High Court Quashes Ban On Coca-Cola, Pepsi
By Karthika Thampan
23 September, 2006
Division Bench of the Kerala High Court on Friday held that the State
Government had no powers to pass orders prohibiting the manufacture
and sale of Coca-Cola and Pepsi. The Bench comprising Chief Justice
V. K. Bali and Justice M. Ramachandran made the observation while quashing
the ban orders passed by the State Government.
Allowing writ petitions filed
by Hindustan Coca-Cola Beverages Private Limited and PepsiCo India Holdings
Private Limited challenging the ban orders, the court held that powers
to prohibit the manufacture and sale of products under the provisions
of the Prevention of Food Adulteration Act were vested with the Union
Government. The Bench pointed out that if State legislatures and Parliament
had concurrent powers on a matter, the executive power of the State
Government was subject to the executive power of the Centre.
Just after the judgement
was delivered, employees of coca cola company distributed press notes
welcoming the judgement. They also distributed cola to the assembled
lawyers and journalists. Advocate Ramakumar who represents the Perumatty
Grama Panchayath where the Coca Cola factory is situated alleged that
the cola companies had prior knowledge of the judgement. A.Pradeepkumar
state secretary of DYFI, youth wing of communist party of India (Marxist)
said that large quantities of cola where shipped to Kerala, the night
before the judgement was delivered. He also alleged that the cola companies
had prior knowledge of the judgement. He said if the court deliver antipeople
judgements, his party would make sure that coca cola and pepsi cola
are not sold in the state.
Immediately after the judgement
was delivered many sales outlets of coca cola and pepsi cola were attacked
throughout the state. AIYF, youth wing of Communist party of India (CPI),
has announced that they will not allow pepsi produts will not be allowed
out of the factory in Kanjikodu, in Palakkadu district. Coca Cola factory
in Perumatty is already closed following another court.
The Bench observed that provisions
of the Maharashtra Prevention of Food Adulteration Rules gave powers
to the Government to prohibit food articles in emergency situation.
In the absence of such a rule here, the State Government did not have
such powers. Besides, it was not the case of the Government that the
level of pesticide residues found in samples tested by the Centre for
Science and Environment (CSE) or the Public Analysts of the Government
could have resulted in an epidemic-like situation. The Government had
contended only that such level of pesticides would be injurious to health.
The judges pointed out that the Bureau of Indian Standards (BIS) had
not prescribed any standard for testing pesticide residues in finished
products. The court found that the orders were passed without observing
the principle of natural justice such as issuing notice to the companies
and hearing them. It also observed that the samples analysed by the
CSE, even if its report was to be accepted, would not be adulterated
ones. So the State had no powers to ban their manufacture and sale.
The court said that once
the Government of India, which had the power to ban such products, did
not accept the report it was not fair on the part of the State Government
to have continued the prohibition of the products.
The stand of the Government
that the ban order would be passed first and the hearing of the petitioners
would be made later seemed to be unjustified.
Advocate Ramkumar said the
state government has every right to ban a food product that is a threat
to the health of the general public. He also pointed out that the joint
parliamentary committee headed by the present union minister Sharad
Pawar had discovered that the cola products contained pesticides above
the permitted level.