Parle Biscuits Private Limited vs Srp 1/28 on 19 December, 2012

Bombay High Court Bombay High Court Parle Biscuits Private Limited vs Srp 1/28 on 19 December, 2012 Bench: S.J. Vazifdar, R.Y. Ganoo ASWPL28980.12 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION (ST) NO. 28980 OF 2012 Parle Biscuits Private Limited ] a private limited company, incorporated ] under the Companies Act, 1956, having it ] office at North Level Crossing, ] Mumbai - 400057. ] ... Petitioner Vs 1. Food Safety & Standard Authority of ] India, Ministry of Health & Family ] Welfare, Hallmark Business Plaza, ] Opp. Gurunanak Hospital, Bandra (E), ] Mumbai - 400 051. ] 2. Commissioner of Food Safety, ] Food & Drug Administration, FDA ] Bhavan, 2nd Floor, Survey No.341, ] Bandra-Kurla Complex, Bandra (E). ] Mumbai - 400 051. ] 3. Assistant Commissioner (Food) ] Food & Drug Administration, ] Saptagiri, 2nd Floor, Shrinagar Workshop ] Road, Nanded 431602, Maharashtra ] Presently Mr. K.R. Jaipurkar ] 4. Assistant Commissioner (Food) ] Food & Drug Administration, ] Nath Market, 2nd Floor, Aurangapura, ] Aurangabad - 431 001 ] Presently Mr. C.D. Salunkhe ] SRP 1/28 ASWPL28980.12 5. The Food & Drug Administration, ] Food & Drug Administration, FDA ] Bhavan, 2nd Floor, Survey No.341, ] Bandra-Kurla Complex, Bandra (E). ] Mumbai - 400 051. ] 6. The Union of India. ] ... Respondents Mr. Virag Tulzapurkar, senior counsel with Mr. Firoz Palkhiwala and Mr. R.H. Gajria, i/b M/s. Gajria & Co. for the Petitioner. Mr. Parag Vyas with Mr. M.S. Bhardwaj for the Respondent Nos.1 and 6 - Union of India. Mr. Sandeep K. Shinde, GP, with Mr. Jaydeep Deo, AGP, for the Respondent Nos.2 to 5 - State. CORAM : S.J. VAZIFDAR, & R.Y. GANOO, JJ. WEDNESDAY, 19TH DECEMBER, 2012 JUDGMENT :- [Per S.J. Vazifdar, J.] 1. Respondent Nos.2, 3 and 4 are the Commissioner of Food Safety, Assistant Commissioner (Food) Nanded, Maharashtra, Assistant Commissioner (Food), Aurangabad of the Food and Drug Administration. Respondent No.5 is the Food and Drug Administration. Respondent No.6 is the Union of India. SRP 2/28 ASWPL28980.12 2. By the impugned action, the respondents have sealed and seized the petitioner's food products and the raw material. The petitioner seeks a writ of certiorari to set aside several notices issued by the respondents. The petitioner also seeks an order directing the respondents to take any action against it with regard to the alleged
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Parle Biscuits Private Limited vs Srp 1/28 on 19 December, 2012

excess use of colour in any particular batches of its products only after following due process of law. The petitioner further seeks a writ of prohibition restraining the respondents from taking any action against it with regard to its products on the ground that they contain lactic acid and a writ of mandamus directing the respondents to withdraw all the actions and decisions on the basis that its products contain lactic acid. The petitioner did not press the challenge to section 38 of the Food Safety and Standards Act, 2006. 3. For the purpose of this petition, it is not necessary to refer to the details furnished by the petitioner in respect of their contention SRP 3/28 ASWPL28980.12 that their manufacturing process conforms to very high and stringent standards of quality and hygiene. The petitioner manufactures confectionery products, including sugar boiled confectionery which are sold under the trade name "Kaccha Mango Bite" and "Mazelo". The said products have been manufactured and sold by the petitioner since the year 2004 and 2008. This is the first time that action has been taken against the petitioner on the ground that its products contain lactic acid. To the knowledge of the respondents, several other manufacturers have also used lactic acid in similar products - sugar boiled confectionery and similar imported products also contain lactic acid. For some inexplicable reason action of this nature was taken only against the petitioner. The Food Safety and Standards Act, 2006 (hereinafter referred to as the "said Act") was enacted on 23.8.2006 and various provisions thereof came into force on various dates during the years 2007 to 2010. The Food Safety and Standards Rules, 2011 (hereinafter referred to as the "said Rules') and the Food Safety and Standards (Food Products Standards & Food Additives) Regulations, 2011 SRP 4/28 ASWPL28980.12 (hereinafter referred to as the "said Regulations") were also framed. 4. The petitioner received a notice dated 11th July, 2012 from the respondents stating that the Food Safety Officer had taken a sample of its products, which would be submitted for analysis under the provisions of the said Act, Rules, and Regulations. By another notice dated 18th July, 2012, the Food Safety Officer informed the petitioner that he had drawn samples of the said products from one of its agents. The petitioner was informed that under section 47 (1)(c)(iii) [wrongly typed as 4 (1)(c)(iii)] and the relevant rules, it had an opportunity to get the fourth part of the sample analyzed by the Food Analyst Incharge of N.A.B.L. Accredited / FSSA, notified laboratory by paying requisite fee. The petitioner states that as no analysis report was received, it had no reason to believe that the analysis would be adverse to it and, therefore, did not respond to the said letter. 5. On 3rd October, 2012, the petitioner received a letter dated 1st October, 2012, from respondent No.3 stating that a sample of the said products from the particular batch had been drawn for analysis. SRP 5/28 ASWPL28980.12 The letter stated that the same had been declared as unsafe and of sub- standard quality by the Director Referral Laboratory, Ghaziabad (U.P.), as the same contained more than the permissible amount of colour as well as acidulants 270 i.e. lactic acid. The petitioner was requested to recall the entire stock of the said products and to confirm the same under section 28 of the said Act. The documents annexed to the letter indicated that the Food Safety Officer had seized and/or sealed the quantities of the products at the petitioner's depot. All the documents were dated 1st October, 2012, which included certain forms, letters from the Food Safety Officer, seizure memo and the form of the order of seizure. The same are annexed as Exhibits C-1 to C-8 to the petition which have also been impugned in the petition. The action was, therefore, on two grounds viz. that the products contained lactic acid, which was impermissible and that the samples contained more than the permissible amount of colour. The main question which arises in this petition is whether the use of lactic acid is impermissible under the said Act, Rules and Regulations. SRP 6/28 ASWPL28980.12
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Parle Biscuits Private Limited vs Srp 1/28 on 19 December, 2012

6. The question of the products containing more than the permissible limit of colour cannot be decided by the writ Court. The question in that regard is limited to the manner in which the authorities ought to determine the same. The respondents have in fact fairly examined this aspect on the basis of the samples taken from the relevant batches. In other words, the question of the extent of colour was based on the samples taken from the various batches. At the time of the pronouncement of this judgment, Mr. Shinde stated that out of forty eight batches of the said products that were seized, thirty nine batches contained products with colour within the prescribed limit and only nine batches of the seized products contained colour exceeding the permissible limits. The petitioner disputed the correctness of the finding so far as the nine batches are concerned. In respect of the said nine batches, it is ordered that the respondents shall follow the procedure prescribed under the said Act, Rules and Regulations. 7. In view thereof, it is not necessary to consider the various provisions of the Act, Rules and Regulations pertaining to the manner in which the samples are to be taken/drawn and forwarded to the SRP 7/28 ASWPL28980.12 laboratories and to the manufacturer. Suffice it to note that the petitioner raised several very serious grievances regarding the manner in which the samples were taken / drawn and dealt with. Allegations were also raised regarding the manner in which the analysis reports were obtained. We however, do not intend dealing with the same in view of the aforesaid statement on behalf of the respondents regarding the manner in which the amount of colour was used. The petitioner's grievance is that the respondents wrongfully and illegally kept it in the dark about the analysis report and on 3rd October, 2012 and 4th October, 2012. The Food Safety Officers in various districts in the State of Maharashtra went on a search and seizure spree at its manufacturing centres and depots with an intention of sending the same for analysis. Moreover, even before sending the samples for analysis, the officers seized and sealed the products as well as the stock of lactic acid. The documents in respect of this action are annexed at Exhibits "D" to "J" of the petition, which are also challenged by the petitioner. 8. Respondent No.4 - Assistant Commissioner (Food), SRP 8/28 ASWPL28980.12 FDA, Aurangabad, by a letter dated 3rd October, 2012 raised similar allegations against the petitioner namely regarding the petitioner's products containing excess colour and lactic acid as an acidulant and stated that the same was not a permitted ingredient. Annexed to the letter was a certificate dated 13th September, 2012 from the Referral Food Laboratory stating that the products did not conform to the regulations on account of the above facts. The letter and the report, which are annexed as Exhibits K-1 and K-2, are also challenged in this petition. Similar notices were received from the Food Safety Officer from other locations, which are annexed as Exhibits "L" and "M". The same are challenged in the petition. Exhibit "O" is a list of the impugned notices, letters, memos, documents and laboratory analysis reports. 9. As we noted earlier, the main question in this petition is whether the use of the lactic acid in the petitioner's products viz. sugar boiled confectionery is permitted under the said Act, Rules and Regulations. The petitioner does not deny the fact that its products contain lactic acid. The petitioner contends that lactic acid is a SRP 9/28 ASWPL28980.12 permissible ingredient in its sugar boiled confectionery products. It is not the respondents case that the quantity is in excess of the prescribed limit. The respondents contend that it is not a permissible ingredient. 10. In support of his submission that lactic acid is a permissible ingredient in sugar boiled confectionery, Mr. Tulzapurkar relied upon the following provisions of the Act, 2006 and the Regulations :The Act : "3. Definitions.Indian Kanoon - http://indiankanoon.org/doc/32853355/ 3

Parle Biscuits Private Limited vs Srp 1/28 on 19 December, 2012

(1) In this Act, unless the context otherwise requires, (a) ........ (k) "food additive" means any substance not normally consumed as a food by itself or used as a typical ingredient of the food, whether or not it has nutritive value, the intentional addition of which to food for a technological (including organoleptic) purpose in the manufacture, processing, preparation, treatment, packing, packaging, transport or holding of such food results, or may be reasonably expected to result (directly or indirectly), in it or its by-products becoming a component of or otherwise affecting the characteristics of such food but does not include "contaminants" or substances added to food for maintaining or improving nutritional qualifies;" The Regulations : SRP 10/28 ASWPL28980.12 " CHAPTER 2 FOOD PRODUCT STANDARDS. 2.7. SWEETS & CONFECTIONERY : 2.7.1 Sugar boiled confectionery: Sugar boiled confectionery whether sold as hard boiled sugar confectionery or pan goods confectionery or toffee or milk toffee or modified toffee or lacto-bon-bon or by any other name shall mean a processed composite food article made from sugar with or without doctoring agents such as cream of tartar by process of boiling whether panned or not. It may contain centre filling, or otherwise, which may be in the form of liquid, semi-solid or solids with or without coating of sugar or chocolate or both. It may also contain any of the following:--..." Items (i) to (xxv) which follow refer to various ingredients such as milk and milk products, malt extracts, edible starches, none of which are relevant to this petition. After setting out these items, the Regulation 2.7.1 continues as follows :"It shall also conform to the following standards, namely:-(i) Ash sulphated (on salt free basis) Not more than 2.5 per cent by weight. Provided that in case of sugar boiled confectionery where spices are used as centre filling, the ash sulphated shall not be more than 3 per cent by weight. (ii) Ash insoluble (in dilute Hydrochloric acid) Not more than 0.2 Percent by weight. SRP 11/28 ASWPL28980.12
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Parle Biscuits Private Limited vs Srp 1/28 on 19 December, 2012

Provided that in case of sugar boiled confectionery where spices are used as centre filling, the ash insoluble in dilute Hydrochloric acid shall not be more than 0.4 per cent. Where the sugar boiled confectionery is sold under the name of milk toffee and butter toffee, it shall conform to the following additional requirements as shown against each; (1) Milk toffee(i) Total protein (N x 6.25) shall not be less than 3 per cent by weight on dry basis. (ii) Fat content shall not be less than 4 per cent by weight on dry basis. (2) Butter toffee- fat content shall not be less than 4 per cent by weight on dry basis. Provided that it may contain food additives permitted in these regulations including appendix 'A'. Provided further that if artificial sweetener has been added as provided in Regulation 3.1.3, it shall be declared on the label as provided in regulation 3.1.3, it shall be declared on the label as provided in Regulation 2.4.5 (24, 25, 26, 28 & 29) of Food Safety and Standards (Packaging and Labeling) Regulations, 2011." Appendix-A referred to in the proviso opens as follows : " APPENDIX A LIST OF FOOD ADDITIVES List of Food Additives in Food Products: Food products may contain additives as specified in the SRP 12/28 ASWPL28980.12 regulations and in the following tables." Appendix A then sets out several tables. Suffice it to note at this stage that the title to Table 13 is "LIST OF FOOD ADDITIVES FOR USE IN ...... SUGAR BOILED CONFECTIONERY ....". Item G of Table 13 lists the "Neutralising agents/Acidulants". Lactic acid is not one of them. This is an aspect which Mr. Shinde, the learned GP appearing on behalf of the respondent Nos.2 to 5 relied upon for reasons we will deal with later. Mr. Tulzapurkar also relied upon the following provisions of Chapter 3 of the Regulations : "CHAPTER 3 SUBSTANCES ADDED TO FOOD 3.1: FOOD ADDITIVES For the purpose of this regulation "Good Manufacturing Practices (GMP) for use of food additives" means the food additives used under the following conditions namely:(i) the quantity of the additive added to food shall be limited to the lowest possible level necessary to accomplish its desired effect;
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Parle Biscuits Private Limited vs Srp 1/28 on 19 December, 2012

(ii) the quantity of the additive becomes a component of food as a result of its uses in the manufacturing, processing or packaging of a food and which is not intended to accomplish any physical or other technical effect in the food itself; is reduced to the extent reasonably possible; and the additive is SRP 13/28 ASWPL28980.12 prepared and handled in the same way as a food ingredient. 3.1.1: (1) Use of Food Additives in Food Products: The food produces may contain food additives as specified in these regulations and in Appendix A. .................. 3.1.12: SEQUESTERING AND BUFFERING AGENTS (ACIDS, BASES, AND SALTS) (i) "Sequestering agents" means substances which prevent adverse effect of metals catalysing the oxidative break-down of foods forming chelates; thus inhibiting decolourisation, off taste and rancidity; (ii) "Buffering agents" means materials used to counter acidic and alkaline changes during storage or processing steps, thus improving the flavour and increasing the stability of foods; 1) Restrictions on the use of sequestering and buffering agents. Unless otherwise provided in these regulations the sequestering and buffering agents specified in column (1) of the Table below, may be used in the groups of food specified in the corresponding entry in column (2) of the said Table, in concentration not exceeding the proportions specified in the corresponding entry in column (3) of the said Table :" Table Name of Group of food Maximum sequestering and level of use buffering agents (parts per million) (ppm) SRP 14/28 ASWPL28980.12 mg./kg. 1 2 3 ......... ....... ......
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Parle Biscuits Private Limited vs Srp 1/28 on 19 December, 2012

8. DL Lactic acid As acidulant in Limited by (food grade) miscellaneous food G.M.P. 9. L(+) Lactic Acid As acidulant in Limited by (food grade) miscellaneous food G.M.P. Pausing here, it must be noted that the column numbers should read column No.2 instead of column No.1, column No.3 instead of column No.2 and column No.4 instead of column No.3. The confusion arises on account of the column containing the serial numbers also being numbered as 1 and the Regulation not having accounted for that while referring to the column numbers. 11. The provisions of Regulation 3 relied upon by Mr. Tulzapurkar supports the petitioner's case that lactic acid is a permissible ingredient in sugar boiled confectionery. Firstly, it must be noted that Regulation 3.1.1(1) permits the use of food additives in food products as specified in the "regulations and in Appendix A". The use of the word "and" in this regulation does not indicate that the food additive must be stated to be permissible in food products both in SRP 15/28 ASWPL28980.12 the regulations and in Appendix A. It is sufficient if it is permitted in either the regulations or in Appendix A. Mr. Shinde was unable to indicate any reason to the contrary. Mr. Tulzapurkar's submission is fortified by the proviso to Regulation 2.7.1 emphasized by us for it expressly states that the products "may contain food additives permitted in these Regulations including Appendix A." This makes it clear that the permissible food additives are those permitted in the regulation as well as in Appendix A. The use of the word "including Appendix A" makes this clear. 12. Lactic acid is admittedly not referred to in Appendix A, Table 13. The question is whether it is a permissible ingredient under any of the regulations. Regulation 3.1.12 provides that unless otherwise provided in the regulations, the sequestering and buffering agents specified in column No.1 of the table set out therein may be used in the groups of foods in the corresponding entries in column No.2 of the table. Serial No.8 refers to lactic acid. The corresponding entry in column No.3 is as acidulants in miscellaneous foods. In view of what we have held earlier, had sugar boiled confectionery been SRP 16/28 ASWPL28980.12 specifically referred to in column 3, it would have been the end of the matter for, in that event, it would be clear that lactic acid is a permissible sequestering and buffering agent in sugar boiled confectionery. The dispute arises on account of the use of the words "miscellaneous foods" in column 3 relating to Sr. No.8 viz. lactic acid. In the context in which it is used, we are of the opinion, that it refers to any items of food. 13. The New Webster Dictionary of the English language defines the term "miscellaneous" to mean "consisting of different elements, types, or things intermingled; diversified; many sided". The term "miscellaneous" in the Regulation is used without any restriction. It does not even use the phrase "miscellaneous such as" followed by any specific items. Absent anything to the contrary, the word must be given its full import. If the Legislature considered lactic acid to be a harmful ingredient in sugar boiled confectionery, it would have taken care to exclude it. We cannot presume an error on the part of the Legislature. The note below the Appendix indicates that where the intention was to prohibit the use of a particular ingredient, SRP 17/28 ASWPL28980.12 including lactic acid, it was specifically so provided. The note expressly states that DL-lactic acid and L(F) tartaric acid shall not be added to any food meant for children below twelve months. It is reasonable to presume that if the intention was to prohibit the use of these ingredients for any other persons or in respect of any particular food, it would have been so provided clearly. 14. In the affidavit in reply, the Joint Commissioner (Food), Food & Drug Administration stated :"The petitioner is manufacturing the same by using Acidulent (270) i.e. Lactic Acid as one of the
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Parle Biscuits Private Limited vs Srp 1/28 on 19 December, 2012

ingredient which is not permitted in the sugar boiled confectionery. The Acidulent (270) is a Lactic Acid (L-, D- & DL-) as per the International Numbering system (INS) for food additives, so Lactic Acid is food additives used in food as acidulent, buffering agents, Neutralising agents." It is important to note that it is admitted that lactic acid is a food additive and is used in food as an acidulant, buffering agent, neutralising agent. It is not the respondents case that the petitioner used lactic acid otherwise. There is no dispute that the petitioner uses lactic acid as a buffering agent. SRP 18/28 ASWPL28980.12 15. Mr. Tulzapurkar sought to rely upon facts to establish that lactic acid is used world wide in such products. He also sought to rely upon the products of various other manufacturers in this country whose products use lactic acid. Exhibit-Q to the petition contains details in this respect. It is indeed curious that the respondents have not taken any action against any of the other manufacturers over the years. They have not even indicated that they now intend taking action against the other manufacturers. Even after taking action against the petitioner, similar action has not been taken against any of the other manufacturers. Similar products are freely imported in India. No action has been taken against such imported material either. The petitioner itself has been marketing its products for about eight years. This is the first time that such an objection has been taken. 16. We hasten to add that this, however, would not entitle the petitioner to any relief had we come to the conclusion that lactic acid is not a permissible ingredient. The petitioner cannot possibly claim a right to use a prohibited ingredient merely because action has not been taken against other manufacturers. SRP 19/28 ASWPL28980.12 17. Mr. Shinde submitted that the words "miscellaneous products" in the Table contained in Regulation 3.1.12 does not include products referred to in Table 13 of Appendix A. He submitted that sugar boiled confectionery is a standardized food item. According to him, standardized products such as sugar boiled confectionery does not fall within the scope of the table contained in Regulation 3.1.12. 18. Regulation 2.12.1 relied upon by Mr. Shinde reads as under : "2.12: Proprietary Food 2.12.1 1) Proprietary food means a food that has not been standardized under these regulations 2) In addition to the provisions including labelling requirements specified under these regulations, the proprietary foods shall also conform to the following requirements, namely:-(i) the name describing as clearly as possible, the nature or composition of food and/or category of the food under which it falls in these regulations shall be mentioned on the label (ii) the proprietary food product shall comply with all other regulatory provisions specified in these regulations and in Appendices A and B." SRP 20/28 ASWPL28980.12
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Parle Biscuits Private Limited vs Srp 1/28 on 19 December, 2012

The Regulation only indicates that there is a difference between proprietary food and standardized items of food. The Regulation does not, however, establish Mr. Shinde's submission. For instance, the proviso to Regulation 2.7.1 emphasized by us permits the use of food additives permitted in the Regulation. It does not limit this use to proprietary foods. Our attention has not been invited to any of the provisions of the Act, Rules or Regulations which support the contention that standardized food products do not fall within the Table contained in Regulation 3.1.12. 19. In fact, as rightly submitted by Mr. Tulzapurkar, the Table contained in Regulation 3.1.12 indicates the contrary as it expressly refers even to standardized food products. For instance, Sr. No.12 of the Table refers to processed cheese. Processed cheese is a standardized item and is expressly dealt with in Regulation 2.1.6(2) which opens with the words "2. Processed Cheese means the products obtained by grinding........" Sr. No.10 in the Table also refers to bread which is also a standardized item. Table 1 of Appendix SRP 21/28 ASWPL28980.12 A refers to a list of food additives for use in bread and biscuits. Milk preparations are referred to in Table 14 of Appendix A. The contention, therefore, that products / food items referred to in the various tables in Appendix A do not fall within the ambit of the Table contained in Regulation 3.1.12 is, therefore, not well founded. 20. Mr. Tulzapurkar submitted that the petitioner's case is also supported by the provisions of the Bureau of Indian Standards. The note at the foot of Regulation 3.1.12 requires lactic acid used as an acidulant in miscellaneouos foods to conform to the specifications laid down by the Indian Standards Institution. The Indian Standards Institution is now the Bureau of Indian Standards. 21. The Bureau of Indian Standards in or about October, 2004, issued the second revision in respect of "SUGAR BOILED CONFECTIONERY - SPECFICATIONS". Clause 1 stipulates the scope of the second revision. It prescribes the requirements and method of sampling and testing, inter-alia, hard-boiled sugar SRP 22/28 ASWPL28980.12 confectionery (dragees and toffees). Clause 3 mentions the essential and the optional ingredients. Clause 3.2 lists the optional ingredients in addition to essential ingredients specified in clause 3.1. Clause 3.2 provides that in addition to the essential ingredients specified in clause 3.1 the products may also contain any of the optional ingredients listed therein singly or in combination. Item (x) stipulates as follows : "(x) Acidulants, food grade, such as citric acid (see IS 13186), malic acid (see IS 14124), tartatric acid (see IS 14125) and lactic acid (see IS 9971);" (emphasis supplied) The Bureau of Indian Standards is a statutory body constituted under the Bureau of Indian Standards Act, 1986. It is difficult to accept the contention that lactic acid was a prohibited ingredient in sugar boiled confectionery when the Bureau of Indian Standards permitted the use of the same. 22. In addition to the above, Mr. Tulzapurkar also relied upon the provisions of the Prevention of Food Adulteration Act, 1954 (PFA Act) which preceded the Food Safety and Standards Act, 2006. The PFA Act was repealed by section 97 read with Schedule 2 of the Food SRP 23/28 ASWPL28980.12 Safety and Standards Act, 2006. As pointed out by Mr. Tulzapurkar, Rules 70, 71 and 72 of the Prevention of Food Adulteration Rules, 1955 made under the PFA Act are similar to the provisions of the said Regulation 3.1.12 we have set out earlier. Rules 70, 71 and 72 of the PFA Rules, 1955, read as under :Indian Kanoon - http://indiankanoon.org/doc/32853355/ 9

Parle Biscuits Private Limited vs Srp 1/28 on 19 December, 2012

"70. Definition of sequestering agents:- The sequestering agents are substances which prevent adverse effect of metals catalysing the oxidative breakdown of foods forming chelates; thus inhibiting decolourisation, off taste and rancidity. 71. Definition of buffering agents:- Buffering agents are materials used to counter acidic and alkaline changes during "storage or processing steps, thus improving the flavour and increasing the stability of foods. 72. Restrictions on the use of sequestering and buffering agents :- Unless otherwise provided in these rules the sequestering and buffering agents specified in column (1) of the Table below, may be used in the groups of foods specified in the corresponding entry in column (2) of the said Table, in concentration not exceeding the proportions specified in the corresponding entry in column (3) of the said Table :Table Name of Group of food Maximum sequestering and level of use buffering agents (parts per million) (ppm) mg./kg. 1 2 3 ......... ....... ...... SRP 24/28 ASWPL28980.12 10. DL Lactic acid As acidulant in Limited by (food grade) miscellaneous food G.M.P. 10A. L(+) Lactic As acidulant in Limited by Acid (food grade) miscellaneous food G.M.P. Note : DL Lactic acid and L(+) Tartaric acid shall not be added to any food meant for children below 12 months. (The lactic acid shall also conform to the specification laid down by the Indian Standards Institution.) The provisions of these entries in the table are identical to those of serial Nos.8 and 9 in the Table in Regulation 3.1.12. The Note at the foot thereof is also identical to the Note at the foot of the Table in Regulation 3.1.12. 23. The provisions of the relevant rules under the PFA Rules, 1955, are similar to the corresponding provisions under the said regulations. It is not without significance that no action was taken by the authorities against the petitioner or for that matter any of the manufacturers of similar products for the use of lactic acid in them. The petitioner has been using the same since the year 2004. 24. Rule 5 of The Prevention of Food Adulteration Rules, 1955, SRP 25/28 ASWPL28980.12
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Parle Biscuits Private Limited vs Srp 1/28 on 19 December, 2012

reads as under :" PART III DEFINITIONS AND STANDARDS OF QUALITY 5. Standards of quality of the various articles of food specified in [Appendices B, C and D to these rules are as defined in those Appendices]" Appendix B, in turn, contains the "Definitions and Standards of Quality". Clause A.25.01 defines sugar boiled confectionery. It provides that it may contain certain fillings. It further provides that it may also contain the items mentioned therein. Lactic acid is not one of them. One of the provisos states : "Provided that it may contain food additives permitted under Table 2 of Appendix-C of these rules." The title to Table 2 of Appendix C is : "LIST OF FOOD ADDITIVES FOR USE IN FOODS". Lactic acid is not mentioned in this table. This is similar to the fact that lactic acid is not mentioned in Table 13 to Appendix A referred to in Regulation 3.1.1. of the said Regulations. However, it is obvious that the authorities considered the use of lactic acid to be a permissible ingredient in sugar boiled confectionery in view of Rule 72 which is similar to Regulation 3.1.12. SRP 26/28 ASWPL28980.12 25. Mr. Tulzapurkar relied upon the judgment of a Division Bench of this Court in Sadanand S. Varde & Ors. v. State of Maharashtra & Ors. 2001 (1) BCR 261 [paragraphs 63 to 66], which recognizes the principle of of contemporanea expositio. 26. We do not, however, base this judgment upon the action or inaction on the part of the authorities in respect of similar products which contained and continue to contain lactic acid either under the Prevention of Food Adulteration Act, 1954 or under the Food, Safety & Standards Act, 2006. This judgment is based upon our construction of the provisions of the Food, Safety & Standards Act, 2006 and the Rules and Regulations made thereunder. The provisions of the Prevention of Food Adulteration Act, 1954 and the revision published by the Bureau of Indian Standards are additional factors which support this conclusion. 27. In the circumstances, the Writ Petition is disposed of by the following order :SRP 27/28 ASWPL28980.12 (i) The Writ Petition is made absolute in terms of prayers (a) and (c). (ii) The respondents shall return the petitioner's stock of lactic acid and the 39 batches of the petitioner's products which the respondents admit contain the permissible level of colour. (iii) Subject to any orders of the Apex Court, the goods shall be released on 01.02.2013. (iv) This order shall not be implemented in respect of the goods which are the subject matter of this Writ Petition upto and including 31 st January, 2013. There shall be no order as to costs.
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R.Y. GANOO, J. S.J. VAZIFDAR, J. SRP 28/28

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12