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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16375 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA : Sd/
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
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HINDUSTAN COCACOLA BEVERAGES PVT LTD....Petitioner(s)
Versus
DG PATEL FOOD SAFETY OFFICER
AMC DIST. & 2....Respondent(s)
=======================================================
Appearance:
MR KS NANAVATI, Sr. Advocate FOR NANAVATI ASSOCIATES,
ADVOCATE for the Petitioner(s) No. 1
MR MAULIN RAVAL for M/S RJ RAWAL ASSOC., ADVOCATE for
the Respondent(s) No. 1 2
MS SHIVYA A DESAI for the Respondent(s) No. 1 2
MR VENUGOPAL PATEL AGP for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 26/02/2018
ORAL JUDGMENT
under Articles 226 and 227 of the Constitution of
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C/SCA/16375/2012 JUDGMENT
Standards Act, 2006 and under the provision of the
the interim relief as prayed for.
follows:
2.1 The petitioner is a Company registered under
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stated that if the petitioner desires to get
as “FSSA”).
sample of Packaged Drinking Water “Kinley” to
FSSA and the Rule 2.4.1 [10(iii)] of the Food
Safety and Standards Rules, 2011 (hereinafter
referred to as “FSSR”). It is stated that the
Form VIII of FSSR along with demand draft of
12.07.2012, the petitioner again requested to
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requested, no heed was paid by the respondent
petitioner is a Food Business Operator and he
exercise of statutory right and/or to exhaust
petition is filed.
was submitted for analysis to Food Analyst as
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of the FSSA to Accredited Laboratory and the
Food Business Operator did not make any such
application or make any such requisition. It
against the report of the Food Analyst before
petition may not be entertained.
no right of the petitioner has been violated
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because of the action or inaction on the part
the challenge to get analysis of fourth part
to an Accredited Laboratory. It is therefore
of the Food Analyst.
respondent no.3.
4. Learned Senior Counsel, Shri Nanavati referred to
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the background of the facts and also communication
contrary to the statutory provision and the Rules
Learned Senior Counsel, Shri Nanavati referred to
the provision of the FSSA and also Rule 2.4.5 of
the FSSR, which referred to,
the food analysed”.
5. Similarly, he referred to Rule 2.4.6 of the FSSR,
which referred to,
“Appeal to the Designated Officer”.
(Laboratory and Sample Analysis) Regulations, 2011
and submitted that the procedure of sending sample
that admittedly sample taken is only 1000 ml. and,
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the FSSR and submitted that as stated in letter at
evident from the correspondences placed on record.
He submitted that letter was addressed by the Food
get the sample analyzed to a Referral Laboratory,
referred to the communication dated 12.07.2012 at
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that the present petition may be allowed.
statute that the petitioner can claim as a matter
Laboratory. Learned advocate, Shri Raval submitted
that Section 47(1)(c)(iii) provides,
business operator”.
8. Learned advocate, Shri Raval submitted that there
therefore, the grievance made is an afterthought.
He submitted that if the petitioner wanted to have
reasons period and, therefore, when the petitioner
did not press at that stage and now is raising an
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taken, he has not expressed his desire to send the
advocate, Shri Raval, therefore, submitted that it
is calculated recourse taken by the petitioner by
tested by Accredited Laboratory has conformed the
confirmed the report of the Analyst. He submitted
Raval also referred to the provision of the FSSA
FSSA, which provides,
“Purchaser may have food analysed”.
VIII, which referred to,
referral food laboratory”.
that the petitioner was given option to send it to
the Referral Laboratory. He, therefore, submitted
that assuming that the report which the petitioner
may have desired, was different from the report of
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advocate, Shri Raval, therefore, submitted that as
could be made by the petitioner. Learned advocate,
Shri Raval submitted that the Legislature has not
period and when the petitioner has failed, now he
cannot make any grievance, otherwise, it would be
testing.
within a reasonable period of 30 days, therefore,
pointedly referred to the provision of Section 47
of the FSSA and submitted that it is the statutory
right of the petitioner to get the sample analyzed
and tested, which has been denied. Learned Senior
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not justified, is thoroughly misconceived. Learned
provides,
wholesalers, distributors and sellers”.
the ground. He, therefore, submitted that none of
liability. He, therefore, submitted that as a food
business operator, when the requirement of Section
27(3) of the FSSA are not fulfilled that it is not
expiry and no liability could be attached to the
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petitioner, who is seller.
deserves consideration.
14. First limb of the submission is with regard to the
statutory right for sending the sample for testing
though may not have made strictly within a period
time and, therefore, there is no justification to
statutory right. Law is well settled that when the
statute provides a right in favour of a person to
would amount to denial of opportunity to prove his
case and, therefore, it would also be in violation
of rules of natural justice. Though the submission
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been made by the accredited laboratory, would have
ultimately it would have been referred to Referral
communication by the petitioner that he desires to
opportunity. Similarly, when they were advised to
stage, it could have been referred to the Referral
Laboratory. In any case, the provision of Section
27 of the FSSA, which referred to the Liability of
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misconceived as the petitioner is not only seller
keeper or the trader may have such right but the
However as stated above, when the statutory remedy
is provided conferring a right on the person like
learned Senior Counsel, Shri Nanavati that instead
further action would not be justified. At the same
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fourth sample after so much time, may not have any
feasibility and practically not possible. It is in
this circumstances, the prayer for granting sample
cannot be granted but at the same time, no action
could be taken.
relief, which was granted after the statement made
the report.
present petition stands allowed accordingly. Rule
is made absolute to the aforesaid extent.
Sd/
(RAJESH H.SHUKLA, J.)
Gautam
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