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Judgment
Rule. To be heard with Writ Petition No. 1631 of 2012 and other connected matters. Heard the learned counsel on the question of interim relief.
The petitioner herein claims to be engaged in the business of manufacture, supply and distribution of pan masala containing tobacco known as ''gutkha'' and also pan masala not containing tobacco (pan masala) for the last several years. The petitioner claims to have started its respective business after obtaining all relevant permissions under the various Acts including the Prevention of Food Adulteration Act and two other Acts, but there is no assertion about the petitioner having obtained requisite licenses under the Food Safety and Standards Act, 2006 (hereinafter referred to as the FSS Act). The petitioner has also contended that the main factory for manufacturing gutkha and pan masala is situated in Gujarat, but they sell, supply and distribute their goods in other States including Karnataka through various distributors. According to the petitioner, in view of the Government of Maharashtra Notification dated July 19,2012, which is impugned in the present petition, they have stopped supplying, distributing and selling their goods in Maharashtra, but in view of the geographical limitations, the petitioner has to continue to transport its goods from Gujarat to Karnataka through Maharashtra for supply, distribution and sale of gutkha and pan masala in Karnataka. The petitioner states that for the first time the inter-state transfer of their goods from the State of Gujarat to Karnataka through Maharashtra came to be questioned on 10 September 2012 when the officers of the respondent State Government seized the petitioner''s goods which were being transported from Gujarat to Karnataka through Maharashtra. The petitioner has challenged the said seizure orders, apart from challenging the Notification dated 19 July 2012.
Various petitions challenging the above notification dated 19 July 2012 have been admitted by this Court being Writ Petition No. 1631 of 2012, Writ Petition Lodging No. 2266 of 2012 and other connected matters. However, interim relief has been refused in all the Writ Petitions.
Dr. Milind Sathe, learned counsel for the petitioner has submitted that since the petitioner has not manufactured Gutkha in the State of Maharashtra and the petitioner is not supplying, distributing and selling gutkha in Maharashtra, the petitioner has not committed any breach of the Government of Maharashtra Notification dated 19 July, 2012. It is submitted that there was no ban on manufacture of gutkha in the State of Gujarat till 10 September 2012 and it was only with effect from 11 September 2012 that the ban on manufacture of gutkha became effective in the State of Gujarat by virtue of Notification of the Government of Gujarat dated 28 August 2012. However, the goods in question were manufactured prior to 11 September 2012. In fact the petitioner had given intimation to the Government of Gujarat and Government of Karnataka in Form 402 and other forms under the declaration under the VAT Act on 7 September 2012 and the goods had actually left Gujarat border on 7 September 2012. Copies of the Invoices and lorry receipts are also produced in support of the petitioner''s case that the goods had left Gujarat on 7 September 2012. The goods were, however, seized in transit from Gujarat to Hubli, Karnataka on 10 September 2012 near Pune.
Learned counsel for the petitioner, therefore, submits that the State of Maharashtra has no authority to intercept the goods in the course of inter-State trade.
On the other hand, Mr. Kambhata, learned Advocate General has opposed the grant of any interim relief and has made the following submissions:
(i) The petitioner does not have any licence to manufacture gutkha in Gujarat or anywhere else in India and that no such licence could be issued in favour of any party for manufacturing gutkha because Regulation 2.3.4 of Food Safety and Standards (Prohibition & Restrictions on Sales) Regulations, 2011 specifically prohibits manufacture of any food product which is manufactured with tobacco or nicotine as ingredients. It is submitted that apart from the petitioner not having any licence to manufacture tobacco, the petitioner also does not have any licence to transport gutkha. Reliance is placed on the definition of ''food business'' in Section 2(n) of the FSS Act, in support of the contention that "food business" include transportation. Relying on the provisions of Section 31(1) read with Regulation 2.1.2 of the Food Safety and Standards (Prohibition & Restrictions on Sales) Regulations, 2011 and the Appendix and Form "B" it is submitted that a licence is required to be obtained by a person for running food business including the activity of transporting food. It is submitted that this Court has already held, in the order dated 15 September 2012 in Writ Petition No. 1631 of 2012 that gutkha is included in the definition of "food" under the FSS Act and, therefore, no person can transport gutkha without obtaining a licence under the above statutory regulations.
(ii) It is further pointed out from paragraph 14 of the affidavit in reply that it has been found and observed that many of the manufacturers/sellers and traders of pan masala and gutkha make bills of consignment of other State and actually down load the said food product in Maharashtra in remote villages. Specific reference is made to the seizure of petitioners'' product "Vimal Gutkha" worth Rs. 22,55,000 from godown at Kuruli, Taluka Khed, District Pune, which were owned by one Nilesh Borate.
Dr. Sathe in rejoinder has submitted that the petitioner has not sold any gutkha product in the State of Maharashtra from 19 July 2012 and, therefore, there was no question of the petitioner having committed violation of the said statutory order and all the goods subsequently sent by the petitioner from Gujarat to Karnataka through Maharashtra were only for sale and distribution in the State of Karnataka and not for sale in the State of Maharashtra.
However, our attention is invited to the seizure memo dated 7 September 2012 indicating seizure of gutkha worth Rs. 22,55,000 from the godown of Mr. Nilesh Borate indicating that "Vimal gutkha" was manufactured by the petitioner and the date of packing was shown as "8/2012." It is, therefore, submitted by the learned Advocate General that even after 19 July 2012 the petitioner continued to sell and distribute its gutkha products in the State of Maharashtra in and after August 2012, in clear contravention of the Notification dated 19 July 2012. It is, therefore, submitted that the apprehension of the respondents is that manufacturers bring gutkha from other, States to down load and sell them in the State of Maharashtra in the guise of merely transporting them from Gujarat to Karnataka through Maharashtra.
Of course, the petitioner in their rejoinder affidavit dated 29 October, 2012 stated that the petitioner is unaware of any alleged goods having been seized from the above godown.
However, without going into the above factual controversy, in our view, the interim relief as prayed for deserves to be refused in view of the relevant statutory provisions:
(i) Regulation 2.3.4 of the Food Safety and Standards (Prohibition &. Restrictions on Sales) Regulations, 2011 made by the Government of India in exercise of the powers under the F.S.S. Act clearly prohibits use of tobacco and nicotine in any food product. The said Regulation reads as under:-
2.3.4 Product not to contain any substance which may be injurious to Health
Tobacco and nicotine shall not be used as ingredients in any food products.
In view of the above and in view of the fact that the F.S.S. Act and the Regulations thereunder are made by the Parliament and Government of India respectively, the said statutory provisions have all India operation and, therefore, even if the gutkha products were manufactured outside the State of Maharashtra, there is no defense for a party to contend that since the said gutkha was manufactured outside Maharashtra, it is not prevented from transporting the goods from Gujarat to Karnataka through Maharashtra.
This contention has recently been considered by us in our order dated 21 January 2003 in Writ Petition Lodging No. 2266 of 2012. The petitioner in that case was claiming to be engaged in business of exporting gutkha after manufacturing gutkha in Gujarat. It was contended that since the petitioner was not manufacturing gutkha within the State of Maharashtra, the Notification dated 19 July 2012 did not prohibit transportation of gutkha in the State of Maharashtra. It was also contended that there was no prohibition against export of gutkha through a port in the State of Maharashtra.
We have already negatived that contention and held that if the goods were manufactured in contravention of the provisions of the F.S.S: Act and the Rules made thereunder, there was no right to bring the said goods within the State of Maharashtra merely on the ground that the goods were not to be sold or distributed or stored in the State of Maharashtra.
Apart from the above finding, we prima facie find substance in the submissions of the learned Advocate General that the petitioner has not placed on record any licence under the F.S.S. Act and the licence under the Regulations framed thereunder to manufacture gutkha or transport gutkha. The permissions which the petitioner has referred to were under the Standards of Weights & Measures Act, 1976 and the Factories Act, but not under the F.S.S. Act.
It is, however, contended by the learned counsel for the petitioner that since the goods were not manufactured in the State of Maharashtra and the petitioner in merely transporting the goods through the State of Maharashtra the petitioner is not required to obtain any licence under the F.S.S. Act and the Rules framed thereunder.
On this issue, our attention has been invited to the definition is Section 3(n) of the Food Safety and Standards Act, 2006, which reads asunder:-
3(n) "food business" means any undertaking, whether for profit or not and whether public or private, carrying out any of the activities related to any stage of manufacture, processing, packaging, storage, transportation, distribution of food, import and includes food services, catering services, sale of food or food ingredients.
(emphasis supplied)
As already held by us in our order dated 15 September 2012 in Writ Petition No. 1631 of 2012 and other connected petitions that gutkha is included in the definition of food as defined under the F.S.S. Act.
The definition of "food business" clearly includes transportation as one of the activities which has to be regulated under the provisions of the F.S.S. Act and the Regulations made thereunder. Regulation 2.1.2 of the Food Safety and Standards (Licensing and Registration of Food Businesses) Regulations, 2011 read with Form B also clearly indicates that a "Transporter of food" is required to obtain a licence u/s 31(1) of the F.S.S. Act read with the aforesaid Regulation. Admittedly the petitioner does not even claim to have obtained any such licence.
For the reasons aforesaid, we find no merit in the petitioner''s prayer for interim relief for releasing the gutkha seized by the respondent authorities on 10 September, 2012. Hence the prayer for interim relief is rejected.