THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION No.17145 of 2002 ORDER: The petitioner is an association of the manufacturers of cashew nuts at Palasa of Srikakulam District. They seek a writ of mandamus declaring that the action of the respondents, in insisting that the cashew manufacturers must possesses a licence under the provisions of the Prevention of Foods Adulteration Act, 1954 (for short ‘the Act’) and the Prevention of Foods Adulteration Rules, 1955 (for short ‘the Rules’), and their action in prosecuting the members of the association on the ground that they did not possess such licence; is illegal, arbitrary and unconstitutional. A further declaration is sought to the effect that such licences are not necessary for carrying on the business of processing and sale of cashew nuts. In the affidavit filed in support of the writ petition, the petitioner described the process, through which cashew nuts are made edible. According to it, the cashew nut is a natural product and its members undertake the activity of dehydration of cashew nuts in small establishments and, packing of the final product, in tins or packets. It is stated that no mechanical process, much less, any transformation of the products is involved. The petitioner complains that the Food Inspector, Srikakulam, the first respondent herein, and other officials are visiting the various units in the locality and are initiating prosecution on the ground that the licences are not obtained. Instances of initiation of prosecution, imposition of fine etc., are mentioned. On behalf of the respondents, a detailed counter-affidavit is filed. It is stated that the product, cashew nut, answers the description of ‘food’ under Section 2(v) of the Act; and that Section 7 of the Act, read with Rule 50 of the Rules mandates that the manufacturer of cashew nuts must obtain licence to carry on the trade in it. According to the respondents, a detailed process is involved, before a raw cashew nut, derived from trees is made edible. Sri P.Veera Reddy, the learned counsel for the petitioner, submits that the basic object underlying the Act is to prevent adulteration of food-stuffs and to ensure that various items of food and food products conform to the prescribed standards of manufacture. He contends that the very purpose of establishing a Central Food Laboratory, prescription of detailed procedure for drawl of food samples, analysis thereof on scientific lines, suggests that the only such activities which involve in manufacture of food and food products by using an altogether different raw material is covered by the Act. The learned counsel submits that except that the cashew nut fruits are dried and kernels are removed through manual process, no mechanical process involved and the insistence on obtaining licence for such activity is totally outside the scope of the Act and the Rules. The learned Government Pleader for Medical and Health submits that undisputedly, cashew nuts fall within the definition of ‘food’ and Section 7 of the Act, read with Rule 50 makes it mandatory that the manufacturers of cashew nut must obtain licence. The members of the petitioner association undertake the activity of collecting the fruits from cashew nut trees and removal of a kernel, which is the actual nut from the fruit. This process, no doubt, involves a systematic activity of drying and breaking up of the fruits and removal of upper layer on the nuts. Cashew nut, answers the description of ‘food’ as defined under Section 2(v) of the Act, which reads as under: “Section 2(v): “Food’ means any article used as food or drink for human consumption other than drugs and water and includes- (a) any article which ordinarily enters into, or is used in the composition or preparation of, human food, (b) any flavouring matter or condiments, and (c) any other article which the Central Government may, having regard to its use, nature, substance or quality, declare, by notification in the Official Gazette, as food for the purpose of this Act.” Section 7 of the Act prohibits manufacture, sale etc., of certain articles of food. The prohibition is neither absolute nor universal. The section reads as under: “Section 7: Prohibitions of manufacture, sale, etc., of certain articles of food: No person shall himself or by any person on his behalf manufacturer for sale, or store, sell or distribute- (i) any adulterated food; (ii) any misbranded food; (iii) any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence; (iv) any article of food the sale of which is for the time being prohibited by the Food (Health) Authority ( in the interest of public health); (v) any article of food in contravention of any other provision of this Act or of any rule made thereunder; or (vi) any adulterant.” By itself, this Section does not impose any obligation of obtaining of licence, for manufacture of any particular item. It makes a reference to the licences which are ‘prescribed’ obviously under the Rules. Part ‘IX’ of the Rules comprising of Rules 49 to 51-A deals with the procedure for issuance of licences and conditions thereof. Rule 49 pertains to the sale of various food items and the manner in which the sale can be affected. It comprises of 30 sub- rules. The manner in which the specification of the food item must be indicated etc., is mentioned in it. Rule 50, is the one, which provides for grant of licence. Sub-rule (1) of Rule 50 of the Rules reads as under: “Rule 50(1)-Conditions for Licence: No person shall manufacture, sell, stock, distribute or exhibit for sale any article of food, including prepared food or remedy to serve food [or irradiated food] except under a licence.” Rest of the sub-rule contains the procedure for obtaining licence. Read in isolation, this provision may give an impression that every article of food, unless exempted, can be manufactured, sold, stocked, distributed or exhibited for sale; only under a licence. However, if one looks at the other Rules, it becomes clear that licence is not necessary for manufacture etc., of every article of food. For instance, Part ‘VIII” of the Rules comprising of Rules 44 to 48-E regulates, and in some cases prohibits sale of food items. The said provisions make it clear that as long as the prescribed specifications of the items are maintained or observed, there is no prohibition of their sale, without licence. For instance, Rule 44 (a to l) of the Rules reads as under: “Rule 44 (a to l): Sale of certain admixtures prohibited:- Notwithstanding the provisions of Rule 43, no person shall either by himself or by any servant or agent, sell— (a) Cream which has not been [prepared exclusively from] milk or which contains less than [25] per cent of milk fat, (b) Milk which contains any added water, (c) Ghee which contains any added matter not exclusively derived from milk fat, (d) Skimmed milk (fat abstracted) as milk, (e) A mixture of two or more edible oils as an edible oil, (f) Vanaspati to which ghee or any other substance has been added. (g) *** (h) Turmeric containing any foreign substance, (i) Mixture of coffee and any other substance except chicory, (j) Dahi or curd not prepared from boiled, pasteurized or sterilized milk, (k) *** (l) Milk or a mil product specified in Appendix B containing a substance not found in milk, except as provided in the rules………” It becomes clear that the Rule prohibits sale of milk only if it contains added water. Similarly, the sale of turmeric is permitted without licence as long as it does not contain any foreign substance. Specifications in respect of various items mentioned in the Rule are self-explanatory. Sale of these items is permissible without any licence as long as the conditions mentioned therein are adhered to. The conditions that govern sale of flavoured tea are stipulated in Rule 44-G of the Rules, which is extracted below. “Rule 44-G: Conditions for sale of flavoured tea:- (i) Flavoured tea shall be sold or offered for sale only by those manufacturers who are registered with Tea Board. Registration No. shall be mentioned on the label. (ii) It shall be sold only in packed conditions with label declaration as provided in clause ‘y’y’ of Rule 42.” Here again, there is no requirement for obtaining a licence for this product under the Rules. However, the manufacturer of tea must be registered with the Tea Board. For various items like til oil, ghee, artificial sweeteners, basic requirements are mentioned in the relevant Rules but no condition is imposed to the effect that licence must be obtained for their manufacture. Wherever manufacturing process is involved, detailed specifications are mentioned. The use of anti oxidants is regulated under Rule 59. The category of anti-oxidants and the quantities that can be mixed in food items are mentioned. From this, it is suggested that if the manufacture of a food item involves addition of anti-oxidants, licence under the Rules may be necessary, to ensure proper compliance with the standards. It is also relevant to note that it is not as if that food items can be dealt with by individuals, without any restrictions. Various items are governed by different legal regimes. For example, the Control Orders issued under the Essential Commodities Act, the Drugs and Cosmetics Act and other similar enactments govern the process of manufacture, sale etc., of the relevant items. The object underlying the Act and the Rules is to ensure that the required standards are maintained. The statement of object of the Act itself makes this aspect clear; and it reads as under: “STATEMENT OF OBJECTS AND REASONS Laws existed in a number of States in India for the prevention of adulteration of food-stuffs, but they lacked uniformity having been passed at different times without mutual consultation between States. The need for Central legislation for the whole country in this matter has been felt since 1937 when a Committee appointed by the Central Advisory Board of Health recommended this step. ‘Adulteration of Food-stuffs and other goods’ is now included in the Concurrent List (III) in the Constitution of India. It has, therefore, becomes possible for the Central Government to enact an all India legislation on this subject. The Bill replaces all local food adulteration laws where they exist and also applies to those States where there are no local laws on the subject. Among others, it provides for- (i) a Central Food Laboratory to which food samples can be referred to for final opinion in disputed cases (clause 4) (ii) a Central Committee for Food Standards consisting of representatives of Central and State Governments to advise on matters arising from the administration of the Act (clause 3), and (iii) the vesting in the Central Government of the rule-making power regarding standards of quality for the articles of food and certain other matters.” It is not necessary that manufacture of every food item needs a licence. Wheat and paddy are grown in fields and with slight process of converting wheat into flour or paddy into rice, they are edible, may be after cooking. Large variety of fruits are eaten directly or with slight treatment. Some of them are capable of being preserved as dry fruits. Even for them, no licence is necessary under any Control Order or other enactments. Cashew nut is one of the recognized items of dry fruits. No chemical or mechanical process is involved in making it edible. The Fruit Products Order, 1955 deals with only fruit products and not the fruits as such. In other words, fruits as such are not subjected to any regime of licence. Many trees grow on their own accord and bear edible fruits. If it is to be insisted that a food product can emerge only on licence, then a question may arise as to the enforcement in such cases. At the reductio ad absurdum, the fruit bearing tree may become punishable. The very fact that the products covered by Fruit Products Order, Vegetable Oil Products (Regulation) Order, 1998, Meat Food Products Order, 1973 are exempted from the licence under Rule 50 of the Rules discloses that the other products for which licence is necessary must involve similar process. The exemption of milk under second proviso to sub-rule (1) of Rule 50 of the Rules is another indication that to be covered by a licence. A product must undergo a process, involving various steps and this is clear from the third proviso, to that Rule. The only regulation of cashew nut under the Rules appears to be the one provided for under Rule 48-B which insists that the ratio of insect eaten product should not exceed 5 per cent by count. The provision reads as under: “Rule 48-B: Sale of insect-damaged dry fruits and nuts:- The dry fruits and nuts like raisins, currants, fig, cashewnut, apricot, almonds may contain not more than 5 per cent of inspect- damaged fruits and nuts, by counts.” Barring this, there is no other regulation vis-à-vis cashew nuts, under the Act or the Rules. The result of the above discussion is that manufacture, storage and sale of cashew nut, does not need licence under the Act or the Rules made thereunder. For the foregoing reasons, the writ petition is allowed as prayed for. There shall be no order as to costs. _____________________ L.NARASIMHA REDDY,J Dt:30.12.2008 Note: L.R. copy to be marked. kdl