Kerala High Court
Spices Board vs Saras Spices Private Limited on 11 June, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
WEDNESDAY, THE 11TH DAY OF JUNE 2025 / 21ST JYAISHTA, 1947
WA NO. 534 OF 2025
ARISING OUT OF THE JUDGMENT DATED 08.01.2025 IN WP(C)
NO.41366 OF 2022 OF HIGH COURT OF KERALA
APPELLANT/1ST RESPONDENT:
SPICES BOARD
SUGANDHA BHAVAN, NH BY PASS, PALARIVATTOM P.O.,
KOCHI -682025, REPRESENTED BY ITS CHAIRMAN
PIN 682 025
BY ADV ANTONY MUKKATH, SC, SPICES BOARD, INDIA
RESPONDENTS/PETITIONER & 2ND RESPONDENT:
1 SARAS SPICES PRIVATE LIMITED
AGED 45 YEARS
1ST FLOOR, ANNA ALUMINUM COMPANY PRIVATE LIMITED,
KIZHAKKAMBALAM P.O., ALUVA 685562, REPRESENTED BY
ITS MANAGER H.R. PRAVEEN RAJ, PIN 685562
2 THE COMMISSIONER OF FOOD SAFETY
THYCAUD P.O., THIRUVANTHAPURAM- 695014.
PIN 695 014
BY ADV.PREMJITH NAGENDRAN, R1
SUNIL KUMAR KURIAKOSE, R2
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
11.06.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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JUDGMENT
Dated this the 11th day of June, 2025
Syam Kumar V.M., J.
This Writ Appeal is filed challenging the judgment of the
learned Single Judge dated 08.01.2025 in W.P.(C) No.41366 of
2022. Appellant was the 1st respondent in the W.P.(C). Respondents
1 and 2 are the petitioner and the 2nd respondent respectively in the
W.P.(C). Parties are hereinafter referred to as per their status in the
W.P.(C).
2. The W.P.(C) was filed by the petitioner inter alia seeking to
quash Ext.P6 circular issued by the 1 st respondent to the extent it
barred the re-testing of samples readied for exports. A prayer to
quash Exts.P3 and P5 letters issued by the 1 st respondent to the
petitioner to the extent it directed the petitioner to destroy the goods
as well as a direction to the 1st respondent to draw and retest the
sample of the goods that the petitioner proposed to export to UAE
was also made in the W.P.(C).
3. The learned Single Judge had vide the impugned judgment
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allowed the W.P.(C) and had quashed Ext.P6 circular to the extent it
imposed a blanket ban on retesting inter alia holding that it suffers
from the vice of arbitrariness. The learned Single Judge had also
quashed Ext.P3 and Ext.P5 letters to the extent it directed the
petitioner to destroy the relevant goods, and also issued a direction
to the 1st respondent to draw and retest the sample of the subject
product of the petitioner for the presence of ‘ Sudan Dye’ either in
their own laboratory or in such other accredited laboratory. The 1 st
respondent was also directed to pass appropriate orders based on
such retest within six weeks from the date of receipt of a certified
copy of the judgment. The 1st respondent has filed this Writ Appeal
aggrieved by the said judgment of the learned Single Judge.
4. The bare facts necessary for the disposal of this Writ
Appeal are as follows. Petitioner is a manufacturer/seller/ exporter of
spices and curry powders. The petitioner is registered with the 1 st
respondent as an exporter and is duty bound to meet the quality
specifications of the country to which the goods are to be exported
as well as the standards prescribed by the Food Safety and
Standards Act, 2006. The test for ensuring compliance with the
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standards is carried out by the 1st respondent. When the relevant
consignment of the petitioner was ready, the same was offered for
sampling to the 1st respondent. The report was returned alleging that
the consignment had been contaminated by ‘Sudan Dye’ which is a
colouring agent used by farmers to give red colour to unripe chillies
which is a prohibited item. The 1 st respondent called upon the
petitioner vide Ext.P3 letter stating that the concerned goods are to
be destroyed under intimation to the 1 st respondent and under the
supervision of its officials. The petitioner upon receipt of Ext.P3
requested that a second test viz., a retest of the goods be carried
out so far as the petitioner was positive that they had made
purchases only from trusted sources and the presence of finding
‘Sudan Dye’ was too remote. In response to the said request, the 1 st
respondent issued a letter stating that as per Ext.P6 circular dated
01.01.2014 issued by the 1st respondent, no request for retesting of
samples can be entertained for any reason whatsoever. The
petitioner, in so far as the goods which were directed to be
destroyed was worth more than Rs.30.36 lakhs, had got the samples
drawn and tested specifically for ‘Sudan Dye’ in three other
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laboratories, accredited to the National Accreditation Board for
Testing and Calibration Laboratories (NABL) which were notified
under Section 43 of the Food Safety and Standards Act by the Food
Safety Standards Authority. All the three tests were favourable to the
petitioner and did not detect the presence of ‘Sudan Dye’. The
petitioner then addressed the 1st respondent informing the said fact
and requested that there is a possibility for an error in the laboratory
test conducted by the 1 st respondent and since there exists a
provision under Section 46 (4) for retesting by a referral lab, the
same may be arranged. Since the same was of no avail, the
petitioner had filed the W.P.(C) inter alia challenging Ext.P6 circular
as well as Exts.P3 and P5 letters to the extent they directed the
petitioner to destroy the goods issued by the Board.
5. Heard Sri. Antony Mukkath, Advocate, Standing Counsel
for the 1st respondent (appellant) and Sri.Premjit Nagendran,
Advocate for the petitioner (1 st respondent). Sri.Sunil Kumar
Kuriakose, learned Government Pleader appeared for the 2 nd
respondent.
6. The learned counsel for the 1 st respondent contended that
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the judgment of the learned Single Judge to the extent it directed the
1st respondent to draw and retest the sample of the subject product
of the petitioner for the presence of ‘Sudan Dye’ and to pass orders
based on such retest is vitiated by errors of law and facts apparent
on the face of the records and is liable to be interfered in appeal and
set aside for being illegal and contrary to the established tenets of
law. The reliance placed by the learned Single Judge on the decision
in Shayara Bano v. Union of India [(2017) 9 SCC 1] is contended
to be erroneous in so far as the said decision had no application to
the facts of the case at hand for the reason that Ext.P6 circular is
fair, reasonable, transparent and not discriminatory. It is contented
that Ext.P6 circular is unbiased and equally applicable to all the
exporters and the same promotes healthy competition and equitable
treatment. The finding of the learned Single Judge that Ext.P6
circular does not specify the source of the power for issuing such a
ban is erroneous insofar as the 1 st respondent Spices Board had
issued Ext.P6 circular in accordance with Regulations 5(13) and (16)
of the Regulations of 1989. (Regulation 3 (k) and (n) of the Amended
Regulation 2011). The relevant regulation read with Section 7(1) (vi)
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and (vii) of the Spices Board Act, 1986 is the source of the power for
issuing the circular. It is further contended that the said requirement
is in conformity with the standards prescribed by the European
Union. The learned Single Judge had erred in understanding the
procedure regarding testing as conducted in the 1 st respondent’s
laboratories and the said error had led the learned Single Judge to
hold that there is a provision for retest even in the Food Adulteration
laws and that the circular is to be treated as a subordinate legislation
and the same should satisfy the test of non-arbitrariness. It is
contented by the learned counsel that as elaborated in the counter
affidavit of the 1st respondent, three sets of samples from the chilli
powder and spice mix of the petitioner had been drawn from the
relevant consignments and the sample had been initially tested at
the Spices Board Quality Evaluation Laboratory, Kochi. Upon
detection of the adulteration with the relevant adultering agent, a
retest (Ring test) was conducted at other accredited quality
evaluation laboratories of the 1st respondent Board located at
Mumbai and Kandla respectively by using the record sample
prepared from the homogenized aggregate sample. Adulteration with
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Sudan Dye IV at prohibited levels had been reported in all the three
tests and consequently the consignment was not cleared for export.
In view of the same, the finding of the learned Single Judge that only
one test was conducted in the laboratory under the control of the
respondents without any provision for retest in any other State
accredited laboratories or in the very same laboratory belonging to
the respondent is opposed to facts. The tests had been conducted in
three quality evaluation labs of the spices board located at Kochi,
Mumbai and Kadala and were returned positive for the adulterant at
prohibited levels. Hence the finding of arbitrariness by the learned
Single Judge is without any foundational basis and is liable to be
interfered with. It is further contented that the learned Single Judge
had overlooked the fact that the three test reports produced by the
petitioner could not have been acted upon or accepted by the 1 st
respondent insofar as the said report did not meet the standards
prescribed by the 1st respondent. As per Regulation 5 (15) of
Ext.R1(a) Regulation, tests could have been conducted only in
laboratories of the Board or in laboratories designated by the Board.
From 20.07.2023 onwards, an appeal system has been
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implemented by the 1st respondent and grievance, if any, of the
petitioner could have been redressed by invoking the said
appellate remedy. The said alternate remedy had not been invoked
by the petitioner. Over and above, since the shelf life of chilly is only
2 years and the said time period has already expired from the date
of procurement of chilly for export, the subject consignment could
not now be used for any purpose and there is no possibility of
getting any report thereon. No purpose would be served by retesting
the product which does not have the shelf life. Therefore, the
directions issued by the learned Single Judge is to draw and
retest the sample of the subject product of the petitioner is
unworkable and is liable to be interfered with. For the above
reasons, the learned counsel for the 1 st respondent prayed that the
appeal may be allowed and the judgment of the learned Single
Judge may be set aside.
7. Per contra, the learned counsel appearing for the petitioner,
submitted that neither the Spices Board Act nor the Rules authorize
a decision to ban retesting of samples and that Ext.P6 issued by a
Deputy Director of the 1st respondent Board, does not state under
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which provision the same has been issued. The Food Safety
Standards Act recognizes the fact that any laboratory could make a
mistake and hence provides an appeal against the finding of the
food analyst by providing for an appeal to refer the sample to a
referral laboratory under Section 46(4) of the Food Safety and
Standards Act. Although the said provision leaves it to the discretion
of the designated authority to refer the matter to a referral laboratory,
an appeal preferred is invariably referred to the referral laboratory,
recognizing the fact that no laboratory is infallible nor immune from
human error or contamination. The 1 st respondent cannot be the final
authority for testing of samples and a retest or a re-look at the same
laboratory or any other accredited laboratory in fairness ought to be
the normal law. The petitioner stands to lose the excess of
Rs.30,00,000/- if the cargo is destroyed and it was hence right, fit
and proper that the petitioner be fully satisfied that the destruction of
the goods is inevitable due to the presence of prohibited additives.
Hence the learned Single Judge was right to hold that Ext.P6
circular to the extent stated above is fit to be quashed and that
consequently Exts.P3 and P5 letters calling upon the petitioner to
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destroy the goods are unsustainable. The learned counsel for the
petitioner thus submitted that there is no cause or reason for
interfering with the judgment of the learned Single Judge and that
the Writ Appeal is only to be dismissed.
8. We have heard both sides in detail and have considered
the respective contentions put forth. The limited question to be
considered is whether Ext.P6 circular issued by the Director
(Marketing) of the 1st respondent, to the extent it does not stipulate,
provide for or permit the retesting of the samples once tested at the
laboratory of the 1st respondent is violative of the arbitrariness facet
of Article 14 of the Constitution of India. We note that Ext.P6 circular
states that as regards ‘re-sampling’, once the analytical reports
based on analysis carried out in the Quality Evaluation Labs of the
Board, show positive results for banned substances, any request for
resampling for whatsoever reason will not be entertained. It further
states that if the consignment of spices and spice products intended
for export is detected with Sudan contamination, based on the
analytical report, the same should be destroyed within 15 days in the
presence of the officials of the Spices Board and FSSAI.
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9. We have examined closely the reasoning provided by the
learned Single Judge for quashing Ext.P6 circular. The learned
Single Judge, we note, have considered the matter elaborately and
had taken note of the counter affidavit and the reply affidavit filed by
the parties. The settled proposition that legislation and subordinate
legislation can be challenged on the ground of manifest arbitrariness
and the dictum in Shayara Bano (supra) that if a constitutional
infirmity is found, Article 14 will interdict such infirmity and that a
legislation is manifestly arbitrary, when it is not fair, reasonable,
discriminatory, not transparent, capricious, biased, with favoritism or
nepotism and not in pursuit of promotion of healthy competition and
equitable treatment. The learned Judge had reasoned that a
subordinate legislation can be struck down on the ground that it is
arbitrary and therefore violative of Article 14 of the Constitution.
Reliance was also placed on the dictum laid down in Cellular
Operators Association of India v. TRAI [(2016) 7 SCC 703]
wherein the concept as well as the test for manifest arbitrariness
was reiterated and explained further by the Hon’ble Supreme Court.
The learned Judge relying on the dictum laid down in Indian
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Express Newspaper’s Bombay Pvt. Ltd. v. Union of India,
[(1985) 1 SCC 641] held that subordinate legislation can be
challenged on any of the grounds available for challenge against
plenary legislation and that there is no rational distinction between
two types of legislation when it comes to the ground of
challenge under Article 14. It was thus concluded by the learned
Single Judge that the test of manifest arbitrariness, therefore, as laid
down in the relevant judgments, would apply to invalidate
legislation as well as subordinate legislation under Article 14. The
learned Judge, thus after reminding himself of the legal position,
proceeded to consider Ext.P6 circular, which stipulated that a retest
of samples is barred for any reason whatsoever once it had been
tested and reported in the labs of the 1 st respondent. The learned
Judge concluded that Ext.P6 circular, since it does not specify the
source of power for issuing such a ban on retest, is bad in law
and noted that a provision for retest existed even under the Food
Adulteration laws. Thus treating the Ext.P6 circular as a
subordinate legislation, which should satisfy the test of non-
arbitrariness, the learned Single Judge held that the conclusiveness
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attributed therein to a test conducted in the laboratory under the
control of the respondents without any provision for a retest in any
other state accredited laboratories or in the very same laboratory
belonging to the respondent, is arbitrary. The fact that the said
results which could not be subjected to any retest had huge
economic and civil consequences for the exporters, was taken due
note of by the learned Single Judge. The above proposition, the
learned Single Judge reckoned, was buttressed by the fact that the
petitioner had produced reports from three other accredited
laboratories regarding the same samples which were in his favour.
This had prompted the exporter to seek a retest and the learned
Judge concluded that the circular to the extent it totally prohibits a
retest in any other laboratory was manifestly arbitrary and
unreasonable. We find no reason to interfere with the findings
arrived at by the learned Single Judge.
10. The contention put forth by the learned counsel appearing
for the 1st respondent, Spices Board that since three tests as part of
the ring test had been conducted the learned Single Judge had
erred in concluding that no test was conducted after the first test
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which turned out positive result, cannot be sustained. It is to be
noted that the purported three tests conducted in three different
laboratories are all tests conducted in the labs of the 1 st respondent
itself and not in an independent accredited third party laboratory. It is
relevant to note that Rule 5 (15) of the Spices Board Registration of
Exporters Regulations, 1989 produced as Ext.R1(a) by the 1 st
opposite party reads as follows:
“Every certificate holder shall, on demand,
allow, any officer of the board or agency authorized
in this behalf by the chairman, to draw samples, from
spices processed, packed, stored, warehoused,
container stuffed or transported for export purposes,
For analysis of the same, to verify conformity of
prescribed quality standards, in the laboratories of
the Board or in the laboratories designated by the
Board.”
Thus the relevant Regulation envisages test and analysis to verify
conformity with the prescribed quality standards not only in the
laboratories of the Board, but also in laboratories designated by the
Board. In the light of the said specific provision in the Regulations,
Ext.P6 circular to the extent it states that the analysis carried out in
the Quality Evaluation Labs of the Board are final and a request for
resampling for whatsoever reason will not be entertained, is clearly
arbitrary, unreasonable and unsustainable in law. The contention
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that an appellate procedure has been evolved by the 1 st respondent
Board from 20.07.2023 does not augur to the benefit of the petitioner
insofar as the Exts.P3 and P5 challenged in the Writ Petition are
dated 04.10.2022 and 04.11.2022 respectively, that is, much prior to
the date of commencement of the appellate facility.
11. It is an attribute of fairness and a step towards augmenting
clarity when a circular cites the section, rule, or regulation of the
parent Act or Regulation that gives it the authority to be issued.
Similarly, the content of the circular must be directly connected to
and serve the purpose of the parent legislation/ regulation and
cannot introduce new rules or modify the Act’s intent beyond what is
authorized. The Hon’ble Supreme Court in Kerala State Electricity
Board and others v. Thomas Joseph Alias Thomas M.J. and
others [(2022) SCC OnLine SC 1737] has held as follows:
“The doctrine of ultra vires envisages that a rule
making body must function within the purview of the
rule making authority conferred on it by the parent
Act. As the body making rules or regulations has no
inherent power of its own to make rules, but derives
such power only from the statute, it has to
necessarily function within the purview of the statute.
Delegated legislation should not travel beyond the
purview of the parent Act. If it does, it is ultra vires
and cannot be given any effect. Ultra vires may arise
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in several ways; there may be simple excess of
power over what is conferred by the parent Act;
delegated legislation may be inconsistent with the
provisions of the parent Act or statute law or the
general law; there may be noncompliance with the
procedural requirement as laid down in the parent
Act. It is the function of the courts to keep all
authorities within the confines of the law by supplying
the doctrine of ultra vires.”
Ext.P6 circular has been rightly found by the learned Single Judge
as one suffering from the vice of arbitrariness and is liable to be
struck down to the extent specified. We find no reason to interfere
with the said finding of the learned Single Judge.
12. The final contention put forth by the learned counsel for
the 1st respondent is that much time has elapsed after the issuance
of Exts.P3 and P5 letters to effect destruction and that the
consignment has already lost its shelf life thus making it only fit to be
destroyed. Thus nothing worthwhile would transpire from the
direction of the learned Single Judge to the 1 st respondent to draw
and test the sample either in their own laboratory or in other
accredited laboratory. This contention cannot be sustained in the
light of the submission by the learned counsel for the
petitioner/exporter that taking note of the huge monetary
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consequence flowing from the destruction of the consignment as
well as the civil consequences arising therefrom, it is fit and proper
that the petitioner, who had already obtained favourable reports
regarding the samples from three accredited labs be permitted to
protect its interest to the extent possible by 1 st respondent drawing
and testing the sample either in their own laboratory or in other
accredited laboratory as directed by the Single Judge. The question
whether the consignment is contaminated or not by ‘Sudan Dye’ is
still relevant and important for the petitioner and cannot be termed
as stale or perfunctory.
In view of the above discussion, we find no reason to interfere
with the judgment of the learned Single Judge. The Writ Appeal is
dismissed. No costs.
Sd/-
SUSHRUT ARVIND DHARMADHIKARI
JUDGE
Sd/-
SYAM KUMAR V.M.
JUDGE
csl
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APPENDIX OF WA 534/2025
PETITIONER EXHIBITS
Exhibit P-10 TYPED COPY OF EXT P-10