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Bombay High Court has given a big relief to all Maggi Noodles Lovers. In its judgment delivered on 13-08-2015, The High Court has set aside the orders passed by FASSI and Food Commissioners Pune holding them arbitrary, unreasonable and violative of Article 14 and 19 of the Constitution of India.

The Court has directed Nestle India to carry out test of its samples of in three Food Laboratories accredited and recognized by NABL and if the results show lead within permissible limit then it can start manufacturing/selling products.

Case Details:
Writ Petition (L) No. 1688/2015
M/s Nestle India Ltd vs. The Food Safety and Standards Authority of India (FSSAI) and Others
Date of Order : 13-08-2015 Coram: Justice V. M. Kanade and B. P. Colabawalla

Backdrop: It is well known that FSSAI on the charges of excessive lead content, had put a nationwide ban and issued directions for stopping manufacture, sale and distribution of nine types of variants of noodles including the popular “Maggi Noodles” manufactured by the petitioners company namely Netle India Ltd. which is a subsidiary of Nestle S.A of Switzerland and is carrying on its business in India for more than 30 years. The Food Authority and Commissioner of Pune claimed that in public interest and to ensure food safety, the impugned orders were passed after the Food Laboratory Reports indicated the presence of lead in excess of the permissible limits and MSG being found in the product against the declaration of the Petitioner that there was “No added MSG” in the product. Later the Bombay High Court had granted an interim stay on the operation of these orders and allowed Nestle to export Noodles.

Grounds of Appeal: Nestle India has challenged the orders on the following five grounds:
(1) That orders were passed in complete violation of principles of natural justice since no show cause notice was issued to the Petitioner and particulars forming basis of such orders were not provided. And thus order was completely arbitrary, capricious and it was passed in undue haste.
(2) Reports of Food Laboratories relied upon were either not accredited by NBAL or notified under section 43 of the Food Safety and Standards Act, 2006 (the Act) and if accredited, they were not accreditation for the purpose of testing lead in the product.
(3) Product had to be tested according to the intended use and this was not done and, therefore, no reliance could be placed on the said reports.
(4) Tests conducted in petitioner’s own accredited laboratory showed that the lead in the product was well within the permissible limits.
(5) Petitioner had no other option available.

Contentions of the Respondent Authorities:
(1) The Petitioner had an alternative remedy of filing an appeal under section 46(4) of the Act.
(2) The show cause notice had been issued to the Petitioner asking why product approval should not be cancelled but instead petitioner has directly approached High Court
(3) The objection to the analysis by non-accredited /non-notified Food Laboratories was an afterthought. Results of the Laboratory from Pune were suppressed by the Petitioner
(4) the Petitioner was destroying the evidence by burning manufactured goods in order to avoid further prosecution.
(5) Food Authority had a discretion in prescribing the standards for proprietary food and that they were not bound even by the Regulations which were framed in respect of additives and contaminants which were found in proprietary foods.
(6) In the product approval application it was represented by the Petitioner that the content of lead would be less than 1 ppm. Therefore despite the benchmark of 2.5 ppm, the Food Authority could still ban the product since the lead contained in the Petitioner's product was above the representation made.
(7) The Food Authority had to act in public interest and even if lead was found in one sample, exceeding the permissible limit, the order of prohibition could be passed in public interest.
(8) The orders have been passed under the various provisions of the Act.

Issues Framed and Findings:

Issues	Findings
Whether the Writ Petition filed by the Petitioner – Company under Article 226 of the Constitution of India is maintainable, particularly when the impugned orders, according to the Respondents, are show cause notices and that the Petitioner has an alternative remedy of filing an appeal under section 46(4) of the Act?	affirmative
Whether there was suppression of fact on the part of the Petitioner and whether the Petitioner had made an attempt to destroy the evidence disentitling the petitioner from claiming any relief from this Court?	Negative
Whether Respondent No.2 could impose a ban on the ground that the lead found in the product of the Petitioner was beyond what the Petitioner had represented in its application for product approval, though it was below the maximum permissible limit laid down under the Regulations?	Negative
Whether the Food Authority had an unfettered discretion to decide what are the standards which have to be maintained by the manufacturers of proprietary food and whether in respect of the proprietary food, the Food Authority was not bound by the permissible limits of additives and contaminants mentioned in the Regulations and the Schedules appended thereto?	Negative
Whether in view of the provisions of section 22, there was a complete ban on the manufacture of sale and products mentioned in the said section?	Does not arise
Whether there is violation of principles of natural justice on the part of Respondent Nos. 1 to 4 on account of the impugned orders being passed without issuance of show cause notice and without giving the Petitioner an opportunity to explain the discrepancy pointed out by the Food Authority in respect of the product of the Petitioner?	Affirmative
What is the source of power under which the impugned orders were passed and whether such orders could have been passed under sections 10(5), 16(1), 16(5), 18, 22, 26, 28 and 29 of the Act?	Either section 30 or section 34 of FSS Act, 2006 but in any case such orders could not have been passed under sections 10(5), 16(1), 16(5), 18, 22, 26, 28 and 29 of the Act
Whether the analysis of the product manufactured by the Petitioner could have been made in the Laboratories in which the said product was tested by the Food Authority and whether these Laboratories are accredited Laboratories by the NABL and whether the reports submitted by these Laboratories can be relied upon.	Negative
Whether reliance can be placed on the reports obtained by the Petitioner from its Laboratory and other accredited Laboratories?	Negative
Whether it was established by the Food Authority that the lead beyond the permissible limit was found in the product of the Petitioner and the product of the Petitioner was misbranded on account of a declaration made by the Petitioner that the product contained “no added MSG”?	Negative
Whether Respondent Nos. 2 to 4 were not justified in imposing the ban on all the 9 Variants of the Petitioner, though tests were conducted only in respect of 3 Variants and whether such ban orders are arbitrary, unreasonable and violative of Article 14 and 19 of the Constitution of India?	affirmative

Final Order:
1. Petition Allowed and the orders of FSSAI and Commissioner of Food Safety, Maharashtra are set aside
2. Issued directions for testing of food samples preserved by Nestle India Ltd pursuant to the directions given by FSSAI and Commissioner of Food Safety, Maharashtra.
3. Nestle India shall send the 5 samples of each batch which are in their possession to three Food Laboratories accredited and recognized by NABL. If the results show that lead in these samples is within the permissible limit then the Petitioner would be permitted to start its manufacturing process.
4. Even newly manufactured products of all the other Variants be tested in these three laboratories and if level of lead in these newly manufactured products is also within the permissible limit then the Petitioner may be permitted to sell its products.
5. The contention of the Respondents that the 4th sample which is in their possession should also be tested cannot be accepted for the reason that procedure of sampling was not under taken as per the provisions.

Concluding Excerpts from the Judgment:
Although we are setting aside the impugned orders, in public interest and in order to give an opportunity to the Petitioner to satisfy the Food Authority, we have directed that five samples from each batch cases out of 750 may be tested in three laboratories mentioned hereinabove and if the lead is found within permissible limits then the Petitioner would be permitted to manufacture all the Variants of the Noodles for which product approval has been granted by the Food Authority. These in turn would be tested again in the said three Laboratories and if the lead is found within permissible limits then the Petitioner would be permitted to sell its product. The three laboratories shall follow the procedure laid down under section 47 of the Act and Rules and Regulations framed thereunder.

Since the Petitioner – Company has already made a statement that it will delete the declaration made by it viz “No added MSG” on its product, no prejudice would be caused to the public at large and the allegation that product is misbranded also will not survive.

We clarify that in the judgment we have mentioned that the samples of 9 Variants of Maggi Noodles should be tested, we make it clear that the Variants which are available with the Petitioner may be tested. Those Variants which are not available with the Petitioner, they may be manufactured after positive report is given in respect of the Variants which are available. So far as “Maggi Oats Masala Noddles with Tastemaker” is concerned, the Petitioner will have to undergo the procedure of obtaining product approval and the Respondents may consider the application of the Petitioner again, after such an application is made within a period of 8 weeks from the date of making of such application

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Maggi Noodles-Bombay High Courts Quashes FSSAI Ban Orders, Directs Fresh Tests at NABL Accredited Labs before Fresh Manufature and Sale | 13-08-2015 |