a responsibility on
the food business operator to maintain the food safety
standards. Sub-section (5) of section 26 on which reliance

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was placed only clarifies that any food, which is a part of the
batch, lot or consignment, if found to be unsafe then it will
have

to

be

presumed

that

the

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consignment of the food is unsafe.

entire

batch,

lot

or

The proviso also clarifies

that even if the food is found to be in conformity with
specific provisions applicable to that food, the Food Authority
can still impose restrictions, if according to the Food

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Authority, despite conformity the food is unsafe.

The said

provision, at the most, clarifies that the Food Authority, if it

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finds that a particular food packet from a batch is found to
be unsafe the entire batch can be recalled and that is
essentially a part of the responsibility imposed on the food
business operator.
74. Section 28 deals with food recall procedure.

Again,

perusal of the said provision indicates that the said

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is to be followed by the food business operator if

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procedure

he has reason to believe that the food is not in compliance

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with the Act or the rules or regulations made under the Act.

75. Chapter VII deals with enforcement of the Act and
section 29 enumerates the authorities which are responsible
for enforcement of the Act. Section 29 of the Act reads as

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under:-

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“29. Authorities responsible for enforcement of
Act.- (1) The Food Authority and the State Food Safety
Authorities shall be responsible for the enforcement of
this Act.

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(2) The Food Authority and the State Food Safety
Authorities shall monitor and verify that the relevant
requirements of law are fulfilled by food business
operators at all stages of food business.
(3) The authorities shall maintain a system of control
and other activities as appropriate to the
circumstances, including public communication on
food safety and risk, food safety surveillance and
other monitoring activities covering all stages of food
business.
(4) The Food Safety Officers shall enforce and execute
within their area the provisions of this Act with respect
to which the duty is not imposed expressly or by
necessary implication on some other authority.
(5) The regulations under this Act shall specify which
of the Food Safety Officers are to enforce and execute

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them, either generally or in relation to cases of a
particular description or a particular area, and any
such regulations or orders may provide for the giving
of assistance and information, by any authority
concerned in the administration of the regulations or
orders, or of any provisions of this Act, to any other
authority so concerned, for the purposes of their
respective duties under them.

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(6) The Commissioner of Food Safety and Designated
Officer shall exercise the same powers as are
conferred on the Food Safety Officer and follow the
same procedure specified in this Act.”

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76. In our view, therefore, the Food Authority cannot trace
its power to pass the impugned order at Exhibit-A under

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section 26, 28 and 29 of the said Act.
77. Section 30 of the Act lays down functions of the
Commissioner of Food Safety of the State and his power to
delegate his powers and function to other officers. Section

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30 of the Act reads as under:“30. Commissioner of
Food
Safety of the
State.-(1) The State Government shall appoint the
Commissioner of Food Safety for the State for efficient
implementation of food safety and standards and
other requirements laid down under this Act and the
rules and regulations made thereunder.
(2) The Commissioner of Food Safety shall perform all
or any of the following functions, namely:-(a) prohibit in the interest of public health, the

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manufacture, storage, distribution or sale of any
article of food, either in the whole of the State or
any area or part thereof for such period, not
exceeding one year, as may be specified in the
order notified in this behalf in the Official Gazette;

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

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

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(d) ensure an efficient and uniform implementation
of the standards and other requirements as
specified and also ensure a high standard of
objectivity,
accountability,
practicability,
transparency and credibility;
(e) sanction prosecution for offences punishable
with imprisonment under this Act;
(f) such other functions as the State Government
may, in consultation with the Food Authority,
prescribe.

(3) The Commissioner of Food Safety may, by Order,
delegate, subject to such conditions and restrictions
as may be specified in the Order, such of his powers
and functions under this Act (except the power to
appoint Designated Officer, Food Safety Officer and

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or

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Food Analyst) as he may deem necessary
expedient to any officer subordinate to him.”

Perusal of section 30 indicates that section 30(a) gives power
to the Commissioner of Food Safety to prohibit in the interest
of public health, the manufacture, storage, distribution, or
sale of any article of food.

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78. The learned Senior Counsel Mr. Darius Khambatta
appearing on behalf of Respondent Nos. 3 and 4 has
submitted that the order at Exhibit-B has been passed under
The learned Counsels appearing on behalf of

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section 30.

Respondent Nos. 1 and 2 have not relied on section 30 as a
source of power for passing the impugned order at Exhibit-A.

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Whereas, according to Mr. Iqbal Chagla, the learned Senior
Counsel appearing on behalf of the Petitioner, both the
orders viz Order at Exhibit-A and the Order at Exhibit-B had
been passed under section 34 of the Act which reads as

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under:-

“34.
Emergency prohibition notices and
orders.-(1) If the Designated Officer is satisfied that
the health risk condition exists with respect to any
food business, he may, after a notice served on the
food business operator (in this Act referred to as an
"emergency prohibition notice"), apply to the
Commissioner of Food Safety for imposing the
prohibition.
(2) If the Commissioner of Food Safety is satisfied, on
the application of such an officer, that the health risk

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condition exists with respect to any food business, he
shall, by an order, impose the prohibition.
(3) The Designated Officer shall not apply for an
emergency prohibition order unless, at least one day
before the date of the application, he has served
notice on the food business operator of the business
of his intention to apply for the order.

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(4) As soon as practicable after the making of an
emergency prohibition order, the Designated Officer
shall require the Food Safety Officer to --

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(a) serve a copy of the order on the food business
operator of the business; or

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(b) affix a copy of the order at a conspicuous place on
such premises used for the purposes of that business;
and any person who knowingly contravenes such an
order shall be guilty of an offence and shall be
punishable with imprisonment for a term which may
extend to two years and with fine which may extend
to two lakh rupees.
(5) An emergency prohibition order shall cease to
have effect on the issue by the Designated Officer of
a certificate to the effect that he is satisfied that the
food business operator has taken sufficient measures
for justifying the lifting of such order.
(6) The Designated Officer shall issue a certificate
under sub-section (5) within seven days of an
application by the food business operator for such a
certificate and on his being not satisfied, the said
officer shall give notice to the food business operator

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within a period often days indicating the reasons for
such decision.”

The learned Senior Counsel for the Petitioner then submitted
that even if it is held that the both these orders had been
passed under section 30, though it does not mention that
principles of natural justice have to be followed, it is implied
that before passing such order doctrine of audi alteram
to the affected party.

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partem has to be complied with and hearing has to be given

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79. In our view, after having seen all these provisions, it is
difficult to accept the contention of Respondent Nos. 1 and 2
that the order at Exhibit-A has been passed under section

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10(5), 16(1), 16(5), 18, 22, 26, 28 and 29 of the Act. In our
view, it appears that Respondent Nos. 3 and 4 have passed
the impugned order at Exhibit-B under section 30 of the Act
and Respondent Nos. 1 and 2 have passed the impugned

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order at Exhibit-A either under section 30 or under section 34
of the Act. It appears that Respondent Nos. 1 and 2 have

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taken the aforesaid stand to justify their action of not giving
show cause notice and hearing before passing the impugned
order at Exhibit-A.

Sub-section (1) of section 34 mentions

that before passing any order under section 34, the
Designated Officer has to serve a notice on the food business
operator and then pass the order.

Section 34, therefore,

speaks about issuance of show cause notice and following

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the principles of natural justice. Section 30 even though it

does not in terms mentions that principles of natural justice

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have to be followed, it is implied that such a course has to be
normally followed. The Apex Court in C.B. Gautam vs. Union

of India and Others1 while deciding the issue as to whether in
the

absence

of

specific

requirement

of

following

the

principles of natural justice in any section, whether it can be

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implied that such a hearing has to be given has observed in
paras 28 and 30 as under:-

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“28. It must, however, be borne in
mind that courts have generally read
into the provisions of the relevant
sections
a requirement of giving a
reasonable opportunity of being heard
before an order is made which would
have adverse civil consequences for the
parties affected.
This would be
particularly so in a case where the
validity of the section would be open to
a serious challenge for want of such an
opportunity.”
“30.......... The observance of principles
of natural justice is the pragmatic
requirement of fair play in action. In
our view, therefore, a requirement of an
opportunity to show cause being given
before an order for purchase by the
Central Government is made by an
appropriate authority under section
269-UD must be read into the provisions
of Chapter XX-C. There is nothing in the

1 (1993) 1 SCC 78

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language of section 269-UD or any
other provision in the said Chapter
which
would
negate
such
an
opportunity being given. Moreover, if
such a requirement were not read into
the provisions of the said Chapter, they
would be seriously open to challenge on
the ground of violations of the
provisions of Article 14 on the ground of
non-compliance with principles of
natural justice. The provision that when
an order for purchase is made under
section 269-UD – reasons must be
recorded in writing is no substitute for a
provision
requiring
reasonable
opportunity of being heard before such
an order is made.”

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WPL/1688/2015

In the said case, under section 269-UD of the Income-tax Act

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no reference was made to principles of natural justice being
followed and the Apex Court has held that it was implied that

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such a hearing should be given.
80. Similarly, in Godawat Pan Masala Products I.P. Ltd vs.
Union of India and Others 1, it has been held that hearing will

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have to be given before the impugned order is passed. In
paras 75 and 76 of the said judgment the Apex Court has
observed as under:“75. In State of T.N. v. K. Sabanayagam
[(1998) 1 SCC 318 : 1998 SCC (L&S) 260]
(Vide para 17) this Court after referring to
1 (2004) 7 SCC 68

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the aforesaid observations of Chinnappa
Reddy, J. in Cynamide [(1987) 2 SCC 720]
observed that even when exercising a
legislative function, the delegate may in a
given case be required to consider the
viewpoint which may be likely to be
affected by the exercise of power. This
Court
pointed
out
that
conditional
legislation can be broadly classified into
three categories: (1) when the legislature
has completed its task of enacting a
statute, the entire superstructure of the
legislation is ready but its future
applicability to a given area is left to the
subjective satisfaction of the delegate (as
in Tulsipur Sugar Co. case [Tulsipur Sugar
Co. Ltd. vs. Notified Area Committee,
(1980) 2 SCC 295]; (2) where the delegate
has to decide whether and under what
circumstances a legislation which has
already come into force is to be partially
withdrawn from operation in a given area
or in given cases so as not to be applicable
to a given class of persons who are
otherwise admittedly governed by the Act:
and (3) where the exercise of conditional
legislation would depend upon satisfaction
of the delegate on objective facts placed by
one class of persons seeking benefit of
such an exercise with a view to deprive the
rival class of persons who otherwise might
have already got statutory benefits under
the Act and who are likely to lose the
existing benefit because of exercise of such
power by the delegate.
This Court
emphasised that in the third type of cases
the satisfaction of the delegate must
necessarily
be
based
on
objective
considerations and, irrespective of whether

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the exercise of such power is a judicial or
quasi-judicial function, still it has to be
treated to be one which requires objective
consideration of relevant factual data
pressed into service by one side, which
could be rebutted by the other side, who
would be adversely affected if such
exercise of power is undertaken by the
delegate.”

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“76.
In our view, even if the impugned
notification falls into the last of the above
category of cases, whatever material the
Food (Health) Authority had, before taking
a decision on the articles in question, ought
to have been presented to the appellants
who are likely to be affected by the ban
order.
The principle of natural justice
requires that they should have been given
an opportunity of meeting such facts. This
has not been done in the present case. For
this reason also, the notification is bad in
law.”

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In the said case, Notification was issued by the State of
Maharashtra under the provisions of Prevention of Food
Adulteration Act, 1954 (which has now been repealed by

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virtue of FSS Act, 2006) banning manufacture, sale, storage
and distribution of pan masala and gutka permanently or for
a period of five years.

In the said case, it was argued on

behalf of the State of Maharashtra that the Commissioner
was a delegate of the Parliament and therefore he was not
required to give hearing to the parties. The Apex Court in
that context has made the aforesaid observations in paras

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75 and 76 of the judgment and it has further held that even

though he has acted as a delegate, satisfaction of the
relevant factual data.

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delegate must be based on objective consideration of
The Apex Court has further held in

para 76 that principle of natural justice requires that
Respondents should have been given an opportunity of
meeting such facts. The ratio of this judgment will squarely

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apply to the facts of the present case.

In the present case,

the Food Authority and the Commissioner of Food Safety,
State of Maharashtra have not issued any Notification
all Noodles.

The Food Authority has banned the

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banning

product of the Petitioner relying on the results given by the
Food Laboratories.

It was, therefore, incumbent upon the

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Food Authority and the Commissioner of Food Safety to have
given all the material to the Petitioner on the basis of which
the impugned orders (Exhibit -A and Exhibit-B) were passed
so that the Petitioner – Company could have got an

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opportunity of giving its reply to the material on the basis of

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the which the said impugned orders were passed.
81. In our view, in order to get over this lacuna, it is now
sought to be contended by Respondent Nos. 1 and 2 that the
impugned order at Exhibit-A was passed under those
sections and not under section 30 or 34 of the Act.
82. Mr. Anil Singh, the learned Additional Solicitor General

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appearing on behalf of Respondent No.1 and Mr. Darius

Khambatta, the learned Senior Counsel appearing on behalf

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of Respondent Nos. 3 and 4 have relied on the judgment of
this Court in Dhariwal Industries Ltd and another vs. State
of Maharashtra and others1.

Division Bench in the facts of

the said case has held that Food Safety Commissioner,
Maharashtra State while exercising his power under section

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30(2)(a), is thus a delegate of Parliament and, therefore, not
required to follow the principles of natural justice. In the said
case, the Petitioner had challenged the validity of the

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provisions of two different regulations under the FSS Act,
2006 as well as the statutory order passed by the
Commissioner of Food Safety under section 30(2)(a) of FSS
In the said case the State of Maharashtra had

ba
y

Act, 2006.

banned supply and distribution of pan masala containing
tobacco known as gutka and pan masala not containing
tobacco. The product as a whole class by itself therefore was

om

completely banned by relying on section 30(2)(a) of the Act.
Division Bench in these circumstances held that Food Safety

B

Commissioner was acting as a delegate of the Parliament.
In our view ratio of the said judment would not apply to the
facts of the present case, firstly because in the present case
only the Petitioner's product viz Maggi Noodles and its 9
variants have been banned. Secondly, in the present case,
Respondent Nos. 2 and 3 are the authorities under the Act
and they cannot be said to be delegate of the Parliament and
1 2013(1) Mh.L.J. 461

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as observed in Union of India vs. Cynamide Inida Ltd. 1, even
if the authority acts as a delegate of the legislature, it is

C
ou

required to give hearing to the affected party and give the
affected party the material on the basis of which the

impugned order is passed. Relying on the said decision in
Cynamide India Ltd. (supra), the Apex Court in Godawat Pan
under:“Natural Justice:

ig
h

Masala Products I.P. Ltd. (supra) has observed in para 73 as

H

73. Learned counsel for the State of Maharashtra
cited Union of India vs. Cynamaide India Ltd. [(1987) 2
SCC 720] where this Court observed
thus: (SCC
pp.735-36)

B

om

ba
y

"7. The third observation we wish to make is,
price fixation is more in the nature of a
legislative activity than any other. It is true
that, with the proliferation of delegated
legislation, there is a tendency for the line
between legislation and administration to
vanish into an illusion. Administrative, quasijudicial decisions tend to merge in legislative
activity and, conversely, legislative activity
tends to fade into and present an
appearance of an administrative or quasijudicial activity. Any attempt to draw a
distinct line between legislative and
administrative functions, it has been said, is
'difficult in theory and impossible in
practice'. Though difficult, it is necessary
that the line must sometimes be drawn as
different legal rights and consequences may
ensue. The distinction between the two has
usually been expressed as 'one between the

1 (1987) 2 SCC 720

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B

om

ba
y

H

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general and the particular'. 'A legislative act
is the creation and promulgation of a
general rule of conduct without reference to
particular cases; an administrative act is the
making and issue of a specific direction or
the application of a general rule to a
particular case in accordance with the
requirements of policy'. 'Legislation is the
process of formulating a general rule of
conduct without reference to particular
cases and usually operating in future ;
administration is the process of performing
particular acts, of issuing particular orders or
of making decisions which apply general
rules to particular cases'. It has also been
said: 'Rule-making is normally directed
toward the formulation of requirements
having a general application to all members
of a broadly identifiable class' while,
'adjudication, on the other hand, applies to
specific individuals or situations'. But, this is
only a broad distinction, not necessarily
always
true.
Administration
and
administrative adjudication may also be of
general application and there may be
legislation of particular application only. That
is not ruled out. Again, adjudication
determines past and present facts and
declares
rights
and
liabilities
while
legislation indicates the future course of
action. Adjudication is determinative of the
past and the present while legislation is
indicative of the future. The object of the
rule, the reach of its application, the rights
and obligations arising out of it, its intended
effect on past, present and future events, its
form, the manner of its promulgation are
some factors which may help in drawing the
line between legislative and non-legislative
acts." “

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WPL/1688/2015

83. We must note here that a situation may arise in a given

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case where the Food Authority or Commissioner of Food
Safety would be compelled to pass

immediate order of

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prohibition in the interest of public health to manufacture,
sale of food etc and similar order can be passed under

section 34 when it is found that there is contamination in
food which is such an eminent threat to the public health
that immediate order of prohibition has to be passed. In such

ig
h

compelling and threateningly emergent situations, or in a
situation like the one in Dhariwal's case (supra) the principles
of natural justice may not come into play. In the present

H

case, however, there was no such eminent threat.

ba
y

84. From the facts of this case it can be seen that:(i) The Petitioner was carrying on business for
more

than

30

years

and

no

such

B

om

contamination was found in the past.
(ii) There was no risk analysis made by the
authorities to determine the extent of damage
which would be caused on the consumption of
food as was done in Dhariwal Industries Ltd
and another vs. State of Maharashtra and
others1.
(iii)

The reports received from other States

1 2013(1) Mh.L.J. 461

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were informed to the Food Authority on
telephone and, in any case, so far as the

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Commissioner of Pune is concerned, he had

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WPL/1688/2015

conducted the test on 06/06/2015 that is one
day after the impugned order at Exhibit-A was
passed.

Petitioner – Company itself had already

ig
h

(iv)

issued a press release stating therein that the
Petitioner was recalling the product and was

H

going to stop manufacture, sale distribution of
the product etc.

Out of 70 samples examined by Food

ba
y

(v)

Authority – Respondent Nos. 1 and 2, more
than 50% i.e. about 42 samples were found to

B

om

be within permissible limit and in 30 samples
the lead was found to be in excess.
(vi) Delhi and Kolkata reports were available.

85. Under these circumstances therefore, in our view, the
Food Authority should have given a proper opportunity to the
Petitioner – Company to prove that its product was safe for
human consumption and it was not necessary to impose a
nationwide ban on the product, particularly when the

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Petitioner had already, one day before the impugned order at

Exhibit-A was passed, had given a press release, stating

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therein that Petitioner was recalling its product from the
market. Therefore, in our view, in this particular case, there
is a clear violation of principles of natural justice and on that

ground alone the impugned orders at Exhibit-A and B
respectively are liable to be set aside.

ig
h

therefore answered in the affirmative.

Issue No.(VI) is
The answer to

Issue No(VII) is that the source of power under which the
impugned orders were passed is traceable to either section

H

30 or section 34 of the Act and, in any case, the impugned
orders could not have been passed under sections 10(5),
16(1), 16(5), 18, 22, 26, 28 and 29 of the Act. Issue No.

ba
y

(VII) therefore is answered accordingly.

B

om

FINDINGS ON ISSUE NOS. (VIII) to (XI)
WHICH CAN BE DECIDED TOGETHER:

(VIII) Whether the analysis of the product
manufactured by the Petitioner could have been
made in the Laboratories in which the said
product was tested by the Food Authority and
whether these Laboratories are accredited
Laboratories by the NABL and whether the
reports submitted by these Laboratories can be
relied upon?
(IX) Whether reliance can be placed on the
reports obtained by the Petitioner
from its
Laboratory and other accredited Laboratories?
(X) Whether the Food Analyst was entitled to

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test the samples in any Laboratory, even if it was
not accredited and recognized by the Food
Authority?

ig
h

(XI) Whether it was established by the Food
Authority that the lead beyond the permissible
limit was found in the product of the Petitioner
and the product of the Petitioner was
misbranded on account of a declaration made by
the Petitioner that the product contained “No
added MSG”?

86. Mr. Chagla, the learned Senior Counsel appearing on
behalf of the Petitioner submitted that analysis of all food

H

samples was not done by the Food Analyst at accredited
Laboratories approved by the NABL and, therefore, no

ba
y

reliance could be placed on the results of the reports given
by

these

Laboratories.

Secondly,

he

submitted

that

procedure for taking samples was not followed.

He

submitted that the sample which was sent to Referral

om

Laboratory at Kolkata was kept for a period of three months
and it was not in a sealed packet and it was kept open and,
therefore, the possibility of contamination through air and

B

other methods could not be ruled out. He submitted that the
reports given by the

Food Analyst on the basis of the

samples which were taken could not be relied upon.

He

submitted that the analysis of the food has to be done in
the Food Laboratory accredited by NABL and recognized by
the Food Authority under section 43 of the Act which
provision is a mandatory provision and non-compliance of

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the mandatory provision would vitiate the entire process of
analysis. He relied upon the judgment of the Apex Court in
another1.

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Pepsico India Holdings Private Limited vs. Food Inspector and

He then submitted that the learned Counsel

appearing for Respondent No.2 had, during the course of
arguments, tendered reports of Avon Food Lab (Pvt.) Ltd.
which is an accredited Laboratory and he had submitted that

ig
h

on the basis of the said reports the Food Analyst had given
his certificate. The learned Senior Counsel for the Petitioner
submitted that copies of the said reports of Avon Food Lab
Solicitor General.

H

(Pvt.) Ltd. were not even provided to the learned Additional
He submitted that Mr. Anil Singh, the

learned ASG, during the course of his arguments, had not

ba
y

made any reference to these reports. Furthermore, those
reports have surfaced for the first time in the sur-rejoinder
filed by Respondent No.2 during the course of arguments in
the matter and no copies of these reports were ever supplied

om

to the Petitioner, was the submission of the learned Senior
Counsel Mr. Chagla. He then submitted that there was no

B

reference made in the Reports given by the Food Analyst of
Delhi that he had relied on these reports. He further pointed
out several discrepancies in the reports of Avon Food Lab
(Pvt.) Ltd.

He submitted that batch number, date of

manufacture and other particulars of the
Petitioner

product of the

were not mentioned in the said reports.

The

quantity of sample which was made available was in excess
1 (2011) 1 SCC 176

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reflected that

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of the food which was put in the packet and, therefore, it

the original sample was taken out of the

over to
procedure

Avon Food Lab (Pvt.) Ltd.
prescribed

under

the

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sealed envelope by the Food Analyst and it was then handed
which was not the

Act

and

Rules

and

Regulations framed thereunder. He pointed out the relevant
provision of the Act in which it has been stated that if the

ig
h

food is found in a packet, the entire packet has to be sent
for analysis and it is not to be opened. He submitted that
the said reports of the Avon Food Lab (Pvt.) Ltd.

were

H

fabricated ad no reliance could be placed on these reports.
He submitted that these reports have been produced during
the course of hearing and upon directions being given by this

ba
y

Court, these reports were annexed to the affidavit-in-surrejoinder. He then submitted that the Petitioner – Company
had made analysis of its product at its own accredited
Laboratories and other Laboratories all over the world. He

om

placed reliance on 2700 reports actually submitted to the
Food Authority.

He submitted that all these reports

B

indicated that lead content found in the product of the
Petitioner was within the permissible limit.
submitted that the food product

He then

has to be tested in the

manner in which it is used. He submitted that, in the present
case, it was clearly stated on the packet that the Noodles
and the Taste Maker have to be boiled in water for two
minutes. He submitted that, therefore, these samples could

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not have been tested separately and, on that ground alone,
results of analysis of the samples of the product of the

C
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Petitioner could not be relied upon. He further invited our

attention to section 3(p) which defines the “food laboratory”
and section 43 of the Act.

87. On the other hand, Mr. Mehmood Pracha, the learned

ig
h

Counsel appearing on behalf of Respondent No.2, submitted
that since the necessary infrastructure was not available, a
Notification dated 5/7/2011 was issued. He submitted that,

H

in the said Notification, it was clearly stated that as long as
Laboratories were not recognized by the Food Authority and
accredited by the NABL, the existing State and Central

ba
y

Laboratories which were in existence under the Old Act
would continue on account of transitory powers under
section 98 of the said Act.

He submitted that though

subsequently in 2012, several Laboratories were recognized

om

by the Food Authority and were also accredited, the
Notification which was issued in 2011 was still in force and,

B

therefore, the Food Authority could test the samples in these
Laboratories which were not accredited. He submitted that
no reliance could be placed on the reports which were
submitted on behalf of the Petitioner since there was every
possibility of fabrication and tampering with the samples as
well as the reports.

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88. Mr. Khambatta, the learned Senior Counsel appearing
on behalf of Respondent Nos. 3 and 4, on the other hand,

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submitted that the Food Analyst was empowered to make his

own analysis in any Food Laboratory. He submitted that the
Food Analyst had to be a qualified chemist and it was
nowhere stated in the Act that certificate given by him was
not valid irrespective of the Laboratory in which the sample

ig
h

was tested. In support of the said submission, he pointed out
various provisions under the Act. He relied upon section 47
of the Act and more particularly section 47(5). He submitted

H

that sub-section (5) of section 47 in terms stated that so far
imported food is concerned, it has to be tested in notified
laboratory whereas under sub-section (3) of section 47, there

ba
y

was no such restriction. It was submitted that, therefore, the
Food Analyst was duty bound to send only imported food to
the

notified

laboratory

and

not

the

food

which

was

om

manufactured in India.
89. In rejoinder, Mr. Chagla, the learned Senior Counsel for

B

the Petitioner submitted that this submission does not have
any foundation.

He submitted that if this submission is

accepted provisions of sections 3(p) and 43 would be
rendered nugatory.

He submitted that section 43 clearly

provided that Food Analyst had to analyse all samples of
food in a Food Laboratory which was accredited by NABL and
recognized

and

notified by the Food Authority under

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Khambatta,

the

learned

Senior

Counsel

for

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90. Mr.

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section 43.

Respondent Nos. 3 and 4 then submitted that this Court
while exercising its writ jurisdiction under Article 226 should
not sit in appeal over the analysis which is made by the
experts.

He relied

on the judgment of the Apex Court in

ig
h

Academy of Nutrition Improvement and Others vs. Union of
India1 and three other judgments on the similar point
Mr. Anil Singh, the learned Additional Solicitor General

H

91.

appearing for Respondent No.1,

made similar submission

and relied on the judgment of the Apex Court in M/s E. Merck

ba
y

(India) Ltd and another vs. Union of India and another 2 and
three other judgments on the similar point.
92.

There is no manner of doubt that this Court is not

om

expected to see the correctness or otherwise of the reports
given by the experts and, therefore, there cannot be any

B

dispute regarding ratio of the judgments on which reliance
has

been

placed

by

the

learned

Senior

Counsel

for

Respondent Nos. 3 and 4 and the learned Additional Solicitor
General for Respondent No.1. This Court, however, can see
whether the samples have been properly analysed in terms
of the mandatory provisions of the Act or not and, secondly,
1 (2011) 8 SCC 274
2 AIR 2001 Delhi 326

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whether any reliance can be placed either on reports
reports obtained by the Petitioner.
93.

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obtained by the Respondents or even for that matter on the

It will be relevant to take into consideration the

provisions of section 3(p) which defines the “food laboratory”
and section 43 which gives power to the Food Authority to

ig
h

give recognition to laboratory and notify it. Section 3(p) and
43 of the Act reads as under:-

B

om

ba
y

H

“3(p) “food laboratory” means any food laboratory or
institute established by the Central or a State
Government or any other agency and accredited by
National Accreditation Board for Testing
and
Calibration Laboratories or any equivalent accreditation
agency and recognised by the Food Authority under
section 43.”
“43.
Recognition
and
accreditation
of
laboratories, research institutions and referral
food laboratory.- (1) The Food Authority may notify
food laboratories and research institutions accredited
by National Accreditation Board for Testing and
Calibration Laboratories or any other accreditation
agency for the purposes of carrying out analysis of
samples by the Food Analysts under this Act.
(2) The Food Authority shall, establish or recognise by
notification, one or more referral food laboratory or
laboratories to carry out the functions entrusted to the
referral food laboratory by this Act or any rules and
regulations made thereunder.
(3) The Food
specifying--

Authority

may

frame

regulations

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(a) the functions of food laboratory and referral food
laboratory and the local area or areas within which such
functions may be carried out;
(b) the procedure for submission to the said laboratory
of samples of articles of food for analysis or tests, the
forms of the laboratory's reports thereon and the fees
payable in respect of such reports; and

ig
h

(c) such other matters as may be necessary or
expedient to enable the said laboratory to carry out its
functions effectively.

Upon conjoint reading of both these sections quoted
under section

3(p), “food

H

hereinabove, it is clear that

laboratory” is a laboratory which is either State or Central
laboratory or any other allied laboratory which is accredited

ba
y

and recognized by NABL and by the Food Authority under
section 43 of the Act. The laboratory, therefore, has to pass
twin test before it can be said to be a recognized laboratory
viz (i) it has to be accredited

by NABL and over and above

om

that (ii) it has also to be recognized by the Food Authority
under section 43 of the Act. Sub-section (1) of section 43

B

makes it abundantly clear that only in that laboratory which
is recognized by the Food Authority by Notification, food can
be sent for analysis by the Food Analyst.

Upon conjoint

reading of the said two provisions, it is clear that the
submission made by Mr. Khambata, the learned Senior
Counsel for Respondent Nos. 3 and 4 is without any
substance.

Section 43(1) mandates that the Food Analyst

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has to analyse the food in a laboratory accredited by NABL

and also recognized by the Food Authority and notified by it.

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It is apparent that therefore if there is non-compliance of the
said provisions and if the food is tested in a laboratory which
does not fall within the definition of section 3(p) and not
recognized by the Food Authority, the analysis made in such
laboratory cannot be relied upon.

The Apex Court in

and

Another1

has

ig
h

Pepsico India Holdings Private Limited vs. Food Inspector
observed

that

the

provisions

are

mandatory. The Apex Court in this case held that provisions
section

Adulteration

23(1-A)(ee)

of

H

under

Act,

1954

the

for

Prevention

testing

of

the

Food
food

samples/adulteration are mandatory and not directory.

ba
y

Though the said observation is made in respect of provisions
of the Prevention of Food Adulteration Act, 1954 (which has
now been repealed by FSS Act, 2006), even under the new
Act, the provisions of section 43(1) will have to be held

om

mandatory and not directory. This is more so when Section
43(1) is read with the definition of the words “food

B

laboratory” in Section 3(p) of the FSS Act, 2006.

The Apex

Court in Pepsico India Holding Private Limited (supra) has
observed in para 44 as under:“44. The High Court also misconstrued
the provisions of Sections 23(1-A)(ee)
and (hh) in holding that the same were
basically enabling provisions and were
1 (2011) 1 SCC 176

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not mandatory and could, in any event,
be solved by the Central Government
by framing the Rules thereunder, by
which specified tests to be held in
designated laboratories could be spelt
out. Consequently, the High Court also
erred in holding that the non
formulation of rules under the aforesaid
provisions of the 1954 Act could not be
said to be fatal for the prosecution.”

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WPL/1688/2015

94. Further, if the provisions of sections 43 and 47 are
considered, it can be seen that notified laboratories which
are referred to in section 47(5) for analysing imported food

H

are laboratories which are separately notified for testing
imported food articles as can be seen from the Food Safety
Standards

(Laboratory

ba
y

and

Regulations, 2011.

and

Samples

Analysis)

The contention of Mr. Khambatta, the

learned Senior Counsel appearing on behalf of Respondent
Nos. 3 and 4 that only imported food could be tested in the

om

notified laboratories therefore cannot be accepted.

Sections

B

47(1) and 47(5) of the Act read as under:47. Sampling and analysis.- (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

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B

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H

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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 subclauses (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.
“47(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.”

95. Similarly, so far as the food which is manufactured in
India is concerned though it is not mentioned that it has to
be tested in a notified laboratory, in view of definition of
section 3(p) and more particularly the

mandate given in

section 43(1), the Food Analyst has to analyse the food only
in such laboratory which is defined under section 3(p) and

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recognized by the Food Authority under section 43(1) of the

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Act.

96. It is not in dispute that the Laboratories in which these
food samples were tested were either not accredited by
NABL or not recognized by the Food Authority under section
43(1) of the Act or even if they were accredited or notified,
in the samples.
whether

the

ig
h

they were not accredited to make analysis in respect of lead
There is no material on record to show

procedure

of

testing

samples

which

is

H

mentioned under the Act and Rules and Regulations framed
thereunder has been followed. There is a grave doubt about
the samples being tested at Avon Food Lab (Pvt.) Ltd. and

ba
y

even if they are so tested, prima facie, it does appear that
procedure of testing the samples has not been followed. The
contention

of

Mr.

Pracha,

the

learned

Counsel

for

Respondent No.2 that in view of the Notification issued on

om

5/7/2011 even the State and Central Laboratories, though
not notified, were entitled to test the samples, is incorrect.

B

The said Notification reads as under:“No. 83-Dir (Enf.)/FSSAI/2011
Food Safety & Standards Authority of India
(A Statutory Regulatory Body of Govt. of India)
Ministry of Health & Family Welfare
3rd Floor, FDA Bhawan, Kotla Road
New Delhi-110002

Dated : 5th July, 2011

To,
Food Safety Commissioner of all States/UTs

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WPL/1688/2015

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Subject :- Clarification on the status of Public Labs
functioning
at
Centre/State/UT
after
the
promulgation of FSS Act, 2006 with effect from 5 th
August, 2011.

H

ig
h

Section 43 of the FSS Act requires that all food testing
under the Act will be done in NABL or any other FSSAI
approved accredited lab. State Governments and UT
Government have already been advised in this regard and
the results of a 'gap analysis' commissioned by FSSAI in
respect of the State Labs have been shared for appropriate
action for the upgradation of the Labs to accredited
standards. However, from the interaction with the State
Governments it is clear that the process is likely to take
some time and the labs will not be able to get accreditation
before 5th August, 2011 when the FSS Act will become
operational.

om

ba
y

The matter has been examined and it is clarified that
the existing Public Food Testing Laboratories which are
testing food samples under PFA will continue to perform their
function of food testing under Section 98 of FSS Act, 2006 till
any notification is issued under Section 43 of FSS Act, 2006.
The Central Food Laboratories at Kolkata, Pune and Mysore
and FRSL, Ghaziabad will function as the referral
laboratories.
Yours sincerely,

B

The

said

Notification

(S. S. Ghonkrokta)
Director”

clearly

mentions

that

the

said

Notification had been issued till the Laboratories under the
FSS Act, 2006 were accredited by NABL and recognized and
notified by the Food Authority. It is an admitted position that
in 2012 the several Laboratories have been so recognized by
the Food Authority and notified by issuing Notifications. The
contention of the learned Counsel for Respondent No.2 is,

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therefore, not acceptable. The contention of Mr. Khambatta

the learned Senior Counsel for Respondent Nos. 3 and 4 that

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this issue which was raised in rejoinder by the Petitioner was

an afterthought, also cannot be accepted and, therefore, it is
not possible to place reliance on the reports of the Food
Analysts given by various States in respect of analysis of the
samples of the product

of the Petitioner and therefore

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decision taken by the Food Authority relying on these reports
therefore will have to be set aside. On the same ground, it
will not be possible to accept the reports of the samples

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which have been tendered on behalf of the Petitioner since
there is no manner of knowing whether procedure has been
properly followed or not.

Issue No. (VIII) to (XI) are

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therefore answered in the negative.

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FINDING ON ISSUE NO.(XII)

(XII) Whether Respondent Nos. 2 to 4 were not
justified in imposing the ban on all the 9 Variants
of the Petitioner, though tests were conducted
only in respect of 3 Variants and whether such
ban orders are arbitrary, unreasonable and
violative of Article 14 and 19 of the Constitution
of India?

97. The last and most important question which falls for
consideration

before

us

is

:

whether

the

action

of

Respondent Nos. 1 to 4 is arbitrary, capricious, unreasonable

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and violative of Articles 14 and 19 of the Constitution of

India. The concept of arbitrary action has been the subject

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matter of decision given by the Apex court in several cases.

It is not necessary therefore to refer to catena of decisions
on this point. However, in a recent judgment 1 of the Apex
Court wherein reference was made to the Apex Court by the
President of India under Article 143(1) of the Constitution of

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India, the Apex Court was called upon to decide 8 questions
which are found in para 1 of the judgment.

It is not

necessary to reproduce the said questions which fell for

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consideration before the Apex Court. The Apex Court while
deciding these questions which were primarily relating to the
issuance of licenses, fixation of license fee and royalty in

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respect of 2G Spectrum, the Apex Court had considered the
concept of arbitrariness.

The said observations succinctly

and precisely lay down the entire law on arbitrary action by
the Executive and Legislature and it would be worthwhile to

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reproduce the paragraphs in which this concept is discussed.
Incidentally, it must be pointed out that the Apex Court itself

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has extracted in full the paragraphs of the judgment of the
Apex Court in State of West Bengal vs. Anwar Ali Sarkar 2 and
the observations of Justice Bose in his own words. It may not
be necessary to reproduce these observations once again in
this judgment since the Apex Court in this case has extracted
what has been observed by Justice Bose in Anwarali Sarkar
1 Natural Resources Allocation, in Re, Special Reference No.1 of 2012 reported in
(2012) 10 SCC 1
2 AIR (39) 1952 SC 75

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Apex Court

in the said

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(supra) and has paraphrased them in their own words. The
judgment in Natural Resources

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Allocation, In Re, Special Reference No.1 of 2012 1 has
observed in paras 159 and 170 to 172 as under:-

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“159.
First of all reference was made to the decision of
this Court in S.G. Jaisinghani v. Union of India and Ors. : AIR
1967 SC 1427, wherein this Court observed as under: (AIR p.
1434 para 14)

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14. In this context it is important to emphasize
that the absence of arbitrary power is the first
essential of the rule of law upon which our
whole constitutional system is based. In a
system governed by rule of law, discretion,
when conferred upon executive authorities,
must be confined within clearly defined limits.
The rule of law from this point of view means
that decisions should be made by the
application of known principles and rules and,
in general, such decisions should be predictable
and the citizen should know where he is. If a
decision is taken without any principle or
without any rule it is unpredictable and such a
decision is the antithesis of a decision taken in
accordance with the Rule of law. (See Dicey Law of the Constitution - 10th Edn., Introduction
cx). "Law has reached its finest moments,"
stated Douglas, J. in United States v.
Wunderlich [96 L Ed 113: 342 US 98(1951)],
"when it has freed man from the unlimited
discretion of some ruler.... Where discretion, is
absolute, man has always suffered." It is in this
sense that the rule of law may be said to be the
sworn enemy of caprice. Discretion, as Lord
Mansfield stated it in classic terms in Wilkes [R.

1 (2012) 10 SCC 1

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v. Wilkes, (1770) 4 Burr 2527 : 98 ER 327 :
(1558-1774) All ER Rep 570] (ER p.334): Burr at
p.2539 "means sound discretion guided by law.
It must be governed by Rule, not by humour: it
must not be arbitrary, vague, and fanciful.”
(emphasis supplied)”

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In the aforesaid case, it came to be emphasised that
executive action should have clearly defined limits
and should be predictable. In other words, the man on
the street should know why the decision has been
taken in favour of a particular party. What came to be
impressed upon was, that lack of transparency in the
decision-making process would render it arbitrary.”

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“170.
The legal proposition laid down in the
instant judgment in Shrilekha Vidyarthi case [(1991)
1 SCC 212 : 1991 SCC (L&S) 742] may be summarized
as follows:

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170.1. Firstly, State actions in the contractual field are
meant for public good and in public interest and are
expected to be fair and just.

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170.2 Secondly, it would be alien to the constitutional
scheme to accept the argument of exclusion of Article
14 of the Constitution of India in contractual matters.”
170.3. Thirdly, the fact that a dispute falls in the
domain of contractual obligation, would make no
difference, to a challenge raised under Article 14 of
the Constitution of India on the ground that the
impugned act is arbitrary, unfair and unreasonable.
170.4 Fourthly, every State action must be informed
of reason and it follows that an act uninformed by
reason is arbitrary.
170.5 Fifthly, where no plausible reason or principle is

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indicated (or is discernible), and where the impugned
action ex facie appears to be arbitrary, the onus
shifts on the State to justify its action as fair and
reasonable.”
170.6. Sixthly, every holder of public office is
accountable to the people in whom the sovereignty
vests. All powers vested in a public office, even in the
field of contract, are meant to be exercised for public
good and for promoting public interest.”

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170.7. And seventhly, Article 14 of the Constitution of
India applies also to matters of governmental policy
even in contractual matters, and if the policy or any
action of the government fails to satisfy the test of
reasonableness,
the
same
would
be
unconstitutional.”

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“171.
Thereafter our attention was invited to the
decision rendered in LDA v. M.K. Gupta [(1994) 1 SCC
243]. Seriously, the instant judgment has no direct
bearing to the issue in hand. The judgment
determines whether compensation can be awarded
to an aggrieved consumer under the Consumer
Protection Act, 1986. It also settles who should
shoulder
the
responsibility
of
paying
the
compensation awarded. But all the same it has some
interesting observations which may be noticed in the
context of the matter under deliberation. Portions of
the observations emphasized upon are being noticed
below:(SCCpp.260-64, paras 8, 10-11)
“8... Under our Constitution sovereignty vests
in the people. Every limb of the constitutional
machinery is obliged to be people oriented. No
functionary in exercise of statutory power can
claim immunity, except to the extent protected
by the statute itself. Public authorities acting in
violation
of
constitutional
or
statutory

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provisions oppressively are accountable for
their behaviour before authorities created
under the statute like the commission or the
courts
entrusted
with
responsibility
of
maintaining the rule of law. Each hierarchy in
the Act is empowered to entertain a complaint
by the consumer for value of the goods or
services
and
compensation.
The
word
'compensation' is again of very wide
connotation. It has not been defined in the Act.
According
to
dictionary
it
means,
'compensating or being compensated; thing
given as recompense;'. In legal sense it may
constitute actual loss or expected loss and may
extend to physical, mental or even emotional
suffering, insult or injury or loss. Therefore,
when the Commission has been vested with the
jurisdiction to award value of goods or services
and compensation it has to be construed widely
enabling the Commission to determine
compensation for any loss or damage suffered
by a consumer which in law is otherwise
included in wide meaning of compensation. The
provision in our opinion enables a consumer to
claim and empowers the Commission to redress
any injustice done to him. Any other
construction would defeat the very purpose of
the Act. The Commission or the Forum in the
Act is thus entitled to award not only value of
the goods or services but also to compensate a
consumer for injustice suffered by him.
*
*
*
“10. Who should pay the amount determined
by the Commission for harassment and agony,
the statutory authority or should it be realised
from those who were responsible for it?
Compensation as explained includes both the
just equivalent for loss of goods or services and

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also for sufferance of injustice. For instance in
Civil Appeal No.... of 1993 arising out of SLP
(Civil) No. 659 of 1991 the Commission directed
the Bangalore Development Authority to pay Rs
2446 to the consumer for the expenses
incurred by him in getting the lease-cum-sale
agreement registered as it was additional
expenditure for alternative site allotted to him.
No misfeasance was found. The moment the
authority came to know of the mistake
committed by it, it took immediate action by
allotting alternative site to the Respondent. It
was compensation for exact loss suffered by
the Respondent. It arose in due discharge of
duties. For such acts or omissions the loss
suffered has to be made good by the authority
itself. But when the sufferance is due to mala
fide or oppressive or capricious acts etc. of a
public servant, then the nature of liability
changes. The Commission under the Act could
determine such amount if in its opinion the
consumer suffered injury due to what is called
misfeasance of the officers by the English
Courts. Even in England where award of
exemplary or aggravated damages for insult
etc. to a person has now been held to be
punitive, exception has been carved out if the
injury is due to, 'oppressive, arbitrary or
unconstitutional action by servants of the
Government' (Salmond and Heuston on the
Law of Torts). Misfeasance in public office is
explained
by
Wade
in
his
book
on
Administrative Law thus:
'Even where there is no ministerial duty
as above, and even where no recognised
tort such as trespass, nuisance, or
negligence
is
committed,
public
authorities or officers may be liable in
damages for malicious, deliberate or

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injurious wrong-doing. There is thus a
tort which has been called misfeasance
in public office, and which includes
malicious abuse of power, deliberate
maladministration, and perhaps also
other unlawful acts causing injury.' (p.
777)

rt

WPL/1688/2015

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The jurisdiction and power of the courts to
indemnify a citizen for injury suffered due to abuse
of power by public authorities is founded as
observed by Lord Hailsham in Cassell and Co.
Limited v. Broome [1972 AC 1027:1972) 2 WLR
645:(1972) 1 ALL ER 801 (HL)], on the principle
that, 'an award of exemplary damages can serve a
useful purpose in vindicating the strength of law'.
An ordinary citizen or a common man is hardly
equipped to match the might of the State or its
instrumentalities. That is provided by the rule of
law. It acts as a check on arbitrary and capricious
exercise of power. In Rookes v. Barnard [1964 AC
1129:(1964) 2 WLR 269 : (1964) 1 ALL ER 367 (HL)
it was observed by Lord Devlin, 'the servants of the
government are also the servants of the people
and the use of their power must always be
subordinate to their duty of service'. A public
functionary if he acts maliciously or oppressively
and the exercise of power results in harassment
and agony then it is not an exercise of power but
its abuse. No law provides protection against it. He
who is responsible for it must suffer it.
Compensation or damage as explained earlier may
arise even when the officer discharges his duty
honestly and bona fide. But when it arises due to
arbitrary or capricious behaviour then it loses its
individual
character
and
assumes
social
significance. Harassment of a common man by
public authorities is socially abhorring and legally
impermissible. It may harm him personally but the

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injury to society is far more grievous. Crime and
corruption thrive and prosper in the society due to
lack of public resistance. Nothing is more
damaging than the feeling of helplessness. An
ordinary citizen instead of complaining and fighting
succumbs to the pressure of undesirable
functioning in offices instead of standing against it.
Therefore the award of compensation for
harassment by public authorities not only
compensates
the
individual,
satisfies
him
personally but helps in curing social evil. It may
result in improving the work culture and help in
changing the outlook. Wade in his book
Administrative Law has observed that it is to the
credit of public authorities that there are simply
few reported English decisions on this form of
malpractice, namely, misfeasance in public offices
which includes malicious use of power, deliberate
maladministration and perhaps also other unlawful
acts causing injury. One of the reasons for this
appears to be development of law which, apart,
from other factors succeeded in keeping a salutary
check on the functioning in the government or
semi-government offices by holding the officers
personally responsible for their capricious or even
ultra vires action resulting in injury or loss to a
citizen by awarding damages against them. Various
decisions rendered from time to time have been
referred to by Wade on Misfeasance by Public
Authorities. We shall refer to some of them to
demonstrate how necessary it is for our society. In
Ashby v. White [(1703) 2 LD Raym 938 : 92 ER
126], the House of Lords invoked the principle of
ubi jus ibi remedium in favour of an elector who
was wrongfully prevented from voting and decreed
the claim of damages. The ratio of this decision has
been applied and extended by English Courts in
various situations.
11. Today the issue thus is not only of award of

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compensation but who should bear the brunt. The
concept of authority and power exercised by public
functionaries has many dimensions. It has
undergone tremendous change with passage of
time and change in socio-economic outlook. The
authority empowered to function under a statute
while exercising power discharges public duty. It
has to act to subserve general welfare and
common good. In discharging this duty honestly
and bona fide, loss may accrue to any person. And
he may claim compensation which may in
circumstances be payable. But where the duty is
performed capriciously or the exercise of power
results in harassment and agony then the
responsibility to pay the loss determined should be
whose? In a modern society no authority can
arrogate to itself the power to act in a manner
which is arbitrary. It is unfortunate that matters
which require immediate attention linger on and
the man in the street is made to run from one end
to other with no result. The culture of window
clearance appears to be totally dead. Even in
ordinary matters a common man who has neither
the political backing nor the financial strength to
match the inaction in public oriented departments
gets frustrated and it erodes the credibility in the
system. Public administration, no doubt involves a
vast amount of administrative discretion which
shields the action of administrative authority. But
where it is found that exercise of discretion was
mala fide and the complainant is entitled to
compensation for mental and physical harassment
then the officer can no more claim to be under
protective cover. When a citizen seeks to recover
compensation from a public authority in respect of
injuries suffered by him for capricious exercise of
power and the National Commission finds it duly
proved then it has a statutory obligation to award
the same. It was never more necessary than today

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when even social obligations are regulated by
grant of statutory powers. The test of permissive
form of grant is over. It is now imperative and
implicit in the exercise of power that it should be
for the sake of society. When the court directs
payment of damages or compensation against the
State the ultimate sufferer is the common man. It
is the tax payers' money which is paid for inaction
of those who are entrusted under the Act to
discharge their duties in accordance with law. It is,
therefore, necessary that the Commission when it
is satisfied that a complainant is entitled to
compensation for harassment or mental agony or
oppression, which finding of course should be
recorded carefully on material and convincing
circumstances and not lightly, then it should
further direct the department concerned to pay the
amount to the complainant from the public fund
immediately but to recover the same from those
who are found responsible for such unpardonable
behaviour by dividing it proportionately where
there are more than one functionaries.”
(emphasis supplied)”

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“172.
The judgment in LDA case [LDA vs. M.K.
Gupta, (1994) 1 SCC 243] brings out the
foundational principle of executive governance. The
said foundational principle is based on the
realization that sovereignty vests in the people. The
judgment therefore records that every limb of the
constitutional machinery is obliged to be people
oriented. The fundamental principle brought out by
the judgment is, that a public authority exercising
public power discharges a public duty, and
therefore, has to subserve general welfare and
common good. All power should be exercised for
the sake of society. The issue which was the subject
matter of consideration, and has been noticed
along with the citation, was decided by concluding

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that compensation shall be payable by the State
(or its instrumentality) where inappropriate
deprivation on account of improper exercise of
discretion has resulted in a loss, compensation is
payable by the State (or its instrumentality). But
where the public functionary exercises his
discretion capriciously, or for considerations which
are malafide, the public functionary himself must
shoulder the burden of compensation held as
payable. The reason for shifting the onus to the
public functionary deserves notice. This Court felt,
that when a court directs payment of damages or
compensation against the State, the ultimate
sufferer is the common man, because it is tax
payers money out of which damages and costs are
paid.”

Similarly, in para 184 of the said Judgment of the Apex Court,

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the point of accountability of every holding of public office to
the people has been reiterated. The Apex Court, thereafter,
in paragraphs 96 to 107 has traced the evolution of the right
to equality under Article 14.

Para 184 and paras 96 to 107

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of the said judgment read as under.
“184. Another aspect which emerges from the
judgments (extracted in paragraph 6 above) is
that, the State, its instrumentalities and their
functionaries, while exercising their executive
power in matters of trade or business etc.
including making of contracts, should be
mindful of public interest, public purpose and
public good. This is so, because every holder
of public office by virtue of which he acts on
behalf of the State, or its instrumentalities, is
ultimately accountable to the people in whom

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sovereignty vests. As such, all powers vested
in the State are meant to be exercised for
public good and in public interest. Therefore,
the question of unfettered discretion in an
executive authority, just does not arise. The
fetters on discretion are - a clear, transparent
and objective criteria or procedure which
promotes public interest, public purpose and
public good. A public authority is ordained,
therefore to act, reasonably and in good faith
and upon lawful and relevant grounds of
public interest.”

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“Mandate of Article 14

96. Article 14 runs as follows:

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“14. Equality before law. - The State shall not
deny to any person equality before the law or the
equal protection of the laws within the territory of
India.”

The underlying object of Article 14 is to secure to all
persons, citizens or non-citizens, the equality of status
and opportunity referred to in the preamble to our
Constitution. The language of Article 14 is couched in
negative terms and is in form, an admonition
addressed to the State. It does not directly purport to
confer any right on any person as some of the other
Articles, e.g., Article 19, do. The right to equality
before law is secured from all legislative and executive
tyranny by way of discrimination since the language of
Article 14 uses the word "State" which as per Article
12, includes the executive organ. [See: Basheshar
Nath v. CIT [AIR 1959 SC 149, p.158 para 13: 1959
Supp (1) SCR 528]) Besides, Article 14 is expressed in
absolute terms and its effect is not curtailed by

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restrictions like those imposed on Article 19(1) by
Articles 19(2)-(6). However, notwithstanding the
absence of such restrictions, certain tests have been
devised through judicial decisions to test if Article 14
has been violated or not.

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97. For the first couple of decades after the
establishment of this Court, the 'classification' test was
adopted which allowed for a classification between
entities as long as it was based on an intelligible
differentia and displayed a rational nexus with the
ultimate objective of the policy. Budhan Choudhry and
Ors. v. State of Bihar [AIR 1955 SC 191 : 1955 Cri LJ 374
referred to in Ram Krishna Dalmiya v. Shri Justice S.R.
Tendolkar and Ors. [AIR 1958 SC 538 : (1959) SCR 279]
explained it in the following terms (Budhan Chaudhari
case [AIR 1955 SC 191 : 1955 Cri LJ 374] AIR p. 193,
para 5):

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“5.... It is now well established that while Article
14 forbids class legislation, it does not forbid
reasonable classification for the purposes of
legislation. In order, however, to pass the test
of permissible classification two conditions
must be fulfilled, namely, (i) that the
classification must be founded on an intelligible
differentia which distinguishes persons or
things that are grouped together from others
left out of the group and, (ii) that that
differentia must have a rational relation to the
object sought to be achieved by the statute in
question. The classification may be founded on
different bases, namely, geographical, or
according to objects or occupations or the like.
What is necessary is that there must be a
nexus between the basis of classification and
the object of the Act under consideration. It is
also well established by the decisions of this

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Court that Article 14 condemns discrimination
not only by a substantive law but also by a law
of procedure.”

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“98. However, after the judgment of this Court in
E.P. Royappa v. State pf T.N.[(1974) 4 SCC 3 :1974
SCC (L&S) 165] the “arbitrariness” doctrine was
introduced which dropped a pedantic approach
towards equality and held the mere existence of
arbitrariness as violative of Article 14, however
equal in its treatment.
Bhagwati, J. (as his
Lordship was then) articulated the dynamic nature
of equality and borrowing from Shakespeare's
Macbeth, said that the concept must not be
"cribbed, cabined and confined" within doctrinaire
limits.(SCC p.38, para 85)

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“85. ...Now, what is the content and reach of
this great equalising principle? It is a founding
faith, to use the words of Bose. J., "a way of
life", and it must not be subjected to a narrow
pedantic or lexicographic approach. We cannot
countenance any attempt to truncate its allembracing scope and meaning, for to do so
would be to violate its activist magnitude.
Equality is a dynamic concept with many
aspects and dimensions and it cannot be
'cribbed,
cabined
and
confined'
within
traditional and doctrinaire limits.”

His Lordship went on to explain the length and breadth
of Article 14 in the following lucid words (Royappa case
[(1974) 4 SCC 3 :1974 SCC (L & S) 165] SCC p.38, para
85)
“85... From a positivistic point of view, equality
is antithetic to arbitrariness. In fact equality

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and arbitrariness are sworn enemies; one
belongs to the rule of law in a republic while
the other, to the whim and caprice of an
absolute monarch. Where an act is arbitrary, it
is implicit in it that it is unequal both according
to political logic and constitutional law and is
therefore violative of Article 14, and if it effects
any matter relating to public employment, it is
also violative of Article 16. Articles 14 and 16
strike at arbitrariness in State action and
ensure fairness and equality of treatment. They
require that State action must be based on
valid relevant principles applicable alike to all
similarly situate and it must not be guided by
any extraneous or irrelevant considerations
because that would be denial of equality. Where
the operative reason for State action, as
distinguished from motive inducing from the
antechamber of the mind, is not legitimate and
relevant but is extraneous and outside the area
of permissible considerations, it would amount
to mala fide exercise of power and that is hit by
Articles 14 and 16. Mala fide exercise of power
and arbitrariness are different lethal radiations
emanating from the same vice: in fact the latter
comprehends the former. Both are inhibited by
Articles 14 and 16.

99. Building upon his opinion delivered in Royappa case
[E.P. Royappa v. State of T.N., (1974) 4 SCC 3 : 1974 SCC
(L&S) 165], Bhagwati, J., held in Maneka Gandhi v. Union
of India [(1978) 1 SCC 248]: (Maneka Gandhi case [1978
1 SCC 248], SCC p.284, para 7)
“7. … The principle of reasonableness,
which legally as well as philosophically, is an
essential element of equality or nonarbitrariness pervades Article 14 like a brooding

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omnipresence and the procedure contemplated
by Article 21 must answer the test of
reasonableness in order to be in conformity
with Article 14. It must be "right and just and
fair" and not arbitrary, fanciful or oppressive.”

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“100. In Ajay Hasia and Ors. v. Khalid Mujib
Sehravardi [(1981) 1 SCC 722:1981 SCC (L&S) 258],
this Court said that the “arbitrariness” test was lying
"latent and submerged" in the "simple but pregnant"
form of Article 14 and explained the switch from the
“classification” doctrine to the “arbitrariness”
doctrine in the following words: (SCC p.741, para 16)

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“16...The doctrine of classification which is
evolved by the courts is not paraphrase of
Article 14 nor is it the objective and end of that
article. It is merely a judicial formula for
determining
whether
the
legislative
or
executive action in question is arbitrary and
therefore constituting denial of equality. If the
classification is not reasonable and does not
satisfy the two conditions referred to above, the
impugned legislative or executive action would
plainly be arbitrary and the guarantee of
equality under Article 14 would be breached.
Wherever therefore there is arbitrariness in
State action whether it be of the legislature or
of the executive or of an 'authority' under
Article 12, Article 14 immediately springs into
action and strikes down such State action. In
fact, the concept of reasonableness and nonarbitrariness pervades the entire constitutional
scheme and is a golden thread which runs
through the whole of the fabric of the
Constitution.”

“101.

Ramana

Dayaram

Shetty

v.

International

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Airport Authority of India [(1979) 3 SCC 489 : AIR 1979
SC 1628] explained the limitations of Article 14 on the
functioning of the Government as follows: (SCC p. 506,
para 12)

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H

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“12. ...It must, therefore, be taken to be the law
that where the Government is dealing with the
public, whether by way of giving jobs or
entering into contracts or issuing quotas or
licences or granting other forms of largesse, the
Government cannot act arbitrarily at its sweet
will and, like a private individual, deal with any
person it pleases, but its action must be in
conformity with standard or norms which is not
arbitrary, irrational or irrelevant. The power or
discretion of the Government in the matter of
grant of largesse including award of jobs,
contracts, quotas, licences, etc. must be
confined and structured by rational, relevant
and non-discriminatory standard or norm and if
the Government departs from such standard or
norm in any particular case or cases, the action
of the Government would be liable to be struck
down, unless it can be shown by the
Government that the departure was not
arbitrary, but was based on some valid
principle which in itself was not irrational,
unreasonable or discriminatory.”

“102. Equality and arbitrariness were thus,
declared "sworn enemies" and it was held that
an arbitrary act would fall foul of the right to
equality. Non-arbitrariness was equated with
the rule of law about which Jeffrey Jowell in his
seminal article "The Rule of Law Today" said: “Rule of law principle primarily applies to the
power of implementation. It mainly represents

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a state of procedural fairness. When the rule of
law is ignored by an official it may on occasion
be enforced by courts.”

ig
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“103.
As is evident from the above, the
expressions
“arbitrariness”
and
“unreasonableness”
have
been
used
interchangeably and in fact, one has been
defined in terms of the other. More recently, in
Sharma Transport v. Government of A.P.[(2002)
2 SCC 188], this Court has observed thus: (SCC
pp. 203-04, para 25)

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“25. ...In order to be described as arbitrary, it
must be shown that it was not reasonable and
manifestly arbitrary. The expression 'arbitrarily'
means: in an unreasonable manner, as fixed or
done capriciously or at pleasure, without
adequate determining principle, not founded in
the nature of things, non-rational, not done or
acting according to reason or judgment,
depending on the will alone.”

104.
Further,
even
though
the
“classification” doctrine was never overruled, it
has found less favour with this Court as
compared to the “arbitrariness” doctrine. In Om
Kumar v. Union of India [(2001) 2 SCC 386:
2001 SCC (L&S) 1039], this Court held thus:
(SCC p.409, para 59)
“59. But, in E.P. Royappa v. State of T. N.(1974)
4 SCC 3 : 1974 SCC (L&S) 165] Bhagwati, J. laid
down another test for purposes of Article 14. It
was stated that if the administrative action was
'arbitrary', it could be struck down under Article
14. This principle is now uniformly followed in

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all courts more rigorously than the one based
on classification. Arbitrary action by the
administrator is described as one that is
irrational and not based on sound reason. It is
also described as one that is unreasonable.”

B

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H

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“105. However, this Court has also alerted
against the arbitrary use of the “arbitrariness”
doctrine. Typically, laws are struck down for
violating Part III of the Constitution of India,
legislative
incompetence
or
excessive
delegation. However, since Royappa case
[(1974) 4 SCC 3: 1974 SCC (L&S) 165], the
doctrine has been loosely applied. This Court in
State of A.P. v. McDowell and Co.[(1996) 3 SCC
709] stressed on the need for an objective and
scientific analysis of arbitrariness, especially
while striking down legislations. Jeevan Reddy,
J. observed: (SCC pp. 737-38, para 43)
“43. ...The power of Parliament or for that
matter, the State Legislatures is restricted in
two ways. A law made by Parliament or the
legislature can be struck down by courts on two
grounds and two grounds alone, viz., (1) lack of
legislative competence and (2) violation of any
of the fundamental rights guaranteed in Part III
of the Constitution
or
of any other
constitutional provision. There is no third
ground. We do not wish to enter into a
discussion of the concepts of procedural
unreasonableness
and
substantive
unreasonableness - concepts inspired by the
decisions of United States Supreme Court. Even
in U.S.A., these concepts and in particular the
concept of substantive due process have
proved to be of unending controversy, the
latest thinking tending towards a severe

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curtailment of this ground (substantive due
process). The main criticism against the ground
of substantive due process being that it seeks
to set up the courts as arbiters of the wisdom of
the legislature in enacting the particular piece
of legislation. It is enough for us to say that by
whatever name it is characterised, the ground
of invalidation must fall within the four corners
of the two grounds mentioned above. In other
words, say, if an enactment is challenged as
violative of Article 14, it can be struck down
only if it is found that it is violative of the
equality
clause/equal
protection
clause
enshrined therein. Similarly, if an enactment is
challenged as violative of any of the
fundamental rights guaranteed by clauses (a)
to (g) of Article 19(1), it can be struck down
only if it is found not saved by any of the
clauses (s) to (6) of Article 19 and so on. No
enactment can be struck down by just saying
that it is arbitrary [An expression used widely and

rather indiscriminately - an expression of inherently
imprecise import. The extensive use of this expression
in India reminds one of what Frankfurter, J. said in Tiller
v. Atlantic Coast Line Railroad Co. 87 L Ed 610 : 318 US
54 (1943) (L Ed p. 618). "The phrase begins life as a
literary expression; its felicity leads to its lazy
repetition and repetition soon establishes it as a legal
formula, undiscriminatingly used to express different
and sometimes contradictory ideas", said the learned
Judge.] or
unreasonable. Some or other

constitutional infirmity has to be found before
invalidating an Act. An enactment cannot be
struck down on the ground that court thinks it
unjustified. Parliament and the legislatures,
composed as they are of the representatives of
the people, are supposed to know and be aware
of the needs of the people and what is good
and bad for them. The court cannot sit in
judgment over their wisdom. In this connection,

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it should be remembered that even in the case
of administrative action, the scope of judicial
review is limited to three grounds, viz.,
(i)
unreasonableness,
which
can
more
appropriately
be
called
irrationality,
(ii) illegality and (iii) procedural impropriety
(see Council of Civil Service Unions v. Minister
for Civil Service [1985 AC 374 : (1984) 3 WLR
1174 : (1984) 3 All ER 935 (HL)] which decision
has been accepted by this Court as well).”

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“106. Therefore, ever since the Royappa [E.P.
Royappa v. State of T.N. (1974) 4 SCCC 3 : 1974
SCC (L&S) 165] era, the conception of
“arbitrariness”
has
not
undergone
any
significant change. Some decisions have
commented on the doctrinal looseness of the
arbitrariness test and tried keeping its folds
within permissible boundaries. For instance,
cases where legislation or rules have been
struck down as being arbitrary in the sense of
being unreasonable [See: Air India v. Nergesh
Meerza [(1981) 4 SCC 335 : 1981 SCC (L&S)
599] (SCC at pp. 372-373)] only on the basis of
"arbitrariness", as explained above, have been
doubted in McDowell's case [(1996) 3 SCC 709]
But otherwise, the subject matter, content and
tests for checking violation of Article 14 have
remained, more or less, unaltered.
“107. From a scrutiny of the trend of decisions it
is clearly perceivable that the action of the
State, whether it relates to distribution of
largesse, grant of contracts or allotment of land,
is to be tested on the touchstone of Article 14 of
the Constitution. A law may not be struck down
for being arbitrary without the pointing out of a
constitutional infirmity as McDowell's case [State

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of A.P. vs. McDowell & Co., (1996) 3 SCC 709]
has said. Therefore, a State action has to be
tested for constitutional infirmities qua Article 14
of the Constitution. The action has to be fair,
reasonable, non-discriminatory, transparent,
non-capricious, unbiased, without favouritism or
nepotism, in pursuit of promotion of healthy
competition and equitable treatment. It should
conform to the norms which are rational,
informed with reasons and guided by public
interest, etc. All these principles are inherent in
the fundamental conception of Article 14. This is
the mandate of Article 14 of the Constitution of
India.”

H

98. Keeping all the observations of the Apex Court in the
said case and other judgments in view, we will have to
examine whether action of Respondent Nos. 1 to 4 is

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arbitrary capricious and violative of Article 14 and 19 of the
Constitution of India.
99. Again, it will be necessary to briefly examine the facts

om

of this case in order to see whether the impugned order is
arbitrary in the facts of this case. We have already held that

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the mandatory provision for analysing sample as laid down
under section 47 and the Regulations framed thereunder has
not been followed by Respondent Nos. 1 to 4.

We have

considered those questions at length and we do not propose
therefore to again repeat the said reasons. Secondly, it is an
admitted position that on 04/06/2015, the Petitioner had
given press release, stating therein that though its product

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rt

was safe, in view of what had happened the Petitioner –
Company was stopping the production, distribution and sale

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etc of all 9 variants of Maggi before the Petitioner – Company

clears the misunderstanding. On 05/06/2015, the impugned
order at Exhibit-A was passed by Respondent No.2 – Food
Authority imposing a complete ban on production, sale,
distribution

etc

of

Petitioner's

product

Maggi

Noodles

ig
h

throughout India. In the said impugned order, three reasons
were given viz (i) that lead in excess of the prescribed
standard was found in the product of the Petitioner –

H

Company, (ii) the product was misbranded because though it
was stated on the packet there was “No added MSG”, MSG
was found in the product of the Petitioner and (iii) one of

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the 9 variants viz. MAGGI Vegetable Atta Noodles

was

manufactured and sold without seeking product approval.
Similar order was passed by Respondent No.4 on 06/06/2015
which is at Exhibit-B and Respondent No.4 had stated in the

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order that in view of the directions given by Respondent No.2
the impugned order was passed and over and above that in

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view of the analysis of food samples which were tested in
laboratories at Pune, Respondent No.4 was satisfied that
lead was found in excess of the statutory limit and on
personal satisfaction also, the impugned order was issued.
100.

In our view the impugned order (Exhibit-A) is liable

to be set aside because-

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(i) It

has been passed in an

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WPL/1688/2015

arbitrary manner.

(ii) It has been

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There is lack of transparency. It is unreasonable.

passed in utter violation of

principles of natural justice since no material on

the basis of which the said order was passed was

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given to the Petitioner as is discussed hereinabove
by us while deciding Issue No. (VI).

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(iii) The samples of the product of the Petitioner
have not been analysed as per the mandatory
provision viz. Section 47(1) and Regulations framed

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thereunder, which has been elaborately discused
by us while dealing with Issue Nos. (VIII) to (XI)

B

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(iv)

The

procedure

Respondent

Nos.

1

which
to

4

was
was

followed
not

fair

by
and

transparent. As observed by the Apex Court in
Natural Resources Allocation (supra), the State
action in order to escape the wrath of Article 14
has to be fair, reasonable, non-discriminatory,
transparent,

non-capricious,

unbiased,

without

favouritism or nepotism, in pursuit of promotion of
healty competition and equitable treatment and
State action must conform to norms which are

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rational, informed with reasons and guided by

101.

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public interest.

Though Respondents have been shouting from roof

top that their action was in public interest as they found
that the food which was contaminated by lead beyond
permissible limit was unsafe for human consumption, they

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h

promptly swung into action and banned the product.

The

said tall claim has not been substantiated by them before us.
Merely stating that the food was unsafe or that the action

H

was in public interest is not sufficient as is observed by the
Apex Court in Godawat Pan Masala Products I.P. Ltd vs.
Union of India and Others1. The Apex Court in the said case

B

om

ba
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has observed in para 61, 68 and 77.5 as under:“61. We are unable to accept that the words "in
the interest of public health" used in Clause (iv)
of Section 7 of the Act can operate as an
incantation or mantra to get over all the
constitutional difficulties posited. In any event,
the collocation of the words in the statutory
scheme suggests not a matter of policy, but a
matter of implementation of policy. For this
reason also, we are of the view that the
impugned notification must fail.”

“Paradoxical consequence:
68. There is yet another reason why we are
inclined to take the view that Section 7(iv) deals
with a situation of emergency with respect to
1 (2004) 7 SCC 68

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“Conclusion:

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the local area. A decision for banning an article
of food or an article containing any ingredient of
food injurious to health can only arise as a result
of broadly considered policy. If such a power be
conceded in favour of a local authority like the
Food (Health) Authority, paradoxical results
would arise. The same article could be
considered injurious to public health in one local
area, but not so in another. In our view, the
construction of the provision of the statute must
not be such as to result in such absurd or
paradoxical consequences. Hence, for this
reason also, we are of the view that the power
of the State (Health) Authority is a limited power
to be exercised locally for temporary duration.”

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WPL/1688/2015

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77. As a result of the discussions, we are of the
view that:

B

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1. ...
2. ...
3. ...
4. ...

5. The state Food (Health) Authority has no
power to prohibit the manufacture for sale,
storage, sale or distribution of any article,
whether used as an article or adjunct thereto or
not used as food. Such a power can only arise as
a result of wider policy decision and emanate
from Parliamentary legislation or, at least, by
exercise of the powers by the Central
Government by framing rules under Section 23
of the Act;
6.............
7.............
8..............”

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Respondents had not undertaken any investigation

rt

102.

for carrying out the risk analysis to decide that the product of

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the Petitioner was unsafe for human consumption as was
done in Dhariwal Industries Ltd and another vs. State of

Maharashtra and others1. The Division Bench of this Court in
the said case observed in paras 5 and 6 as under:-

B

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H

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“5. Affidavits in reply have been filed by Mr.
Kamlesh V. Sankhe, Joint Commissioner (Food) at
Food and Drugs Administration, Government of
Maharashtra justifying the impugned order and
submitting that the said order is in conformity with
the provisions of the Food Safety Act and 2011
Regulations made thereunder. Reference is made
to the reports submitted by Tata Institute of
Fundamental Research and other organizations
indicating the harmful effects of consumption of
gutka and pan masala, the widespread prevalence
of consumption of gutka and pan masala in the
State of Maharashtra and that out of about 1200
samples of gutka and pan masala collected by the
authorities in the State of Maharashtra in the
years 2003-2011, 98% of gutka and pan masala
were found to be contravening the provisions of
the Prevention of Food Adulteration Rules and the
2011 Regulations as they were found to be
containing prohibited ingredients like Magnesium
carbonate, tobacco or nicotine.”

“6. Action Council Against Tobacco, India, having
as its members, Professors of Medicine and
Professors of Oncology of Tata Memorial Hospital
and other hospitals has been permitted to
intervene. The affidavits dated 10 August 2012
and 23 August 2012 have also been filed on behalf
of the intervenor placing on record substantial
material including the following:1 2013(1) Mh.L.J. 461

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i) Global Adult Tobacco Survey Factsheet (2009-2010)
ii) Short report of World Health Organization
framework convention on Tobacco Control
iii) Economics of Tobacco in India by Voluntary Health.
iv) Article on Cancer Mortality in India
v) World Health Organisation's Monographs on
evaluation of carcinogenic risks to humans
vi) Review of Areca nut and tobacco use in PacificA technical report
vii) Evidence assessment by National Institute of
Health and Family Welfare and several other
reports.

ba
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H

Reports of National Institute of Health and Family
Welfare making assessment about the contents of
gutka, pan masala and other similar articles
manufactured in India. These reports were
submitted by the National Institute of Health and
Family Welfare pursuant to the Supreme Court
order dated 7 December 2010 in SLP No. 16308 of
2007 (Ankur gutka v. Indian Asthma Care Society &
ors.)”

103.

Apart from that, the most important aspect is that

the Respondents were aware that the Petitioner had recalled

om

the its product on 04/06/2015 and the press release to that
effect was given by the Petitioner

and under these

circumstances it was not necessary to impose ban all over

B

India and proper opportunity ought to have been given to the
Petitioner to clear the misunderstanding or find out the
correct position regarding safety of its product. Action of the
State of not supplying the material on the basis of which the
action was taken and not giving a personal hearing to the
Petitioner and issuing an order of ban when Petitioner itself
had withdrawn the product clearly falls within the four

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corners of arbitrariness and is therefore violative of Article 14
and 19 of the Constitution of India.

In fact, the entire

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sequence culminating in imposition of ban on 05/06/2015 by

Respondent No.2 shows that there is something more that
what

meets the eye which has resulted in passing the

impunged orders by Respondent Nos. 2 and 4.

The Apex Court has held that procedure of

ig
h

104.

sampling is mandatory in the case of

Pepsico (supra)

Though the said judgment was passed under the Prevention

H

of Food Adulteration Act, 1954, the provisions under the
repealed Prevention of Food Adulteration Act, 1954 and FSS
Act, 2006 are almost identical and, therefore, observations of

ba
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the Apex Court in the said case are squarely applicable even
to the provisions under the FSS Act, 2006.
105.

One other aspect which needs to be mentioned

om

here is that during the course of arguments, Mr. Mehmood
Pracha, the learned Counsel for Respondent No.2 produced

B

various articles/links which were downloaded from “Google”
on inter-net and it was urged that reputation of the Petitioner
– Company was not good in other countries as well. The said
material was produced across the bar and though it was
pointed out to him that these allegations were not made by
the Respondents either in their reply or sur-rejoinder, it was
submitted that these articles are available on the inter-net.

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In his written arguments, he has given various links in which

similar allegations have been made against the Petitioner.

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We do not wish to say anything about correctness or

otherwise of the said allegations since no opportunity was
given to the Petitioner to refute the same but the fact
remains that from the said submissions which are made by
the learned Counsel for Respondent No.2, it appears that
No.2

is

also

influenced

ig
h

Respondent

by

extraneous

considerations such as the material which has been placed
before us which is not reflected in the reasons which are
The order at Exhibit-A

H

given in the impugned order.

therefore will have to be quashed on this ground also.
For the same reasons the order passed by

ba
y

106.

Respondent No.4 which is at Exhibit-B also will have to be
held to be arbitrary and capricious and violative of Article 14

om

and 19 of the Constitution of India.
107.

What is most shocking is that though the samples

B

of only three variants of the Maggi Noodles were taken all 9
variants of Maggi Noodles have been banned. Remaining six
therefore have been banned only because lead was alleged
to be found in excess of the permissible limit in other three
and even without testing the said six Maggi variants, the
order of ban has been imposed. This is one other incident of
highhandedness and arbitrariness and there was no plausible

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explanation given in the impugned orders or even before us

108.

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for such an action.

It has also to be seen that so far as second ground

for imposing ban is concerned, it is stated in the impugned
order (Exhibit-A) that the product was misbranded since it
was mentioned on the packet of the product of the Petitioner

ig
h

that there was “No added MSG” and the “MSG” was found.
There is no material on record to substantiate the same. It is
not the case of the Respondents that the Petitioner had

H

added “MSG” though the Petitioner had declared that there
was no added MSG. Secondly, it is an admitted position that
the Glucomate is even otherwise found in its natural form in

ba
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certain types of foods.

Thirdly, the Petitioner had agreed

that it would remove the declaration from the packet that
there was “No added MSG”. Fourthly, the maximum penalty
for misbranding of product even in criminal prosecution as

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laid down under section 52 of the Act is to the extent of Rs 3
lakhs. Misbranding of the product, therefore, could not be a

B

ground for banning the product indefinitely.
109.

Lastly, the third ground which has been mentioned

is that one of the Maggi Variants viz. MAGGI Vegetable Atta
Noodles were not approved by the Food

Authority and the

product approval was not obtained. The Petitioner in its Petition
has stated that it had applied for product approval after the order

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of stay granted by the High Court in Vital Nutraceuticals & Ors

vs. Union of India & Ors was stayed by the Apex Court.

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Respondents have merely stated in view of non-compliance
of objections, the file was closed. The Respondents, firstly,
could have asked the Petitioners not to produce, or sell the
said variant.

There was no reason to ban all other Nine

Maggi Variants and, secondly, it was the duty of the

ig
h

Respondents to inform the Petitioner as to how the
requirements were not complied with so that they could have

110.

H

complied with the requirements.

Additionally, it is an admitted position that the

ba
y

product approval in respect of 8 products was granted by the
Respondents. Viewed from any angle therefore we have no
hesitation in coming to the conclusion that the action of

om

Respondents in passing the impugned orders at Exhibit-A
and Exhibit-B is violative of Articles 14 and 19 of the

B

Constitution of India and the said orders at Exhibit-A and
Exhibit-B will have to be set aside.

Issue No.(XII) is

therefore answered in the affirmative.

111

For the reasons stated hereinabove, the

issues

framed hereinabove are answered as under:-

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ISSUES

FINDINGS

In the affirmative.

H

ig
h

(I) Whether the Writ Petition
filed
by
the
Petitioner
–
Company under Article 226 of
the Constitution of India is
maintainable, particularly when
the impugned orders, according
to the Respondents, are show
cause notices and that the
Petitioner has an alternative
remedy of filing an appeal under
section 46(4) of the Act?

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WPL/1688/2015

B

om

ba
y

(II)
Whether
there
was
suppression of fact on the part
of the Petitioner and whether
the Petitioner had made an
attempt to destroy the evidence
disentitling the Petitioner from
claiming any relief from this
Court?

In the negative.

(III) Whether Respondent No.2
could impose a ban on the
ground that the lead found in
the product of the Petitioner In the negative.
was beyond what the Petitioner
had
represented
in
its
application for product approval,
though it was below the
maximum permissible limit laid
down under the Regulations?

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ISSUES

FINDINGS

In the negative.

H

ig
h

(IV) Whether the Food Authority
had an unfettered discretion to
decide what are the standards
which have to be maintained by
the
manufacturers
of
proprietary food and whether in
respect of the proprietary food,
the Food Authority was not
bound by the permissible limits
of additives and contaminants
mentioned in the Regulations
and the Schedules appended
thereto?

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WPL/1688/2015

Does not arise

(VI) Whether there is violation
of principles of natural justice on
the part of Respondent Nos. 1 to
4 on account of the impugned
orders being passed without
issuance of show cause notice
and without giving the Petitioner
an opportunity to explain the
discrepancy pointed out by the
Food Authority in respect of the
product of the Petitioner?

In the affirmative

B

om

ba
y

(V) Whether in view of the
provisions of Section 22, there
was a complete ban on the
manufacture
of
sale
and
products mentioned in the said
section?

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ISSUES

FINDINGS

Either
section
30
or
section 34 of FSS Act,
2006 but in any case such
orders could not have
been
passed
under
sections
10(5),
16(1),
16(5), 18, 22, 26, 28 and
29 of the Act?

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(VII) What is the source of
power under which the
impugned
orders
were
passed and whether such
orders could have been
passed under sections 10(5),
16(1), 16(5), 18, 22, 26, 28
and 29 of the Act?

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WPL/1688/2015

B

om

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y

H

(VIII) Whether the analysis
of the product manufactured
by the Petitioner could have
been
made
in
the
Laboratories in which the
said product was tested by
the Food Authority and
whether these Laboratories
are accredited Laboratories
by the NABL and whether the
reports submitted by these
Laboratories can be relied
upon.

In the negative.

(IX) Whether reliance can be
placed
on
the
reports
obtained by the Petitioner In the negative
from its Laboratory and other
accredited Laboratories?

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ISSUES

FINDINGS

In the negative

H

ig
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(XI) Whether it was established
by the Food Authority that the
lead beyond the permissible
limit was found in the product of
the Petitioner and the product
of
the
Petitioner
was
misbranded on account of a
declaration
made
by
the
Petitioner that the product
contained “no added MSG”?

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WPL/1688/2015

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(XII) Whether Respondent Nos.
2 to 4 were not justified in
imposing the ban on all the 9
Variants of the Petitioner,
though tests were conducted
only in respect of 3 Variants and
whether such ban orders are
arbitrary, unreasonable and
violative of Article 14 and 19 of
the Constitution of India?

B

112.

In the affirmative.

Accordingly the following order is passed:

FINAL ORDER:
113.

During the course of arguments, we asked Mr.

Iqbal Chagla, the learned Senior Counsel appearing on behalf
of the Petitioner whether irrespective of the final outcome of

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rt

the Petition, whether Petitioner would continue to abide by

the statement made by the Petitioner on 04/06/2015 for such

C
ou

time till the samples which were preserved by them could be
tested in Food Laboratories mutually

accepted by the

Petitioner and the Respondents and he had answered in the
affirmative. On the other hand, Mr. Darius Khambatta, the
learned Senior Counsel appearing on behalf of Respondent

ig
h

Nos. 3 and 4 submitted that the food samples which were in
their possession should be tested in an accredited Food
Laboratory and not the samples which were in possession of
The learned Senior Counsel Mr. Chagla

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the Petitioner.

appearing for the Petitioner, however, submitted that the
authenticity of the samples which were with the Food

ba
y

Authority was in doubt and similar statement was made by
the

learned

regarding

Counsels

appearing

for

the

Respondents

authenticity of the samples which

possession of the Petitioner.

were

in

While making the said

om

suggestion, we had pointed out that this Court was
concerned about public health and manufacture and sale of

B

safe and wholesome food to the people of India. Mr. Chagla,
learned Senior Counsel for the Petitioner accepted the
suggestion made by this Court. However, the Respondents
did not accept the suggestion made by this Court and,
therefore, we are constrained to give directions for testing of
food samples which have been preserved by the Petitioner
pursuant to the directions given by Respondent No.2 which

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can be seen from the minutes of the meeting held between

114.
the

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the representatives of the Petitioner and Respondent No.2.

Though, we have allowed the Petition and set aside
impugned

orders,

for

the

reasons

mentioned

hereinabove, we are still concerned about public health and
public interest and therefore we are of the view that before

ig
h

allowing the Petitioner to manufacture and sell its product,
Petitioner should send the 5 samples of each batch which are
in their possession to three

Food Laboratories accredited

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and recognized by NABL as per the provisions of section 3(p)
and section 43 of the Act and which are as under:-

B

om

ba
y

(1) Vimta Lab, Plot No.5, Alexandria
Knowledge Park, Genome Valley,
Shameerpet, Hyderabad-500078,
Andhra Pradesh.
(2) Punjab Biotechnology
Incubator, Agri & Food
Testing Laboratory,
SCO:7-8, Top Floor, Phase-5,
SAS Nagar, Mohali-60 059.

(3) CEG Test House and
Research Centre Private
Limited, B-11(G), Malviya
Industrial Area, Jaipur-17.

These samples shall be tested and analysed by these three
Laboratories. The sampling process should be undertaken as
per the provisions of section 47(1) and other relevant

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provisions of the Act and Regulations framed thereunder. If
the results show that lead in these samples is within the

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permissible limit then the Petitioner would be permitted to

start its manufacturing process. However, even newly
manufactured products of all the other Variants be tested in
these three laboratories and if level of lead in these newly
manufactured

products is also within the permissible limit

ig
h

then the Petitioner – Company may be permitted to sell its
products.

The contention of the Respondents that the 4 th

H

115

sample which is in their possession should also be tested
cannot be accepted. We have already discussed the reason

ba
y

why we feel that procedure of sampling was not under taken
as per the provisions of section 47(1) of the Act and the
Regulations framed thereunder and therefore we feel that it
would be an exercise in futility if the

4 th sample is now

om

permitted to be analysed.

B

SUMMARY:
116 Nestle (India) challenged the nationwide ban imposed
by the Food Authority on its popular product Maggi Instant
Noodles.

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 -142WPL/1688/2015

The Food Authority and Commissioner of Pune

rt

117.

claimed that in public interest and to ensure food safety, the

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impugned orders were passed after the Food Laboratory

Reports indicated the presence of lead in excess of the
permissible limits and MSG being found in the product
against the declaration of the Petitioner that there was “No

118.

ig
h

added MSG” in the product.

After examining the rival contentions in great

H

detail, we have come to the conclusion that (a) Principles of natural justice have

not

been followed before passing the impugned

ba
y

orders and on that ground alone the
impugned orders are liable to be set aside,
particularly

when

the

Petitioner

-

B

om

Company, one day prior to the impugned
orders, had given a Press Release that it
had recalled the product till the authorities
were satisfied about safety of its product.
(b) Secondly, we have held that the Food
Laboratories

where

the

samples

were

tested were not accredited and recognized
Laboratories as provided under the Act and
Regulations for testing presence of lead

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 -143-

and therefore no reliance could be placed

(c)

We

have

further

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on the said results.

rt

WPL/1688/2015

held

that

the

mandatory procedure which has to be
followed as per Section 47(1) of the Act and
followed.

ig
h

Regulations framed thereunder, was not

(d) The impugned orders are held to be
violative

of Articles 14,

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arbitrary and

19(1)(g) of the Constitution of India.
Although we are setting aside the impugned

ba
y

119.

orders, in public interest and in order to give an opportunity
to the Petitioner to satisfy the Food Authority, we have
directed that five samples from each batch cases out of 750

om

may be tested in three laboratories mentioned hereinabove
and if the lead is found within permissible limits then the

B

Petitioner

would be permitted to manufacture all the

Variants of the Noodles for which product approval has been
granted by the Food Authority.

These in turn would be

tested again in the said three Laboratories and if the lead is
found within permissible limits then the Petitioner would be
permitted to sell its product.

The three laboratories shall

follow the procedure laid down under section 47 of the Act

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 -144WPL/1688/2015

Since the Petitioner – Company has already made

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120.

rt

and Rules and Regulations framed thereunder.

a statement that it will delete the declaration made by it viz
“No added MSG” on its product, no prejudice would be
caused to the public at large and the allegation that product

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is misbranded also will not survive.
CONCLUSION:

Petition is accordingly disposed of in the aforesaid

H

121.

terms. Rule is made absolute in terms of prayer clause (a)

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y

and (b) along with what we have mentioned hereinabove.
122.

We clarify that though in the judgment we have

mentioned that the samples of 9 Variants of Maggi Noodles
should be tested, we make it clear that the Variants which

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are available with the Petitioner may be tested.

Those

Variants which are not available with the Petitioner, they

B

may be manufactured after positive report is given in respect
of the Variants which are available. So far as
Masala

Noddles

with

Tastemaker”

is

“Maggi Oats

concerned,

the

Petitioner will have to undergo the procedure of obtaining
product approval and the Respondents may consider the
application of the Petitioner again, after such an application
is made within a period of 8 weeks from the date of making

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 -145WPL/1688/2015

At this stage, Mr. Anil Singh, the learned Additional

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123.

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of such application.

Solicitor General for Respondent No.1 and the learned
Counsels for Respondent Nos. 2, 3 and 4 have submitted that
the Judgment and Order passed by this Court may be stayed

124.

ig
h

for a period of eight weeks.

In our view, since the Petitioner – Company

has

made a statement that it would not manufacture or sell the

H

product, the question of granting stay to this Judgment and
Order does not arise.

(V.M. KANADE, J.)

B

om

ba
y

(B.P. COLABAWALLA, J.)

bdp

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