Bombay High Court
Mumbai Mewa Masala Merchants And ... vs Union Of India And 4 Ors on 16 September, 2015
Bench: S.C. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.477 OF 2012
The Association of the Traders carrying the Food )
Business of various Food items being an registered )
Association having its office at 956/71, Katrak Road, )
Vadala, Mumbai - 400031 through, Authorised )
Signatory Shri.Kiran Varshi Gada, Adult, )
Occ: Business, Sadashiv Wadi, Katrak Road, )
Wadala, Mumbai 400031. ).. Petitioner.
Vs.
1.Union of India, (Summons to be served on the )
Learned Government Pleader appearing for Union )
of India under Order XXVII, Rule 4, of the Code
ig )
of Civil Procedure,1908) )
)
2. The Secretary, Ministry of Law and Justice, )
Government of India, New Delhi, (Summons to be )
served on the Learned Government Pleader appearing )
for Union of India under Order XXVII, Rule 4, of the )
Code of Civil Procedure,1908.) )
)
3. State of Maharashtra, (Summons to be served on )
the learned Government Pleader appearing for Union )
of India under Order XXVII, Rule 4, of the Code of )
Civil Procedure,1908) )
)
4. The Principal Secretary, Ministry of Food, Civil )
Supplies and Consumers, State of Maharashtra, )
Mantralaya, Mumbai-400032. (summons to be )
served on the Learned Government Pleader appearing )
for State of Maharashtra under Order XXVII, Rule 4, )
of the Code of Civil Procedure,1908.) ).. Respondents.
AND
WRIT PETITION NO.227 OF 2012
Mumbai Mewa Masala Merchants' Association, a )
registered Association under the provisions of the )
Societies Registration Act,1860, having its registered )
office at 47/49, Yusuf Maherali Road, Mandvi, )
Mumbai - 400 003. )
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)
2. Shri.Raichand Poonshi Dedhia, President of )
Petitioner No.1 Association, having its office at )
M/s.Maruti Masala Mart, 262/70, Narshi Natha )
Street, Bhat Bazar, Mumbai - 400 009. ).. Petitioner
Vs.
1.Union of India, represented by its Secretary to the )
Government, Ministry of Health and Family Welfare, )
Nirman Bhavan, New Delhi - 110011. )
)
2. The Secretary, Ministry of Law and Justice, Government )
of India, Shastri Bhavan, 'A' Wing, Dr.Rajendra Prasad Road)
New Delhi - 110 001, through Ministry of Law, Justice )
and Company Affairs, Aaykar Bhavan, New Marine Lines, )
Mumbai-400020. ig )
3. The Principal Secretary, The State of Maharashtra, through)
Ministry of Food and Civil Supplies, Mantralaya, Mumbai )
400032, through Office of Government Pleader, PWD Bldg. )
High Court, Mumbai. )
4. Food Safety and Standards Authority of India, having its )
office at 3rd /4th Floor, Food and Drug Administration Bhavan)
Next to Rashtriya Bal Bhavan, Kotla Road, )
New Delhi - 110 002. )
5. Commissioner of Food Safety of the State of Maharashtra )
having his office at Survey No.341, Bandra Kurla Complex, )
Madhusudan Kalelkar Marg, Bandra (E), Mumbai-400051. ).. Respondents.
AND
WRIT PETITION NO.115 OF 2014
1.AHAR, Indian Hotel & Restaurant Association, B-2, )
Wadala Shri.Ram Industrial Estate, Ground Floor, )
G.D.Ambekar Marg, Near Wadala Telephone Exchange, )
Wadala, Mumbai-400031. )
)
2. Mr.Shashikant Shetty, Secretary/Authorized Signatory, )
H-2, Wadala Shri Ram Industrial Estate, Ground Floor, )
G.D.Ambekar Marg, Near Wadala Telephone Exchange, )
Wadala, Mumbai-400031. )..Petitioners.
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vs.
1.Union of India represented by its Secretary to the )
Government, Ministry of Health and Family Welfare, )
Nirman Bhavan, New Delhi - 110 011. )
2. The Secretary, Ministry of Law and Justice, Government )
of India, New Delhi. )
3. The Secretary, The State of Maharashtra, through )
Ministry of MED & FDA Supplies, Mantralaya, )
Mumbai - 400032. )
4. Food Safety and Standards Authority of India constituted )
under the Food Safety and Standards Act,2006 having its )
Office at FDA Bhavan, Near Bal Bhavan, Kotala Road, )
New Delhi - 110 002. ig )
5. Commissioner of Food Safety of the State of Maharashtra )
having its office at S.No.341, Bandra Kurla Complex, )
Bandra (East), Mumbai-400051. )
------
Mr.A.V.Anturkar, Senior Advocate i/b. Mr.Sugandh Deshmukh, for the
Petitioner in Writ Petition No.477/12.
Mr.Kamal Bhulchandani i/b. Mr Kamal & Co., for the Petitioner in Writ Petition
No.227/12.
Ms.Anjali Purav, for the Petitioner in Writ Petition No.115/14.
Mr.Mehmood Pracha with Mr.Anil Singh, A.S.G., with Dr.G.R.Sharma, Mr.Rui
Rodrigues, Mr.G.Hariharan, Mr.N.R.Prajapati, Mr.T.N.Pathan, Mr.Dhanesh Shah
i/b. Mr.Niraj Kumar, the Respondents - Union of India.
-------
CORAM : S.C.DHARMADHIKARI &
G.S.KULKARNI, JJ.
RESERVED ON : 18th JUNE, 2015.
PRONOUNCED ON : 16th SEPTEMBER, 2015
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JUDGMENT : (PER G.S.KULKARNI, J.)
1. Admit. Respondents waive service. By consent of the learned
Counsel for the parties and at their request taken up for final hearing.
2. This batch of petitions raise a common challenge. The challenge is
to the constitutional validity of the provisions of Food Safety and Standard
Act,2006 as also to the rules and regulations framed thereunder.
3. Writ Petition No.477 of 2012 has been filed by the Association of
the Traders claiming to carry on business in various food. The petitioner
describes itself to be a registered association, however, without specifying under
which law, it is so registered. The challenge as raised in this petition is quite
broad inasmuch as in prayer clause (a) the petitioners pray for quashing and
setting aside the provisions of the Food Safety and Standards Act, 2006 (for
short "the FSS Act") as violative of Article 14, 19 and 21 of the Constitution of
India. In the alternative, a prayer is made seeking a writ of mandamus to quash
and set aside the provisions of Section 31 and 36 and other connected sections of
the FSS Act as violative of Article 14, 19 and 21 of the Constitution of India.
4. The second Writ Petition being Writ Petition No.227 of 2012 has
been filed by Mumbai Mewa Masala Merchants Association, a registered
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Association under the provisions of the Societies Registration Act,1860. The
prayers as made in the petition are appearing on pages 106 to 116 of the paper
book which contain prayer clause (a) to (g) and the substantive prayers being
prayer clause (a) to (c). The challenge as raised in this Writ Petition is also too
broad and verbose inasmuch as apart from the challenge to the substantive
provisions of the FSS Act, there is also a challenge to the certain provisions
under the Licensing Regulations. The challenge is basically to the legality of the
provisions of Sections 31, 34, 38, 46, 65, 70 and 80 of the FSS Act.
5.
The third Writ Petition is filed by one AHAR Indian Hotel and
Restaurant Association. It claims to be an Association of restaurants and hotel
owners in and around Mumbai and other parts of the State of Maharashtra,
registered under the Societies Registration Act,1860. The petitioners in this
petition pray that the FSS Act and the Rules and Regulations,2011 framed
thereunder be declared as illegal and unconstitutional, null and void, qua the
food service providers i.e. hotels and restaurants, and, in the alternative that the
FSS Act and Rules and Regulations framed thereunder are mainly framed and/or
applicable to the manufacturing units / factories and not to the hotels and
restaurants providing food services to its customers. Prayer clause (e) has seven
sub-heads wherein several other prayers are made and it would be appropriate
that we reproduce those prayers which read as under:-
"(e) That this Hon'ble Court be pleased to issue a writ of
Mandamus or a writ in the nature of certiorari or any other
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appropriate writ, order or direct the Respondents;
(i) Not to consider Hotels and Restaurants as
manufacturers as defined u/s.3(zd) of FSS Act.
(ii) To direct the Respondent No.5 to provide for
representation from the Hotels and Restaurants in
Central Advisory Committee.
(iii) To direct the Respondents to clarify whether
the provisions of Section 16 are applicable to the
Hotels and Restaurants.
(iv) To direct the Respondents to create separate
category of Hotels and Restaurants in FSS Act.
(v) To direct the Respondents to modify the
amount of penalty to be charged to Hotels &
Restaurants (Food Service Provider).
(vi) To direct the Respondents to frame separate &
specify Rules and Regulation for Food Service
Provides.
(vii) To direct the Respondents to exempt Hotels
and Restaurants from process of filing returns as per
regulations 2.1.13."
6. Before we examine the challenge as raised in all these Writ
Petitions, we may at the outset observe that though these Writ Petitions
challenge the constitutional validity of the provisions of the FSS Act and the
Rules and Regulations framed thereunder, none of these petitions aver the
foundation for such a challenge. The foundation necessarily has to be from a
bundle of facts which would show that the implementation of the Act in a given
set of facts has violated any of the Constitutional and other legal rights as
guaranteed to the petitioners. It is well settled that the challenge to the
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Constitutional validity of the Act must be on the basis of a certain and definite
set of facts and not on an apprehension. In other words a challenge to the
Constitutionality of statute cannot be raised in abstract or in a vacuum. The
essential facts are the foundation and become necessary to examine the validity
of the Act. The position in this regard can very well be traced to the decision of
the Supreme Court in the case of "Sant Lal Bharti Vs. State of Punjab, ((1988)
1 SCC 366)". The Supreme Court in the case of " Kusum Ingots & Alloys Ltd.
Vs. Union of India & Anr. ((2004)6 SCC 254)" has reiterated this position that
a Writ Court would not determine the Constitutional question in vacuum and that
passing of a legislation would give rise to cause of action, however, only when
the provisions of the legislation which were implemented, would give rise to
civil or evil consequences to the petitioner. In all these three petitions, the
petitioners have failed to set out on facts as to how the provisions of the
impugned enactment have adversely affected the petitioners. We categorically
asked the learned Counsel appearing for each of these petitioners as to whether
any notices or any adverse action has been taken against any of their members
by the Authorities implementing the provisions of the Act, the learned counsel
for the petitioners, however, conceded that no adverse action is taken by the
Authorities implementing the FSS Act and much less entailing any apprehended
consequence of the manner as averred in the petitions. Nonetheless as the issues
are of a recurring nature and the petitioners representing a cross section of the
trade and food supply business, we proceed to decide the same. We have
accordingly heard the learned Counsel for the parties at length, so as to examine
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the merits of the representative challenge as raised.
FACTS:-
7. Writ Petition No.477 of 2012 is filed by the Association of Traders
carrying Food business. Writ Petition No.227 of 2012 is filed by the Mumbai
Mewa Masala Merchants Association claiming to be a registered Association of
the retailers - wholesalers of dry fruits and spices, and are claiming to have a
membership of 49 retailers and wholesalers. The challenge in these two Writ
Petitions though couched in different words is quite similar. We, therefore, in
common set out the case of the petitioners. The challenge is on the ground of
extensive powers, conferred by the FSS Act on the various authorities,
vagueness of the provisions violating the rights of the petitioner under Article
14, 19(1)(g), 21 and 300A of the Constitution of India. It is the petitioners' case
that its members who are in the business of food items would be adversely
affected by implementation of the FSS Act. The petitioners have averred that by
virtue of the Act, earlier laws relating to food and adulteration stand repealed
which are the Prevention of Food Adulteration Act,1954, the Food Products
Order 1955, the Meat Foods Products Order 1973, the Vegetable oil Products
(Control) Order,1947, the Edible Oil Packaging (Regulation) order,1998, the
Solvent Extracted Oil Mill and De oiled Meal and Edible Flour (Control) Order
1967, the Milk and Milk Products Order 1992, and other orders issued under the
provisions of Essential Commodities Act,1955 relating to food. It is stated that
these laws have been repealed by virtue of Section 97 of the Act. The petitioners
state that the Central Government under the FSS Act has been given a power to
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frame statutory Rules by virtue of Section 91 of the FSS Act. As also the Food
Authority has been given power to make regulations under Section 92 of the Act.
Under Section 94 of the Act, the State Government has an authority to make
Rules. The petitioners state that they are aggrieved by the implementation of the
FSS Act, apart from the broad challenge raised to the entire FSS Act. The
principal grievance as averred in the petition is on the licensing provision which
is contained in Section 31 of the FSS Act. The contention is that Section 31
provides that no person shall commence or carry on any food business "except
under a licence", and for this purpose sub-section (3) of Section 31 provides that
any person desirous to commence or carry on any food business shall make an
application for grant of a licence to "the Designated Officer", in such manner as
may be specified in the Regulations. The petitioners aver that the expression
"Designated Officer" as defined under Section 36 of the FSS Act provides that
the Commissioner of Food Authority, shall by an order appoint, a Designated
Officer who shall be not below the rank of Sub-Divisional Officer, to be in-
charge of Food Safety Administration in such a manner as may be specified by
Regulations. It is the petitioners' case that the Sub-Divisional Officer is an
Officer who is appointed under the provisions of the Maharashtra Land Revenue
Code and who is entrusted purely with the duties as a Revenue Officer. The
contention is that in exercising the functions of granting a licence, such Officer
is required to be satisfied on various aspects pertaining to public health in either
accepting or rejecting the application for a licence. It is the petitioners'
contention that a conjoint reading of the provisions of Section 31 read with
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Section 36 of the FSS Act confers powers on the Sub-Divisional Officer to take
a decision on the licence application and the Sub-Divisional Officer, if satisfied
that "it is necessary so to do in the interest of public health", the Sub-
Divisional Officer may reject an application. It is the petitioners' case that
conferment of such powers on a Sub-Divisional Officer as a 'designated officer'
to issue a licence for carrying food business, is arbitrary. The reason being that
the Sub-Divisional Officer is merely a Revenue Officer. Neither he is a technical
officer nor he has knowledge or a technical know-how about the food business
or about food industries. The Sub-Divisional Officer is merely entrusted with
the work of revenue collection under the provisions of the Revenue law, and
who has no technical qualification, and such a person is entrusted with the job of
either accepting or rejecting the application for licence.
8. The next issue the petitioners' raise is that Section 31 (2) of the
FSS Act contain vague words which are not defined which would render the
provision illegal. The FSS Act does not define as to what is meant by "petty
manufacturer". It does not define as to what is meant by "petty retailer" or
"hawker" or "itinerant vendor", "temporary stall holder" or "small scale or
cottage or other industries relating to food business", or "tiny food business
operator". Unless these words are defined, they are incapable of being
implemented and thus, Section 31(2) is rendered vague and impracticable.
9. The next contention as urged by the petitioners is pertaining to
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exercise of powers by the Designated Officer. The petitioners contend that
under Section 31(4) of the Act, the Designated Officer, if satisfied that it is
necessary to do so in the interest of public health, may reject a licence
application, and for such rejection neither there are any guidelines laid down in
the Statute as to what is meant by the words "in the interest of public health",
nor there are any guidelines which have been laid down in the rule making
power of the Central Government. Also no guidelines are found in the rule
making power conferred on the State Government or in the Regulation making
power of the Food Authority under the provisions of the FSS Act.
ig The
contention is that as to what would be in the interest of public health in rejecting
an application is a grey area unsupported by any rules or regulations and, thus,
the Designated Officer who is a Sub-Divisional Officer is required to exercise
such unguided and undefined powers using his own discretion. The exercise of
power by the designated officer is purely discretionary and thus, would lead to a
discrimination violating the mandate of Article 14 of the Constitution. If by
such exercise of power a licence is rejected to the members of the petitioners
Association, then, this is imposing an unreasonable restriction on the right to
carry on an occupation and profession by the members of the petitioners and
would violate the fundamental rights guaranteed under Article 19(1)(g) of the
Constitution of India. The restriction is not a reasonable restriction and on the
permissible grounds as envisaged under Article 19(6) of the Constitution.
10. The second limb of the challenge is to the provisions of Section 32,
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33, 34 35 and 36 of the FSS Act, on the ground that very wide powers are
conferred upon the "Designated Officer" appointed under the FSS Act. The
powers as conferred on this officer is the power to issue improvement notices,
prohibition orders, emergency prohibition notices and orders to be passed under
Section 32, 33, 34, 35 and 36 of the Act without issuing a show cause notice
before such a drastic action and that the Designated Officer can take a direct
action against the shopkeepers, which is against the principles of natural justice.
By this provision no opportunity is made available to the shopkeepers / owners
to satisfy the Authorities that there is no wrong committed by them in respect of
food safety. The Designated officer is conferred wide powers of cancellation of
food business licence and prohibiting sale of any articles of food description of
which is found to be in contravention of the Rules and Regulations. The
Designated Officer is also conferred with the powers of prosecution. The
conferment of such powers on the Designated Officer will render it difficult for
any shop owner to conduct business and earn his livelihood.
11. Further it is the petitioners' case that the powers conferred on the
Food Safety Officer under Section 38 of the Act to take, to enter and inspect any
place where the articles of foods are manufactured or stored for sale or stored for
manufacture and if it is found that there is a contravention of the provisions of
the FSS Act, take action against such shop or shop owners on the spot, without
giving any opportunity to call for any explanation as also exercise powers under
the Code of Criminal Procedure relating to search, inspection of the place, is
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illegal, contrary to the principles of natural justice and equity rendering the
provision illegal and unconstitutional.
12. Then the grievance is in respect of Section 39 of the Act which
provides for liability of Food Safety Officer in certain cases. The grievance of
the petitioners is that if any complaint is made against any Food Safety Officer
and if the complainant fails to prove the complaint then fine of Rs.50,000/- to
Rs.1,00,000/- can be imposed on the complainant, which itself is illegal as it will
be very difficult to prove malpractice adopted by the Food Safety Officer. Such
provision in fact protects the illegalities and/ or the malpractices / corruption of a
Food Safety Officer as there is deterrent to file a complaint against such an
officer. The next grievance is pertaining to provisions of Sections 41 and 42
conferring wide power of search, seizure, investigation and prosecution, and that
conferring of such wide powers is arbitrary. Further, Section 41 would render
that no search would be deemed to be irregular by reason of the fact that the
witnesses for the search are not inhabitants of the locality, in which locality, the
place searched is situated. These are wide powers without any restrictions. The
next challenge is to the provisions of Sections 50, 51, 52 and 53. The contention
is that the penalty of about Rs.5,00,000/- has been proposed to be imposed for
selling food which is not of a nature or substance or quality demanded. Thus, a
penalty can be imposed on the basis of the report prepared by the Food Safety
Officer without giving a show cause notice to the shop owner concerned.
Similarly, Section 54 provides penalty of Rs.5,00,000/- if the food contains
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extraneous matters and Section 55 imposes penalty of Rs.2,00,000/- for failure
to comply with the directions of the Food Safety Officer. Section 56 also
imposes penalty for unhygienic or insanitary processing or manufacturing of
food. Section 57 provides for penalty for possessing adulterant and Food Safety
Officer can take action by imposing a fine upto Rs.10,00,000/-. All these
provisions are totally illegal and arbitrary.
13. Then the assail is to the provisions of Section 61 and 64 which
provide for punishment for false information and punishment for subsequent
offence. The petitioners contend that these provisions are contrary to the well
settled principles of law, requiring compliance of principles of natural justice
and, therefore, required to be struck down. Also Section 65 which proposes to
pay compensation to the victim in case of injury or death of consumer, of not
less than Rs.5,00,000/- in case of death, and not exceeding Rs.3,00,000/- in case
of grievous injury, and not exceeding Rs.1,00,000/- in all other cases of injury.
The challenge is that the compensation is far on the higher side and if such
compensation is imposed, it would be difficult for the shopkeepers to do
business. Further Section 69 which deals with the power to compound an
offence, does not allow compounding of minor offences, the provision is,
therefore, illegal. Section 69 of the Act provides no guidelines as to when it can
be said that a reasonable plea exists that a person has committed an offence as
also it is not clear what is meant by the words "contravention against this Act". It
is also not clear as to "when such persons are suspected to have committed
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offence".
14. Then, the challenge is to the provision of Section 72 of the Act
which provides that a Civil Court shall have no jurisdiction to entertain any suit
or proceedings in respect of any matter which an Adjudicating Officer or
Tribunal is empowered by or under the Act to determine and no injunction shall
be granted by any Court or other Authority in respect of any action taken or to be
taken in pursuance of any powers exercised under the Act. The contention is
that the provision is contrary to the Civil law applicable in the entire country
since the Government is not able to establish the Tribunal as contemplated under
Act at each and every place, and, therefore, Civil Courts become necessary and a
proper remedy to the shop owners. Thus, Section 72 deserves to be quashed and
set aside.
15. The petitioners aver that the above several provisions of the Act are
violative of Articles 19(1) (g) and 21 of the Constitution on the ground that they
suffer from excessive delegation. The submission on Article 21 is that the
procedure which has been contemplated under the various provisions of the Act
is almost unworkable and highly subjective, completely impracticable and on
this count it is not "procedure established by law within the meaning of Article
21 of the Constitution."
16. It is, then, averred that the Regulations framed under the Act
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namely Food Safety and Standard (Licencing and Registration of Food
Business) Regulations,2011 ( for short "the Licencing Regulation) and more
particularly, regulation 1.2.4 is vague and impracticable. The registration
procedure contemplated by Regulation 2.1.1.(1)(2)(4) alongwith the requirement
of Schedule IV is also vague and impracticable. Further in the case of Non Petty
Food Operator, the provisions of Section 3(n), 3(zd) and Section 3(o) and the
requirement of Section 27 and Schedule IV Part 2 of the Licencing Regulations,
alongwith the Regulation 2.1.2 and Section 58 are vague and results in making
the said sections vagarious and impracticable and thus, the provisions are illegal
and bad-in-law. It is the contention of the petitioners that the guidelines are to
be mentioned in the statute itself and not in the delegated legislations
WRIT PETITION NO.115 OF 2014
17. This Writ Petition is by the Association of Restaurants and Hotels
which is a society registered under the Societies Registration Act and claiming to
have a membership of about 3000 members. The challenge is similar to the one
as as raised in the earlier two Writ Petitions and challenge to the provisions of
the Act, Rules and Regulations framed thereunder on the basis that the
provisions are ambiguous, impracticable to be complied with by the members of
the petitioners and which take away the fundamental and constitutional rights of
its members. The provisions if allowed to remain in the statute book, the same
will not only confer arbitrary powers in the officers appointed under the Act, but
also abuse of the fundamental and constitutional rights vested in the citizens
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leading to corruption. That each and every provision as challenged in the
petition is ambiguous and is not at all clear and whether the same is applicable to
the Hotels and Restaurants. The penal sections provide for huge penalties,
prosecution and imprisonment without being heard and the provisions would
operate on overall whims and fancies of the officers appointed under the Act and
thus, the provisions are violative of the provisions of Articles 14, 19(1)(g) and
300A of the Constitution of India.
18. After having discussed about the nature of the challenge as raised
in these petitions, we now proceed to record the submissions as made on behalf
of the learned Counsel for the petitioners. Mr.Anturkar, learned Senior Counsel
appearing for the petitioners in Writ Petition No.477 of 2012 submits that the
provisions of the Act are vague and extremely ambiguous and are left to be
exploited by the officers. Apart from the broad challenge as raised in the Writ
Petition, Mr.Anturkar has confined his submissions on the challenge to Section
31 and Section 36 of the FSS Act. Mr.Anturkar has drawn our attention to the
provisions of Section 31 of the Act which pertains to Licencing and Registration
of food business. Our attention is invited to certain expressions which are used
in Section 31 namely the expression "Food business" as defined under Section
2(n), "Unsafe Food" as defined under Section 2(zz), "sale" as defined under
Section 2(zr), "manufacturer" as defined under Section 2(zd). The submission
of Mr.Anturkar is that there are number of words as appearing in these
provisions which are not defined. These words being "processing", "Storage",
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"distribution", "food services", "catering", "food ingredients". It is submitted
that the Act does not define many of the items as contained in Section 31 and
thus the consequence is that the provisions are subject to abuse on account of
their vagueness. It is submitted that the definitions are required to be precise and
the scope of activities sought to be governed by the provisions of Section 31
cannot be left vague subjecting it to the absolute discretion of the Officer who
would act under the provisions. Mr.Anturkar has then drawn our attention to the
provisions of the Licencing Regulation and more particularly, to clauses 2.1.2,
Schedule IV Part I, Clauses 14, 15, 16 and 18 to submit that the aspects which
are covered by these clauses are vague and hence are rendered arbitrary.
19. Mr.Bulchandani, learned Counsel appearing on behalf of the
petitioners in Writ Petition No.227 of 2012 submits that the grievance of the
petitioners for striking down the provisions of the FSS Act is principally on
account of vast discretionary powers being conferred on the Officers in the lower
hierarchy empowering them to grant different licences. Mr.Bulchandani submits
that Section 31 (6) of the FSS Act would require licence for each food article to
be sold and would also require different licences. It is submitted that Section
31(8) of the FSS Act would show that it is hardly a remedy if the licence
application is rejected, as the same is the remedy to file an appeal before the
Commissioner of Food Safety under whose orders the Designated Officers are
appointed. Mr.Bulchandani submits that the provisions of the Act contemplates
a "licencing Raj" being established, with wide discretion to the officers on every
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possible aspect concerning manufacture, sale, distribution and consumption of
food articles. By drawing our attention to the provisions of Sections 23, 34, 38,
46, 80, 65, 77 and the provisions of the definition clauses, it is submitted that the
provisions of the FSS Act are vague, conferring an unwarranted discretion with
the officer which is impracticable and unworkable and thereby would render to
be unconstitutional, violating the fundamental rights.
20. Mr.Dhakephalkar, learned Senior Counsel appearing on behalf of
the petitioners in Writ Petition No.115 of 2014 would submit that the provisions
of the FSS Act lacks absolute clarity as to which rules would be applicable to the
manufacturers, the hoteliers and the processing units. He submits that the rules
which are applicable to the manufacturers cannot be made applicable to the
hotels and restaurants. In support of his submission, Mr.Dhakephalkar has
invited our attention to the provisions of Section 50 of the Act which provides
for penalty for selling foods not of a nature or substance of the quality
demanded. He submits that a bare reading of this provision in its applicability to
the hoteliers would instantly show that the same would subject the members of
the petitioners to harassment and abuse inasmuch as the food which is prepared
in the hotel cannot be left to the compliance of the provisions of the Act and
Regulations, and violation thereof liable to a penalty. Mr.Dhakephalkar has
drawn our attention to the licensing regulations and more particularly Annexure-
3 which provides for conditions of licence to be complied by the Food Business
Operators at all times during the course of food business. He has drawn our
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attention to Clause 4 which is a condition that the food business operator shall
employ at least one technical person to supervise production process and who
shall possesses degree in science with chemistry/ bio chemistry/ food and
nutrition/ microbiology or a degree or diploma in food technology/dairy
technology/ dairy microbiology/ dairy chemistry/ dairy engineering/ oil
technology/ veterinary science/ hotel management & catering technology or any
degree or diploma in any other discipline related to the specific requirements of
the business from a recognized university or institute or equivalent. His
submission is restaurants and more particularly for small restaurants such
condition is impossible of compliance. Also it is difficult for such restaurants to
get qualified under clause 4 and comply with this clause. Mr.Dhakephalkar
would submit that the provisions which are actually meant to be applicable to the
manufacturers cannot be made applicable to the restaurants and thus, the
provisions in its application to the restaurants are violative of Articles 14, 19(1)
(g) and 21 of the Constitution and, therefore, are required to be struck down.
21. Mr.Kapadia, learned Counsel appearing for the intervener in the
Writ Petition No.227 of 2012 submits that his clients are the Bombay Mudibazar
Kirana Merchants Association who are seeking to implead themselves in the
Writ Petition filed by the Mumbai Mewa Masala Association. The contention is
that they are also equally prejudiced by the provisions of the Act and the Rules
and Regulations in their application to his clients who are dealing with the food
items at the APMC and who would also be subjected to various norms and the
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provisions of the Act. The intervention application is in the nature of Chamber
summons. The affidavit supporting the Chamber Summons, does not disclose
anything except certain bald averments. These interveners were not precluded
from filing their independent proceedings if at all they are having any
grievances. It appears that these applicants have adopted an approach to sit on
the fence. Further no specific instance of a nature infringing any legal rights of
the applicant has been demonstrated in the intervention application or during the
course of the arguments. We are therefore certain that these applicants are not
aggrieved in any manner. Normally we would have rejected such intervention
at the outset, however, we permitted Mr.Kapadia to make submissions. We may
observe that the applicants had no material much less of any substance except to
mostly explain to the Court as to how his clients operate in APMCs and how
hypothetically these provisions would operate in the imagination of the
applicants. We do not countenance such intervention application, suffice it to
say that such applications are misconceived and amounting to colossal waste of
judicial time and leading such parties nowhere.
22. On the other hand, we have heard Mr.Pracha, learned Counsel
appearing for Food Safety and Standard Authority of India who has defended
these Writ Petitions on behalf of the respondents. Mr.Pracha submits that the
FSS Act is concerned with one of the most important aspect concerning human
health namely 'the food'. Mr.Pracha submits that the Parliament has thought it
imperative to control every aspect concerning the availability of safe food for
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human consumption in this extensive legislation. Mr.Pracha has taken us
through the provisions of the Acts, Rules and Regulations to submit that the
object of the Act is to regulate, manufacture, storage, distribution, sell and
import of food so that safe and wholesome food is available for human
consumption. He submits that the provisions are intended to achieve these
objects and that any dereliction or violation of the provisions would directly
affect the human health and life. Mr.Pracha would submit that the Act intends
to establish a new regime to bring about availability of wholesome and safe food
in the larger public interest so as to protect human life. He submits that the
Regulations which are framed under the Act are intended to curb mischiefs,
malpractices, so as to regulate the manufacture, storage, sale and distribution of
the food items. It is submitted that the consumption of food is now held to be a
necessary concomitant flowing from Article 21 of the Constitution of India. It is
submitted that the petitioners have failed to make out any case inasmuch as none
of the petitioners have come with a specific cause of action affecting any of their
legal rights. It is submitted that the challenges as raised are abstract, vague and
too general warranting any attention of this Court in these proceedings.
Mr.Pracha would submit that the arguments of the petitioners in its entirety
would show that the petitioners intend to construe the provisions as per need and
convenience of the parties and with an intention to avoid the rigours of
providing safe food for human consumption.
23. Mr.Pracha has taken us through the reply affidavit filed on behalf
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of respondent no.1 by Mr.Deba Prasad Guha, Joint Director , Western Region
Mumbai, Food Safety and Standards Authority of India (for short 'FSSAI"). The
affidavit has set out that the objective behind the formation of the 'Food Safety
and Standards Authority of India (FSSAI) which is to lay down science based
standards for articles of food and for regulating manufacturing, processing,
storage, distribution, sale and import of food so as to ensure availability of safe
and wholesome food for human consumption in India. It is stated that the
FSSAI proposes to support research projects and related innovative research and
development proposals pertaining to food safety and quality control by
extending financial assistance to various Institutions/Universities, public funded
organizations and recognized Research and Development Laboratories both in
public and private sectors and non-Governmental organizations across the
country. The object of the scheme is that the outcome and findings of research
and development will ensure food safety and promotion of safety standards in
the food sector in the country. It is stated that consequent to the setting up of
FSSAI, there are major developments taking place globally on inculcating
quality approach in the regulatory bodies and therefore, the objectives of FSSAI
are not purely to act as a regulatory or enforcement body but to act as a
facilitator to promote the production and supply of safe and healthy food to the
diverse Indian population. It is stated that to achieve a modern, flexible
regulatory regime, FSSAI is scheduled to build a foundation of strong systems
within dynamic service quality standards which aim for the best and would have
continuous scope for improvement. It is stated that the FSS Act is the single
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reference point for all matters relating to food safety and standards, regulation
and enforcement; transparent and accountable regulatory framework; investors
friendly regulatory mechanism; empowerment of consumers' with dissemination
of adequate information; spread of food safety concept to grass root level by
involving local panchayats and municipalities. The reply avers that the grounds
of challenge as raised by the petitioners are without any substance and in the
detailed affidavit the Authority has justified the provisions of the Act and to
contend that the arguments of the petitioners are ambiguous, vague and non
inclusion of definition of certain terms as alleged on the part of the petitioner is
of no consequence. It is contented that the provisions of the Act are
unambiguous and the provisions are required to be understood by giving an
ordinary meaning to the words which are used in the provisions and in the
context of the subject matter of the legislation.
24. The State of Maharashtra and the Principal Secretary which have
been arrayed as respondents have also filed an affidavit of Shri.Kamlesh
V.Sankhe, Joint Commissioner (Food). These respondents have opposed the
Writ Petitions and have relied on the affidavit in reply filed in the companion
Writ Petition no.227 of 2012. It is contended that the arguments of the
petitioners on the 'Designated Officer" being conferred power as Licensing
Authority under Section 31 read with Section 36 of the Act are patently
misconceived inasmuch as the petitioners had failed to appreciate the meaning of
the word "rank" as used in Section 36 of the Act. It is stated that in the State of
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Maharashtra, the officers designated as the Supervisors (Food) in the Food and
Drugs Administration who were working with Local (Health) Authorities and
were having prescribed qualification are being appointed and notified as
Designated Officer. Our attention is drawn to the fact that the qualification and
duties of the Commissioner of Food Safety, Designated Officer are defined in
Rule 2.1 of Food Safety and Standards Rules, 2011. Rule 2.1.1 of the Rules
provides for qualification of the Commissioner of Food Safety and the powers
and duties of the Commissioner. Rule 2.1.2 provides for qualification of a
Designated Officer. It is submitted that a perusal of these rules clearly indicate
that the submissions as made on behalf of the petitioners on the qualifications of
the Designated Officer are completely misconceived. Similarly, the Counter as
filed on behalf of the respondents has dealt with each and every contention and
the allegations as made on behalf of the petitioners.
25. With the assistance of the learned Counsel appearing for the
parties, we have gone through the paper books in these proceedings, we have
also perused the provisions of the Act and the Regulations framed thereunder.
26. As the challenge in these petitions is very broad, it would be
appropriate to consider the legislative background as also the Scheme of the FSS
Act in some detail. This would enable us to effectively appreciate the scope of
challenge as raised by the petitioners.
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Legislative Background
27. The Parliament enacted the Food Safety and Standards Act,2006
(hereinafter referred to as "FSS Act,2006") repealing the Prevention of Food
Adulteration Act,1954, the Fruit Products Order,1955, the Meat Food Products
Order,1973, the Vegetable Oil Products (Control) Order,1947, the Edible Oils
Packaging (Regulation) Order,1998, the Solvent Extracted Oil, De oiled Meal,
and Edible Flour (Control) Order,1967, the Milk and Milk Products Order,1992,
any other orders issued under the Essential Commodities Act,1955 relating food.
The repealed Acts and Orders are enumerated in the Second Schedule of the FSS
Act forming part of the repeal provision being Section 97 of the FSS Act.
We may make a reference to the preamble and the statement of
objects and reasons. It is well settled that such reference is permissible for
understanding the background, antecedent, state of affairs in relation to the
Statute and the evil which the statute has sought to remedy. The preamble and
the statement of objects and reasons appended to any legislation are evidence of
the legislative judgment, indicating the thought process of the elected
representatives of the people and their recognition of the prevalent state of
affairs, impelling them to enact the law. The preamble and the statement of
objects and reasons hence constitutes an important factor which amongst others
will be taken into consideration by the Court in judging the reasonableness of
any restriction imposed on the fundamental rights of the individuals.
The preamble of the FSS Act recites that it is an Act to consolidate
the laws relating to food and to establish the Food Safety and Standards
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Authority of India for laying down science-based standards for articles of food
and to regulate their manufacture, storage, distribution, sale and import, to
ensure availability of safe and wholesome food for human consumption and for
matters connected therewith or incidental thereto. The Statement of Objects and
Reasons of the FSS Act inter-alia sets out in detail that the then Member-
Secretary, Law Commission of India, was asked to make a comprehensive
review of Food Laws of various developing and developed countries and other
relevant international agreements and instruments on the subject. After making
an indepth survey of the International scenario, the then Member-Secretary
recommended that the new Food Law be seen in the overall perspective of
promoting nascent food processing industry given its income, employment and
export potential. It has been suggested that all acts and orders relating to food be
subsumed within the proposed integrated Food Law as the international trend is
towards modernization and convergence of regulations of Food Standards with
the elimination of multi-level and multi-departmental control. The current
emphasis being on responsibility with manufacturers, recall, genetically
modified and functional foods, emergency control, risk analysis and
communication and food safety and good manufacturing practices and process
control, viz. Hazard Analysis and Critical Control Point. It is stated that in this
background, the Group of Ministers constituted by the Government of India,
held extensive deliberations and approved the proposed Integrated Food Law
with certain modifications. The Integrated Food Law was named as "The Food
Safety and Standards Bill,2005". The main object of the Bill was to bring out a
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single statute relating to food and to provide for a systematic and scientific
development of Food Processing Industries. It was proposed to establish the
FSSAI which will fix food standards and regulate/monitor the manufacturing,
import, processing, distribution and sale of food, so as to ensure safe and
wholesome food for the people. The Food Authority would be assisted by
Scientific Committees and Panels in fixing standards and by a Central Advisory
Committee in prioritization of the work. Thus, the main features of the Bill as
enumerated in paragraph (5) and (6) of the Statement of Objects and Reasons are
as follows:-
"5. The Bill, inter alia, incorporates the salient provisions of
the Prevention of Food Adulteration Act,1954 (37 of 1954) and
is based on international legislations, instrumentalities and
Codex Alimentaries Commission (which related to food safety
norms). In a nutshell, the Bill takes care of International
practices and invisages on overarching policy framework and
provision of single window to guide and regulate persons
engaged in manufacture, marketing, processing, handling,
transportation, import and sale of food. The main features of
the Bill are:
(a) movement from multi-level and multi-departmental
control to integrated line of command;
(b) integrated response to strategic issues like noval/
genetically modified foods, international trade;
(c) licensing for manufacture of food products, which is
presently granted by the Central Agencies under various Acts
and Orders, would stand decentralized to the Commissioner of
Food Safety and his officer;
(d) single reference point for all matters relating to Food
Safety and Standards, regulations and enforcement;
(e) shift from mere regulatory regime to self compliance
through Food Safety Management Systems;
(f) responsibility on food business operators to ensure that
food processed, manufactured, imported or distributed is in
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compliance with the domestic food laws; and
(g) provision for graded penalties depending on the gravity of
offence and accordingly, civil penalties for minor offences and
punishment for serious violations.
The abovesaid Bill is contemporary, comprehensive and
intends to ensure better consumer safety through Food Safety
Management Systems and setting standards based on science
and transparency as also to meet the dynamic requirements of
Indian Food Trade and Industry and International trade."
Scheme of the FSS Act,2006.
28. On the aforesaid legislative background FSS Act,2006 was enacted
and was brought into force at different dates as provided for in sub-section (3) of
Section 1. A perusal of the scheme of the Act shows that Section 3 as contained
in Chapter I is the definition clause. Section 3 has Sub-sections (a) upto sub-
section (zz). As the scope of legislation is extensive, it defines number of terms
in relation to several aspects concerning food. Chapter II pertains to the Food
Safety and Standards Authority of India, its establishment, composition, method
of selection of the members, term of office, conditions of service, removal of
Chairperson and members of Food Authority, functions of Chief Execution
Officer, functions of Central Advisory Committee, constitution of Scientific
Panels, constitution of Scientific Committee, procedure for Scientific
Committee and Scientific Panel. One of the important provisions in this Chapter
is Section 16 which pertains to the duties and functions of Food Authority. This
provision assumes importance in the context of appreciating the other provisions
of the Act, the duties and functions of various Authorities under the Act as also
the scope of duties and functions of such Authorities. Section 16 reads thus:-
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"16. Duties and functions of Food Authority.
(1) It shall be the duty of the Food Authority to regulate and
monitor the manufacture, processing, distribution, sale and import of
food so as to ensure safe and wholesome food.
(2) Without prejudice to the provisions of sub-section (1),the Food
Authority may by regulations specify -
(a) the standards and guidelines in relation to articles of food and
specifying an appropriate system for enforcing various standards
notified under this Act;
(b) the limits for use of food additives, crop contaminants, pesticide
residues, residues of veterinary drugs, heavy metals, processing aids,
myco-toxins, antibiotics and pharmacological active substances and
irradiation of food;
(c) the mechanisms and guidelines for accreditation of certification
bodies engaged in certification of food safety management systems
for food businesses;
(d) the procedure and the enforcement of quality control in relation to
any article of food imported into India;
(e) the procedure and guidelines for accreditation of laboratories and
notification of the accredited laboratories;
(f) the method of sampling, analysis and exchange of information
among enforcement authorities;
(g) conduct survey of enforcement and administration of this Act in
the country;
(h) food labelling standards including claims on health, nutrition,
special dietary uses and food category systems for foods; and
(i) the manner in which and the procedure subject to which risk
analysis, risk assessment, risk communication and risk management
shall be undertaken.
(3) The Food Authority shall also -
(a) provide scientific advice and technical support to the Central
Government and the State Governments in matters of framing the
policy and rules in areas which have a direct or indirect bearing on
food safety and nutrition;
(b) search, collect, collate, analyse and summarise relevant scientific
and technical data particularly relating to -
(i) food consumption and the exposure of individuals to risks related
to the consumption of food;
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(ii) incidence and prevalence of biological risk;
(iii) contaminants in food;
(iv) residues of various contaminants;
(v) identification of emerging risks; and
(vi) introduction of rapid alert system;
(c) promote, co-ordinate and issue guidelines for the development of
risk assessment methodologies and monitor and conduct and forward
messages on the health and nutritional risks of food to the Central
Government, State Governments and Commissioners of Food Safety;
(d) provide scientific and technical advice and assistance to the
Central Government and the State Governments in implementation of
crisis management procedures with regard to food safety and to draw
up a general plan for crisis management and work in close co-
operation with the crisis unit set up by the Central Government in this
regard;
(e) establish a system of network of organisations with the aim to
facilitate a scientific co-operation framework by the co-ordination of
activities, the exchange of information, the development and
implementation of joint projects, the exchange of expertise and best
practices in the fields within the Food Authority's responsibility;
(f) provide scientific and technical assistance to the Central
Government and the State Governments for improving co-operation
with international organisations;
(g) take all such steps to ensure that the public, consumers, interested
parties and all levels of panchayats receive rapid, reliable, objective
and comprehensive information through appropriate methods and
means;
(h) provide, whether within or outside their area, training programmes
in food safety and standards for persons who are or intend to become
involved in food businesses, whether as food business operators or
employees or otherwise;
(i) undertake any other task assigned to it by the Central Government
to carry out the objects of this Act;
(j) contribute to the development of international technical standards
for food, sanitary and phyto-sanitary standards;
(k) contribute, where relevant and appropriate to the development of
agreement on recognition of the equivalence of specific food related
measures;
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(l) promote co-ordination of work on food standards undertaken by
international governmental and nongovernmental organisations;
(m) promote consistency between international technical standards
and domestic food standards while ensuring that the level of
protection adopted in the country is not reduced; and
(n) promote general awareness as to food safety and food standards.
(4) The Food Authority shall make it public without undue delay -
(a) the opinions of the Scientific Committee and the Scientific Panel
immediately after adoption;
(b) the annual declarations of interest made by members of the Food
Authority, the Chief Executive Officer, members of the Advisory
Committee and members of the Scientific Committee and Scientific
Panel, as well as the declarations of interest if any, made in relation to
items on the agendas of meetings;
(c) the results of its scientific studies; and
(d) the annual report of its activities;
(5) The Food Authority may from time to time give such directions,
on matters relating to food safety and standards, to the Commissioner
of Food Safety, who shall be bound by such directions while
exercising his powers under this Act;
(6) The Food Authority shall not disclose or cause to be disclosed to
third parties confidential information that it receives for which
confidential treatment has been requested and has been acceded,
except for information which must be made public if circumstances so
require, in order to protect public health. "
(emphasis supplied.)
Perusal of this provision indicates that it would be the duty of the
Food Authority to 'regulate' and 'monitor' the manufacture, processing,
distribution, sale and import of food so as to ensure safe and wholesome food.
As also without prejudice to these basic parameters as contained in sub-section
(1), the Food Authority is empowered to provide by regulations various aspects
as enumerated in sub-clauses (a) to (i) in sub-section (2) of Section 16. The
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authority to frame regulations as contained in these clauses is on variety of
issues touching every small aspect concerning the standard of food safety,
enforcement of the standards, use of food additives, crop contaminants, pesticide
residues, residues of veterinary drugs, heavy metals, processing aids,
mycotoxins, antibiotics and pharmacological active substances and irradiation of
food; the mechanisms and guidelines for accreditation of certification bodies
engaged in certification of food safety management system for food business;
the procedure and the enforcement of quality control in relation to any article of
food imported into India; the procedure and guidelines for accreditation of
laboratories and notification of the accredited laboratories; the method of
sampling, analysis and exchange of information among enforcement authorities;
conduct survey of enforcement and administration of the Act in the Country;
food labelling standards including claims on health, nutrition, special dietary
uses. Apart from these various aspects on which regulations can be framed, the
Food Authority under sub-section (3) is also conferred a advisory role namely to
provide scientific advice and technical support to the Central Government and
the State Governments in matter of framing the policy and rules in areas which
have a direct or indirect bearing on food safety and nutrition, and various other
ancillary works as enumerated in sub-sections (a) to (n) of sub-section (3) of
Section 16 of the Act. Sub-section (5) of Section 16 casts a duty on the food
Authority from time to time give directions in matters relating to food safety and
standards, to the Commissioner of Food Safety who will be bound by the
directions while exercising power under the FSS Act.
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29. Chapter III which contains Section 18 pertains to "general
principles" to be followed in the administration of the FSS Act. This provision
is also of significance and reflects the legislative intent and the object which is
sought to be achieved at the hands of the Central Government and the State
Government and the other agencies under the Act. The principles are laid down
in sub-sections (1) and (2) of Section 18. This provision plays pivotal role in the
implementation of the Provisions of the Act, Rules and Regulations, and we,
therefore, deem it appropriate to extract the same. Section 18 reads thus:-
"18. General principles to be followed in Administration of Act.
The Central Government, the State Governments, the Food Authority
and other agencies, as the case may be, while implementing the
provisions of this Act shall be guided by the following principles
namely:-
(1) (a) endeavour to achieve an appropriate level of protection of
human life and health and the protection of consumer's interests,
including fair practices in all kinds of food trade with reference to
food safety standards and practices;
(b) carry out risk management which shall include taking into
account the results of risk assessment and other factors which in the
opinion of the Food Authority are relevant to the matter under
consideration and where the conditions are relevant, in order to
achieve the general objectives of regulations;
(c) where in any specific circumstances, on the basis of
assessment of available information, the possibility of harmful effects
on health is identified but scientific uncertainty persists, provisional
risk management measures necessary to ensure appropriate level of
health protection may be adopted, pending further scientific
information for a more comprehensive risk
assessment;
(d) the measures adopted on the basis of clause (c) shall be
proportionate and no more restrictive of trade than is required to
achieve appropriate level of health protection, regard being had to
technical and economic feasibility and other factors regarded as
reasonable and proper in the matter under consideration;
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(e) The measures adopted shall be reviewed within a reasonable
period of time, depending on the nature of the risk to life or health
being identified and the type of scientific information needed to
clarify the scientific uncertainty and to conduct a more
comprehensive risk assessment;
(f) in cases where there are reasonable grounds to suspect that a food
may present a risk for human health, then, depending on the nature,
seriousness and
extent of that risk, the Food Authority and the Commissioner of Food
Safety shall take appropriate steps to inform the general public of the
nature of the risk to health, identifying to the fullest extent possible
the food or type of food, the risk that it may present, and the measures
which are taken or about to be taken to prevent, reduce or eliminate
that risk; and
(g) where any food which fails to comply with food safety
requirements is part of a batch, lot or consignment of food of the
same class or description, it shall be presumed until the contrary is
proved, that all of the food in that batch, lot or consignment fails to
comply with those requirements.
(2) The Food Authority shall, while framing regulations or specifying
standards under this Act-
(a) take into account -
(i) prevalent practices and conditions in the country including
agricultural practices and handling, storage and transport
conditions; and
(ii) international standards and practices, where international
standards or practices exist or are in the process of being
formulated, unless it is of opinion that taking into account of
such prevalent practices and conditions or international
standards or practices or any particular part thereof would not
be an effective or appropriate means for securing the
objectives of such regulations or where there is a scientific
justification or where they would result in a different level of
protection from the one determined as appropriate in the
country;
(b) determine food standards on the basis of risk analysis except
where it is of opinion that such analysis is not appropriate to the
circumstances or the nature of the case;
(c) undertake risk assessment based on the available scientific
evidence and in an independent, objective and transparent manner;
(d) ensure that there is open and transparent public consultation,
directly or through representative bodies including all levels of
panchayats, during the preparation, evaluation and revision of
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regulations, except where it is of opinion that there is an urgency
concerning food safety or public health to make or amend the
regulations in which case such consultation may be dispensed with :
Provided that such regulations shall be in force for not more than six
months;
(e) ensure protection of the interests of consumers and shall provide a
basis for consumers to make informed choices in relation to the foods
they consume;
(f) ensure prevention of -
(i) fraudulent, deceptive or unfair trade practices which may
mislead or harm the consumer; and
(ii) unsafe or contaminated or sub-standard food.
(3) The provisions of this Act shall not apply to any farmer or
fisherman or farming operations or crops or livestock or aquaculture,
and supplies used or produced in farming or products of crops
produced by a farmer at farm level or a fisherman in his operations. "
(emphasis supplied)
A perusal of Section 18 reveals that the foundation is preservation
of human life and health while protecting the consumer's interest and by having
fair practices in all kinds of food and trade and maintenance of food safety and
standards and practices. A significant feature to be noted in this provision is that
the entire endeavour is to take care of the harmful effects of food on the basis of
scientific studies and taking appropriate measures to ensure availability of safe
food for human consumption.
30. Chapter IV of the FSS Act pertains to general provisions as to
articles of food. This chapter contains provisions from Section 19 to 24. Section
19 pertains to use of food additives or processing aid unless the same is in
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accordance with the provisions of the Act and regulations. Section 20 provides
for contaminants, naturally occurring toxic substances, heavy metals etc. which
if contained in excess quantities are likely to affect human health. Section 21
provides for pesticides, veterinary drugs residues, antibiotic residues and
microbiological counts and the control of such ingredients in the food articles.
Section 22 provides for genetically modified foods, organic foods, functional
foods, proprietary foods, etc. Section 23 pertains to packaging and labelling of
foods which is also an important ingredient by which a consumer would be
guided in respect of the contents of the food articles as being notified on the
packaging and the labels on food products available in the market. Section 24
provides for restriction on advertisement and prohibition as to unfair trade
practices. Chapter V of the FSS Act pertains to the provisions relating to import
and that the imports are required to conform to the various rules and regulations
and the provisions of the FSS Act. Chapter VI of the FSS Act deals with the
special responsibilities as to food safety and contains Sections 26 to 28. Section
26 provides for responsibility of food business operator. This provision is of
some significance as it provides for the different obligations a food business
operator would be required to undertake while engaging himself in the business
in food. Section 26 reads thus:-
26. Responsibilities of the Food business operator .
(1) Every food business operator shall ensure that the articles of food
satisfy the requirements of this Act and the rules and regulations
made thereunder at all stages of production, processing, import,
distribution and sale within the businesses under his control.
(2) No food business operator shall himself or by any person on his
behalf manufacture, store, sell or distribute any article of food -
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(i) which is unsafe; or
(ii) which is misbranded or sub-standard or contains extraneous
matter; or
(iii) for which a licence is required, except in accordance with the
conditions of the licence; or
(iv) which is for the time being prohibited by the Food Authority or
the Central Government or the State Government in the interest of
public health; or
(v) in contravention of any other provision of this Act or of any rule
or regulation made thereunder.
(3) No food business operator shall employ any person who is
suffering from infectious, contagious or loathsome disease.
(4) No food business operator shall sell or offer for sale any article of
food to any vendor unless he also gives a guarantee in writing in the
form specified by regulations about the nature and quality of such
article to the vendor:
Provided that a bill, cash memo, or invoice in respect of the sale of
any article of food given by a food business operator to the vendor
shall be deemed to be a guarantee under this section, even if a
guarantee in the specified form is not included in the bill, cash memo
or
invoice.
(5) Where any food which is unsafe is part of a batch, lot or
consignment of food of the same class or description, it shall be
presumed that all the food in that batch, lot or consignment is also
unsafe, unless following a detailed assessment within a specified
time, it is found that there is no evidence that the rest of the batch, lot
or consignment is unsafe:
Provided that any conformity of a food with specific provisions
applicable to that food shall be without prejudice to the competent
authorities taking appropriate measures to impose restrictions on that
food being placed on the market or to require its withdrawal from the
market for the reasons to be recorded in writing where such
authorities suspect that, despite the conformity, the food is unsafe."
31. Section 27 of the FSS Act is an equally important provision and
provides for liability of manufacturers, packers, wholesalers, distributors and
sellers. Section 27 reads thus:-
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"27. Liability of the manufacturers, packers, wholesalers, distributors
and sellers
(1) The manufacturer or packer of an article of food shall be liable for
such article of food if it does not meet the requirements of this Act
and the rules and regulations made thereunder.
(2) The wholesaler or distributor shall be liable under this Act for any
article of food which is-
(a) Supplied after the date of its expiry; or
(b) Stored or supplied in violation of the safety instructions of the
manufacturer; or
(c) Unsafe or misbranded; or
(d) Unidentifiable of manufacturer from whom the article of food
have been received; or
(e) Stored or handled or kept in violation of the provisions of this Act,
the rules and regulations made thereunder; or
(f) received by him with knowledge of being unsafe.
(2) The seller shall be liable under this Act for any article of food
which is -
(a) sold after the date of its expiry; or
(b) handled or kept in unhygienic conditions; or
(c) misbranded; or
(d) unidentifiable of the manufacturer or the distributors from whom
such articles of food were received; or
(e) received by him with knowledge of being unsafe. "
32. A cumulative reading of the provisions of Sections 26 and 27
would show a variety of obligations, duties, precautions and methods which are
required to be taken by the Food Business Operators, manufacturers, packers,
wholesalers, distributors and sellers, all dealings in the food items affecting
human life. These provisions, therefore, are significant to appreciate the
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contentions as being canvassed on behalf of the petitioner.
33. Chapter VII pertains to enforcement of the FSS Act. This Chapter
concerns the various authorities responsible for enforcement of the Act and
contains some provisions which are being assailed on behalf of the petitioners.
The span of this chapter is from Section 29 to Section 42. Section 29 pertains to
the authorities who are responsible for enforcement of Act. Section 30 provides
for Commissioner of Food Safety of the State. Section 31 provides for licensing
and registration of food business with which the petitioners have a quarrel.
Section 32 is a provision for issuance of improvement notices. The other
provisions of this Chapter pertains to prohibition orders, emergency prohibition
notices and orders, notification of food poisoning. Section 36 provides for the
appointment of a Designated Officer on which the petitioners have a quarrel.
Section 37 pertains to the Food Safety Officer. Section 38 provides for powers
of Food Safety Officer. Section 39 provides for liability of Food Safety Officer
in certain cases. Section 40 provides that purchaser may have food analysed.
Section 41 pertains to power of search, seizure, investigation, prosecution and
procedure thereof. Section 42 provides for procedure for launching prosecution.
This Chapter, therefore, indicates as to how the provisions of the Act would be
implemented so as to confer different powers and duties on the various
functionaries under the Act and the scope of such powers. Chapter VIII deals
with the analysis of food. The petitioners have an issue about certain provisions
as contained in this Chapter. The provisions in this Chapter are from Sections 43
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to 47 providing for various aspects pertaining to recognition and accreditation of
laboratories, research institutions and referral food laboratory, recognition of
organisation or agency for food safety audit, functions of food analysts and
sampling and analysis. Chapter IX pertains to penal provision being offences
and penalties under the Act. The petitioners have a grievance in respect of some
of the provisions of this Chapter. Chapter X pertains to adjudication and food
safety appellate Tribunal which contains different facets of adjudication, power
to compound offence, establishment of Food Safety Appellate tribunal.
34.
The next Chapter which is relevant is Chapter XII which contains
miscellaneous provisions from Sections 85 to Section 101 providing for facets
like powers of Central Government to issue directions to Food Authority and
obtain reports and returns, power of Central Government to give directions to
State Governments, overriding effect of the Act over all other food related laws,
power of the Central Government to make rules, power of Food Authority to
make regulations, power of the State Government to make rules, transitory
provisions etc.
35. A detailed examination of the scheme of the FSS Act as discussed
above, reveals the legislative intent to include every possible aspect regarding
manufacture, processing of foods, distribution of food articles, its ultimate sale
and import to ensure safe and wholesome food. The statement of objects and
reasons which we have referred hereinabove is of assistance to appreciate the
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legislative intent underlying each of these provisions in interpreting these
provisions and to ascertain the object as sought to be achieved.
36. It is quite clear that multiple laws on Food which were prevailing
stand repealed by this enactment. The Parliament in exercise of its legislative
powers as conferred in entry 18 of List III has enacted the FSS Act in the interest
of Public Health and to safeguard the constitutional guarantee to the citizens as
conferred under the provisions of Article 21 of the Constitution, from the
perspective of human health and consumption of food being a necessary
concomitant of this fundamental right. This Act is a successor to the provisions
of the Prevention of Food Adulteration Act which stood repealed by the FSS Act,
which also held a regime from the time it was brought into force in the year
1954 till it was repealed by the FSS Act. It was a welfare legislation aimed at
preventing health hazard which would be caused by consuming adulterated food.
The legislative power of the Parliament in enacting Prevention of Food
Adulteration Act was also in Entry 18 in List III of the Constitution. A
challenge to this Act was considered by the Constitution Bench of the Supreme
Court in the case of "State of Uttar Pradesh Vs. Kartar Singh, (AIR 1964 SC
1135)". The case concerned the prosecution faced by the respondent Kartar
Singh of an offence under Section 7 read with Section 16(1)(a)(i) of the
Prevention of Food Adulteration Act,1954. Mr.Kartar Singh was conducting a
shop. The Food Inspector purchased some quantities of ghee. The sample of the
Ghee was sent for analysis. The public analyst expressed an opinion that the
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sample contained small proportion of vegetable fat or oil foreign to pure ghee.
The Medical Officer of Health sanctioned the prosecution against Kartar Singh
and a complaint was lodged before the Magistrate First Class by the Food
Inspector. Kartar Singh pleaded not guilty and entered a defence. The defence
was that it was not adulterated and that he had obtained ghee which has sold
from Jodhpur. The requirement of such additive in Jodhpur was different. The
Magistrate, however, did not accept the defence and sentenced him to R.I. for a
period of six months and fine of Rs.500/-. In the appeal the Sessions Judge
confirmed the findings of the Magistrate, however, while upholding the
conviction reduced the sentence of imprisonment from six months to one month
and fine of Rs.200/-. In a criminal revision petition before the High Court under
Section 435 and 439 of Cr.P.C. 1898, the learned Judge of the High Court
disagreed with the Courts below on finding of facts based on the standards of
ghee in Jodhpur Region. As different standards were prescribed at Jodhpur, the
High Court held that the respondent was not guilty of adulteration and directed
his acquittal. It was this decision of the High Court which was in appeal before
the Supreme Court. A challenge was raised in regard to the standards prescribed
under the Food Adulteration Act being violative of Article 14. The Supreme
Court set aside the decision of the High Court and restored the sentence of
conviction of one month as imposed by the Sessions Court. While examining
the provisions of the Prevention of Food Adulteration Act, the Supreme Court in
paragraphs 15 and 16 has observed thus:-
"15. The standards themselves, it would be noticed, have been
prescribed by the Central Government on the advice of a
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Committee which included in its composition persons considered
experts in the field of food technology and food analysis. In the
circumstances, if the rule has to be struck down as imposing
unreasonable or discriminatory standards, it could not be done
merely on any a priori reasoning but only as a result of materials
placed before the Court by way of scientific analysis. It is obvious
that this can be done only when the party invoking the protection
of Art. 14 makes averments with details to sustain such a plea and
leads evidence to establish his allegations. That where a party
seeks to impeach the validity of a rule made by a competent
authority on the ground that the rules offend Art. 14 the burden is
on him to plead and prove the infirmity is too well established to
need elaboration. If, therefore, the respondent desired to challenge
the validity of the rule on the ground either of its unreasonableness
or its discriminatory nature, he had to lay a foundation for it by
setting out the facts necessary to sustain such a plea and adduce
cogent and convincing evidence to make out his case, for there is a
presumption that every factor which is relevant or material has
been taken into account in formulating the classification of the
zones and the prescription of the minimum standards to each zone,
and where we have a rule framed with the assistance of a
committee containing experts such as the one constituted under
Section 3 of the Act, that presumption is strong, if not
overwhelming. We might in this connection add that the
respondent cannot assert any fundamental right under Article
19(1) to carry on business in adulterated foodstuffs.
16. Where the necessary facts have been pleaded and
established, the Court would have materials before it on which it
could base findings, as regards the reasonableness or otherwise or
of the discriminatory nature of the rules. In the absence of a
pleading and proof of unreasonableness or arbitrariness the Court
cannot accept the statement of a party as to the unreasonableness
or unconstitutionality of a rule and refuse to enforce the rule as it
stands merely because in its view the standards are too high and
for this reason the rule is unreasonable. In the case before us there
was neither pleading nor proof of any facts directed to that end.
The only basis on which the contention regarding
unreasonableness or discrimination was raised was on a priori
argument addressed to the Court, that the division into the- zones
was not rational, in that hilly and plain areas of the country were
not differentiated for the prescription of the minimum Reichert
values. That a distinction should exist between hilly regions and
plains, was again based on a priori reasoning resting on the
different minimum Reichert values prescribed for Himachal
Pradesh and Uttar Pradesh and on no other. It was, however, not
as if the entire State of Himachal Pradesh is of uniform elevation
or even as if no part of that State is plain country but yet if the
same minimum was prescribed for the entire area of Himachal
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Pradesh, that would clearly show that the elevation of a place is
not the only factor to be taken into account. (emphasis supplied)
37. We may also usefully refer to the decision of the Supreme Court in
the case of "Andhra Pradesh Grain and Seed Merchants Association Vs.
Union of India, (AIR 1971 SC 2346)" wherein the Supreme Court considered a
challenge to the validity of Section 7 read with Section 2(v) and 2(ix) and
Section 19(2)(i) and Section 10 read with Section 13 of the Prevention of Food
Adulteration Act,1954 and the rules framed thereunder challenged on the ground
that they are violative of fundamental rights guaranteed under Article 14, 19(1)
(g) and 20(3) of the Constitution. The Supreme Court held that the restriction
imposed on the conduct of business by traders in foodstuffs by the provisions of
the Prevention of Food Adulteration Act cannot be deemed unreasonable, as the
Act was enacted to deal with the great social evil and for ensuring public welfare
especially in the offences against public health. It was held that the scheme of
the Act envisaged that compliance with the regulatory provisions will be
promoted by imposing an absolute liability. It was held that adulteration and
misbranding of foodstuffs is a rampant evil and a statute calculated to control
that evil is indisputably in the interest of the general public. It was held that the
statute imposing restrictions upon traders will not be deemed unreasonable
merely because it makes a departure from the normal structure of statutes
enunciating offences and prescribing punishments. In paragraphs 5, 6, 7, 8, 10,
11 and 13 the Supreme Court has observed thus:-
"5. In our judgment, the restrictions imposed upon the conduct
of business by traders in foodstuffs cannot be deemed
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unreasonable. By Section 16(1) provision is made for imposing
penalties, among other acts, for storage, sale or distribution of
articles of food which are adulterated or misbranded, or sale of
which is prohibited by the Food (Health)authority in the interest of
the public health, or is in contravention of the Act or the rules. The
Act, it is true, does not make some blame-worthy mental condition
constituted by knowledge or intention relating to the nature of the
article stored, sold or distributed, an ingredient of the offence.
Unless the case falls within sub-section (2) of Section. 19, if sale,
storage or distribution is established, intention to sell articles or
knowledge that the articles are adulterated, misbranded, or
prohibited need not be proved by the prosecutor to bring home the
charge. Sub- section (1) of Section 19 provides that it is no defence
in a charge, for an offence pertaining to the sale of any adulterated
or misbranded article of food to allege merely that the vendor was
ignorant of the nature, substance or quality of the food sold by him,
or that the purchaser having purchased any article for analysis
was not prejudiced by the sale. By that clause a bare plea of
ignorance by a trader about the nature, substance or quality of the
food sold by him is not a defence in a prosecution for the offence
pertaining to the sale of any adulterated food nor that the article
was, purchased for analysis.
6. But in considering whether creation of absolute liability
amounts to imposing unreasonable restrictions, the Court has to
strike a balance between the individual right and public weal. The
Courts will not strike down an Act as imposing unreasonable
restrictions merely because it creates an absolute liability for
infringement of the law which involves grave danger to public
health. The Courts will undoubtedly consider whether without
imposing absolute liability the object of the statute could be
reasonably secured. For that purpose the Court will consider the
object of ,the Act, apprehended danger to. the public interest,
arising out of the activity if not controlled and the, possibility of
achieving the intended results by less stringent provisions. The
nature of the trade in foodstuffs, the channels of supply and the
movement of goods from trader to trader and fertile sources of
adulteration and misbranding make it extremely difficult in a large
majority of cases to establish affirmatively that storage or sale of
adulterated or misbranded foodstuff was with a guilty mind.
Provisions in the statute book creating absolute liability for sale of
adulterated food are 172 fairly common. Section 3(1) of the
English "Foods & Drugs Act", 1938, imposes absolute duty on a
dealer in foodstuff regardless of negligence : Lindley v. George W.
Horner & Co. Ltd.; 1950-1 All ER 234 and Lamb v. Sunderland
and District Creamery Ltd.; 1951-1 All ER 923. The same
provision is repeated in Section 2 of the "Food and Drugs Act",
1955. In Halsbury's Laws of England, Vol. 10 (3rd Edn.) at p.273,
Art. 508, it is stated :-
"A statutory crime may or may not contain an express
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definition of the necessary state of mind. A statute may
require a specific intention, malice, knowledge, wilfulness,
or recklessness. On the other hand, it may be silent as to
any requirement of mens rea, and in such a case in order to
determine whether or not mens rea is an essential element
of the offence, it is necessary to look at the objects and
terms of the statute. In some cases, the courts have
concluded that despite the absence of express language the
intention of the legislature was that mens rea was a
necessary ingredient of the offence. In others, the statute
has been interpreted as creating a strict liability
irrespective of mens rea. Instances of this strict liability
have arisen on the legislation concerning food and drugs,
liquor licensing, and many other matters".
In Mousell Brothers v. London and North Western Rail Co. (1917)2
KB 836 at P.845, Atkin, J., observed :
"...... yet the legislature may prohibit an act or enforce a
duty in such words to make the prohibitions or the duty
absolute :....... To ascertain whether a particular Act of
Parliament has that effect or not, regard must be had to the
object of the statute, the words used, the nature of the duty
laid down, the person whom it is imposed, the person by
whom it would in ordinary circumstances be performed,
and the person upon whom the penalty is imposed."
In 1952-1 All ER 380, the Court of Appeal held that
Regulation-26(1) of the Mill and Dairies Regulation, 1949,
requiring a distributor to ensure that every vessel used as a
container for milk shall be in a state of thorough cleanliness,
imposed an absolute liability.
7. It is true that for the protection of the liberty of the citizen,
in the definition of offences, blameworthy mental condition is
ordinarily an ingredient either by express enactment or clear
implication : but in Acts enacted to deal with a grave social evil, or
for. ensuring public welfare, especially in offences against public
health, e.g., statutes regulating storage or sale of articles of food
and drink, sale of drugs, sale of controlled or scare commodities, it
is often found necessary in the larger public interest to provide for
imposition of liability without proof of a guilty mind.
8. If from the scheme of the Act it appears that compliance
with the regulatory provisions will be promoted by imposing an
absolute liability, and that it cannot otherwise be reasonably
ensured, the Court will be justified in holding that the restriction
on the right of the trader is in the interest of the general public.
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Adulteration and misbranding of foodstuffs is a rampant evil and a
statute calculated to control that evil is indisputably in the interest
of the general public : The statute imposing restrictions upon
traders will not be deemed unreasonable merely because it makes a
departure from the normal structure of statutes enunciating
offences and prescribing punishments. By sub-section. (2) of
Section 19, even in respect of the absolute offence, the Parliament
has enacted that on proof of certain facts, criminal liability will be
excluded. Thereby a vendor is not deemed to have committed an
offence pertaining to the sale of any adulterated or misbranded
article of food if he proves that the purchased the article of food
from a duly licensed manufacturer, distributor or dealer in a case
where a licence is prescribed for the sale thereof, and in any other
case from any manufacturer, distributor of dealer with a written
warranty in the prescribed form, provided the article of food while
in his possession was properly stored and that he sold it in the
same state as the purchased it. The argument of counsel for the
petitioners that the provision that a retail seller who opens a
container of a branded article of food loses even the limited
protection under section 19(2) is without substance. Clause (b) of
sub-section (2) of section 19 does not provide, nor does it imply,
that if the container of a branded article is opened, the article of
food ceases to be in them same state in which the vendor
purchased it. If the article of food' is sold in the same condition in
which it was purchased from a licensed manufacturer or dealer, or
was purchased with a warranty, the vendor will not lose the
protection of sub-section (2) of Section 19 merely because he
opened the container. If the vendor has obtained the article from a
licensed manufacturer, distributor or dealer or from a
manufacturer, distributor or dealer with a warranty, he is
protected, provided he has property stored the article and sells it in
the same state as he purchased the article, even if it turns out that
the article was adulterated or misbranded. The Act does not
dispense with proof that the article of food is adulterated,
misbranded or that its sale is prohibited: it enacts that a vendor
selling articles of food adulterated or misbranded cannot plead
merely that he was ignorant of the nature, substance or quality 174
of the goods. A statute enacted by the Parliament in the interest of
public health (which is generally made in similar statutes
elsewhere) imposing liability for an offence without proof of a
guilty mind does not per se impose restrictions on the, freedom to
carry on trade which are unreasonable.
13. In the petitions a plea was raised that by the Act and the
Rules, the guarantee of Art. 14 was infringed, but no argument was
presented before us independently of the argument relating to
infringement of the guarantee under Art. 19(1)(g), in support of the
contention that the Act infringed the guarantee of equality before
the law or equal protection of the laws. The Act deals with the
regulation of a class of traders, and in view of the widespread
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malpractices, and the practical difficulties of controlling those
malpractices, stringent provisions have been made by the Act. The
classification is founded on an intelligible differentia and the
differentia has a rational relation to the object sought to be
achieved. The provisions of the Act again do not invest arbitrary
authority upon those who are to administer the Act. nor can it be
said that the standards prescribed are arbitrary. "
(emphasis supplied)
38. In "Saghir Ahmad and another Vs. State of U.P. and others, (AIR
1954 SC 728)" the Constitution Bench of the Supreme Court was considering
the case of the appellants who were carrying on business of plying motor vehicle
as "stage carriages" who were being regulated by the Motor Vehicles Act,1939,
inter alia for grant of a driving licence, registration of vehicles and control over
transport vehicles through permits granted by Regional Transport Authorities. In
considering the correctness of the decision of the Full Bench of Allahabad High
Court in the context of the assertion that the rights of the appellant under Articles
14 and 19(1)(g) of the Constitution were violated, the Constitution Bench of the
Supreme Court in paragraph 22 observed thus:-
"As has been held by this Court in the case of AIR 1954 S.C.
220(I) whether the restrictions are reasonable or not would depend
to a large extent on the nature of the trade and the conditions
prevalent in it. ... .... ..... ..."
39. We may also refer to the recent decision of the Supreme Court in
the case of "Centre for Public Interest Litigation Vs. Union of India & Ors.,
( AIR 2014 SC 49)". In the context of an issue dealing with the harmful effect
of soft drinks on human health and in considering the provisions of FSS Act on
various principles of food safety as enshrined in Section 18 and other provisions
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of the Act, the Supreme Court has held that a paramount duty is cast on the
States and its authorities to achieve an appropriate level of protection to human
life and health which is a fundamental right guaranteed to the citizens under
Article 21 read with Article 47 of the Constitution of India.
It is thus clear from the enunciation of the above legal principles as
laid down by the Supreme Court that it is not only a statutory requirement for the
food Authorities to have a regime of making available safe food products to the
consumer but it is a constitutional requirement emanating from the provisions of
Article 21 read with Article 39 and 47 of the Constitution of India.
40. Adverting to the above principles of law, we now consider the
challenge as raised by the petitioners. In Writ Petition No.477 of 2012 though
the challenge as raised is quite broad to the provisions of the entire Act as the
prayers would go and in the alternative to quash and set aside the provisions of
Sections 31 and 36 of the FSS Act being violative of Articles 14, 19 and 21 of
the Constitution, Mr.Anturkar has confined his submissions to the challenge as
raised to the provisions of Section 31 and 36 of the FSS Act. The challenge is
on the ground that the provisions are vague and ambiguous and therefore
capable of their misuse and thus violative of Articles 14 and 19(1)(g)of the
Constitution.
41. Section 31 provides for licencing and registration of food business
and provides that no person shall commence or carry on any food business
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except under a licence. Sub-section 2 provides that the requirements of
condition of licence shall not apply to 'petty manufacturer' who himself
manufactures or sells any article of food or a petty retailer, hawker, itinerant
vendor or a temporary stall holder or small scale or cottage or such other
industries relating to food business or tiny food business operator. However,
there is a requirement that they shall register themselves with such authority and
as specified in the regulations and this would be without prejudice to the
availability of safe and wholesome food for human consumption or affecting the
interests of the consumers. Mr.Anturkar in assailing this provision on the ground
that it is vague and ambiguous has drawn our attention to certain terms in the
definition of 'food business' as contained in Section 3(n) which reads thus:-
(n) "Food business" means any undertaking, whether for
profit or not and whether public or private, carrying out any
of the activities related to any stage of manufacture,
processing, packaging, storage, transportation, distribution of
food, import and includes food services, catering services,
sale of food or food ingredients; (emphasis supplied)
The contention is that many words as used in the definition of 'food business'
which have relevance and a direct relation for issuance of a License for a food
business and/ or a registration of food business are not defined by the FSS Act.
It is pointed out that words "processing", "packaging", "storage",
"transportation", "distribution of food", "import" and "food services", "catering
services", "sale of food or food ingredients" as used in Section 3(1)(n) are not
defined. Mr.Anturkar, therefore, submits that this creates a situation of an
ambiguity and vagueness in the matter of obtaining licence and registration as
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per the Licensing Regulations as also under Section 31 of the FSS Act.
Mr.Anturkar has further drawn our attention to the provisions of Section 3(1)(n),
(zd), (zr) and (zz) which defines 'food business', 'manufacturer', 'sale' and 'unsafe
food'. The provisions read thus:-
"3. Definitions.
(1) In this Act, unless the context otherwise requires, -
...... .......... ....
(n) "Food business" means any undertaking, whether for
profit or not and whether public or private, carrying out any
of the activities related to any stage of manufacture,
processing, packaging, storage, transportation, distribution
of food, import and includes food services, catering services,
sale of food or food ingredients;
(zd) "manufacturer" means a person engaged in the
business of manufacturing any article of food for sale and
includes any person who obtains such article from another
person and packs and labels it for sale or only labels it for
such purposes;
(zr) "sale" with its grammatical variations and cognate
expressions, means the sale of any article of food, whether
for cash or on credit or by way of exchange and whether by
wholesale or retail, for human consumption or use, or for
analysis, and includes an agreement for sale, an offer for
sale, the exposing for sale or having in possession for sale of
any such article, and includes also an attempt to sell any
such article;
(zz) "unsafe food" means an article of food whose nature,
substance or quality is so affected as to render it injurious to
health :--
(i) by the article itself, or its package thereof, which is
composed, whether wholly or in part, of poisonous or
deleterious substance; or
(ii) by the article consisting, wholly or in part, of any filthy,
putrid, rotten, decomposed or diseased animal substance or
vegetable substance; or
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(iii) by virtue of its unhygienic processing or the presence in
that article of any harmful substance; or
(iv) by the substitution of any inferior or cheaper substance
whether wholly or in part; or
(v) by addition of a substance directly or as an ingredient
which is not permitted; or
(vi) by the abstraction, wholly or in part, of any of its
constituents; or
(vii) by the article being so coloured, flavoured or coated,
powdered or polished, as to damage or conceal the article
or to make it appear better or of greater value than it really
is; or
(viii) by the presence of any colouring matter or
preservatives other than that specified in respect thereof; or
(ix) by the article having been infected or infested with
worms, weevils, or insects; or
(x) by virtue of its being prepared, packed or kept under
insanitary conditions; or
(xi) by virtue of its being mis-branded or sub-standard or
food containing extraneous matter; or
(xii) by virtue of containing pesticides and other
contaminants in excess of quantities specified by
regulations."
The contention is that the term "manufacturer" does not include 'petty
manufacturer' which has been included in the provisions under sub-section (2) of
Section 31 of the FSS Act. The submission is that as these terms are not defined,
there is lack of clarity resulting into vagueness in the definitions as contained in
the definition clause more particularly, section 3(1)(n), 3(1)(zd), 3(1)(zr) and
3(1)(zz). Section 31 which is the licensing and registration provision is thus,
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rendered ambiguous and subject to abuse at the hands of the authorities and is
thus unconstitutional. It is submitted that the definition is required to be precise
and cannot be left to the discretion of the officers who are supposed to
implement the provisions. Mr.Anturkar submits that therefore, a serious
prejudice is being caused to the members of the petitioner on account of these
vague terms as used in the FSS Act having its impact on Section 31 of the FSS
Act. This vagueness and ambiguity is a tool in the hands of the Officers to
exploit the situation leading to a consequence of abuse of these provisions. In
support of this arguments, Mr.Anturkar, in this context has drawn our attention
to the provisions of Section 31 which reads thus :
"31. Licensing and registration of food business.
(1) No person shall commence or carry on any food
business except under a licence.
(2) Nothing contained in sub-section (1) shall apply to a
petty manufacturer who himself manufactures or sells any
article of food or a petty retailer, hawker, itinerant vendor
or a temporary stall holder or small scale or cottage or
such other industries relating to food business or tiny food
business operator; but they shall register themselves with
such authority and in such manner as may be specified by
regulations, without prejudice to the availability of safe
and wholesome food for human consumption or affecting
the interests of the consumers.
(3) Any person desirous to commence or carry on any food
business shall make an application for grant of a licence
to the Designated Officer in such manner containing such
particulars and fees as may be specified by regulations.
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(4) The Designated Officer on receipt of an application
under sub-section (3), may either grant the licence or after
giving the applicant an opportunity of being heard and for
reasons to be recorded in writing, refuse to grant a licence
to any applicant, if he is satisfied that it is necessary so to
do in the interest of public health and shall make available
to the applicant a copy of the order: Provided that if a
licence is not issued within two months from the date of
making the application or his application is not rejected,
the applicant may start his food business after expiry of
the said period and in such a case, the Designated Officer
shall not refuse to issue a licence but may, if he considers
necessary, issue an improvement notice, under section 32
and follow procedures in that regard.
(5) Every licence shall be in such form and subject to
such conditions as may be specified by regulations.
(6) A single licence may be issued by the Designated
Officer for one or more articles of food and also for
different establishments or premises in the same area.
(7) If the articles of food are manufactured, stored, sold
or exhibited for sale at different premises situated in more
than one area, separate applications shall be made and
separate licence shall be issued in respect of such premises
not falling within the same area.
(8) An appeal against the order of rejection for the grant
of licence shall lie to the Commissioner of Food Safety.
(9) A licence unless suspended or cancelled earlier shall
be in force for such period as may be specified by
regulations: Provided that if an application for a renewal
of licence is made before the expiry of the period of
validity of the licence, the licence shall continue to be in
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force until orders are passed on the application.
(10) The licence shall subsist for the benefit of the
deceased's personal representative or any other member of
his family, until the expiry of -
(a) the period of three months beginning with his death; or
(b) such longer period as the Designated Officer may
allow." (emphasis supplied)
Thus, referring to the above provisions the contention of Mr.Anturkar is that as
the words "processing", "packaging", "storage", "transportation", "distribution
of food", "food services", "catering services", "food ingredients", "petty
manufacturer" are not defined under the FSS Act and these terms as used in the
Act have a direct bearing in the application of Section 31 of the Food Safety Act
which pertains to licensing and registration of food business. In the absence of
any definition and certainty to these words as used in the Act, according to
Mr.Anturkar, the licensing provisions under Section 31 is rendered vulnerable
for its arbitrary implementation.
42. We are afraid to accept these submissions of Mr.Anturkar. A
perusal of Section 31 of the FSS Act reveals that it is a licensing provision which
requires that no person shall commence or carry on any food business except
under a licence. "Food business" is defined under Section 3(n) to mean any
undertaking, whether for profit or not and whether public or private, carrying out
any of the activities related to any stage of manufacture, processing, packaging,
storage, transportation, distribution of food, import and includes food services,
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catering services, sale of food or food ingredients. Similarly "unsafe food" is
defined under Section 3(zz) to mean an article of food whose nature, substance
or quality is so affected as to render it injurious to health. As to how it is
rendered injurious to health has been explained in clauses (i) to (xii) as contained
in sub-section (zz) of Section 3. A plain reading of Section 31 when seen in the
context of grant of a licence or registration of food business, in our opinion, do
not indicate that it creates any ambiguity. The meaning which is attributed to the
various words used in Section 31 read with the words in the definition clause do
not create any vagueness so as to render Section 31 vague or in-operational.
This is for the reason that the words as used in the provision are required to be
read in the context of the Act. The legislation as a whole is required to be
considered to ascertain the meaning of the terms and expression as used in the
legislation. Thus, the words contained in the definition clause are required to be
understood in the light of the other provisions of the Act and with due regard to
the ordinary connotation of the words defined and not in isolation as sought to
be contended by the petitioners. We apply the principle of ordinary, popular and
natural meaning to be attributed to the words in the above provisions and in
doing so, we do not feel that there is any ambiguity or difficulty in
understanding the meaning of these words and their implication nor there is any
ambiguity or vagueness in the words used in the definition clause as contended
by the petitioners. Moreover, to give effect to the licensing provision under
Section 31 the Food Authority has framed regulations namely the Food Safety
and Standards (Licensing and registration of food businesses) Regulations,2011
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(for short "the licensing regulations') in exercise of powers conferred under
clause (o) of sub section (2) of Section 92 read with Section 31 of Food Safety
Act. A perusal of these licensing regulations would demonstrate that
submissions of Mr.Anturkar are not well founded. We thus refer to these
regulations. Clause 1.2 of the Licensing Regulations is a definition clause under
which sub-clause 4 defines "petty manufacturers" as under:-
1.2: Definitions-
1.2.1: In these regulations unless the context otherwise
requires:
1. ... ..... ..... ....ig
4. "Petty Food Manufacturer" means any food manufacturer,
who
(a) manufactures or sells any article of food himself or a petty
retailer, hawker, itinerant vendor or temporary stall holder;
or distributes foods including in any religious or social
gathering except a caterer; or
(b) such other food businesses including small scale or
cottage or such other industries relating to food business or
tiny food businesses with an annual turnover not exceeding
Rs 12 lakhs and/or whose
(i) production capacity of food (other than milk and milk
products and meat and meat products)
does not exceed 100 kg/ltr per day or
(ii) procurement or handling and collection of milk is up to
500 litres of milk per day or
(iii) slaughtering capacity is 2 large animals or 10 small
animals or 50 poultry birds per day or less."
The contention of Mr.Anturkar that "petty manufacturer' has not been defined
under the Act and therefore, a vague situation is created in regard to a "petty
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manufacturer" is thus completely misconceived as seen from the definition of
"petty manufacturer" in the licensing Regulations. The licensing Regulations
are extensive. Chapter II of this regulation pertains to licensing and registration
of food business under which Regulation 2.1 pertains to registration and
licensing of food business; Regulation 2.1.1 pertains to registration of petty food
business. This is a detailed provision and throws a complete light on the nature
of a petty food business and every aspect concerning it and need for registration
of such petty food business. It would be useful to refer to this regulation which
reads thus:-
"2.1.1 Registration of Petty Food Business
(1) Every petty Food Business Operator shall register
themselves with the Registering Authority by submitting an
application for registration in Form A under Schedule 2 of
these Regulations along with a fee as provided in Schedule
(2) The petty food manufacturer shall follow the basic
hygiene and safety requirements provided in Part I of
Schedule 4 of these Regulations and provide a self attested
declaration of adherence to these requirements with the
application in the format provided in Annexure-1 under
Schedule 2.
(3) The Registering Authority shall consider the application
and may either grant registration or reject it with reasons to
be recorded in writing or issue notice for inspection, within 7
days of receipt of an application for registration.
(4) In the event of an inspection being ordered, the
registration shall be granted by the Registering Authority
after being satisfied with the safety, hygiene and sanitary
conditions of the premises as contained in Part II of Schedule
4 within a period of 30 days. If registration is not granted, or
denied, or inspection not ordered within 7 days as provided
in above sub regulation (3) or no decision is communicated
within 30 days as provided in above sub regulation (4), the
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petty food manufacturer may start its business, provided that
it will be incumbent on the Food Business Operator to
comply with any improvement suggested by the Registering
Authority even later.
Provided that registration shall not be refused without giving
the applicant an opportunity of being heard and for reasons
to be recorded in writing.
(5) The Registering Authority shall issue a registration
certificate and a photo identity card, which shall be
displayed at a prominent place at all times within the
premises or vehicle or cart or any other place where the
person carries on sale/manufacture of food in case of Petty
Food Business.
(6) The Registering Authority or any officer or agency
specifically authorized for this purpose shall carry out food
safety inspection of the registered establishments at least
once in a year.
Provided that a producer of milk who is a registered member
of a dairy Cooperative Society registered under Cooperative
Societies Act and supplies or sells the entire milk to the
Society shall be exempted from this provision for
registration."
Regulation 2.1.2 pertains to licence for food business which reads
thus:-
2.1.2 License for food business
(1) Subject to Regulation 2.1.1, no person shall commence
any food business unless he possesses a valid license.
Provided that any person or Food Business Operator
carrying on food business on the date of notification of these
Regulations, under a license, registration or permission, as
the case may be, under the Acts or Orders mentioned in the
Second Schedule of the Act shall get their existing license
converted into the license/registration under these
regulations by making an application to the
Licensing/Registering Authority after complying with the
safety requirements mentioned in the Schedule 4 contained
under different Parts dependent on nature of business, within
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one year of notification of these Regulations. In case of
difficulty, the licensing authority with the approval of the
Food Safety Commissioner in the State will determine the
advisability of applying any specific condition keeping in
view the need to ensure safety of food and public interest. No
license fee will have to be paid for the remaining period of
the validity of the earlier license or registration granted
under any of the said Acts or Orders. Non-compliance with
this provision by a Food Business Operator will attract
penalty under section 55 of the Act.
Provided further that any food business operator holding
Registration/License under any other Act/Order as specified
under schedule 2 of the FSS Act, 2006 with no specific
validity or expiry date, and other wise entitled to obtain a
license under these regulations, shall have to apply and
obtain a Registration/License under these Regulations within
one year from the date of notification by paying the
applicable fees.
(2) Notwithstanding the provisions contained in Regulation
2.1.2(1) above or in any of the registration or license
certificates issued under existing Acts or Orders mentioned in
the second schedule of the Act, the Licensing Authority, if it
has reason to believe that the Food Business Operator has
failed to comply with all or any of the conditions of the
existing registration or license or the safety requirements
given in Schedule 4, may give appropriate direction to the
Food Business Operator to comply with.
(3) License for commencing or carrying on food business,
which falls under Schedule 1, shall be granted by the Central
Licensing Authority, provided that Food Authority may
through notification make such changes or modify the list
given in the Schedule I as considered necessary.
(4) License for commencing or carrying on food business,
which are not covered under Schedule 1, shall be granted by
the concerned State/UT's Licensing Authority.
(5) The Food Business Operator shall ensure that all
conditions of license as provided in Annexure 2 of Form B in
Schedule 2 and safety, sanitary and hygienic requirements
provided in the Schedule 4 contained under different Parts
depending on nature of business are complied with at all
times .
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Provided that the Licensing Authority shall ensure periodical
food safety audit and inspection of the licensed
establishments through its own or agencies authorized for
this purpose by the FSSAI.
Provided further that no person shall manufacture, import,
sell, stock, exhibit for distribution or sale any article of food
which has been subjected to the treatment of irradiation,
except under a license obtained from Department of Atomic
Energy under the Atomic Energy (Control of Irradiation of
Food) Regulations, 1996."
Perusal of the above provisions of the Licensing regulations show
that the licensing / registering Authority would grant licence and registration
only on the compliance by the applicant to the Safety Regulations as mentioned
in Schedule 4. Schedule 4 pertains to General Hygienic and Sanitary practices to
be followed by Food Business operators. The provisions of Schedule 4 are
extensive which pertain to general hygienic and sanitary practices followed by
the food business operators, food manufacturer, processor, handler, sanitary and
hygienic requirements for street food vendors and units other than
manufacturing/processing, general requirements on hygienic and sanitary
practices to be followed by all Food Business Operators applying for a license,
engaged in manufacture, processing, storing and selling of Milk and Milk
Products, engaged in manufacture, processing, storing and selling of Meat and
Meat Products, engaged in catering / food service establishments, personal
hygiene, transportation and handling of food, storage, special requirements for
high risk foods such as cut fruits/salads, fresh juices and beverages etc. A
perusal of the extensive nature of these licensing regulations and intricate facets
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it takes into consideration, would show that there is no ambiguity or vagueness
as being canvassed on behalf of the petitioners. Looking at these provisions we
are not at all impressed with the submissions made on behalf of Mr.Anturkar.
Mr.Anturkar's endeavour to point out the vagueness is wholly superficial without
any foundation and overlooks settled norms of interpretation to ascertain the
meaning of these words in the common parlance. Only because certain terms are
not defined under the Act the legislative provisions become vague and are
rendered unconstitutional, is too far fetched an argument and totally
unacceptable. These submissions of Mr.Anturkar have no basis in facts much
less in law. The provisions of the Act read with the Regulations completely
nullify Mr.Anturkar's submissions.
43. Thus, Section 31 read with the licensing regulations, in our
opinion, are absolutely clear without any ambiguity on any aspect and are legal
and valid. The challenge to the vires of section 31 of the Food Safety Act that the
same is violative of Article 14 and 19(1) (g) of the Constitution as raised by the
petitioners is thus wholly misconceived and cannot be sustained. The challenge
to this provision on the ground that it is violative of Article 14 of the
Constitution also ought to fail when tested on the touchstone of the decision of
the Constitution Bench of the Supreme Court in the case "Sakhawant Ali Vs.
State of Orissa, (AIR 1955 SC 166)" wherein in paragraph 10 the Supreme
Court has observed thus:-
"The simple answer to this contention is that legislation enacted
for the achievement of a particular object or purpose need not be
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all embracing. It is for the Legislature to determine what
categories it would embrace within the scope of legislation and
merely because certain categories which would stand on the same
footing as those which are covered by the legislation are left out
would not render legislation which has been enacted in any
manner discriminatory and violative of the fundamental right
guaranteed by Article 14 of the Constitution."
44. The next challenge as urged by Mr.Anturkar is to the provisions
of section 36 of the Food Safety Act. Section 36 provides for the appointment of
a Designated Officer. It provides that the Commissioner of Food Safety shall by
an order appoint a Designated Officer who shall not be below the rank of a Sub-
Divisional Officer to be in-charge of food safety administration in such area as
may be specified by regulations. Sub-section (2) of section 2 provides that there
shall be a Designated Officer for each district. Sub-section 3 provides for
following functions to be performed by the Designated Officer:
"(a) to issue or cancel license of food business operators;
(b) to prohibit the sale of any article of food which is in
contravention of the provisions of this Act and rules and
regulations made thereunder ;
(c) to receive report and samples of article of foods from
Food Safety Officer under his jurisdiction and get them
analysed;
(d) to make recommendations to the Commissioner of Food
Safety for sanction to launch prosecutions in case of
contraventions punishable with imprisonment;
(e) to sanction or launch prosecutions in cases of
contraventions punishable with fine;
(f) to maintain record of all inspections made by Food Safety
Officers and action taken by them in the performance of their
duties;
(g) to get investigated any complaint which may be made in
writing in respect of any contravention of the provisions of
this Act and the rules and regulations made thereunder ;
(h) to investigate any complaint which may be made in
writing against the Food Safety Officer; and
(i) to perform such other duties as may be entrusted by the
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Commissioner of Food Safety."
The submission of Mr.Anturkar is that the provision contemplates that the
Designated Officer is merely a Revenue Officer. He is not a technical Officer
nor he has any technical know how about the food industry. A Revenue Officer
is supposed to work under the revenue law and is concerned with the work of
collection of revenue. Under the provisions of sub-section 3 (a) of section 36 a
Designated Officer is empowered to issue licence of a food business operator.
Section 31 (4) empowers the Designated Officer to reject an application for a
licence on the ground of public health. Thus, wide powers are conferred on a
Sub-divisional officer who has no qualifications so as to exercise such
jurisdiction and functions conferred on him. Section 36 is, therefore, violative of
Article 14 of the Constitution of India being unreasonable. Mr.Anturkar's
submissions are unfounded and without any merit, in view of the plain language
of section 36 (1). The submission that the Designated Officer is a Revenue
Officer cannot be accepted. Section 36 (1) provides that the Designated Officer
shall not be below the rank of a Sub-Divisional Officer. It does not provide that
the Designated Officer shall be a Sub-Divisional officer or a Revenue Officer. It
only refers to a rank of a Sub-Divisional Officer. Mr.Anturkar's submissions
also cannot be accepted in view of the provisions of Food Safety and Standard
Rules as framed by the Central Government in exercise of the powers conferred
under clause (a) of Food Safety Act. Rule 1.2 pertains to the Designated Officer
and provides for minimum qualifications with a bachelor's degree of Science
with Chemistry with one of the special subject as at least one of the
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qualifications prescribed for Food Safety Officer. Apart from this, there are
other requirements which are prescribed. It would be useful to refer to Rule
2.1.2 which reads thus:
"2.1.2: Designated Officer
1. Qualification (i) The Designated Officer shall be a
whole time Officer, not below the rank of Sub-Divisional
Officer or equivalent and shall possess a minimum of
bachelors' degree in Science with chemistry as one of the
subjects or at least one of the educational qualifications
prescribed for the Food Safety Officer under these rules.
(ii) He shall undergo training as may be specified by the
Food Authority within a period of six months from the date of
his appointment as Designated Officer.
(iii) (a) Persons having been appointed as Food Inspector
having qualification prescribed under the Prevention of Food
Adulteration Rules 1955 or as Local Health Authority shall
be eligible for appointment as Designated Officer, subject to
fulfilling such other conditions as maybe prescribed for the
post of Designated Officer by the State Government.
(b) At the time of commencement of these rules, the
post of Designated Officer is held by any other Officer of
equivalent rank as additional charge basis such other Officer
shall continue to hold such additional charge till such time a
whole time Designated Officer is appointed or for a period of
one year whichever is earlier."
45. A perusal of Section 31 read with Rule 2.1.2 of the Food Safety
and Standards Regulations, 2011 clearly indicate that the Designated Officer is
not a Revenue Officer as urged by the petitioners. Furthermore, the Act and
Rules appropriately provide for all the safeguards as necessary for the
Designated Officer to perform various duties and powers conferred on him. The
challenge by the petitioner is thus, wholly unfounded and accordingly deserves
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to be rejected.
46. We now examine the challenge as raised in Writ Petition No.227
of 2012. Mr.Bulchandani learned Counsel for the petitioners has made extensive
submissions in assailing various provisions of the Act. The principal
submissions are on sections 31(6), 34, 38, 46, 65,70, 80. The contention is that
these provisions are discriminatory, unreasonable and thus violative of the
petitioner's right guaranteed under Articles 14, 19 (1) (g) of the Constitution of
India.
47. We now deal with the challenge to each of these provisions. The
challenge to section 31 (6) as urged by Mr.Bulchandani is on the nature of the
powers conferred by this provision on the Officers/authorities lower in the
hierarchy in the administration of the Act. Mr.Bulchandani would urge that
section 31 (6) provides for a single licence which may be issued by the
Designated Officer for one or more articles of food and also for different
establishments or premises in the same area. This power under sub-section (6)
of section 31 is required to be exercised in accordance with provisions of
regulations 2.1.5 of the licencing regulations which prescribes a procedure for
license in certain local areas. Sub-Regulation (1) provides that a single licence
may be issued by the licencing authority for one or more articles of food and
also for different establishment or premises in the same local area including
collection and chilling units run by milk co-operatives or its members. The
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contention is that each article would require a licence as these provisions would
read or a single licence may be issued by the Designated Officer for one or more
articles as also for different establishments or premises in the same area. Such
discretion as vested with the designated Officer is wholly arbitrary inasmuch as
the provision would subject the applicant of a licence to an unfettered discretion
of the Designated Officer either to seek a licence for each article or seek multiple
licences. The contention is that this would bring about a "licence raj."
48. Mr.Bulchandani's further submission is that sub-section 8 of
section 31 provides for an appeal only against an order of rejection of a licence
to the Commissioner of Food Safety, however, it does not provide for a remedy
if application for separate licences are rejected. Mr.Bulchandani would urge
that in para 8 of the reply - affidavit at page 142 of the Paper Book, the authority
has urged that the intention of the legislature is that the Designated Officer
would issue a single licence if necessary for one or more articles of food when
the establishment of the manufacturer or the food business activity is situated in
the same area. It is submitted that this clearly shows that understanding of the
provisions by the Food Authority is completely different from what these
provisions would contemplate. This contention as urged by Mr.Bulchandani, in
our opinion, is wholly untenable. Section 31 provides for licencing and
registration of food business. Sub-section 6 of section 31 provides that a single
licence may be issued by the Designated Officer for one or more articles of food
and also for different establishments or premises in the same area. Sub-section 7
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provides that if articles of food are manufactured, stored, sold or exhibited for
sale at different premises situated in more than one area, separate applications
shall be made and separate licence may be issued in respect of such premises not
falling within the same area. A plain reading of these provisions in our opinion,
does not create any unreasonableness. The intention of the legislature is quite
clear that a person who intends to deal with one or more articles of food,
however in different establishments or premises in the same area could become
eligible for a single licence. In other words, such a person is not required to
apply for multiple licences for different premises being used in 'same area'. The
legislative intent which can be derived is that a person who seeks to deal with
one or more articles of food from different premises in the same area need not be
subjected to multiple applications so as to make it convenient both for the person
seeking such a licence as also for the authorities. Sub-section 6 cannot be read in
isolation as sought to be urged on behalf of the petitioner. Sub-section 6 is
required to be read along with sub-section 7 which throws a complete light as to
how the requirement of sub-section 6 which pertains to a person who would
deal in one or more articles of food in the same area is different from a person
who would deal in articles of food, manufactured, sold, or exhibited for sale at
different premises situated in more than one area, where separate applications for
licence are required to be made, in respect of of premises not falling within the
same area. Sub-section 7 therefore, covers a province different from what is
contemplated under sub-section 6. Sub-section 7 in fact is more extensive and
postulates that a separate licence could be necessary for dealing in articles of
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food when manufactured, stored, sold or exhibited for sale at different premises
situated in more than one area and/or premises not falling within the same area.
We thus have no hesitation to reject the above contention of Mr.Bulchandani.
49. The next submission of Mr.Bulchandani is that there is no appeal
provided if an application for separate licences is rejected. This submission is
also without merit. Sub-section 8 provides for an appeal against an order of
rejection for grant of a licence to lie before the Commissioner of Food Safety.
This would contemplate a rejection of an application either for a single licence
under sub-section 6 or for different licences under sub-section 7. The contention
that there is no appeal under sub-section 8, if the application for separate
licences is rejected is thus, wholly untenable as clear from a plain reading of the
provisions of sub-section 8 of section. We therefore, find that there is nothing
unreasonable or arbitrary in the provisions of sub-section 6 and sub-section 8 of
Section 31 so as to render the same unconstitutional and violative of the
petitioner's right under Articles 14,19 (12) (g) and 21 of the Constitution of
India. We thus reject this challenge as raised by the petitioners.
50. The next challenge as urged by Mr.Bulchandani is to the provisions
of section 32 which provide for 'improvement notices' to be issued by the
Designated Officer. It provides that if the Designated Officer has a reasonable
ground for believing that any food business operator has failed to comply with
the regulations, he may by a notice served on the food business operator, termed
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as an improvement notice seek compliance of the requirement of the Act and
regulations. Sub-section (2) provides for a power to suspend a licence if the
food business operator fails to comply with the improvement notices. Sub-
section (3) provides for a power to cancel a licence after issuance of a show
cause notice as also by a proviso to sub-section (3) a power to suspend a licence
forthwith in the interest of public health for reasons to be recorded in writing as
conferred on the Designated Officer. The contention is that these powers are
permitted to be exercised by the Designated Officer in the interest of public
health as the proviso to sub-section (3) would indicate. Mr.Bulchandani would
urge that the licencing regulations 2011 in regulation 2.1.8 more particularly
2.1.8(4) however would provide for something which is not provided under
section 32. It is urged that sub-regulation (4) of regulation 2.1.8 confers an
absolute power on the licencing authority to suspend or cancel a licence
forthwith in the interest of public health for reasons to be recorded in writing.
Mr.Bulchandani's submission is that section 32 does not contemplate a forthwith
cancellation of the licence and therefore, Section 32 read with provisions of
regulation 2.1.8 (4) of the licencing regulation are absolutely unworkable,
creating an absurdity and bring about a consequence of abuse of power at the
hands of Designated Officer and thus are rendered illegal and unconstitutional.
We are not impressed with these submissions. We note that section 32 is a
comprehensive provision. This provision as it pertains to suspension and
cancellation of licence is undoubtedly required to be read with the Licencing
Regulations, 2011 which is clear from a reading of Section 32. It would be
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beneficial to extract this provision so as to render clarity to what is being urged
and our observations. Section 32 reads thus:
32. Improvement notices
(1) " If the Designated Officer has reasonable ground for
believing that any food business operator has failed to comply
with any regulations to which this section applies, he may, by a
notice served on that food business operator (in this Act referred to
as an "improvement notice")-
(a) state the grounds for believing that the food business operator
has failed to comply with the regulations;
(b) specify the matters which constitute the food business
operator's failure so to comply;
(c) specify the measures which in the opinion of the said
Authority, the food business operator must take, in order to secure
compliance; and
(d) require the food business operator to take those measures, or
measures which are at least equivalent to them, within a
reasonable period (not being less than fourteen days) as may be
specified in the notice.
(2) If the food business operator fails to comply with an
improvement notice, his licence may be suspended.
(3) If the food business operator still fails to comply with the
improvement notice, the Designated Officer may, after giving the
licensee an opportunity to show cause, cancel the licence granted
to him.
PROVIDED that the Designated Officer may suspend any licence
forthwith in the interest of public health for reasons to be recorded
in writing.
(4) Any person who is aggrieved by-
(a) an improvement notice; or
(b) refusal to issue a certificate as to improvement;or
(c) cancellation or suspension or revocation of licence under this
Act, may appeal to the Commissioner of Food Safety whose
decision thereon, shall be final.
(5) The period within which such an appeal may be brought shall
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be -
(a) fifteen days from the date on which notice of the decision was
served on the person desiring to appeal; or
(b) in the case of an appeal under sub-section (1) the said period,
or the period specified in the improvement notice, whichever
expires earlier."
It would also be beneficial to extract Regulation 2.1.2 of the Food Safety &
Standard Rules,2011 and Regulation 2.1.8 of the licencing regulations,2011
which read as under:-
2.1.2.Designated Officer
1.Qualification ... .... .....
(2) Powers and duties
(i) The powers and duties of the Designated officer shall be as
mentioned in section 36 (3) of FSS Act, 2006.
(ii) The Designated Officer shall function under over all
supervision of Collector/District Magistrate of the District.
(iii) The Designated Officer shall in addition to the powers
specified in section 36 (3) of FSS Act, 2006 also ensure the
refund of fee for analysis paid by the purchaser as per the
provisions of section 40 (1) besides the cost of the sample.
(iv) The Designated Officer shall ensure timely disposal of
redundant samples in the manner notified for the seized materials,
by the Commissioner of Food Safety.
(v) Without prejudice to anything contained in the aforesaid rules,
the Designated Officer shall have all administrative powers which
may include suspension, cancellation or revocation of the licence
of the Food Business Operator in case any threat or grave injury to
public has been noticed in the report of the Food Analyst.
PROVIDED that while taking such administrative action
the described in the Act and Regulations shall be followed."
2.1.8: Suspension or cancellation of Registration Certificate or
license,
(1) The Registering or Licensing Authority in accordance with
the provisions of section 32 of the Act may, after giving the
concerned Food Business Operator a reasonable opportunity of
being heard, suspend any registration or license in respect of all or
any of the activities for which the registration/license has been
granted under these Regulations, after recording a brief statement
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of the reasons for such suspension, if there is reason to believe that
the Food Business Operator has failed to comply with the
conditions within the period mentioned in any Improvement
Notice served under section 32 of the Act. A copy of such
statement shall be furnished to the concerned Food Business
Operator whose Registration or license has been suspended.
(2) The Registering or Licensing Authority as the case may
direct an inspection of the Food Business Operators premise (e)
within a reasonable period which shall not be less than 14 days
from the date of order of suspension.
(3) In the event that the Registering or Licensing Authority is
of the opinion, on a review of the inspection report that the Food
Business Operator has still failed to rectify the defects or
omissions or comply with the conditions of the Improvement
notice causing the suspension, such authority may cancel the
license/registration of the Food Business Operator after giving
him an opportunity to show cause as provided under Section 32
(3) of the Act.
(4) Notwithstanding anything contained in these Regulations
the Registering or Licensing Authority may suspend or cancel any
registration or license forthwith in the interest of public health for
reasons to be recorded in writing.
(5) A suspension or cancellation of registration or license
under these regulations shall not entitled the Food Business
Operator for any compensation or refund of fee (s) paid in respect
of the registration certificate or licence or renewal thereof.
(6) After a period of 3 months from the date of cancellation under
Regulation 2.1.8 (3) above, the Food Business Operator may
make fresh application for Registration or license to the
concerned authority, if all observations made in the improvement
notice have been complied with."
51. Perusal of Section 32 along with provisions of Regulation 2.1.8
clearly indicate that the legislature intends to ensure compliance of the
regulations by a food business operator and prevent violation of the provisions
of the Act and the regulations, in the interest of food safety and standards as
required to be maintained by those dealing in food. Though violation of the
regulations or requirement of the compliance of different provisions of the FSS
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Act may be of a different degree, seriousness and consequences, however, a
safeguard is provided in taking actions by the Designated Officer and that is by
providing for an improvement notice to be issued as section 32 would postulate.
The Designated Officer if reasonably believes that any food business operator
has failed to comply with any regulation then the provision would require the
Designated Officer to serve on the food business operator an improvement
notice setting out the grounds for believing that the Food business operator has
failed to comply with the regulations and law specifying the matter which
constituted such a failure to comply and measures which in the opinion of the
authority, the Food Business Operator must take. In order to secure compliance
and thereby calling upon the Food Business Operator to take such measures or
equivalent measures within a reasonable period which would not be less than 14
days and only after such period has lapsed on the failure on the part of the Food
Business operator to comply with such improvement notice a power is conferred
to suspend a licence. If even thereafter the Food Business Operator fails to
comply with the improvement notice a provision has been made under sub
section (3) that the licencee may be given an opportunity to show cause as to
why the licence granted to him shall not be cancelled. It is apparent that very
consciously the legislature has added a proviso to sub-section 3 to deal with the
situation of gross breach of the regulations and food safety norms by a food
business operator conferring on the Designated Officer a power to suspend any
licence forthwith in the interest of public health for reasons which the
Designated Officer would record in writing. In regard to any action of either
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suspension or cancellation which the Designated Officer may take in a given
situation, sub-section (4) provides for a remedy of an appeal to the
Commissioner of Food Safety against the refusal of issuance of a certificate as to
improvement by the Designated Officer or cancellation or suspension or
revocation of a licence, whose decision the provision makes it to be final. The
submission that regulation 2.1.8 (4) is providing for a power to cancel a licence
is contrary to the provisions of section 32 in our opinion is wholly misconceived
and cannot be countenanced on examination of section 32 read with regulation
2.1.8. Section 32 postulates both powers, a power to suspend a licence and a
power to cancel a licence in a given situation. All such powers are required to be
exercised in the interest of public health and for reasons to be recorded in
writing. These powers are not a carte blanche for the Designated Officer to
abruptly use these powers as there is an obligation to record reasons in either
issuing a improvement notice or an order of suspension of a licence or an order
canceling a licence. Regulation 2.1.8 (4) is nothing but, a reiteration of what
section 32 would provide. This regulation only recognizes powers as are
substantively conferred under section 32 on the Designated Officer. There is no
paradox or incongruity between section 32 and regulation 2.1.8 and more
particularly sub-regulation (4) of regulation 2.1.8 as urged by Mr.Bulchandani.
In our opinion, in the administration of the FSS Act, unless the Designated
Officer is provided with such powers the administration of the Act would
become difficult when the Act intends to achieve an object directly affecting
human life. The object of these provisions is therefore, laudable. We strongly
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deprecate the approach of the petitioners in assailing the provision in such a
cavalier manner and on superfluous issues.
52. The next challenge as urged by Mr.Bulchandani is to the provisions
of section 34 which contemplate issuance of emergency prohibitory notices and
orders. Section 34 reads thus:
34. "Emergency prohibition notices and orders
(1) If the Designated Officer is satisfied that the health risk
condition exists with respect to any food business, he may,
after a notice served on the food business operator (in this Act
referred to as an"emergency prohibition notice") apply to the
Commissioner of Food Safety for imposing the prohibition.
(2) If the Commissioner of Food Safety is satisfied, on the
application of such an Officer, that the health risk condition
exists with respect to any food business, he shall by an order,
impose the prohibition.
(3) The Designated officer shall not apply for an
emergency prohibition order unless at least one day before
the date of the application, he has served notice on the food
business operator of the business of his intention to apply for
the order.
(4) As soon as practicable after the making of an emergency
prohibition order, the Designated Officer shall require the
Food Safety Officer to-
(a) serve a copy of the order on the food business operator of
the business ; or
(b) affix a copy of the order at a conspicuous place on such
premises used for the purposes of that business.
And any person who knowingly contravenes such an
order shall be guilty of an offence and shall be punishable
with imprisonment for a term which may extend to two
years and with fine which may extend to two lakh
rupees.
(5) An emergency prohibition order shall cease to have
effect on the issue by the Designated Officer of a certificate to
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the effect that he is satisfied that the food business operator
has taken sufficient measure for justifying the lifting of such
order.
(6) The Designated Officer shall issue a certificate under
sub-section (5) within seven days of an application by the
food business operator for such a certificate and on his being
not satisfied, the said officer shall give notice to the food
business operator within a period of ten days indicating the
reasons for such decision."
53. The challenge is to the provisions of sub-section 3 of section 34
which provides that the Designated Officer shall not apply to the Commissioner
of Food Safety for emergency or prohibitory orders unless one day before such
application, the Designated officer has served a notice on the Food business
operator of his intention to apply for emergency prohibition notice.
Mr.Bulchandani has drawn our attention to schedule 4 of the Licensing
Regulation, 2011 which in its different clauses provide for a variety of sanitary
and hygienic requirements to be followed by the Food business operator, a
manufacture, processors, handlers, petty food business operators vendors etc.
Our attention is drawn to a provision pertaining to water supply in clause 4 of
this schedule. Clause 4.1 provides that only potable water with appropriate
facilities for its storage and distribution shall be used as an ingredient in
processing and cooking. A grievance is made that section 34 of the FSS Act is
rendered unreasonable and unconstitutional as the provision is subjected to the
requirements of the Licencing Regulations, 2011 to be read with Schedule 4
pertaining to various compliances to be made by persons dealing in food. By
giving an illustration of regulation 4.1, it is contended that the requirement of
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potable water cannot be complied in villages and therefore, it would be
impossible to carry on business in food and thus the provisions of section 34
along with Licencing Regulation read along with Schedule 4 of the Licencing
Regulation renders the provisions of section 34 arbitrary, unreasonable and
illegal.
54. Section 34 enables the Designated Officer to issue emergency
prohibition notice if the Designated Officer is satisfied that a situation exists
which would bring about a health risk by any food business. The Designated
Officer in such a situation is required to apply to the Commissioner of Food
Safety for imposing prohibition notice. The Commissioner of Food Safety on
being satisfied on the application of the Designated Officer that 'health risk
condition' exists in regard to any food business the Commissioner by an order
would impose a prohibition. A safeguard has been provided in sub-section 3 that
the Designated Officer shall not apply for an emergency prohibition order unless
at least one day before the date of application the Designated Officer has served
notice on the Food Business Operator of his intention to apply for an order of
prohibition. The importance of this provision can be gathered from the language
of sub-section 4 which provides that as soon as practicable after making of an
emergency prohibition order the Designated officer shall require the Food Safety
Officer to serve a copy of the order on the Food Business Operator or affix a
copy of the order at a conspicuous place on the premises used for the purpose of
conducting business. It further provides that any person who intentionally
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contravenes such an order shall be held guilty for an offence and which shall be
punishable with imprisonment for two years and fine of Rs.2,00,000/-. Sub-
section 5 provides that an emergency prohibition order shall cease to have effect
on the issuance by the Designated Officer, a certificate that he is satisfied that
the Food Business Operator has taken sufficient measures for justifying lifting of
such an order. Such a certificate would be issued by the Designated Officer
within 7 days of the application as would be made by the Food Business
Operator for such certificate and the Designated Officer being satisfied and by
giving reason in support of such satisfaction. The object of this provision is to
overcome an emergency situation in the interest of pubic health, nevertheless a
safeguard firstly the Designated Officer issuing a emergency prohibition notice
so that an opportunity is given to the Food Business Operator to himself remedy
a situation of the breach of the food safety norms and breach of the regulations
and on failure to act as such by the Food Business Operator to approach the
Commissioner of Food Safety for an order of prohibition. The petitioners'
contention is that such a provision would be subject to misuse as it is impossible
to have a compliance of the requirement of Schedule 4 and more particularly
when a provision like requirement of potable water is provided for, which
becomes impossible of compliance in villages and many parts of the country.
This submission cannot be countenanced. The object which is sought to be
achieved is to see that food which is manufactured or food which is dealt by the
food business operator, which is ultimately for human consumption, satisfies the
necessary norms which are stipulated under the Act and the Regulations and
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which are in the interest of providing safe and standard food for human
consumption are required to be strictly complied by the food business operators.
The petitioners' contention that the requirement of these norms cannot be
fulfilled and as such food manufactured in breach of the norms shall be
permitted to be sold and in such a situation section 34 shall not be made
applicable. We fail to understand as to how such contention would be tenable. It
is well settled that there is no fundamental right to do business in adulterated or
unsafe food. There cannot be any complaint on the part of the petitioners that
they have a legal right to deal in food which is not safe or which is manufactured
or dealt with or is made available for human consumption contrary to the norms
which are set down under rules and regulation as framed under the Food Safety
Act. Such argument cannot be countenanced. If an interpretation as being
canvassed on behalf of the petitioner is accepted, the consequences is nothing
but a grave violence to the salutary provisions and norms which are sought to be
brought about and implemented by the authorities under the FSS Act for the
betterment of human life. We have therefore, not the remotest doubt in our mind,
but to reject such a challenge as raised on behalf of the petitioners. We are
completely in agreement with the contention as urged on behalf of the food
authority in para 12 of the reply that section 34 would be applicable in an
emergency which would require immediate solution of a problem where there is
a danger of health risk, such as food poisoning or danger of death of the
consumers by consumption of adulterated or unsafe food. These provisions are
absolutely essential and in such an emergent situation, without these provisions
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the effective implementation of the legislation cannot be achieved.
55. The next challenge as urged by Mr.Bulchandani is to the
provisions of section 46 (4) which provides for an appeal against the report of
the Food Analyst to be filed before the Designated Officer who, in turn, if
situation so requires, refer the matter to a referral Food Laboratory as notified by
the Food Authority for its opinion. The contention is that the Designated Officer
is conferred with unfettered discretion under section 46 to exercise the appellate
powers conferred on him under sub-section 4 of section 46. We do not find that
there is any merit in this submission. Section 46 postulates that on receipt of a
package of food, containing a sample for analysis from the Food Safety Officer
or any other person, the Food Analyst shall compare the seal on the container
and the outer cover with specimen impression received separately and shall note
the conditions of the seal thereon. If the sample container received by the Food
Analyst is in a broken condition or unfit for analysis, he shall within a period of
seven days from the date of receipt of such sample inform the Designated
Officer about the same and send a requisition to him for sending second part of
the sample. The Food Analyst within a period of 14 days from the date of receipt
of sample for analysis, where such sample is received under Section 38 or
Section 47 to the Designated Officer, send four copies of the report indicating
the method of sampling analysis. Where such a sample is received under section
40 a copy of the report indicating the method of sampling and analysis, the
Food Analyst would send a copy of the analysis to the person who had
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purchased the food article as also copy to the Designated Officer. In case the
sample cannot be analyzed within 14 days from its receipt then in that case the
Food Analyst is required to inform the Designated Officer and the Commissioner
of Food Safety and giving reasons and specifying the time taken for such
analysis. Under sub-section 4 of Section 46 an appeal lies against the report of
the Food Analyst before the Designated Officer who is empowered in a given
case to refer the matter to the notified Food Laboratory for its opinion. On
examining these provisions, we are not impressed by the submissions of
Mr.Bulchandani that there is unfettered discretion conferred on the Designated
Officer in taking a decision to refer food to the Food Laboratory and Designated
Officer in a given case. The Designated Officer in a situation, where he decides
that there is requirement of a referral of such food item to the Food Laboratory,
as Designated Officer would be guided by the report of the Food Analyst. It is
not a case that the Designated Officer in acting so has no material before him.
The Designated Officer would exercise powers only on the consideration of the
report of the Food Analyst. All this would be for reasons which are ultimately
necessary in public interest. Only because the provision confers such a discretion
and a power that the Designated Officer in his discretion can refer food to the
notified Food Laboratory cannot render the provision unconstitutional. The
decision taken by the Designated Officer has to be on reasonable grounds and in
accordance with the requirements of Section 46 of the FSS Act as is clear from a
plain reading of the provision. The petitioner's contention that the Designated
Officer is conferred with unfettered power therefore, clearly cannot be sustained
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on a deeper examination of Section 46.
56. The next challenge is to the provisions as contained in Chapter 9
which pertains to offences and penalties. The provisions assailed are section 65
(1) which pertains to compensation in case of an injury or death to a consumer.
Section 65 (1) provides that 'if any person whether by himself or by any person
on his behalf manufacturers, distributes or sells or imports any article of food
causing injury to a consumer or his death, it shall be lawful for the Adjudicating
Officer or as the case may be, the court to direct him to pay to the victim or the
legal representative to the victims as a compensation of the victim a sum of
Rs.5,00,000/- in case of death, and not exceeding Rs.3,00,000/- in case of a
grievous injury and an amount not exceeding Rs.1,00,000/- in all other cases of
injury to be paid at the earliest and no case later than six months from and date
of occurrence of the incident." Mr.Bulchandani would submit that this provision
is arbitrary as it excludes producer of food. A perusal of this provision clearly
indicates that the provision begins by following words:- "Without prejudice to
other provisions of this Chapter, if any person whether by himself or by any
other person on his behalf manufactures or distributes or sells or imports any
article of food causing injury to the consumer or his death, it shall be lawful
for the Adjudicating Officer or as the case may be, the Court to direct him to
pay compensation." The provision is required to be read in its entirety and
alongwith the other provisions of the FSS Act. The word 'manufacturer' as used
in this provision in a given situation would take within its ambit any producer of
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a food item on whom there is an obligation to comply with the provisions of the
Act, rules and regulations made under it. If it is found that such a producer or
manufacturer is guilty of dealing with food which has caused death of a person,
then only for the reason that the word 'producer' has not been used in the
provision cannot be construed that such a person can escape the liability and
consequences under this provision. Thus, the contention of Mr.Bulchandani that
as the word 'producer' is not incorporated in Section 65 (1), it would render
Section 65(1) illegal or unconstitutional is without any merit. Even otherwise
this submission of Mr.Bulchandani as urged on behalf of the petitioner is wholly
imaginary and without any basis.
57. The next challenge is to the provisions of Section 68 read with
Rule 3.1.1. (3) and 5 of the Food Safety and Standard Rules, 2011 and section 70
(1) of the FSS Act. Section 70 as contained in Chapter X of the FSS Act pertains
to adjudication and Food Safety Appellate Tribunal. Section 68 provides for
adjudication which reads thus:
"Section 68:- Adjudication
(1) "For the purposes of adjudication under this Chapter, an officer not
below the rank of Additional District Magistrate of the district where the
alleged offence is committed shall be notified by the State Government
as the Adjudicating Officer for adjudicating in the manner as may be
prescribed by the Central Government.
(2) The Adjudicating Officer shall after giving the person a reasonable
opportunity for making representation in the matter and if on such
inquiry he is satisfied that the person has committed the contravention of
provisions of this Act or the rules or the regulations made thereunder
impose such penalty as he thinks fit in accordance with the provisions
relating to that offence.
(3) The Adjudicating Officer shall have the powers of a civil court and-
(a) all proceedings before him shall be deemed to be judicial
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proceedings within the meaning of sections 193 and 228 of the Indian
Penal Code (45 of 1860)
(b) shall be deemed to be a court for the purposes of sections 345
and 346 of the Code of Criminal procedure, 1973 (2 of 1974)
(4) while adjudicating the quantum of penalty under this Chapters, the
Adjudicating Officer shall have due regard to the guidelines specified in
section 49."
58. The above provision postulates that an Officer not below the rank
of an Additional District Magistrate of the District where the offence is
committed shall be notified by the State Government as Adjudicating Officer for
adjudication. The Adjudicating Officer after giving reasons and an opportunity
to the person concerned of making a representation conduct an inquiry and on
being satisfied that the person has acted in contravention of the Act and Rules
and regulations impose such penalty as he thinks fit, in accordance with the
provisions relating to that offence. The contention is that the power of the
Adjudicating Officer as conferred under rule 3.1 of the Food Safety and
Standard Rules,2011 is limited to only adjudicate on the applications filed by the
Food Safety Officer. The contention is that the Designated Officer is conferred
an un-briddled and arbitrary power to refer matters to the Adjudicating Officer.
The power to hold an inquiry for the purpose of adjudication are also limited to
certain offences as set out in rule 3.1.1 (5) of the Food Safety and Standards
Rules, 2011. Sub-rule 5 of rule 3.1.1. empowers the Adjudicating officer to hold
inquiry for the purpose of adjudicating the offence punishable under sections 41
to 58 and 64 to 67 of the Act. It is next submitted that section 70 (1) of the
Food Safety Act the Central Government or State Government is empowered to
establish one or more Tribunals to be known as Food Safety Appellate Tribunal
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to hear appeals from the decisions of the Adjudicating Officer passed under
Section 68 of the FSS Act. It is submitted that the power of both authorities
under sections 68 and 70 are restrictive and limited to the orders and directions
of the Food Safety Officer, Designated Officer and orders passed under the other
provisions of the Act and regulations and therefore, these orders would attain
finality without any remedy to the Food Business Operator. As also the
Constitution of the Food Safety Appellate Tribunal is defective inasmuch as sub-
section (3) of Section 70 prescribes only one person (Presiding Officer) to be
appointed, without any technical member. It is submitted that this would result
in miscarriage of justice as no technical expertise would be available in the
adjudication by the Tribunal. This leads to illegality and arbitrariness. A
situation is created that administrative authorities under the Act would pass
orders to which there is no judicial remedy which is available and thus those
orders would be rendered final and therefore, this situation is against the rule of
law. A procedural reasonableness is to be satisfied by providing an
administrative appeal to a higher adjudicating authority or to the Government.
Further, the powers conferred on the Adjudicating Officer and Food Safety
Appellate Tribunal are limited and are unreasonably restricted. Certain offences
though punishable with prosecution and imprisonment like non-compliance of
improvement notices and emergency prohibition notices and orders though take
away liberty or freedom of an individual there is no remedy of an appeal or even
an inquiry or investigation. In the absence of an appeal, the fundamental rights
of a person guaranteed under Article 21 of the Constitution of India stand
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infringed. The limited powers conferred on the Adjudicating Officer under Rule
3.1.1. (3) and sub rule 5 of the Food Safety and Standard Rules,2011 and under
section 70 (1) of the Act thus, are unreasonable and are therefore, required to be
declared as unconstitutional.
59. A perusal of the Food Safety Standards Rules,2011 reveals that
Rule 3.3 provides for procedure for an appeal to the Appellate Tribunal. A
perusal of the provisions of Section 68 read with rules 3.1.1. and 3.1.2 of the
Food Safety and Standards Rules,2011 clearly show that the Adjudicating
Officer shall have power to hold inquiry for the purpose of adjudicating offences
punishable under sections 50 to 58 and 64 to 67 of the Food Safety Act,2006.
Section 50 is as regards an offence for selling food not of the nature or
substance or quality demanded. Section 51 pertains to dealing in sub-standard
food. Section 52 pertains to dealing in misbranded food. Section 53 provides for
misleading advertisement pertaining to food. Section 54 provides for offence in
respect of food containing extraneous matters. Section 55 is as regards failure
to comply with directions of the Food Safety Officer. Section 56 pertains to an
offence for unhygienic or unsanitary processing or manufacturing of food.
Section 57 pertains to offences relating to possessing adulterant and section 58
pertains for contravention for which no specific penalty is provided. Section 64
provides for punishment for subsequent offences. Section 66 provides for
offences by companies and section 67 concerns offences for contravention of
provisions of the Act in case of import of articles of food to be in addition to
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penalties provided under any other Act.
60. There are many facets which are covered under these penal
provisions. Sections 50 to 58 and sections 64 to 67 provide for different
offences under the FSS Act and the punishment thereof. Against an adjudication
by the Adjudicating Officer, an appeal is provided before the Appellate Tribunal.
In our opinion, it would not be appropriate for the petitioners to contend that the
adjudicating mechanism as provided in section 68 read with section 70 of the
Food Safety Act,2006 along with Food Safety and Standard Rules, 2011 does not
effectively provide a redressal mechanism and thus an aggrieved person is
rendered remediless. The argument of the petitioner militates against the basic
principle of jurisprudence recognized in the maxim "Ubi Jus ibi remedum (there
is no right without a remedy)". Further there can be no vested right in a person
to contend that a particular procedure should be applied to deal with offences
under the Act or for that reason another procedure is more suitable. The
legislature has considered it appropriate to provide for an adjudication
mechanism as contemplated by section 68 to confer power on the Adjudicating
Officer, authority and jurisdiction to adjudicate offences as contemplated by
sections 50 to 58 and section 64 to 67 of the Act, and an appeal against the order
of the Adjudicating Officer is provided before the Tribunal. It therefore, cannot
be said that this mechanism is insufficient. As regards the contention of
Mr.Bulchandani that in respect of orders not falling within the provision of
Sections 50 to 58 and 64 to 67, the same would be rendered final and without
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any remedy of an appeal is also unfounded. A perusal of the various provisions
of the Act clearly demonstrate that appropriate safeguard has been provided by
creating a mechanism before any rights vested in persons dealing in food are
sought to be affected at the hands of any of the authorities under the FSS Act.
The authorities are required to follow a procedure of issuing a notice or a show
cause notice before taking up of any restrictive or prohibitive action. The
example of such caution as incorporated in the legislation can be seen in the
provisions of section 32 where the Designated Officer is empowered to issue
improvement notice setting out grounds on the basis of which notice has been
issued. Further safeguard has been provided that on the failure of the Food
Business Operator to comply with improvement notice the licencee would be
issued a show cause notice as to why licence granted to him should not be
cancelled. Sub-section 4 of section 32 provides for an appeal to the
Commissioner of Food Safety against any order passed or issuance of
improvement notice, refusal to issue a certificate as to improvement, or
cancellation or suspension of Food Safety whose decision thereon shall be final.
Another example of such safeguard is contained in section 34 which concerns
emergency notices. Thus, the contention as urged on behalf of the petitioner
that there is no remedy for the persons against whom orders are passed under the
other provisions of the Act, is wholly misconceived and without any substance.
In any case, it just cannot be contended by the petitioners that there is no remedy
in law to an aggrieved persons if his legal and statutory rights are affected.
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61. There is yet another reason as to why this contention cannot be
accepted. It is inconceivable that where the statute is silent on a specific remedy
being made available against the orders passed by the authorities under the Act,
then in that case if any of the legal rights conferred on such persons are affected
a right to seek enforcement of their rights under the civil laws or under the
Constitution can never be said to be extinguished. Access to justice is the
foundation of the rule of law and flowing from Article 21 of the Constitution of
India. It is therefore, fallacious for the petitioners to contend that limited
powers are conferred on the Adjudicating Officer and the tribunal and therefore,
persons who are affected would have no legal remedy.
62. As regards the submission of Mr.Bulchandani that the definitions
as contained in Section 3 are vague and ambiguous, we have already rejected
this contention in the earlier part of our judgment on the ground that the words
used in the definition clause are required to be understood in regard to its
meaning in the context of the object the legislation intends to achieve. We find
that the words which are used in the definition clause are clear and plain. We do
not find that there is any ambiguity in the meaning of the words the FSS Act
intends to attribute to the words in the scheme of the legislation. If this be the
position, then it would be the duty of the Court to give effect to that meaning
irrespective of the consequences. It would not be permissible to adopt hyper-
technical construction as sought to be contended by the petitioners and
construction which furthers the policy of the Act is required to be considered.
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On a careful examination of the various provisions of the definition clause as
asserted by the petitioner, we are of the opinion that there is nothing ambiguous
or vague or unreasonable in the words used in the definition clause so as to
render these provisions unworkable and incapable of implementation. This is
not a case where the terms as used in the provision are so absurd and incoherent
in the context in which they are used so as to lead to an absolute absurdity in the
language used and it is impossible to resolve the ambiguity created in the cluster
of words as used in the legislation. On a reading of the provisions as contained
in the definition clause, we are not persuaded to come to the conclusion that the
provisions are absolutely meaningless, incomprehensive or of an abnormal
understanding. These observations as made by us are applicable to the various
provisions as being assailed on behalf of the petitioners on the ground of
vagueness and ambiguity as we find for the reasons set out above, as we have
reached to a conclusion that the assertion of the petitioners is without any
foundation.
63. Now we come to the third Writ Petition No.115 of 2014 which is
filed by the Association of hotel and restaurant business. Mr.Dhakephalkar,
learned Senior Advocate has made submissions on behalf of the petitioners. The
submissions as made by Mr.Dhakephalkar are limited in as much as there is no
clarity as to which rules are applicable to hoteliers, manufacturer and for
persons who are engaged in food processing. Mr.Dhakephalkar has drawn our
attention to the provisions of section 50 which pertains to penalty for selling
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food not of the nature or substance or quality demanded. Mr.Dhakephalkar
submits that this provision creates a vague province as to what would be the
quality accepted by hoteliers in providing various edible items and what can be a
breach of such quality, is vague. This would bring about an arbitrary regime and
abuse of the powers at the hands of the authorities. In regard to the other
challenges as raised in the Writ Petition, Mr. Dhakephalkar has adopted the
challenges as made by Mr.Anturkar and Mr.Bulchandani. We are in total
disagreement with the submissions as made by Mr.Dhakephalkar. The
submissions are too general without any foundation.
ig We have observed
hereinabove that legality of the legislative provisions cannot be assailed in
abstract. Even otherwise, there is no substance in the challenge as being urged
by Mr.Dhakephalkar. The whole attempt on the part of the petitioners is to read
the provisions in isolation. We have already observed that the provisions are
required to be read and understood with other ancillary provisions as would
become relevant. On a plain reading of the provisions of the Act, we do not find
that there is any vagueness or absurdity or any discrimination and
unreasonableness as is reflected in any of the provisions. Mr.Dhakephalkar was
unable to show any instances which could even remotely support the plea as
made by the petitioners, of any action taken which would render such action
vulnerable and not sustainable on the application of the provisions of the Act. A
deeper scrutiny of the submission as urged by Mr.Dhakephalkar also show that
there is no vagueness or any prejudice which is being caused to the petitioners in
any of the provisions as contained in the FSS Act. Moreover, as submissions
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by the petitioners in this Writ Petition are oblivious of the various rules and
regulations framed under the FSS Act which clearly categories the dealing of the
food by the category of these petitioners. The legislature has carefully
incorporated various provisions providing for penalty with an object of securing
safe food for human consumption and has attempted to establish standards for
those who are dealing in business of food. These are provisions which are
enshrined under Articles 21 and 47 of the Constitution of India as held by the
Supreme Court. Each of the provisions which are assailed by the petitioners are
intended to achieve these constitutional objects. Thus, an imaginary challenge is
sought to be raised which in any case ought to fail.
64. Mr.Anturkar learned Senior Counsel for the petitioners has placed
reliance on the decisions of the Supreme Court in the case of "Academy of
Nutrition Improvement & ors vs Union of India, (2011 (8) SCC 274)." in
support of his submissions that the terms like processing, storage, distribution,
food service, catering, food ingredients which are not defined under the Act have
created an ambiguity and vagueness in the implementation of the provisions of
the Act. The reliance is on the observations of the Supreme Court in paragraph
55 of the Judgment in which the Supreme Court has observed that "where an
item of food (used in the composition or preparation of human food and used as
a flavouring) is in its natural form and is unadulterated and is not injurious to
health, a rule cannot be made under the provisions of the Act to ban the
manufacture for sale, storage or sale of such food item on the ground that such
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ban will ensure that the populace will use a medicated form of such food, which
will benefit a section of the populace. The Supreme Court has made these
observations in the context of the challenge to the validity of Rule 44-I of the
provisions of Food Adulteration Rules 1955 which banned use of common
iodised common salt for human consumption. The case of the petitioners was
that compulsory iodization regime ought to be replaced by voluntary need-based
iodization regime so that only those having iodine deficiency could use iodized
salt and that it was unfair and unjust to deny them the right to choose between
iodized and common iodized salt. It was thus urged that Rule 44-I was violative
of Articles 14 and 21 of the Constitution of India. The Supreme Court held that
the issue that there should be an universal salt iodization is much debated
technical issue relating to medical science and that decisions in these matters can
only be taken by an expert. It was held that the Courts are not equipped nor can
be expected to decide about the need or absence of need for such universal salt
iodization on the basis of some articles and reports placed before it. That the
Court should not rush in where even scientists and medical experts are careful to
tread nor the Court substitute their own views as to what is wise, safe, prudent or
proper relating to technical issues relating to public health. It is in this context
the above observations were made by the Supreme Court and in paragraph 55.
In our view, these observations are of no avail to the petitioners in the context to
the challenge as raised in this petition. There can be no quarrel about what the
Supreme Court has held in this decision. In the facts of the present case, whether
any item is being used in its natural form and whether the same is injurious to
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health or not are all matters which are required to be taken into consideration by
the Food Safety Authority when such items are being used in the preparation of
items of food. The same would depend on the facts of each case. The petitioners
have not come out with any case that the respondents in any manner have
restricted the use of any food item in its natural form which is unadulterated not
injurious to health and have made a rule prohibitive of such use. Reliance on the
observations of the Supreme Court in paragraph 55 therefore, are squarely
inapplicable to the facts of the present case.
65.
Mr. Anturkar has then placed reliance on the decision of the
Supreme Court in the case of State of Madhya Pradesh vs. Baldev Prasad,
(AIR 1961 Supreme Court 293), again on the proposition of vagueness of the
provisions of the Food Safety Act. In this case, the Supreme Court was dealing
with the question about the validity of the Central Provinces and Berar Goondas
Act, 10 of 1946 as amended by the Madhya Pradesh Act 49 of 1950. The State of
Madhya Pradesh had passed an order against respondent Baldev Prasad on 16 th
June 1955 under section 4-A of the Act. The District Magistrate, Chhindwara
had passed another order dated 22nd June 1955 communicating Baldev Prasad
the first externment order passed against him. A writ petition was filed by
Baldev Prasad before the High Court challenging the validity of the said order
on the ground that the grounds on which the order was passed was itself ultra
vires. The plea of Baldev Prasad was upheld by the High Court by holding that
section 4 and section 4-A of the Act were invalid. The correctness of this
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decision of the High Court was challenged by the State of Madhya Pradesh
before the Supreme Court. While dismissing the appeal the Supreme Court
upheld the decision of the High Court. Analyzing the provisions of the Act it
was observed that the validity of the Act was challenged on one serious infirmity
in section 4 and 4-A. The infirmity being that section 4 contemplates preventive
action being taken provided two conditions are satisfied; first the presence,
movements or act of any person sought to be proceeded against should appear to
the District Magistrate to be prejudicial to the interests of general public, or that
a reasonable suspicion should exist that such a person is committing or is likely
to commit acts calculated to disturb public peace or tranquility and second that
the person concerned must be a goonda. Thus, where prejudicial acts can be
attributed to a goonda that section 4 would come into operation and that the
satisfaction of the first condition alone would not be enough; both the conditions
must be satisfied before action can be taken against any person. Thus it was
meant that the primary condition precedent for taking action under section 4 was
that the person against whom action was proposed to be taken is a goonda and it
is precisely in regard to this condition it was held that the section suffers from a
serious infirmity. The section did not provide that the District Magistrate must
first come to a decision that a person against whom he proposes to take action is
a goonda, and gives him no guidance or assistance in the said matter. It is in this
context, the observations in paragraph 10 were made by the Supreme Court
which reads thus :
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"10. Having regard to the two infirmities in Sections 4, 4-A
respectively we do not think it would be possible to accede to the
argument of the learned Advocate General that the operative
portion of the Act can fall under Article 19 (5) of the Constitution.
The person against whom action can be taken under the Act is not
entitled to know the source of the information received by the
District Magistrate; he is only told about his prejudicial activities
on which the satisfaction of the District Magistrate is based that
action should be taken against him under Section 4 or Section 4-A.
In such a case it is absolutely essential that the Act must clearly
indicate by a proper definition or otherwise when and under what
circumstances a person can be called a goonda; and it must impose
an obligation on the District Magistrate to apply his mind to the
question as to whether the person against whom complaints are
received is such a goonda or not. It has been urged before us that
such an obligation is implicit in sections 4 and 4-A. We are
however, not impressed by this argument. Where a statute
empowers the specified authorities to take preventive action against
the citizens it is essential that it should expressly make it a part of
the duty of the said authorities to satisfy themselves about the
existence of what the statute regards as conditions precedent to the
exercise of the said authority. If the statute is silent in respect of one
of such conditions precedent it undoubtedly constitutes a serious
infirmity which would inevitably take it out of the provisions of
Article 19(5). The result of this infirmity is that it has left to the
unguided and unfettered discretion of the authority concerned to
treat any citizen as a goonda. In other words, the restrictions which
it allows to be imposed on the exercise or the fundamental right of
a citizen guaranteed by Article 19 (1) (d) and (e) must in the
circumstances be held to be unreasonable. That is the view taken by
the High Court and we see no reason to differ from it."
Mr.Anturkar has relied on the above observations to submit that if the statute is
silent in respect of one of such conditions precedent, it undoubtedly constitutes a
serious infirmity which would inevitably take it out of the provisions of Article
19 (5) and that a result of such infirmity is that it has left to the unguided and
unfettered discretion of the authority to treat any citizen as a goonda. We are of
the opinion that these observations of the Supreme Court in no manner are of
any assistance to the petitioners, the reason being that the context in which the
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Supreme Court had come to a conclusion simply cannot be made applicable to
the facts of the present case. We have observed above that the terms as used in
Food Safety Act are required to be read in the context to which they are used and
these terms cannot be read in isolation and are required to be read along with the
other provisions of the Act. They are required to be given a ordinary and natural
meaning and in the context in which they are placed in the scheme of the Act.
The petitioners cannot in abstract place reliance on the observations of the
Supreme Court.
66.
Mr.Anturkar's reliance on the decision of the Supreme Court in
"Kartar Singh Vs. State of Punjab, (1994(3) SCC 569)" is also of no avail to
the petitioners as the same is wholly inapplicable in the facts of the present case.
In paragraph 130 of this judgment the Supreme Court has categorically held that
basic principle of legal jurisprudence is that an enactment is void for vagueness
if its prohibitions are not clearly defined. A perusal of the detailed provisions
which the petitioners have assailed read with the licensing regulations, leave no
manner of doubt that they are clear, plain and unambiguous.
67. Before we conclude, we may observe that the FSS Act has been
enacted for the benefit and welfare of the citizens and has direct nexus to the
right to life as enshrined under Article 21 of the Constitution. This is a social
legislation and provides for solution to the problems which would be a creation
of nobodyelse but the members of the society. In upholding the validity of the
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provisions of the FSS Act, we have adopted the principles of interpretation
which would further the social interest and the object of the legislation. As a
Constitution Court, we cannot loose sight of the evil which is sought to be
remedied by this enactment. The mischief which is sought to be remedied is
nothing but sheer creation of we humans who have the tendency to indulge and
deal in food products which would not be safe for human consumption and/or
likely to cause a grave impact on human health. Every person even the person
dealing in such unsafe food is likely to be the victims. We may observe that it
would be the fundamental duty of every citizen to nurture such morals, ideals,
qualities, habits and discipline so as to bring about a situation that the indulgence
and dealing in hazardous and unsafe food is eliminated in totality as a matter of
social responsibility of every citizen and bring about a situation that penal
actions under these social legislation are minimized sheerly by inculcating these
virtues of honesty and morality in dealing with food as a duty towards every
citizen and this Country. These are the principles which are enshrined as one of
the fundamental duties in Article 51A sub-clauses (h) and (j) of the Constitution
which read as under:-
51A. Fundamental duties It shall be the duty of every citizen of India
(a) .... ... ...
(h) to develop the scientific temper, humanism and the spirit of inquiry
and reform;
(i) ... .... .... ....;
(j) to strive towards excellence in all spheres of individual and collective
activity so that the nation constantly rises to higher levels of endeavour
and achievement."
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68. It is for these reasons that we have construed the provisions of the
FSS Act to make it effective and operative on the principles of ut res majis
valeat quam periat. It may not be out of place to observe that nobody can be
oblivious of the evils that are caused to the Society at large on account of unsafe
food being traded. The Court is required to take into consideration matters of
common knowledge, the history of recent times in considering the importance of
legislation and more particularly when it is required to decide the constitutional
validity of the provisions. The Legislature in its wisdom understands and
correctly appreciates the need of its own people and its laws which are directed
to resolve the problems made manifest by sheer experience. If the object of the
Act is to achieve science based standards for articles of food and to regulate,
manufacture and storage, distribution, sale and import so as to ensure availability
of safe and wholesome food for human consumption, in that case it would be the
duty of the Court to further the object of the Act in interpreting the provisions.
We may observe that the legislation which pertains to food safety serves a
pivotal role in securing the citizens a minimum degree of purity in the articles of
food and to protect and preserve the public health. It is aimed at preventing
fraud on the consumers and those who are guilty of endangering human life by
indulging and dealing with the unsafe food are required to be dealt with iron
hands. If the provisions intend to curb such social evil, we are of the considered
opinion that the challenge as raised by the petitioners on every count ought to
fail. We may also observe that those who are entrusted with the solemn duty of
enforcing the provisions of the Act are equally under an obligation to discharge
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the duties in the method and manner as the FSS Act, rules and regulations
framed thereunder would provide. As on discharge of these duties the health of
the citizens at all levels of life would rest. The persons who are dealing in foods
as also the authorities responsible for implementing the provisions of this Act,
therefore, have an onerous responsibility to the welfare of the citizens and
directly affecting the valuable constitutional guarantee as enshrined under
Article 21 of the Constitution. In no circumstance the standard of safety as
would be laid down under the Act, the Rules and Regulations can be
compromised by not adhering to, implementing the same by all the stakeholders.
In this context we may usefully refer to the recent decision of the Supreme Court
in the case of "Centre for Public Interest Litigation Vs. Union of India & Ors.,
(AIR 2014 SC 49)" wherein the Supreme Court in dealing with the issue arising
under the FSS Act has held that any food article which is hazardous or injurious
to public health is a potential danger to the fundamental right to life guaranteed
under Article 21 read with Article 47 of the Constitution of India. It is held that
the provisions of FSS Act and the Rules and Regulations framed thereunder are
required to be interpreted and applied in the light of the Constitutional principles
and an endeavour has to be made to achieve appropriate level of protection of
human life and health. It is held that considerable responsibility is cast on the
Authorities as well as other officers functioning under the Act to achieve the
desired results. It is also held that the parties are also obliged to maintain a
system of control and other activities as appropriate to the circumstances,
including public communication on food safety and risk, food safety surveillance
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and other monitoring activities covering all stages of food business. It would be
profitable to reproduce the relevant paragraphs of the said judgment of the
Supreme Court in the present context:-
"19. Article 21 of the Constitution of India guarantees the right
to live with dignity. The right to live with human dignity denies
the life breach from the Directive Principles of the State Policy,
particularly clauses (3) and (f) of Article 39 read with Article 47 of
the Constitution of India.
Article 47 reads as follows:-
"47. Duty of the State to raise the level of nutrition and the
standard of living and to improve public health. The State shall
regard the raising of the level of nutrition and the standard of living
of its people and the improvement of public health as among its
primary duties and, in particular, the State shall endeavour to bring
about prohibition of the consumption except for medicinal
purposes of intoxicating drinks and of drugs which are injurious to
health."
20. Article 12 of the International Covenant on Economics,
Social and Cultural Rights,1966 reads as follows:-
"12-(1) The States Parties to the present Covenant
recognize the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health.
(2) The steps to be taken by the States Parties to the
present Covenant to achieve the full realization of this right shall
include those necessary for:
(a) The provision for the reduction of the still birth-rate
and of infant mortality and for the healthy development of the
child;
(b) The improvement of all aspects of environmental
and industrial hygiene;
(c) The prevention, treatment and control of epidemic,
endemic, occupational and other diseases;
(d) The creation of conditions which would assure to a
medical service and medical attention in the event of sickness."
21. We may emphasize that any food article which is hazardous
or injurious to public health is a potential danger to the
fundamental right to life guaranteed under Article 21 of the
Constitution of India. A paramount duty is cast on the States and its
authorities to achieve an appropriate level of protection to human
life and health which is a fundamental right guaranteed to the
citizens under Article 21 read with Article 47 of the Constitution of
India.
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22. We are, therefore, of the view that the provisions of the FSS
Act and PFA Act and the rules and regulations framed thereunder
have to be interpreted and applied in the light of the Constitutional
Principles, discussed above and endeavour has to be made to
achieve an appropriate level of protection of human life and health.
Considerable responsibility is cast on the Authorities as well as the
other officers functioning under the above-mentioned Acts to
achieve the desired results. Authorities are also obliged to maintain
a system of control and other activities as appropriate to the
circumstances, including public communication on food safety and
risk, food safety surveillance and other monitoring activities
covering all stages of food business.
23. Enjoyment of life and its attainment, including right to life
and human dignity encompasses, within its ambit availability of
articles of food, without insecticides or pesticides residues,
veterinary drugs residues, antibiotic residues, solvent residues, etc.
--- ----" ig (emphasis supplied)
The above observations of the Supreme Court thus leaves no manner of doubt
that dealing in food articles which are hazardous and injurious to public health is
a potential danger to the fundamental right to life guaranteed under Article 21 of
the Constitution. In our above discussion, we have observed that the Legislature
was mindful of the importance of the subject and in its wisdom taking into con-
sideration all the parameters on the subject has enacted the FSS Act. As also the
rule making authorities have framed the rules and regulations concerning differ-
ent aspects pertaining to food and to achieve the objects of the enactment. We
have considered the scope of the Rules under challenge and as assailed and we
have noted that none of these rules and regulations in any manner go contrary to
the provisions of the Act or are rendered illegal for any other reasons. This is
definitely not a case where the rule making authority has exceeded its power un-
der the FSS Act in framing these rules and regulations.
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69. We may also usefully refer to the decision of the Division Bench of
this Court in the case "Dhariwal Industries Ltd. and Anr. Vs. State of Maha-
rashtra and Others, ((2013) 1 Mah LJ 461)". In this case the Court was consid-
ering the challenge to the validity of the Regulation 2.3.4 of the Food Safety and
Standards (Prohibition and Restrictions on Sales) Regulations, 2011 and Regula-
tion 3.1.7 of the Food Safety and Standards (Food Products Standards and Food
Additives) Regulations, 2011 and the order passed by the Commissioner of Food
Safety passed under Section 30(2)(a) of the FSS Act in the interest of public
health prohibiting manufacturing, storing, distributing or selling of Gutkha or
Pan Masala. The Division Bench while considering the provisions of the Act has
succinctly made the following observations:-
"23. ... ... ...These provisions require all the above authorities which in-
clude the other agencies implementing the provisions of the Act to iden-
tify the possibility of harmful effects on health on the basis of assessment
of available information. If the possibility of harmful effects on health is
identified but scientific uncertainty persists, provisional risk manage-
ment measures necessary to ensure appropriate level of health may be
adopted. In cases where there are reasonable grounds to suspect that a
food may present a risk for human health, the Food Authority and the
Commissioner of Food Supply shall inform the general public about the
food, risk to health and measures being taken to prevent or eliminate
that risk. Section 18(2)(a) also requires that the Food Authority shall,
while framing regulations and specifying standards under the Act, en-
sure prevention of unsafe or contaminated or substandard food. It is,
thus, clear that the authorities entrusted with the duty of implementing
the Food Safety Act, 2006 are not merely to perform the negative duty of
preventing food adulteration, but are required to play a very pro-active
role for ensuring safe and wholesome food and to prevent and eliminate
risk to health caused by unsafe food. It is, therefore, clear that Food
Safety and Standards Act, 2006 is the comprehensive single special leg-
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islation for all food products on the subject of safety and standards. ...
... .... ....
55. The impugned statutory regulations as well as the impugned statuto-
ry order dated 19 July, 2012 are in furtherance of Article 47 of the Con-
stitution which reads as under:--
"47.Duty of the State to raise the level of nutrition and the stan-
dard of living and to improve public health. - The State shall re-
gard the raising of the level of nutrition and the standard of liv -
ing of its people and the improvement of public health as among
its primary duties and, in particular, the State shall endeavour to
bring about prohibition of the consumption except for medicinal
purposes of intoxicating drinks and of drugs which are injurious
to health."
ig (emphasis supplied)
70. The Constitution Bench of the Supreme Court in the case of
"Municipal Corporation Ahmedabad vs. Jan Mohammed, (AIR 1986 SC
1205)", in laying down the principles of interpretation which would be
applicable in testing a challenge to a legislation on the ground that it violates the
fundamental rights guaranteed under Article 19(1)(g) to practice any profession,
or to carry on any occupation, trade or business and the rights guaranteed under
Article 14 which enjoins that the State shall not deny to any person equality
before the law or the equal protection of law within the territory of India, has
observed thus:-
"15. Before proceeding to deal with the points urged on behalf
of the appellants it will be appropriate to refer to the well-
established principles in the construction of the constitutional
provisions. When the validity of a law placing restriction on the
exercise of a fundamental right in Article 19(1)(g) is challenged,
the onus of proving to the satisfaction of the court that the
restriction is reasonable lies upon the State. If the law requires that
an act which is inherently dangerous, noxious or injurious to the
public interest, health or safety or is likely to prove a nuisance to
the community shall be done under a permit or a licence of an
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executive authority, it is not per se unreasonable and no person may
claim a licence or a permit to do that act as of right. Where the law
providing for grant of a licence or permit confers a discretion upon
an administrative authority regulated by rules or principles, express
or implied, and exercisable in consonance with the rules of natural
justice, it will be presumed to impose a reasonable restriction.
Where, however, power is entrusted to an administrative agency to
grant or withhold a permit or licence in its uncontrolled discretion
the law ex facie infringes the fundamental right under Article 19(1)
(g). Imposition of restriction on the exercise of a fundamental right
may be in the form of control or prohibition. But 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 general public lies heavily upon the
State. In this background of legal position the appellants have to
establish that the restriction put on the fundamental right of the
respondents to carry on their trade or business in beef was a
reasonable one. The court must in considering the validity of the
impugned law imposing prohibition on the carrying on of a
business or a profession attempt an evaluation of its direct and
immediate impact upon the fundamental rights of the citizens
affected thereby and the larger public interest sought to be ensured
in the light of the object sought to be achieved, the necessity to
restrict the citizen's freedom, the inherent pernicious nature of the
act prohibited or its capacity or tendency to be harmful to the
general public, the possibility of achieving the object by imposing a
less drastic restraint, and in the absence of exceptional situations
such as the prevalence of a state of emergency, national or local, or
the necessity to maintain necessary supplies or the necessity to stop
activities inherently dangerous, the existence of a machinery to
satisfy the administrative authority that a case for imposing
restriction is made out or a less drastic restriction may ensure the
object intended to be achieved.
17. Clause (6) of Article 19 protects a law which imposes in the
interest of general public reasonable restrictions on the exercise of
the right conferred by sub-clause (g) of clause (1) of Article 19.
Obviously it is left to the court in case of a dispute to determine the
reasonableness of the restrictions imposed by the law. In
determining that question the court cannot proceed on a general
notion of what is reasonable in the abstract or even on a
consideration of what is reasonable from the point of view of the
person or persons on whom the restrictions are imposed. The right
conferred by sub-clause (g) is expressed in general language and if
there had been no qualifying provision like clause (6) the right so
conferred would have been an absolute one. To the persons who
have this right any restriction will be irksome and may well be
regarded by them as unreasonable. But the question cannot be
decided on that basis. What the court has to do is to consider
whether the restrictions imposed are reasonable in the interest of
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general public. In the State of Madras v. V.G. Row [AIR 1952 SC
196 : 1952 SCR 597 : 1952 Cri LJ 966] this Court laid down the
test of reasonableness in the following terms:
"It is important in this context to bear in mind that the test
of reasonableness, wherever prescribed, should be applied
to each individual statute impugned, and no abstract stan-
dard, or general pattern of reasonableness can be laid down
as applicable to all cases. The nature of the right alleged to
have been infringed, the underlying purpose of the restric-
tions imposed, the extent and urgency of the evil sought to
be remedied thereby, the disproportion of the imposition,
the prevailing conditions at the time, should all enter into
the judicial verdict."
20. The tests of reasonableness have to be viewed in the context
of the issues which faced the legislature. In the construction of such
laws and in judging their validity, 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. They are not
in these matters functioning in vacuo but as part of society which is
trying, by the enacted law, to solve its problems and furthering the
moral and material progress of the community as a whole.
(See Jyoti Pershad v. Union Territory of Delhi [AIR 1961 SC
1602 : (1962) 2 SCR 125] .) If the expression 'in the interest of
general public' is of wide import comprising public order, public
security and public morals, it cannot be said that the standing
orders closing the slaughterhouses on seven days is not in the
interest of general public.
23. It is now well established that while Article 14 forbids class
legislation it does not forbid reasonable classification for the
purposes of legislation and that in order to pass the test of
permissible classification two conditions must be fulfilled, namely,
(i) the classification must be founded on an intelligible differentia
which distinguishes persons or things that are grouped together
from others left out of the group, and (ii) such differentia must have
rational relation to the object sought to be achieved by the statute in
question. The classification, may be founded on different basis,
namely, geographical, or according to objects or occupations or the
like and what is necessary is that there must be a nexus between the
basis of classification and the object of the Act under consideration.
There is always a presumption in favour of constitutionality of an
enactment and the burden is upon him who attacks it, to show that
there has been a clear violation of the constitutional principles. The
courts must presume that the legislature understands and correctly
appreciates the needs of its own people, that its laws are directed
against problems made manifest by experience and that its
discriminations are based on adequate grounds. It must be borne in
mind that the legislature is free to recognise degrees of harm and
may confine its restrictions to those cases where the need is deemed
PVR 109 wp477-227-12=115-13-ghntefinal.doc
to be the clearest, and finally that in order to sustain the
presumption of constitutionality the court may take into
consideration matters of common knowledge, matters of common
rapport, the history of the times and may assume every state of
facts which can be conceived to be existing at the time of
legislation."
71. We may observe that our above discussion and conclusion is
confined to the submissions as canvassed by the learned Counsel for the parties.
72. In the result of the above deliberation, we are of the considered
opinion that the provisions as impugned in these writ petitions are legal, valid
and intra vires Articles 14 and 19 (1) (g) of the Constitution of India and thus the
challenge as raised in these Writ Petitions fails. The Writ Petitions are
accordingly dismissed. In the facts and circumstances of the case, there shall be
no order as to costs.
(G.S.Kulkarni, J.) (S.C.Dharmadhikari, J.)
1 CERTIFICATE
Certified to be true and correct copy of the original signed Judgment / Order.
