W.P.(C) No.28328 of 2021 — Eastern Condiments Private Limited; Diet Fibre 365 Food Products (P) Ltd.; James Joseph v Thiruvananthapuram Jilla Upabhokthru Samithi, District Consumer Disputes Redressal Commission, The Director of Civil Supplies, and Dr. Lalitha Appukuttan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, 1945 WP(C) NO. 28328 OF 2021** ## **PETITIONER/S:** 1 EASTERN CONDIMENTS PRIVATE LIMITED IV/ID IRUMALAPPADY, PANIPRA P.O., KOTHAMANGALAM, KERALA-686692, REPRESENTED BY ITS COMPANY SECRETARY. 2 DIET FIBRE 365 FOOD PRODUCTS (P) LTD. 1/5 C, M ROAD, PANIPRA, P.O.IRUMALAPPADY, KOTHAMANGALAM, KERALA-686692, REPRESENTED BY ITS MANAGING DIRECTOR. 3 JAMES JOSEPH, DIET FIBRE 365 FOOD PRODUCTS (P) LTD., 6TH FLOOR, EASTERN CORPORATE TOWER NO.34/137 A, NH BYPASS, EDAPALLY P.O., KOCHI, KERALA-682024. BY ADVS. SANTHOSH MATHEW VIJAY V. PAUL ANANDAPADMANABHAN UNNIKRISHNAN GOKUL ASOK SHERYL ELIZABATH SEBASTIAN WAFA KHATHEEJA ## **RESPONDENT/S:** 1 THIRUVANANTHAPURAM JILLA UPABHOKTHRU SAMITHI REG. NO. 893/89, NORTH NADA, FORT P.O., THIRUVANANTHAPURAM695023, REPRESENTED BY ITS GENERAL SECRETARY, MR.D.VENUGOPAL. 2 DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM, T.C.14/407, EXTRA POLICE ROAD, PALAYAM, MUSEUM P.O., THIRUVANANTHAPURAM, KERALA-695033. 3 THE DIRECTOR OF CIVIL SUPPLIES, OFFICE OF THE DIRECTOR OF CIVIL SUPPLIES, VIKAS BHAVAN P.O., PUBLIC COMPLEX, THIRUVANANTHAPURAM-695033. 4 DR. LALITHA APPUKUTTAN, NO.17/40, THYCADU, THIRUVANANTHAPURAM-695014. BY ADVS. D.GANESH KUMAR W.P.(C) No.28328 of 2021 -2- V.JYOTHI ## **OTHER PRESENT:** GP RIYAL DEVASSY **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.01.2023, THE COURT ON 23.03.2023 DELIVERED THE FOLLOWING:** W.P.(C) No.28328 of 2021 -3- ## **JUDGMENT** Dated this the 23[rd] day of March, 2023 The first petitioner is engaged in the business of manufacture and distribution condiments. The second petitioner is a Private Limited Company engaged in food business, of which the third petitioner is the Founder and Managing Director. The second petitioner is the holder of patent for 'Jackfruit 365'; a product manufactured and marketed with the aid of the first petitioner. According to the petitioners, 'Jackfruit 365' is a completely natural product, without any additives or flavours, manufactured using state-of-art technology. Jackfuit flour is clinically proven to aid in controlling Type-2 diabetes. The first respondent is a voluntary consumer organisation formed for protecting the rights of and to work for the welfare of consumers in Thiruvananthapuram District. On W.P.(C) No.28328 of 2021 -4- 12.11.2021, the first respondent lodged a consumer complaint before the Thiruvananthapuram District Consumer Disputes Redressal Commission/second respondent seeking the following directions; _“i) discontinuation and recall of Jackfruit 365 from the public market;_ _ii) fifty percent of the annual turn over of the Jackfruit 365 to be credited to the fund;_ _iii) initiation of criminal proceedings against the petitioners herein along with the consequential reliefs an account of the alleged unfair trade practices by the petitioners.”_ 2. The complaint was based on analysis report of 'Jackfruit 365' obtained by an individual which stated that the sample contained 5.738 mg. of Metformin Hydrochloride, a clinical drug used for treating diabetes. Along with the complaint, the first respondent attached a letter from the Professional Association of Clinical W.P.(C) No.28328 of 2021 -5- Endocrinologists (PACE), expressing the opinion that, scientific information is insufficient to support the claim that jackfruit has specific benefits in diabetes. Based on the complaint, the second respondent Commission passed Ext.P2 _ex parte_ interim order on 12.11.2021, directing the petitioners to withdraw the product 'Jackfruit 365' lot containing the endorsement 'Helps Control Blood Sugar Level in 90 days' from the open market. This writ petition is filed aggrieved by Ext.P2 order and seeking the following reliefs; _“(i) Issue a writ of certiorari or any other appropriate writ order or direction, quashing Ext.P2 order passed by the Hon'ble Consumer Disputes Redressal Commission, Thiruvananthapuram in CC 342 of 2021;_ _(ii) Issue a writ of mandamus or any other appropriate writ order or direction, declaring that the second respondent does not have jurisdiction to entertain CC 342 of 2021._ ## W.P.(C) No.28328 of 2021 -6- _(iii) Issue any appropriate writ, order or direction under Article 226 of the Constitution declaring that the 2[nd] respondent has no authority to issue any direction to the 3[rd] respondent, or its servants, agents, officers or subordinates to initiate any action against the petitioner based on CC 342 of 2021.”_ 3. Heard Adv.Santhosh Mathew for the petitioners and D.Ganesh Kumar for the first respondent. 4. Learned Counsel for the petitioners contended that Ext.P2, insofar as it is issued without affording an opportunity of hearing to the petitioners, is patently illegal and violative of their fundamental rights guaranteed under Article 19(1)(a) of the Constitution of India. The further contention is that the order is issued without jurisdiction, as the power to recall a product from the market is with the Central Consumer Protection Authority as per ## W.P.(C) No.28328 of 2021 -7- Section 20 of the Consumer Protection Act, 2019 ('the Act' for short). The further contention is that, no exceptional circumstances were made out, warranting an ex-parte interim order. On the other hand, even in the complaint, it was admitted that in the samples analysed by the complainant through the Government Analytical Laboratory did not contain anti-diabetic alopathic products. The second respondent committed gross illegality in placing reliance on the unsubstantiated statement in a communication sent by the organisation named PACE, stating that jackfruit flour does not have anti-diabetic qualities. Before relying reliance on the communication, the Commission should have given opportunity to the petitioners to raise their objections, as stipulated in Section 38 (2)(g) of the Act. 5. Learned Counsel for the first respondent ## W.P.(C) No.28328 of 2021 -8- contended that the writ petition is liable to be rejected _in limine_ , since the petitioners have the effective remedy of appeal to the State Commission under Section 41 of the Act. In this regard, reliance is placed on a judgment rendered by this Court in _**Controller of Examinations, Kannur University v. Sreya N**_ (WP(C) No.5679 of 2021). It is contended that the second respondent is conferred with power to issue interim order as per Section 38(8) of the Act. The second respondent having exercised such power, being of opinion that the complainant is entitled for an interim order, it will be inappropriate for this Court to supersede the Commission's discretion in order to interfere with the order by exercising the power of judicial review. 6. In reply to the contention regarding maintainability, learned Counsel for the W.P.(C) No.28328 of 2021 -9- petitioners relied on a series of precedents, including the decision in _**Radha Krishnan**_ ## _**Industries v. State of Himachal Pradesh [2021 SCC**_ _**OnLine SC 334]**_ , wherein the Apex Court after detailed precedential survey, culled out and laid down the following principles governing the exercise of jurisdiction under Article 226, in cases where alternative remedy exists; (i) _The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;_ (ii) _The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;_ (iii) _Exceptions to the rule of alternate remedy arise where_ _(a) the writ petition has been filed for_ W.P.(C) No.28328 of 2021 -10- _the enforcement of a fundamental right protected by Part III of the Constitution;_ _(b) there has been a violation of the principles of natural justice;_ _(c) the order or proceedings are wholly without jurisdiction; or_ _(d) the vires of a legislation is challenged;_ (iv) _An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;_ (v) _When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and 19 (1998) 8 SCC 1 20_ W.P.(C) No.28328 of 2021 -11- _(2003) 2 SCC 107 21 2021 SCC OnLine SC 334_ (vi) _In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.”_ **==> picture [381 x 12] intentionally omitted <==** fundamental rights are violated is not of much avail, since the alleged violation is through the order of a competent legal forum. **==> picture [381 x 10] intentionally omitted <==** respondent is not clothed with the power to recall a product from the market, in view of Section 20 of the Act, does not also hold good since Section 39(1)(g) to (j) confers such power on the District Commission. At the same time, the power to withdraw hazardous or unsafe goods can be exercised only on the District Commission ## W.P.(C) No.28328 of 2021 -12- being satisfied that the goods suffer from any of the defects specified in the complaint. 9. The question therefore is whether the interim order could have been passed, based on a communication issued by an organisation (PACE) and divergent opinion received from different laboratories, without hearing the affected person. Here, the contention that the complainant himself had produced two contradictory test results and the Commission could not have relied on the letter issued by PACE, without hearing the opposite parties as stipulated appears to be well founded. As per Section 38(1)(g), before issuing an order under Section 39(f), the Commission is bound to give reasonable opportunity to the complainant as well as the opposite party of being heard as to the correctness or otherwise of the report made by the appropriate laboratory. Ext.P2 order having -13- ## W.P.(C) No.28328 of 2021 been passed without following such procedure, the second respondent is bound to hear the petitioners before enforcing the order. To that extent, I find the challenge to be entertainable under Article 226. In the result, the writ petition is disposed of directing the second respondent Commission to consider the objection filed by the petitioners in I.A.No.395 of 2021 in CC No.342 of 2021 and pass a reasoned order thereon within one month of receipt of a copy of this judgment. Till orders are passed, as directed above, the interim order granted by this Court will continue to be in force. Sd/- ## **V.G.ARUN JUDGE** Scl/ W.P.(C) No.28328 of 2021 -14- ## **APPENDIX OF WP(C) 28328/2021** |PETITIONER EXHIBITS|PETITIONER EXHIBITS| |---|---| |Exhibit P1|TRUE COPY OF THE CONSUMER COMPLAINT| ||NO.342/2021 DATED 12.11.2021 AND THE| ||UNDATED NOTICE ISSUED BY THE HON'BLE| ||2ND RESPONDENT COMMISSION.| |Exhibit P1A|TRUE COPY OF THE IA 395 IN CONSUMER| ||COMPLAINT 342 OF 2021 BEFORE THE 2ND| ||RESPONDENT COMMISSIONS.| |Exhibit P2|TRUE COPY OF THE ORDER PASSED BY THE| ||2ND RESPONDENT COMMISSION DATED| ||12.11.2021 IN COMPLAINT NO.342/2021.| |Exhibit P3|TRUE COPY OF THE PUBLICATION DATED| ||JUNE 2011 AUTHORED BY UPK| ||HETTIARATCHI, S EKANAYAKE AND J| ||WELHINDA, PUBLISHED IN VOLUME 56, NO.2| ||OF THE CEYLON MEDICAL JOURNAL.| |Exhibit P4|TRUE COPY OF THE SYSTEMATIC REVIEW AND| ||META-ANALYSIS PUBLISHED IN PUBMED BY| ||QIONG WANG, WEI XIA, ZHIGANG ZHAO AND| ||HUIFENG ZHANG PUBLISHED BY PUBMED IN| ||THE YEAR 2014.| |Exhibit P5|TRUE COPY OF THE REPORT DATED FEBRUARY| ||2016 ISSUED BY SUGIRS.| |Exhibit P6|TRUE COPY OF THE EXTRACT OF THE| ||PUBLICATION IN AMERICAN DIABETES| ||ASSOCIATION JOURNAL DATED 9.6.2020.| |Exhibit P6A|TRUE COPY OF THE PUBLICATION TITLED| ||"EFFICACY OF GREEN JACKFRUIT FLOUR AS| ||A MEDICAL NUTRITION THERAPY REPLACING| ||RICE OR WHEAT IN PATIENTS WITH TYPE 2| ||DIABETES MELLITUS: A RANDOMIZED,| ||DOUBLE-BLIND, PLACEBO-CONTROLLED| ||STUDY, ON NATURE IN THE YEAR 2021.| |Exhibit P7|TRUE COPY OF THE REPORT ISSUED BY THE| ||DRUGS TESTING LABORATORY,| ||THIRUVANANTHAPURAM DATED 11.10.2021 ON| ||ANALYSIS OF PRIVATE SAMPLE SUBMITTED| ||BY MEMBER OF THE 1ST RESPONDENT| ||ASSOCIATION.| ## W.P.(C) No.28328 of 2021 ## -15- Exhibit P8 TRUE COPY OF THE REPORTS OF THE GOVERNMENT ANALYSTS LABORATORY, THIRUVANANTHAPURAM DATED 25.10.2021. Exhibit P9 TRUE COPY OF THE REPORTS OF THE REGIONAL ANALYTICAL LABORATORY, ERNAKULAM DATED 6.11.2021. Exhibit P10 TRUE COPY OF THE CRIMINAL COMPLAINT FILED BY THE 3RD PETITIONER DATED 23.11.2021 NUMBERED AS 23200/2021/CB. Exhibit P11 TRUE COPY OF THE CERTIFICATE ISSUED BY THE DRUG TESTING LABORATORY, DATED 8.11.2021. Exhibit P12 TRUE COPY OF THE CERTIFIED COPY APPLICATION FILED BEFORE THE 2ND RESPONDENT COMMISSION ON 7.12.2021 BY THE 3RD PETITIONER. Exhibit P13 TRUE COPY OF THE INTERIM ORDER DATED 22.11.2021 IN WP(C) 26058 OF 2021.