GODAWAT PAN MASALA PRODUCTS LP. LTD. AND ANR. v. UNION OF INDIA AND ORS.

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A Paradoxical consequence : There is another reason why we are inclined to take the view that Section ?(iv) deals with a situation of emergency with respect to 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.

Width of power :

D The learned counsel for the state of Maharashtra contended that the power of the Food (Health) Authority discernible in clause (iv) of Section 7 of the Act is an independent power and much wider than the power of the Central Government under Section 23 of the Act. He contended that while the power of the Central Government discernible from Section E 23(1A)(f) is restricted only to prohibiting the manufacture or sale of articles of food or ingredients of food, the power of the state Food (Health) Authority is much wider and could extend even to articles which may not amount to food or ingredients of food, or even if they are not injurious to health, as long as the test of "in the interest of public health" is satisfied. F In our view, this is an argument of desperation. We cannot conceive of such wide ranging vested in a local authority without there being sufficient guidelines as to the manner of deciding the policy and implementing it and elucidated in the statute itself. We may hasten to point out that even the power of Central Government for making the rules under G Section 23 is subject to the condition of consultation \vith the Central Committee for food standards constituted under Section 23 and placing of the rules Parliament. If the power of the Food (Health) Authority is such as contended by the learned counsel for the state of Mahrashtra, then its power would range sky high without any limitation whatsoever. The H authority could ban any article, irrespective of whether it is used as food

GODAWAT PAN MASALA PRODUCTS J.P. LTD. v. U.0.1. [SRIKRISHNA, J.] 285 or otherwise, and irrespective of whether it is injurious to health or otherwise. To take an extreme illustration, if a state Food (Health) Authority in some local area were taken it into its head that consumption of tea, coffee our milk is not 'in the interest of public health', it can issue an order of absolute prohibition irrespective of whether it is injurious to health or not. We do not think that the scheme of the Act warrants such an interpretation.

A reference of this Court's judgment in Dineshchandra Jamnadas Gandhi v. State ofGujarat3 3 vide paras 16 and 17 makes it clear that the object and the purpose of the Prevention of Food Adulteration Act, 1954 is to eliminate .the danger to human life from the sale of unwholesome articles of food. This Court held that the legislation of 'Adulteration of Food Stuffs and other Goods' (entry 18 List III of the Seventh Schedule) is enacted to curb the widespread evil of food adulteration and is a legislative measure for social defence. This court indicated the object of the Prevention ofFood Adulteration Act, 1954, its constitutional basis and its purpose in the following observations :

"16. The object and the purpose of the Act are to eliminate the danger to human life from the sale of unwholesome articles of food. The legislation is on the topic 'Adulteration of Food Stuffs and other Goods'( entry 18 List III Seventh Scheme). It is enacted to curb the widespread evil of food adulteration and is a legislative measure for social defence. It is intended to suppress a social and economic mischief - an evil which attempts to poison, for monetary gains, the very sources of sustenance of life and the well-being of the community. The evil of adulteration of food and its effects on the health of the community are assuming alarming proportions. The offence of adulteration is a socio-economic offence. In Municipal Corporation of Delhi v. Kacheroo Mal3 4 Sarkaria, J. said :

The Act has been enacted to curb and remedy the widespread evil of food adulteration, and to ensure the sale of wholesome food to the people. It is well-settled that

33Copy pinpoint33. ( 1989] 1 sec 420 at p. 426

34Copy pinpoint34. (1976] I SCC 412 at p. 415, para 5 H

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A wherever possible, without unreasonable stretching or strain- ing, the language of such a statute should be construed in a manner which would suppress the mischief, advance the remedy, promote its object, prevent its subtle evasion and foil its artful circumvention. (emphasis supplied) B

18. The offences under the 'Act' are really acts prohibited by the police powers of the State in the interests of public health and well-being. The prohibition is backed by the sanction of a penalty. c The offences are strict statutory offences. Intention or mental state is irrelevant. Jn Goodfellow v. Johnson 35 referring to the nature of offences under the Food and Drugs Act, 1955, it was said :

As is well known, Section 2 of the Food and Drugs D Act, 1955, constitutes an absolute offence. If a person sells to the prejudice of the purchaser any food, and that includes drink, which is not of the nature or not of the substance or not of the quality demanded by the purchaser he shall be guilty of an offence. The forbidden act is the selling to the prejudice of the purchaser." E These observations make it clear that the purpose of the Act, as its title suggests, is to prevent adulteration of food. Any attempt to travel beyond these parameters must necessary be looked at askance by the court.

F There is one more facet of the impugned notification which needs consideration. Neither Section 7(iv) of the Act, nor any other provision of the Act or the Rules indicates the manner in which an order of prohibition is to be notified by the Food (Health) Authority. The manner of bringing into force the Rules made by a delegate of legislative authority would be G indicated in the Act itself. There is no indication in the Act as to how the order made by the Food (Health) Authority would be brought into force. This is a pointer to the fact that the orders made by the Food (Health) Authority are only transitory and intended to deal with emergent local situations.

35Copy pinpoint35. (1965) I All ER 941, 944

GODAWATPAN MASALA PRODUCTS J.P. LTD. v. U.0.1. [SRJKRISHNA, J.] 287

Natural Justice : A Learned counsel for the State of Maharashtra cited Union ofIndia and Anr. v. Cynamide India Ltd. and Anr. 36 (vide para 7) where this Court observed thus :

"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 ir.to an illusion. Administrative, quasi-judicial decisions tend to merge in legislative activity and, conversely, legislative activity tends to fade into and present an appearance of an administrative or quasi- judicial 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 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 E 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 ofrequirements having a general application to all members ofa 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 three may be legislation of particular application only. That is not ruled out. Again, adjudication determines past and present facts and declares

36Copy pinpoint36. (I 987] 2 sec no H

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A rights and liabilities while legislation indicates the future course of action. Adjudication is detenninative 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 fonn, the manner of its promulgation are some factors which may help in drawing the line between legislative and non-legislative acts."

We are, however, unable to accept the contention of the learned counsel for the State of Maharashtra that, because the notification is generally intended, it is necessarily a legislative act and therefore there was no question of complying with principles of natural justice. If that were so, then every executive act could masquerade as a legislative act and escape the procedural mechanism of fair play and nature justice.

In State of Tamil Nadu v. K Sabanayagam and Anr. 31 (vide para 17), D this Court after referring to the aforesaid observations of Chinnappa Reddy, J. in Cynamide (supra), observed that even when exercising a legislative function, the delegate may in a given case be required to consider the view point which may be likely to be affected by the exercise of power. This Court pointed out that conditional legislation can be broadly classified into E three categories: (I) when the legislative 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 38 ) (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 F 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; (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 G otherwise might have already got statutory benefits under the Act and who are likely to lose the existing benefit because of exercise of such a power by the delegate. This Court emphasis that in the third type of cases the satisfaction of the delegate must necessarily be based on objective

37Copy pinpoint37. [1998) 1 sec 318

38Copy pinpoint38. [1980J 2 sec 295

GODA WAT PAN MASALA PRODUCTS LP.LTD. v. U.0.1. [SRJKRISHNA, J.] 289

considerations and, irrespective of whether 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

~~- B In our view, even if the impugned notification falls into the last of the above category of cases, whatever the material the Food (Health) Authority had, before taking a decision on 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 C 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.

Conclusion : D As a result of the discussions, we are of the view that:

I. Section 7(iv) of the Act is not an independent source of power for the state authority;

2. The source of power of the state Food (Health) Authority .is located only in the valid rules made in exercise of the power under Section 24 of the Act by the State Government, to the extent permitted thereunder;

3. The power of the Food (Health) Authority under the rules is only of transitory nature and intended to deal with local emergencies and can last only for short period while such emergency lasts;

4. The power of banning an article of food or an article used as ingredient of food, on the ground that it is injurious to health, belongs appropriately to the Central Government to be exercised in accordance with the rules made under Section 23 of the Act, particularly, sub-section (IA)(t).

.. ' 5. The st~te Food (Health) Authority has no power to prohibit the manufacture for sale, storage, sale or distribution of any article, H

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A 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;

B 6. The provisions of the Cigarettes and Ot:1er Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 are directly in conflict with the provisions of Section 7(iv) of the Prevention of Food Adulteration Act, 1954. The former Act is c a special Act intended to deal with tobacco and tobacco pro<lucts particuh;ily, while the latter enactment is a general enactment. Thus, the Act 34 of2003 being a special Act, and oflater origin, overrides the provisions of Section 7(iv) of the Prevention of Food Adulteration Act, 1954 with regard to the power to D prohibit the sale or manufacture of tobacco products which are li:;ted in the Schedule to the Act 34 of 2003;

7. The impugned notifications are ultra vires the Act and, hence, bad in law;

E 8. The impugned notifications are unconstitutional and void as abridging the fundamental rights of appellants guaranteed under Articles 14 and 19 of the Constitution.

In the result, we allow the appeals and the writ petition and set aside F the impugned judgments of the division benches of the Bombay High Court and Andhra Pradesh High Court and quash the notifications impugned as bad in law, void, illegal and unenforceable against the appellants/petitioners.

No order as to costs.

K.K.T. Appeals/Petition allowed.