1 WP 4480/2006 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4480 OF 2006 M/s. M.B. Productions, Jalna, Modikhana, Jalna 431 203 through its Proprietor Bhagwandas Milkiram Kukadeja. ... Petitioner. Versus The State of Maharashtra & Others. ... Respondents. ----- Shri. A.S. Deshpande, Advocate for the petitioner. Shri. Umakant K Patil, Assistant Government Pleader, for respondents Nos.1 to 3. ------- CORAM: NARESH H PATIL & N.D. DESHPANDE, JJ. DATE: 6th JULY 2009 ORAL ORDER (Per Naresh H Patil, J.): 1) Heard. 2) The counsel appearing for the petitioner submits that around the year 1998 he was granted a licence to manufacture “Pan Masala”, “Mithi 2 WP 4480/2006 Supari”. The licence came to be renewed in the year 1999 and there was further renewal from 1-1-2000 to 31-12-2001. The petitioner received a notice dated 22nd March 1999 stating therein that he has been violating the licence conditions and is manufacturing some other products under different name brands, namely, “Pensa Mitha Malasa”, “Lakhan Mitha Masala”,”Lakhan Gutkha”, “Border Mitha Masala”, “Fauji Gutkha”, “Border Gutkha”, “Fauji Mitha Masala” etc. An explanation was sought from the petitioner. By a communication dated 10-6-1999 a further notice was issued to the petitioner that he has been violating the licence conditions and the products sold by him contain tobacco, Gutkha, which are not permissible items for the petitioner to be manufactured and sold under the licence. The petitioner replied to the said notices. In substance, the contention of the petitioner was that the petitioner's licence issued by the State authorities do refer to Pan Masala but his manufacturing activities are based under the 3 WP 4480/2006 Central enactments. The products manufactured by the petitioner were sent for analysis and under Form III under Rule 7(3) of the Prevention of Food Adulteration Rules 1955, a report of the Public Analyst (Exhibit J to the petition) was secured. The sample sent for analysis was a small pouch of sample saffron blended Fauji Gutkha having ingredients of betel nuts, catechu, tobacco, lime, saffron, permitted species and flavours contains added flavours and element of tobacco. The opinion of the Public Analyst was that - “the sample bearing L (H) A Code No.13 A Sr.No.3338 contains Magnesium carbonate 1.09%, hence contravenes rule 62 of the PFA Rules 1955”. 3) The petitioner made correspondence to the Assistant Commissioner, Food and Drugs Administration Jalna. The petitioner made serious allegations against the officers of the Department. Ultimately by an order dated 27-11-2001 the petitioner's licence was cancelled by the licensing authority. A 4 WP 4480/2006 statutory appeal was available, therefore, the petitioner preferred Appeal No.19 of 2001 before the Commissioner, Food & Drug Administration and Food (Health) Authority, Mumbai. The appeal came to be rejected by an order dated 18-1-2002 passed by the Commissioner Food and Drugs Administration. 4) In substance the contention advanced by the learned counsel Shri. Ajay Deshpande is that in view of the judgment of the Apex Court in the case of Godawat Pan Masala Products I.P. Ltd. v. Union of India , 2004 AIR SCW 4483, Gutkha could be a food item. Reliance was placed on paragraphs 53, 64, 65 and 66 of the said judgment. The counsel further placed reliance on an order dated 20th December 2005 passed by Division Bench of this Court in Writ Petition No.6708 of 2005 (Sainath Traders v. Commissioner of Food and Drug Administration). In the submission of the counsel, the petitioner did not violate the conditions of licence and in the light of the 5 WP 4480/2006 report the Public Analyst, the petitioner's licence could not have been cancelled as Gutkha could be used while preparing Pan Masala. 5) Affidavit-in-reply was filed on behalf of respondent No.3 by Mr. Ashok Shivkaran Hurgat, Supervisor (Food) & Licensing Authority, Jalna. In para 6 and 7 the deponent states that :-- “6. I say and submit that, it is not true to say that there is no distinction between Gutkha and Pan masala. In appendix ‘B’ of Prevention of Food Adulteration Rules, 1955 at item No.A-30 definition of “Pan masala” is laid down and as per definition “Pan masala may contain betel nut, lime, coconut, catechu, saffron, cardamom, dry fruits, Mulathi, sabarmusa and aromatic herbs and spices, sugar, glycerin, glucose, natural colours, menthol and non prohibited flavours. It shall be free from added coaltar coloring matter and any other ingredients injurious to health. However, Gutkha a proprietary food item as Rule 37, as 6 WP 4480/2006 no standard are laid down for Gutkha. Hence contention of the petitioner that both the articles are same and thee is no distinction between Pan masala and Gutkha is incorrect and wrong. 7. I say and submit that, it is not true to say that the petitioner was holding licence for manufacture of Gutkha. If the licence of the petitioner is perused, it is clearly revealed that, petitioner is licensed to manufacture (1) Pan Masala and (2) Mithi Supari only.Gutkha being different kind of article which comes under category of propitiatory food, hence cannot be considered as an item which can come under either Pan Masala or Mithi Supari.” 6) The learned Assistant Government Pleader Shri. Umakant Patil has referred to the definition of “adulterated” [S.2(i-a)] and “Food” [Section 2(v)] of the Prevention of Food Adulteration Act 1954. The AGP has further referred to the provisions of Rule 62 of the 7 WP 4480/2006 Prevention of Food Adulteration Rules 1955. Definition of 'Pan Masala” was also read over which is Article A.30 under the Rules. The learned AGP even referred to Appendix I under sub rules (3) and (4-A) of rule 5 of the Maharashtra Prevention of Food Adulteration Rules, 1962. 7) In substance, the contention of the learned AGP is that the petitioner was issued licence to manufacture Pan Masala and Mithi Supari only which would be a food item. The authorities after the evidence collected and the Public Analysts Report found that the petitioner was manufacturing and selling Gutkha under different brand names having element of tobacco. Hence the petitioner violated the conditions of the licence therefore the licence was cancelled. 8) The learned AGP, on instructions of the officer of the Department who is present in Court, submitted that the petitioner in Writ 8 WP 4480/2006 Petition No.6708/2005 was a licence holder of manufacturing of Gutkha. Therefore, the AGP submits that the order passed in Writ Petition No.6708/2005 may not be strictly applicable to the facts of this case. 9) We have considered the submissions advanced. Perused the judgments cited before us, relevant provisions of law and the order passed by the authorities. The petitioner was granted licence for manufacturing Pan Masala and Mithi Supari. The Public Analyst’s report found Magnesium carbonate 1.09% which contravenes rule 62 of the PFA Rules 1955. The petitioner was not granted licence to manufacture Gutkha or any products having element of Gutkha or tobacco. The authorities, therefore, found that the petitioner’s manufacturing activities and sale of Gutkha contravene the licence issued by the authorities and, therefore, the licence of the petitioner came to be cancelled. On facts of the case we do not find that the authorities which 9 WP 4480/2006 cancelled the licence and the appellate authority which rejected the contention of the petitioner, committed any error of law. Prima facie we are not convinced with the case put up by the petitioner before this Court. Considering the facts of the case and the stand put up by the respondents, we do not find that the petition requires to be considered by this Court in exercise of extra ordinary writ jurisdiction under Article 226 of the Constitution of India. 10) The writ petition is, accordingly, dismissed. (N.D. DESHPANDE, J.) (NARESH H PATIL, J.) rsl/ wp.4480.06