Nestle India Limited v. The Food Safety and Standards Authority of India IN THE HIGH COURT OF BOMBAY W. P (L) No. 1688 of 2015

On the other hand, Respondent Nos. 1, 2 and 3 have made the following submissions:-
(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, instead of giving reply to the
show cause notice and satisfying the Food Authority that 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 notice therefore, it
was urged, was liable to be dismissed.
(iii) Thirdly it was submitted objection to the analysis by non-accredited that the
/non-notified Food Laboratories was raised for the first time in rejoinder and was an
afterthought. It was urged by the learned that there was suppression of material facts
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
destroying the evidence by burning manufactured goods in order to avoid further
prosecution. It was also urged on behalf of Respondent Nos. 1 and 2 that the Food
Authority had discretion in prescribing the standards for proprietary food and that
they were not bound even by the Regulations which were framed in respect of
additives and contaminants which were found in proprietary foods.
(v) Fifthly, it was also urged that the Petitioner had violated the terms which were
imposed upon it. It was submitted that in the application for product approval a
representation was made by the Petitioner 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 content in its product. This
was notwithstanding that the Regulations permitted lead upto 2.5 ppm.

(vi) Sixthly it was urged on behalf of Respondent Nos. 1 to 3 that the Food Authority
had to act in public interest and even if lead was found in one sample, exceeding the
permissible limit, the order of prohibition could be passed in public interest and 2, the
said order (Exhibit-A) had been 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 Exhibit-B) is
under section 30 of the said Act.
These are the broad submissions which have been urged by either side, apart from other
detailed arguments which were made by both, the Petitioner and the Respondents.
FACTS:

Brief facts which are germane for the purpose of WPL/1688/2015 deciding this Petition are
as under:-

Nestle S.A of Switzerland is a Company which is 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 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 the Petitioner is known as “MAGGI
Noodles”. Petitioner had been manufacturing and selling this product for more than 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 after it came into force in 2006 till the impugned order
of ban was passed on 05/06/2015. Petitioner manufactured 9 variants of these noodles which
are known as under:-
Serial No. MAGGI Noodles Variants

MAGGI Xtra Delicious Chicken Noodles

MAGGI Thrillin Curry Noodles

MAGGI Cuppa Mania Chilly Chow Masala YO

MAGGI Cuppa Mania Masala YO WPL/1688/2015

MAGGI 2 Minutes Masala Noodles / MAGGI Hungroo Noodles

MAGGI Vegetable Multigrainz Noodles

MAGGI Vegetable Atta Noodles
8 MAGGI Xtra Delicious Magical Masala Noodles

MAGGI 2 Minute Masala Dumdaar Noodles

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. of
obtaining product approval was stayed by the High Court in Writ Petition No.2746 of 2013 in
the case of Vital Nutraceuticals & Ors v. 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 (Food Safety Standards Authority of India v.
Vital Nutraceuticals Private Limited & Ors).

The Petitioner, after the Apex Court granted stay to the order passed by this Court,
applied for product approval. However, certain clarifications were sought by Respondent 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 was closed
without giving reasons.
CHRONOLOGY OF EVENTS IN RESPECT OF PRESENT DISPUTE:

Sometime 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 Laboratory viz. State Food Laboratory, Gorakhpur in UP. The result of the
analysis showed that there was MSG in the said product which was found in the said packet.
He therefore 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 authenticity of the Food Laboratory
analysis.

This product which was seized was a packet containing 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 months after the date of manufacture. The
best use therefore was over on 15/09/2014. 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 almost after 3 months the report was submitted.

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 pm as per the Regulations.

Food Authorities were alarmed by the said results and therefore they tested the samples
from other batches in Delhi and 9 other States. We must mention here that out of the 9
Variants of MAGGI Noodles only 3 Variants were tested.

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 pm, though 42 samples showed that
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the lead content was within the permissible limits. Similarly in 7 States viz., (1) Delhi, (2)
UP, (3) Tamil Nadu, (4) Gujarat (5) Maharashtra,(6) Punjab (7) Meghalaya the lead content
in the product of the Petitioner was found above 2.5 pm, whereas in Goa and Kerala the lead
content was found to be within the permissible limits. The said results were made known to
Respondent No.2 on telephone on 04/06/2015.

According to the Petitioner, after reading the news items which were published in media
regarding the excess lead in its product, Petitioner-Company immediately made 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.
“PRESS RELEASE NESTLE HOUSE, Gurgaon, 5th June, 2015, MAGGI Noodles are
completely safe and have been trusted in India for over 30 years.
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.”
ISSUES

(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?
(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?
(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 WPL/1688/2015 permissible limit laid
down under the Regulations?
(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?
(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?
(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
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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
such orders could have been passed sections 10(5), 16(1), 16(5), 18, 22, under 26, 28 and 29
of the Act?
(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 test the samples in any Laboratory, even if it
was not accredited and recognized by the Food Authority?
(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”? 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?
REASONS AND FINDINGS:
FINDING ON ISSUE NO. (I)

From the above observation, it is clear that contention of 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 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 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 behalf of the Petitioner, that the Petitioner had
approached this Court under Article 226 of the Constitution of India inter 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.

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 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 [AIR 1999 SC 22
WPL/1688/2015] has 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 discretion to entertain or not to entertain a Writ Petition. But the High Court has
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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 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 case- law 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.”
It is, therefore, quite well settled that whenever allegation is made that there is violation of
principles of natural justice the Petitioner is entitled to challenge the said order and, secondly,
in the present case, the impugned order (Exhibit- 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 ban on the product.

In our view, ratio of the judgment in Aamir Khan Production Pvt. Ltd. v. Union of India
[W.P. No. 358 of 2010, Bombay High Court] will not apply to the facts of the 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.

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.
FINDING ON ISSUE NO. (II)

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

There is, therefore, absolutely no substance in the submissions made by the learned Senior
Counsels appearing on behalf of Respondent Nos. 1 and 4 that there was suppression of fact
and an attempt to destroy the evidence by the Petitioner.
FINDING ON ISSUE NO. (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?

Mr. Mehmood Pracha, the learned Counsel for Respondent No.2, vehemently urged that
the obligation was cast on the Petitioner or the food manufacturer to manufacture the food
which was safe and wholesome and an element of trust therefore was created on the basis of
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assurances given by the manufacturer. He submitted that if the trust was broken, the Food
Authority could then act and imposes the ban on the product of the manufacturer. He
submitted that the Petitioner had made representation in its 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 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 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 2.5 ppm, yet, such a ban order could be imposed and justified. He invited our attention to
the averments made in 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 non- standardised, have to undergo risk and safety assessment
from the Food Authority through the 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.”

We are surprised and astonished at the stand 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 Regulations framed
thereunder clearly indicate that the Regulations have been framed by the Food Authority
giving manufacturers various standards which are to be maintained by the food. Most of these
Regulations were placed before both the Houses of Parliament and they were approved. It is
difficult to understand as to how such a submission therefore could be made which does not
find any support from the provisions of the Act and the Rules and Regulations framed
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thereunder. If this is the interpretation which is sought to be made by Respondent No.2 then
there is something inherently wrong in the manner in which the Rules and Regulations are
being interpreted by the Food Authority. 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
WPL/1688/2015 prescribed for additives, contaminants and other substances that may be
contained in a proprietary food. To our mind, 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 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. Pracha, this proviso would be rendered
otiose. The said submission is therefore wholly without merit and stands rejected. Issue No.
(III) is therefore answered in the negative.
FINDING ON ISSUE NO. (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?

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
seriously contended that in respect of proprietary food, the Food Authority had an unfettered
discretion to decide what 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 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 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 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 standards which
are to be maintained by the manufacturers of proprietary food.

It is not in dispute that the product which is manufactured by the Petitioner viz. Maggi
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 various additives including
contaminants is mentioned in the said Regulations. Limit of lead is also mentioned in the said
Regulations. If the submission made by the learned Counsel for Respondent No.2 is accepted
35
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 would be rendered otiose. If
this 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 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 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 as the Food Safety and Standards (Contaminants,
Toxins and Residues) Regulations, 2011. Regulation 2.1.1.(2) inter alia 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 is up to 2.5 ppm. If the argument of Mr. Pracha is to
be accepted that in respect of proprietary food (i.e. in respect of 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 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 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. (IV) is therefore answered in the
negative.
FINDING ON ISSUE NO. (V)

On proper and plain reading and interpretation of section 22 of the Act and after hearing
the learned Senior Counsel Mr. 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
force in the arguments advanced by Mr. Chagla the learned Senior Counsel appearing on
behalf of the Petitioner. In the facts of the present case, however, we find that product
approval has, in 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.

However, in the Court reliance is placed on section 22 and this is the argument which is
sought to be advanced in support of the action of the Food Authority. In our view, there is
something fundamentally wrong in the approach of the Food Authority and in the
interpretation which is sought to be given by it to several provisions of the Act, including
section 22 of the Act.
FINDING ON ISSUE NOS. (VI) & (VII) WHICH CAN BE DECIDED TOGETHER:

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

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, 28 and
29 of the Act, whereas, according to Respondent Nos. 3 and 4, the impugned order at ExhibitB has been passed under section 30 of the Act. It will be necessary therefore to examine the
contention of the Respondents that the impugned orders are passed under the aforesaid
provisions before it can be accepted.

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

Section 10(5) enumerates that the Chief Executive Officer shall exercise the powers of the
Commissioner of Food Safety while dealing with matters relating to food safety of such
articles. This section therefore empowers the 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 and, for that purpose, the
powers vested in Commissioner of Food Safety will have to be examined. Section 10(5) of
the Act reads as under:-
“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.”

Section 16(1) only imposes duty on the Food Authority to regulate and monitor the
manufacture, processing, distribution, sale and import of the food so as to ensure safe and
wholesome food. Sub-section (1) of section 16 is an 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:-
“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.”

Section 16(5) also speaks about the directions which can be given by the Food Authority
to the Commissioner of Food Safety. Section 16(5) of the Act reads as under:-
“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.”

It is difficult to accept the contention of Respondent Nos. 1 and 2 that the impugned order
at Exhibit-A has been 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 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.

The next section on which the reliance is placed by Respondent Nos.1 and 2 is section 18
which is found in Chapter-III of the Act which deals with general principles of food safety
and sub-section (1) of section 18 enumerates the guiding principles which are to be followed
while 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 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 cannot be said to be a
source of power since it only lays down the guidelines. Section 18 of the Act reads as under:-

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 Chapter-IV
of the Act which deals with general provisions as to articles of food and it clarifies that the
categories of food 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 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 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 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 can be
seen that this order (Exhibit-A) could not have been passed under section 22 as canvassed by
Mr. Mehmood Pracha, the learned Counsel appearing on behalf of Respondent No.2.

In our view, therefore, the Food Authority cannot trace its power to pass the impugned
order at Exhibit-A under section 26, 28 and 29 of the said Act.

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 section 30. The
learned Counsels appearing on behalf of Respondent Nos. 1 and 2 have not relied on section
30 as a source of power for passing the impugned order at Exhibit-A. 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 under:-
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 partem has to be complied with and hearing has to be given to the affected party.

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 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 order at Exhibit-A either under section
30 or under section 34 of the Act. It appears that Respondent Nos. 1 and 2 have 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 the principles of natural justice. Section 30 even though it
does not in terms mentions that principles of natural justice have to be followed, it is implied
that such a course has to be normally followed. The Apex Court in C.B. Gautam v. Union of
India and Others 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
implied that such a hearing has to be given has observed in paras 28 and 30 as under:-
“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.”

In the said case, under section 269-UD of the Income-tax Act no reference was made to
principles of natural justice being followed and the Apex Court has held that it was implied
that such a hearing should be given.
“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.”

In the present case, the Food Authority and the Commissioner of Food Safety, banning
State of Maharashtra have not issued any Notification all Noodles. The Food Authority has
banned the product of the Petitioner relying on the results given by the Food Laboratories. It
was, therefore, incumbent upon the 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
opportunity of giving its reply to the material on the basis of the which the said impugned
orders were passed.
39

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 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 v. State of Maharashtra and others [2013(1) Mh.L.J. 461].
(iii) The reports received from other States were informed to the Food Authority on telephone
and, in any case, so far as the Commissioner of Pune is concerned, he had conducted the test
on 06/06/2015 that is one day after the impugned order at Exhibit-A was passed.
(iv) Petitioner – Company itself had already issued a press release stating therein that the
Petitioner was recalling the product and was going to stop manufacture, sale distribution of
the product etc.
(v) Out of 70 samples examined by Food Authority – Respondent Nos. 1 and 2, more than
50% i.e. about 42 samples were found to be within permissible limit and in 30 samples the
lead was found to be in excess.
(vi) Delhi and Kolkata reports were available.

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 Petitioner had already, one day before the impugned order at Exhibit-A was passed,
had given a press release, stating 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 respectively
are liable to be set aside. Issue No.(VI) is therefore answered in the affirmative. The answer
to Issue No(VII) is that the source of power under which the impugned orders were passed is
traceable to either section 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. (VII) therefore is answered accordingly.
FINDINGS ON ISSUE NOS. (VIII) to (XI) WHICH CAN BE DECIDED TOGETHER:

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 give
recognition to laboratory and notify it. Upon conjoint reading of both these sections, it is clear
that under section 3(p), “food laboratory” is a laboratory which is either State or Central
laboratory or any other allied laboratory which is accredited 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 that (ii) it has also to be recognized by the Food Authority under section
43 of the Act. Sub-section (1) of section 43 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
40
and 4 is without any substance. Section 43(1) mandates that the Food Analyst has to analyse
the food in a laboratory accredited by NABL and also recognized by the Food Authority and
notified by it. 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. 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 mandatory and not directory.
This is more so when Section 43(1) is read with the definition of the words “food laboratory”
in Section 3(p) of the FSS Act, 2006.

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, they were not accredited to make
analysis in respect of lead in the samples. There is no material on record to show whether the
procedure of testing samples mentioned under the Act and Rules and Regulations framed
which is thereunder has been followed. There is a grave doubt about the samples being tested
at Avon Food Lab (Pvt.) Ltd. and 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 5/7/2011 even
the State and Central Laboratories, though not notified, were entitled to test the samples, is
incorrect.

On the same ground, it will not be possible to accept the reports of the samples 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 therefore answered
in the negative.
FINDING ON ISSUE NO. (XII)

Keeping all the observations of the Apex Court and other judgments in view, we will have
to examine whether action of Respondent Nos. 1 to 4 is arbitrary capricious and violative of
Article 14 and 19 of the Constitution of India.

Again, it will be necessary to briefly examine the facts of this case in order to see whether
the impugned order is arbitrary in the facts of this case. We have already held that the
mandatory provision for analysing sample as laid down under section 47 and the Regulations
framed there under 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 was safe, in view of what had happened the Petitioner –
Company was stopping the production, distribution and sale 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 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 – Company, (ii) the product was
41
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 the 9 variants viz. MAGGI
Vegetable Atta Noodles was manufactured and sold without seeking product approval.

In our view the impugned order (Exhibit-A) is liable to be set aside because-
(i) It has been passed in an arbitrary manner. There is lack of transparency. It is
unreasonable.
(ii) It has been passed in utter violation of principles of natural justice since no material on the
basis of which the said order was passed was given to the Petitioner as is discussed
hereinabove by us while deciding Issue No. (VI).
(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 there under, which has been elaborately
discussed by us while dealing with Issue Nos. (VIII) to (XI).
(iv) The procedure which was followed by Respondent Nos. 1 to 4 was not fair 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, nondiscriminatory, transparent, non-capricious, unbiased, without favouritism or nepotism, in
pursuit of promotion of healthy competition and equitable treatment and State action must
conform to norms which are rational, informed with reasons and guided by public interest.

Apart from that, the most important aspect is that the Respondents were aware that the
Petitioner had recalled 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 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 corners of arbitrariness and is therefore
violative of Article 14 and 19 of the Constitution of India. In fact, the entire 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 impugned orders
by Respondent Nos. 2 and 4.

The Apex Court has held that procedure of sampling is mandatory in the case of Pepsi Co
(supra). Though the said judgment was passed under the Prevention 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 the Apex Court in the said
case are squarely applicable even to the provisions under the FSS Act, 2006.

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 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 added “MSG” though the Petitioner had declared that
42
there was no added MSG. Secondly, it is an admitted position that the Glucomate is even
otherwise found in its natural form in 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
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 ground for banning the product indefinitely.

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 WPL/1688/2015 of stay granted by the High Court in Vital
Nutraceuticals & Ors v. Union of India & Ors was stayed by the Apex Court. 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 Respondents to inform the Petitioner as to how the requirements were not complied with
so that they could have complied with the requirements.

Additionally, it is an admitted position that the 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 Respondents in passing the impugned orders at
Exhibit-A and Exhibit-B is violative of Articles 14 and 19 of the 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.
FINAL ORDER:

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 the Petition,
whether Petitioner would continue to abide by the statement made by the Petitioner on
04/06/2015 for such 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 Nos. 3 and 4 submitted that the food samples
which were in their possession should be tested in an accredited Food the Petitioner.

Laboratory and not the samples which were in possession of The learned Senior Counsel
Mr. Chagla appearing for the Petitioner, however, submitted that the authenticity of the
samples which were with the Food Authority was in doubt and similar statement was made by
the learned Counsels appearing for the Respondents regarding authenticity of the samples
which were in possession of the Petitioner. While making the said suggestion, we had pointed
out that this Court was concerned about public health and manufacture and sale of 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
43
by Respondent No.2 which can be seen from the minutes of the meeting held between the
representatives of the Petitioner and Respondent No.2.

Though, we have allowed the Petition and set aside the 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 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 and recognized by NABL as per the provisions of section
3(p) and section 43 of the Act and which are as under:-
(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
provisions of the Act and Regulations framed thereunder. If the results show that lead in these
samples is within the 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 then the Petitioner – Company may be permitted to sell its
products.

The contention of the Respondents that the 4
th sample which is in their possession should
also be tested cannot be accepted. We have already discussed the reason 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 permitted to be analysed.
SUMMARY:

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

The Food Authority and Commissioner of Pune claimed that in public interest and to
ensure food safety, the 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 added MSG” in the
product.

After examining the rival contentions in great detail, we have come to the conclusion that:
(a) Principles of natural justice have not been followed before passing the impugned
orders and on that ground alone the impugned orders are liable to be set aside,
particularly when the Petitioner – Company, one day prior to the impugned orders,
44
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 and therefore no reliance could be placed on
the said results.
(c) We have further held that the mandatory procedure which has to be followed as
per Section 47(1) of the Act and Regulations framed thereunder, was not followed.
(d) The impugned orders are held to be violative of Articles 14, 19(1)(g) of the
Constitution of India.

Although we are setting aside the impugned 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 may be tested in three laboratories mentioned
hereinabove and if the lead is found within permissible limits then the 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 and Rules and Regulations framed thereunder.

Since the Petitioner – Company has already made 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 is misbranded also will not survive.

Petition is accordingly disposed of in the aforesaid terms. Rule is made absolute in terms
of prayer clause (a) and (b) along with what we have mentioned hereinabove.

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 are available
with the Petitioner may be tested. Those Variants which are not available with the Petitioner,
they may be manufactured after positive report is given in respect of the Variants which are
available. So far as “Maggi Oats Masala Noddles with Tastemaker” is 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 of such application.

At this stage, Mr. Anil Singh, the learned Additional 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 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 product, the question of granting stay to this Judgment and Order does
not arise.