I

TABLE OF CONTENTS

TEAM CODE:190

3rd NLUO-PHFI PUBLIC HEALTH LAW

NATIONAL MOOT COURT COMPETITION

Before

THE HON’BLE SUPREME C OURT OF ETINIA

IN THE MATTERS OF:

FSSAE, FRL, Consumers (Petitioners)

versus
Apoxia Enterprise Limited (Respondent)

~MEMORIAL ON BEHALF OF RESPONDENTS~

3RD NLUO-PHFI MOOT COURT COMPETITION, 2023 ~MEMORIAL for RESPONDENTS~

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TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF CONTENTS..................................................................................................... II

INDEX OF AUTHORITIES .............................................................................................. IV

STATEMENT OF JURISDICTION ................................................................................. VII

STATEMENT OF FACTS .............................................................................................. VIII

ISSUES RAISED ................................................................................................................. X

SUMMARY OF ARGUMENTS ......................................................................................... XI

A.APOXIA IS NOT BOUND TO DISCLOSE THE TRADE SECRETS AND

CONSTITUENT INGREDIENTS OF WAHGI ................................................................. XI

B.FSSAE IS NOT CORRECT IN BANNING THE SALE OF WAHGI

........................................................................................................................................... XI

C.APOXIA IS NOT LIABLE TO PAY ANY COMPENSATION

........................................................................................................................................... XI

ARGUMENTS ADVANCED ............................................................................................... 1

I.APOXIA IS NOT BOUND TO DISCLOSE THE TRADE SECRETS AND

CONSTITUENT INGREDIENTS OF WAHGI ................................................................... 1
A.That FSSAE does not have the statutory empowerment to seek the knowledge of
ingredients for the purposes of scientific enquiry or tests ............................................... 1
B.That curtailing Apoxia’s Right to Trade and Commerce for health concerns will not be
proportionate ................................................................................................................. 2

II.FSSAE IS NOT CORRECT IN BANNING THE SALE OF WAHGI

............................................................................................................................................. 4
C.That there has been procedural Irregularity and violation of Principle of Natural Jsutice
in banning the sale of Wahgi ......................................................................................... 4
D.That the food authority does not have power to Ban and exceeded its Power considering
there were no emergent circumstances. .......................................................................... 5
E.That the ban violates the Fundamental Rights
...................................................................................................................................... 7

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F.That the Mandatory Scientific procedures were not followed

...................................................................................................................................... 8

III.APOXIA IS NOT LIABLE TO PAY ANY COMPENSATION

........................................................................................................................................... 10
G.That the complainants are also responsible for their obesity and are therefore,
contributory negligent.................................................................................................. 10
H.That the Etinian government is also liable for the obesity and other health issues faced
by the complainants ..................................................................................................... 12

PRAYER............................................................................................................................. IX

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INDEX OF AUTHORITIES

INDEX OF AUTHORITIES

Cases
Association of the Traders carrying the Food v. Union of India, 2015 SCC OnLine Bom 481 7
C.B. Gautam v. Union of India, (1993) 1 SCC 78 at page 103 ........................................... 5, 7
Commr. (Food Safety) v. Sugandhi Snuff King (P) Ltd., 2023 SCC OnLine Del 2003 .......... 6
Consumer Education and Research Centre v. Union of India, 2010 SCC OnLine SC 1017 .. 12
G. Jaisinghani v. Union of India and Ors. : AIR 1967 SC 1427 ............................................. 7
Ginjala Varun Reddy v. Food Safety and Standards Authority of India, 2021 SCC OnLine Del
4662 .................................................................................................................................. 8
Godawat Pan Masala Products I.P. Ltd. v. Union of India, (2004) 7 SCC 68 ......................... 5
Himat Lal K. Shah v. Commr. of Police, (1973) 1 SCC 227 .............................................. 5, 6
K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1 ............................................................. 3
Kartar Singh v. State of Punjab, ((1994) 3 SCC 569 .............................................................. 7
Kasturilal Ralia Ram Jain v. State of U.P., AIR 1965 SC 1039 ............................................ 12
Maneka Gandhi case [1978 1 SCC 248], SCC p.284, para 7 .................................................. 7
Municipal Corporation Ahmedabad v. Jan Mohammed, AIR 1986 SC 1205. ......................... 7
Municipal Corporation of Greater Bombay v. Laxman Iyer, (2003) 8 SCC 731. .................. 11
Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012) 10 SCC 352 ... 7
Nestle India Ltd. v. Food Safety & Standards Authority of India, 2015 SCC OnLine Bom 4713
...................................................................................................................................... 1, 9
Nestle India Ltd. v. Food Safety & Standards Authority of India, 2015 SCC OnLine Bom 4713.
................................................................................................................... 1, 2, 4, 5, 6, 8, 9
Nestle India Ltd. v. Food Safety & Standards Authority, 2015 SCC OnLine Bom 4713. ....... 1
Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545 ........................................ 5
Omkar Agency v. The Food Safety and Standards Authority of India, 2016 SCC OnLine Pat
9231 ..................................................................................................................... 5, 6, 9, 13
Pepsico India Holdings Pvt. Ltd. v. Food Inspector, 2009 SCC OnLine Ker 6395 ................. 9
Pramod Kumar Rasikbhai Jhaveri v. Karmasey Kunvarg Tak, AIR 2002 SC 2864 .............. 10
Rudul Shah v. State of Bihar, AIR 1983 SC 1086 ................................................................ 12
Sanjay Anjay Stores v. Union of India, 2017 SCC OnLine Cal 1632 ..................................... 5
Shrilekha Vidyarthi (Kumari) v. State of U.P., (1991) 1 SCC 212 ......................................... 7
State of Andhra Pradesh v. Challa Ramkrishna Reddy, (2000) 6 JT 334. ............................. 12

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INDEX OF AUTHORITIES

State of Punjab v. Mohinder Singh Chawla, (1997) 2 SCC 83 ............................................. 12

Sugandhi Snuff King Pvt. Ltd. v. Commissioner, Central Excise, 2018 SCC OnLine CESTAT
4075 ....................................................................................................................... 4, 5, 6, 7
Union of India v. Cynamide India Ltd., (1987) 2 SCC 720 .................................................... 5
Vital Nutraceuticals Private Limited v. Union of India, 2014 SCC OnLine Bom 195. ........... 2

Statutes
INDIA CONST. art. 19. ........................................................................................................ 2
INDIA CONST. art. 21. .................................................................................................12, 13
INDIA CONST. art. 226. .................................................................................................... 12
INDIA CONST. art. 32. ...................................................................................................... 12
INDIA CONST. art. 39. ...................................................................................................... 12
INDIA CONST. art. 41. ...................................................................................................... 12
INDIA CONST. art. 43. ...................................................................................................... 12

Journals and Articles

Khera, A. (2018) Vol 1.0, Comprehensive National Nutrition Survey. rep. New Delhi: Ministry
of Health & Family Welfare. ........................................................................................... 11

Foreign Cases
Birmingham and Midland Motor Omnibus Co. Ltd. v. Worcestershire County Council, 1896
AC 348.............................................................................................................................. 6
Dent v. Lammens, O.J. No. 3495 (S.C.J.). ........................................................................... 11
Jones v. Livox Quarries Ltd., (1952) 2 QB 608. .................................................................. 10
Toronto v. Virgo, Ontario Canada, 1898 AC 88. ................................................................... 6

Moot Proposition
Moot Proposition, ¶ 1. ..................................................................................................... 3, 10
Moot Proposition, ¶ 10. ......................................................................................................... 3
Moot Proposition, ¶ 3. ......................................................................................................... 13
Moot Proposition, ¶ 4. ........................................................................................................... 3
Moot Proposition, ¶ 5. ........................................................................................................... 3

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INDEX OF AUTHORITIES

Moot Proposition, ¶ 7. ........................................................................................................... 8

Moot Proposition, ¶ 8. .................................................................................................. 7, 8, 10
Moot Proposition, ¶ 9. ........................................................................................................... 9

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 VII
STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION

The Respondent have approached the Hon’ble Supreme Court of Etinia under Article 32 of the
Constitution of Etinia

“32. Remedies for enforcement of rights conferred by this Part:

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)

(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution.”

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STATEMENT OF FACTS

STATEMENT OF FACTS

-BACKGROUND-
“Union of Etinia” (Etinia) is a fast-developing country in South-East Asia, with a growing
population as well. The demographic of the country's majority comprises a young population,
with a significant population of below 15 (fifteen) years of age. Etinia has made several reforms
to adopt more liberal governance and has disbanded the red-tape bureaucracy for the pursuance
of the same. Since then, the country has seen great economic growth. This growth of the country
has come at the expense of growing unemployment and food insecurity. The country, however,
is progressing well, with the aid of Fast-Moving Consumer Goods (“FMCG”), which has
evolved into a sector and addresses the problem of widespread malnourishment through simple
food.

-STATISTICS-
The country of Etinia is home to a population that is majorly below the age of 50 (fifty) years.
Apoxia Enterprises Limited (“Apoxia”) manufactures instant ramen noodles under the brand
name of ‘Wahgi’, introduced in the markets of Etinia in the year 2002. By 2023, Wahgi has
taken over 40% of the market, consuming the FMCG consumers. Rip-offs of Wahgi started
seeping into numbers in the year of 2012, and has managed to capture as much as 20% of the
FMCG consumers.

-LEGAL FRAMEWORK-
The country of Etinia has an extensive network of food regulation laws. the Government has
made a number of regulations with reference to Labelling, Packaging. Distribution, marketing,
etc. of food from the producers. Apart from that, the country also has extensive consumer
protection laws to enforce the duties of producers.

-THE CONTROVERSY-
Apoxia’s Wahgi has taken over the Etinia youth with promises of time efficiency and taste, but
this has impacted the citizens on many levels. The government in the wake of handling the food
crisis generated due to the efforts of bringing an economic overhaul, granted some relaxations
in terms of registrations. due to these circumstances, the longtime consumption of Wahgi
noodles has led to a stirring health crisis in Etinia. Obesity has started to become a pervasive

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STATEMENT OF JURISDICTION

affliction in Etinia and rapidly growing among the future of Etinia, the children. The situation
has worsened to the point that school children are barely able to walk or breathe comfortably
because of being overweight. Hospitals have been reporting an ever-high number of people
developing chronic heart conditions and blood pressure issues. Various scientists and
researchers deployed to diagnose the source of the problem have involved the Food Research
Laboratory as well to conclude that upon analysis of instant noodle packets, the rising
deterioration in the health of the people of Etinia. A report addressing these concerns has been
published by FRL. As a result, people have been cautioned, and the public welfare
organizations have also called for a permanent boycott of the product.

-DISPUTE-
The dispute lies in the contention from Apoxia Enterprises, which refuses to take responsibility
for the Wahgi noodles and the causation behind the deterioration of health. The testing of
instant noodles has been done, and the report clarifies that the consumption of Wahgi for such
a long time is now yielding its side effects. FRL and FASSAE also allege Apoxia for not
disclosing the proper ingredients used in the making of Wahgi. The labelling and packaging of
the product does not follow the necessary disclosing requirements. the contention is that Apoxia
is bound to honour the law with proper regard to the packaging and labelling requirements and
disclose the trade secrets and ingredients of Wahgi to link the health deterioration to its right
source. The contention is that Wahgi has further encouraged the growth of the FMCG market.
The rip- offs of Wahgi have also taken over 20% of the consumers of FMCG. The aggregate
effect of Wahgi and these rip-offs has led Etinia to a potential health crisis. Apoxia has argued
against the report, calling it “baseless allegations,” Apoxia has further sued FRL for a case of
defamation and misleading statements. Apoxia has further challenged FSSAE’s ban on the sale
of Wahgi on the lack of any substantial reasons or research.

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ISSUES RAISED

ISSUES RAISED

-ISSUE I-

IS APOXIA OBLIGATED TO REVEAL THE TRADE SECRET AND ELEMENTAL

COMPONENTS OF WAHGI, AND AS A RESULT, HAS IT BREACHED THE
STIPULATIONS FOR PACKAGING AND LABELING?

-ISSUE II-

IS THE DECISION OF FSSAE TO IMPOSE A NATIONWIDE BAN ON THE SALE OF

WAHGI JUSTIFIED?

-ISSUE III-

SHOULD APOXIA BE HELD RESPONSIBLE FOR COMPENSATION IN THE

CONSUMER ACTION LAWSUIT, CONSEDRING THE POTENTIAL PUBLIC HEALTH
CRISIS IT MIGHT HAVE CONTRIBUTED TO?

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SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS

A. APOXIA IS NOT BOUND TO DISCLOSE THE TRADE SECRETS AND

CONSTITUENT INGREDIENTS OF WAHGI

The Respondent submits that Apoxia is not bound to disclose the trade secrets and constituent
ingredients of Wahgi since: FSSAE does not have the statutory empowerment to seek the
knowledge of ingredients for the purposes of scientific enquiry or tests [A] and curtailing
Apoxia’s Right to Trade and Commerce for health concerns will not be proportionate [B].

B. FSSAE IS NOT CORRECT IN BANNING THE SALE OF WAHGI

The Respondent humbly submits that FSSAE is not correct in banning the sale of Wahgi since:
there has been procedural Irregularity and violation of PNJ in banning the sale of Wahgi [C];
the food authority does not have power to Ban and exceeded its Power considering there were
no emergent circumstances [D]; the ban violates the Fundamental Rights [E] and the
Mandatory Scientific procedures were not followed [F].

C. APOXIA IS NOT LIABLE TO PAY ANY COMPENSATION

The Respondent submits that Apoxia is not liable to pay any compensation as the charges
against it are false and it is in full compliance with the required statutory provisions and since:
the complainants are also responsible for their obesity and are therefore, contributory negligent
[G]; and the Etinian government is also liable for the obesity and other health issues faced by
the complainants [H].

3RD NLUO-PHFI MOOT COURT COMPETITION, 2023 ~MEMORIAL for RESPONDENTS~

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ARGUMENTS ADVANCED

I. APOXIA IS NOT BOUND TO DISCLOSE THE TRADE SECRETS AND

CONSTITUENT INGREDIENTS OF WAHGI

It is submitted humbly before the Hon’ble Supreme Court of Etinia that Apoxia is not
bound to disclose the trade secrets and constituent ingredients of Wahgi.

A. That FSSAE does not have the statutory empowerment to seek the knowledge of
ingredients for the purposes of scientific enquiry or tests

1. The Respondent submits that FSSAE lacks possessing any other statutory power given
to issue directives, orders, or orders in the form advisories to mandate any Food
Business Operator to disclose any ingredient or the entire list of ingredients for the
purposes of scientific enquiry or tests.
2. In arguendo, if FSSAE rationalizes their claim through Section 18 of Food Safety and
Standards Act, 20061 claiming that it empowers FSSAE, by giving it very wide powers,
to take any action in relation to any food commodity in the interest of public health,
including obtaining information as to all the ingredients used in Wahgi for conducting
scientific tests, then the respondent’s assertion is legally unfounded and incorrect.
3. In the case of Nestle India Limited v. The Food Safety and Standards Authority of India,
the Bombay High Court analyzed the scope of Section 18’s purpose and observed that
“sub-section (1) of section 18 enumerates the guiding principles which are to be
followed while implementing the provisions of the Act. Sub-section (2) of section 18
lays down guiding principles which are to be kept in mind by the Food Authority while
framing regulations and specifying standards under the Act.”2 On the basis of such
observation, the court, in context of held that the section does not provide any power to
the Food Authority to perform any action or function. Rather, the court held that Section
18“cannot be said to be a source of power since it only lays down the guidelines.” 3 It
regarded the section to be an element which provides a heading, for the FSSAE to steer
its operations towards.

1
Food Safety and Standards Act 2006.
2
Nestle India Ltd. v. Food Safety & Standards Authority of India, 2015 SCC OnLine Bom 4713.
3
Id.

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4. Similarly, in arguendo, if FSSAE rationalizes their claim through Section 16(1) of Food
Safety and Standards Act, 20064, claiming that by its imposition of duty on the “Food
Authority to regulate and monitor the manufacture, processing, distribution, sale and
import of the food so as to ensure safe and wholesome food”5, the section empowers
FSSAE to seek information regarding ingredients of any product such as Wahgi for
conducting tests for reasons of public health, then the respondent’s assertion is legally
unfounded and incorrect.
5. The Bombay High Court in the Nestle case, in the context of a prohibition order, held
that “sub-section (1) of section 16 is an omnibus provision which casts a duty and
obligation on the part of the Food Authority to regulate the food business to ensure
food safety,” 6 but similar to Section 18, does not empower the Food Authority to
perform any particular function.
6. Moreover, in the case of Vital Nutraceuticals Private Limited v. Union of India, the
court held that any contention of FSSAE issuing “administrative instructions under
Section 16(1)”7 is not acceptable.

B. That curtailing Apoxia’s Right to Trade and Commerce for health concerns will not
be proportionate

7. It is submitted that Right to Trade and Commerce must not be compromised in the
pursuit of Right to Health in the context of present circumstances.
8. The Right to Trade and Commerce is a fundamental right as expressly stated in Article
19(1)(g) 8 , and it is not subject to any other provisions, with the exception of the
reasonable limitations set forth in Article 19(6)9.
9. In the case of K.S Puttaswamy v. Union of India, the Supreme Court when faced a
contestation between the Right to Food and Right to Privacy, applied the test of
proportionality to address these conflicting fundamental rights. The court rationalized
its proportionality approach by upholding the Doctrine of Proportionality. An integral
part to the doctrine, held by the court was that the possible effects of a measure

4
Supra Note 1.
5
Supra Note 2.
6
Supra Note 2.
7
Vital Nutraceuticals Private Limited v. Union of India, 2014 SCC OnLine Bom 195.
8
INDIA CONST. art. 19.
9
Id.

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ARGUMENTS ADVANCED PAGE | 3

curtailing a certain freedom must be thoroughly explored, and “there must be a

proportionality between the effects of the measures which are responsible for limiting
freedom, and the objective which has been identified as of “sufficient importance.”10
Essentially if the repercussions of curtailing a certain right are too deleterious, then such
a curtailment or measure is not proportionate.
10. Over the course of previous two decades, Apoxia through government incentives and
concessions, has grown massively and has captured 40 percent of Fast-Moving
Consumer Goods (FMCG) sector. 11 The emergence of similar cheaper imitations of
Wahgi, in 2012, has taken over 20 percent of FMCG sector and it is the unique flavour
of Wahgi which has ensured the retention of Apoxia’s market cap.12
11. There is a recorded incident of bribes have been paid by companies to FRL researchers
to obtain data from the research lab about products of competitors that were being
tested.13 A possible leak of the key ingredients, due to their disclosure to FSSAE, would
lead to its entire market cap being wiped out.14
12. Apoxia entered the Etinian market in 2002 with Wahgi when the Government, by its
own volition, allowed special privileges to Apoxia regarding permits and registrations.
The Government has continued to provide Apoxia with relaxations regarding the
disclosure of its secret ingredients as an incentivizing and assisting mechanism which
has allowed for Apoxia to significantly reduce food insecurity concerns, tackle
unemployment and allow for achieving incredible economic growth.
13. Apoxia, consequently, are the single largest private sector employers in Etinia,
providing jobs and other sources of livelihood to millions of people.15 Its collapse will
cause unemployment rates will rise exponentially instantly. Many more individuals, not
formal employees but involved with the company, will lose their source of livelihood.
Millions of families will face existential financial and social challenges.
14. Etinia is a relatively young open market economy which is going through a phase of
economic reformative transition, which began in 2001 and has allowed from
tremendous progress in terms of economic growth.16 Collapse of such a large player
can derail the entire progress made in previous two decades by disincentivising current

10
K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1.
11
Moot Proposition, ¶ 5.
12
Id.
13
Moot Proposition, ¶ 10.
14
Id.
15
Moot Proposition, ¶ 4.
16
Moot Proposition, ¶ 1.

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and possible investors. The range of consequences for Etinian economy and society, in
case of leak of these key ingredients, are from extremely bad to near total disintegration.
The purpose of the continued grant of relaxations was to assist Etinian economy and
protect it from such a shock.
15. Thus, in light of the aforementioned likely effects of such measure, it is conspicuous
that the possible repercussions of curtailment of Apoxia’s Right to Trade and
Commerce, by making it disclose its trade secrets, are so severely dangerous, that such
curtailment is not proportionate to the objective of ascertaining the alleged existence of
a cause for national obesity crisis in a single product. It is humbly submitted that
considering the consequences, undertaking such a risk should not be allowed and the
relaxations provided to Apoxia must remain intact.

II. FSSAE IS NOT CORRECT IN BANNING THE SALE OF WAHGI

It is humbly submitted before the Hon’ble Court that FSSAE was not correct in banning the
sale of Wahgi.

C. That there has been procedural Irregularity and violation of Principle of Natural
Justice in banning the sale of Wahgi

16. The Respondent humbly submits that FSSAE cannot ban Wahgi on any grounds, if
there is any procedural irregularity by the FSSAE. There were several procedural
irregularities by FSSAE, and the ban was passed in an arbitrary manner. The FSSAE's
failure to provide a show cause notice violates the principles enshrined in the FSSA and
established by judicial precedents. The absence of due process, in this case, raises
serious concerns about the fairness and transparency of the ban's imposition. This is
especially concerning considering that the ban has significant economic and
reputational implications for Apoxia Enterprises Limited. Thus, leading to utter
violation of principles of natural justice
17. In the case of Sugandhi v. Commissioner, it was held that under Section 34 of the
FSSAE, if the officer is satisfied that a health risk condition exists then they can prohibit
any food but only after providing the ‘opportunity to be heard’. 17 Further, Section

17
Sugandhi Snuff King Pvt. Ltd. v. Commissioner, Central Excise, 2018 SCC OnLine CESTAT 4075

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30(2)(a) has to be read with Section 1818 where the commissioner can prohibit only in
emergent circumstances after giving an opportunity of being heard.19
18. “The phrase audi alteram partem means no man can be condemned without being
heard.”20 In the case of Omkar Agency v. FSSAI, it was held that this principle applies
for Section 30(2)(a) where the aggrieved person must be heard before issuing the
prohibition order. 21 Further, this was also upheld in the case of Sugandhi v.
Commissioner.22
19. In the case of Olga Tellis v. BMC, it was held that a reasonable opportunity of being
heard before banning is mandatory to comply with the principles of natural justice.23
This was also reiterated and reaffirmed in the C.B. Gautam v. UOI.24
20. In the case of Nestle v. FSSAI, it was held that the affected party should be heard before
the prohibition order is passed. 25 “Hearing will have to be given before the impugned
order is passed. Merely stating that the food was unsafe or that the action was in public
interest is not sufficient”.26
21. “Even if the authority acts as a delegate of the legislature, it is required to give hearing
to the affected party and give the affected party the material on the basis of which the
impugned order is passed.” 27 The ratio of these judgments will squarely apply to the
facts of the present case. In the present case the opportunity to be heard was not given
to Apoxia and a prohibition order was passed without following the procedures. Thus,
also violating the principles of natural justice.

D. That the food authority does not have power to Ban and exceeded its Power
considering there were no emergent circumstances

22. The Respondent humbly submits that FSSAE did not have the authority to ban Wahgi
and thus had exceeded its power while passing the prohibition order.

18
Supra Note 1 at Section 18.
19
Supra Note 17.
20
Supra Note 2.
21
Omkar Agency v. The Food Safety and Standards Authority of India, 2016 SCC OnLine Pat 9231
22
Supra Note 17.
23
Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545
24
C.B. Gautam v. Union of India, (1993) 1 SCC 78
25
Supra Note 2.
26
Godawat Pan Masala Products I.P. Ltd. v. Union of India, (2004) 7 SCC 68
27
Union of India v. Cynamide India Ltd., (1987) 2 SCC 720

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23. In the case of Sanjay Anjay Stores v. UoI, it was held that as per the regulations framed
under FSSAE, the authorities cannot prohibit trade and commerce as it would amount
to an exercise of power which they do not have.28
24. FSSAE act does not include the power to prohibit the sale of any goods.29 This was
further reiterated in the case of Himat Lal30 which used the jurisprudence from a Canada
case - “A power to "regulate" does not normally include a power to prohibit.31 “A power
to regulate implies the continued existence of that which is to be regulated.32”33 This
was reaffirmed in the CoI v. Sugandhi case.34
25. Thus, FSSAE has only regulatory power and not the power to ban Wahgi.
26. In the case of Commissioner v. Sugandhi, it was held that emergent circumstances must
exist and consequently, in the interest of public health, any food article can be
prohibited.35 Further this was reiterated and reaffirmed in the Omkar Agency case36.
27. Section 34 37 is applicable in an emergency situation which requires immediate
solution.38
28. “There is no reference to any “emergent circumstances”, which led to the passing of
the prohibitory orders under Section 30(a).”39
29. The FSSAE's actions must be within the scope of its statutory authority. FSSAE
exceeded its powers and acted outside the mandate granted to it by law, thus the ban is
invalid. The ban's imposition without due consideration of these economic
repercussions neglects the importance of striking a balance between public health and
economic interests. Such neglect could have far-reaching economic consequences,
affecting employment, investment, and the stability of the FMCG sector as a whole.
Therefore, a holistic approach that takes into account both health concerns and
economic stability is necessary for responsible decision-making. The ban's unilateral

28
Sanjay Anjay Stores v. Union of India, 2017 SCC OnLine Cal 16323
29
Supra Note 17.
30
Himat Lal K. Shah v. Commr. of Police, (1973) 1 SCC 227
31
Toronto v. Virgo, Ontario Canada, 1898 AC 88.
32
Birmingham and Midland Motor Omnibus Co. Ltd. v. Worcestershire County Council, 1896 AC 348.
33
Supra Note 30.
34
Commr. (Food Safety) v. Sugandhi Snuff King (P) Ltd., 2023 SCC OnLine Del 2003
35
Supra Note 17.
36
Supra Note 21.
37
Supra Note 1 at Section 34.
38
Supra Note 2.
39
Supra Note 17.

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ARGUMENTS ADVANCED PAGE | 7

focus on health concerns without acknowledging economic implications raises doubts

about its rationality and balanced consideration of all relevant factors.

E. That the ban violates the Fundamental Rights

30. The Respondent humbly submits that the ban clearly infringes upon Fundamental
Rights guaranteed under the Constitution of India including article 14, 19 and 21 which
are the right to equality, right to carry on trade/business and the right to livelihood
respectively. FSSAE’s decision to ban Wahgi is arbitrary, unreasonable, and
disproportionate to the risks associated with the product.
31. In the case of MCA v. Jan Mohammed it was held that “When the exercise of a
fundamental right is prohibited, the burden of proving that a total ban on the exercise
of the right alone may ensure the maintenance of the interest of the general public lies
heavily upon the State.”40
32. It was held in the Sugandhi case that, “The power to prohibit impinges on Article
19(1)(g) of the Constitution as the Parliament has not delegated the power to
ban/prohibit to either the Central Government, State Government or the Food
Authority. Moreover, the power to prohibit would lie with the essential Legislative
Policy domain and hence, it is not possible to delegate such power.”41
33. “State action must conform to norms which are rational, informed with reasons and
guided by public interest.”42 “Courts must approach the problem from the point of view
of furthering the social interest which it is the purpose of the legislation to promote.”43
“Lack of transparency in the decision-making process would render it arbitrary.”44 “An
enactment is void for vagueness if its prohibitions are not clearly defined.”45 “State
actions are meant for public good and in public interest and are expected to be fair and
just.” 46 “It must be "right and just and fair" and not arbitrary, fanciful or
oppressive.”47 “A requirement of an opportunity to show cause being given before an
order. If not, it would be seriously open to challenge on the ground of violations of the
provisions of Article 14 on the ground of non-compliance with principles of natural

40
Municipal Corporation Ahmedabad v. Jan Mohammed, AIR 1986 SC 1205.
41
Supra Note 17.
42
Natural Resources Allocation, In re, Special Reference No. 1 of 2012, (2012) 10 SCC 352
43
Association of the Traders carrying the Food v. Union of India, 2015 SCC OnLine Bom 4811
44
S.G. Jaisinghani v. Union of India and Ors. : AIR 1967 SC 1427
45
Kartar Singh v. State of Punjab, ((1994) 3 SCC 569
46
Shrilekha Vidyarthi (Kumari) v. State of U.P., (1991) 1 SCC 212
47
Maneka Gandhi v. Union of India [1978 1 SCC 248], SCC p.284, para 7

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justice.” 48 The procedure which was followed by the FSSAE was not fair and
transparent. Further, it was also suspected that the head of the FRL laboratory has biases
and prejudices.49
34. “It was not necessary to impose a ban all over India and proper opportunity ought to
have been given to clear the misunderstanding or find out the correct position
regarding safety of its product. Action of the State of not supplying the material on the
basis of which the action was taken and not giving a personal hearing and issuing an
order of ban clearly falls within the four corners of arbitrariness and is therefore
violative of Article 14 and 19 of the Constitution of India.”50
35. “The policy decision is subject to judicial review if a) it is unconstitutional; b) if it is
dehors the provisions of the Act and the regulations; c) if the delegate has acted beyond
its power of delegation; d) if the executive policy is contrary to the statutory or a larger
policy.”51
36. Thus, in light of the right to be heard not given to the Respondent, the principles of
natural justice have been violated. Further, the right to trade has been infringed upon as
Article 19 guarantees right to trade and the current circumstances does not fall under
reasonable restrictions.

F. That the Mandatory Scientific procedures were not followed

37. The Respondent submit that FSSAE did not base its decisions on scientific evidence
and a proper assessment of risk. The ban was imposed without sufficient scientific
evidence, flawed studies, and a misinterpretation of data, thus the decision lacks a
proper foundation.52 A lot of other similar products came up in the market too, which
could have caused the apparent public health crisis, there might be other reasons for the
cause. No proper research and tests were conducted since the food laboratory is not
reliable due to past allegations and reports pertaining to the laboratory’s head and its
employees.53
38. The Research Integrity is Compromised by Bias and Past Misconduct. The presence of
bias is evident since Mr. Ramsay, who led the investigation, has publicly criticized

48
Supra Note 24.
49
Moot Proposition, ¶ 8.
50
Supra Note 2.
51
Ginjala Varun Reddy v. Food Safety and Standards Authority of India, 2021 SCC OnLine Del 4662
52
Supra Note 49.
53
Supra Note 49.

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Wahgi in the past. This bias could have influenced the research findings. Moreover, the
claim of bribes being offered to FRL researchers in the past raises concerns about the
integrity of the research process.54 Since the tests were conducted by someone with a
known bias against Wahgi, the credibility of the research is compromised. The
research's findings may have been influenced by this bias, casting doubt on the accuracy
and objectivity of the results. Further, the results of the research findings were not made
public hindering the transparency of the process. The Ban is questionable since there
was no compliance with the Accreditation standards.
39. FSSAE had not undertaken any investigation for carrying out the risk analysis to decide
that the product of the Respondent was unsafe for human consumption. 55 “The
Designated Officer ought to have made a risk assessment before recommending
prohibition.”56
40. Further, the analysis of food by the Food Analyst was not in accordance with the Rules
and Regulations. “It is not possible to place reliance on the reports of the Food Analysts
given by various States in respect of analysis of the samples of the product of the
Respondent and therefore decision taken by the Food Authority relying on these reports
therefore will have to be set aside. On the same ground, it will not be possible to accept
the reports of the samples which have been tendered on behalf of the Respondent since
there is no manner of knowing whether procedure has been properly followed or not.”57
41. “Procedure of sampling is mandatory”.58 The sampling process should be undertaken
as per the provisions of Section 47(1) and other relevant provisions of the Act and
Regulations framed thereunder.59 The mandatory procedures which had to be followed
as per Section 47(1) of the Act and Regulations framed thereunder, were not followed.
The arbitrary imposition of the ban without proper investigation and justification
questions its proportionality. The doctrine of proportionality mandates that any action
taken by a regulatory authority must be proportional to the objective it seeks to achieve.
42. Ban on Wahgi, a product that has been on the market for over two decades,60 without
proper deliberation and comprehensive scientific consensus, is arbitrary and
detrimental. The sudden prohibition not only undermines consumer choice but also fails

54
Supra Note 49.
55
Moot Proposition, ¶9.
56
Supra Note 21.
57
Supra Note 2.
58
Id.
59
Supra Note 2.
60
Supra Note 16.

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to provide a measured response to the alleged health concerns. The samples collected
by FRL for testing may not accurately represent the genuine Wahgi product, as they
were not properly procured and analyzed.61

III. APOXIA IS NOT LIABLE TO PAY ANY COMPENSATION

It is humbly submitted by the Respondent, in furtherance of the aforementioned reasons, that

Apoxia is not entitled to pay any Compensation, as the charges against it are false and it is in
full compliance with the required statutory provisions. Moreover, it is contended that, in any
scenario, there are other factors which are responsible for the injuries faced by the
complainants.

G. That the complainants are also responsible for their obesity and are therefore,
contributory negligent

43. In arguendo, if the assertion that consuming Wahgi leads to obesity is true, then
complainants have also contributed to their condition.
44. In the case of Jones v. Livox Quarries Ltd., it was held by Denning, L.J., that “a person
is guilty of contributory negligence if he ought reasonably to have foreseen that, if he
did not act as a reasonable, prudent man, he might be hurt himself.”62 This principle
was upheld by the Supreme Court in Andhra Pradesh State Road Transport
Corporation v. K. Hemalatha and in Pramod Kumar Rasikbhai Jhaveri v. Karmasey
Kunvarg Tak. In the latter it was held that contributory negligence “does not mean
breach of any duty. It only means the failure by a person to use reasonable care for the
safety of either himself or his property, so that he becomes blameworthy in part as an
’author of his own wrong”.63
45. In Municipal Corporation of Greater Bombay v. Laxman Iyer, it was held that “in the
case of contributory negligence, courts have the power to apportion the loss between
the parties as seems just and equitable.”64

61
Supra Note 49.
62
Jones v. Livox Quarries Ltd., (1952) 2 QB 608.
63
Pramod Kumar Rasikbhai Jhaveri v. Karmasey Kunvarg Tak, AIR 2002 SC 2864.
64
Municipal Corporation of Greater Bombay v. Laxman Iyer, (2003) 8 SCC 731.

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46. In the case of Dent v. Lammens, it was held that ignoring medical advice resulting in
deterioration to one’s bodily and physical health is a ground for contributory
negligence.65
47. Obesity is not a guaranteed consequence of consumption of a single food item or a
single category of food item with a high calory intake. It also involves active ignorance
of reasonable duty of a person to exercise and have a fitness regime. If you don't
exercise enough, your body will store the additional energy you consume as fat since
you won't be able to utilise it and would harm them in form of obesity. It’s basic
knowledge, every reasonable individual knows. The lack of exercise has played in the
obese condition they find themselves and consequently, they have committed
contributory negligence.
48. Moreover, obesity is not an overnight disease, but rather an ailment which develops
over time and would necessitate any reasonable individual to undertake visits to a
medical practitioner in the overweight stage between 25-29.9 BMI, regarding breathing
or chest-ache issues. 66 Such visits would reasonably advise a dietary reform towards
achieving a caloric deficit in order to reverse the bodily decline towards obesity and to
curtail respiratory or pulmonary difficulties.67 Avoiding such visits despite the physical
difficulties in the overweight stage is actively causing injury to one’s body, which no
reasonable individual would allow. Ignoring medical advice, by continuing to consume
a calory intensive product, such as the duly labelled Wahgi instant noodle would
amount to contributory negligence according to the Dent judgement.
49. Thus, it is clear that the complainants didn’t act reasonably and consequently did play
a part in harming themselves. In light of the aforementioned instances and judicial
pronouncements, it is conspicuous that the complainants committed contributory
negligence and it is humbly submitted to the court that appropriately decide the
damages.

65
Dent v. Lammens, O.J. No. 3495 (S.C.J.).
66
Ajay Khera, (2018) Vol 1.0, Comprehensive National Nutrition Survey. rep. New Delhi: Ministry of Health &
Family Welfare.
67
Id.

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H. That the Etinian government is also liable for the obesity and other health issues
faced by the complainants

50. In the case of Rudul Shah v. State of Bihar, the Supreme “one of the telling ways in
which the violation of that right can reasonably be prevented and due compliance with
the mandate of Article 21 secured, is to mulct its violators in the payment of monetary
compensation.”68 The case laid down the exception to the sovereign immunity doctrine
of Kasturilal Ralia Ram Jain v. The State Of Uttar Pradesh69 case, that if there is a
violation of Article 2170, then state is liable and can be made to provide compensation
to the victims, regardless of the fact whether the violation was a cause of sovereign
function or not.
51. The principle was upheld by the apex court in State of Andhra Pradesh v. Challa
Ramakrishna Reddy, where it ruled that doctrine of sovereign immunity was to have no
application if there was a case of a violation of the fundamental rights under Article
2171 and it made no difference that the claim was laid through a suit and not under
Article 3272 or 22673.74
52. In the case of Consumer Education and Research Centre v. Union of India, the apex
court held “that the right to health and medical care is a fundamental right under
Article 2175 read with Articles 39(c)76, 4177 and 4378 of the Constitution.”79 The case
also involved the state being made to provide monetary compensation to multiple
individuals for the violation of their Right to Health. The principle was supported in
State of Punjab & Ors v. Mohinder Singh Chawla, with the apex court holding, that “it
is now settled law that right to health is an integral to right to life”80 under Article 2181.
53. When Wahgi entered the market in 2002, Government of Etinia, rather than adhering
to the established norms of rigorous oversight, it chose to exhibit a concerning degree

68
Rudul Shah v. State of Bihar, AIR 1983 SC 1086
69
Kasturilal Ralia Ram Jain v. State of U.P., AIR 1965 SC 1039.
70
INDIA CONST. art. 21.
71
Id.
72
INDIA CONST. art. 32.
73
INDIA CONST. art. 226.
74
State of Andhra Pradesh v. Challa Ramkrishna Reddy, (2000) 6 JT 334.
75
Supra Note 70.
76
INDIA CONST. art. 39.
77
INDIA CONST. art. 41.
78
INDIA CONST. art. 43.
79
Consumer Education and Research Centre v. Union of India, 2010 SCC OnLine SC 1017.
80
State of Punjab v. Mohinder Singh Chawla, (1997) 2 SCC 83.
81
Supra Note 70.

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of leniency, bestowing Apoxia with special permits and relaxed registration

requirements. 82 Strikingly, this initial display of regulatory indulgence laid the
groundwork for a persistently negligent attitude that unfolded over the subsequent
decades. Rather than rectifying this lapse, the Government of Etinia seemed to embrace
a pattern of ongoing complacency. Over the passing years, they not only continued to
extend multiple incentives to Apoxia but actively facilitated the proliferation of Wahgi
manufacturing facilities. 83 This included an unwavering assistance in obtaining
licenses, permits, and distribution channels.84
54. This cooperative stance, however, does not merely denote a spirit of support but, in fact,
underscores a grievous violation of Right to Health under Article 21 85 . The
government's failure to uphold the necessary checks and balances and its disregard for
ensuring the safety and quality of Wahgi noodles stands as a stark violation of this
fundamental human right. By perpetuating an environment where commercial interests
are prioritized over the well-being of its citizens, by actively supporting the rise and
furthering Wahgi’s market reach, the Government of Etinia has, wittingly or
unwittingly, caused the complainants’ health issues, violating their fundamental Right
to Health under Article 2186.
55. In light of the aforementioned instances and judicial pronouncements, it is conspicuous
that Government of Etinia, having violated the Right to Health under Article 2187, must
compensate the complainants.

82
Moot Proposition, ¶ 3.
83
Supra Note 15.
84
Supra Note 15.
85
Supra Note 70.
86
Supra Note 70.
87
Supra Note 70.

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 IX
PRAYER

PRAYER

Wherefore, in light of the facts stated, issues raised, arguments advanced and authorities cited,
the Respondent most humbly pray before the Hon’ble Supreme Court of Etinia to adjudge,
declare and hold the following:

1. That Apoxia is not bound to disclose the trade secret and constituent ingredients of
Wahgi, and consequently not violated the packaging and labelling requirements.

2. FSSAE is not correct in banning the sale of Wahgi across the country.

3. Apoxia should not be liable to pay for compensation in the consumer action lawsuit.

Or pass any other order, direction, or relief that this Honourable Court may deem fit in
the

interests of justice, equity and good conscience.

For this Act of kindness, the Respondent as is duty bound shall ever pray.

(Respectfully Submitted)

Counsels on behalf of the Respondent

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