Karnataka High Court
M/S Itc Limited vs Food Safety Inspector on 23 February, 2022
Bench: V Srishananda
1
®
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
WRIT PETITION NO.59039/2015 (GM)
BETWEEN:
SRI IQBAL SYED SAB DAFEDHAR
S/O: SAYEDBASHA
AGED ABOUT: 45 YEARS,
PROPRIETOR OF
M/S DAFEDHAR DISTRIBUTORS
APMC YARD, GATE MARKET
VIJAYAPURA-586101.
...PETITIONER
(BY SRI.SAJJAN POOVAYYA AND
SRI. UDAY HOLLA, SENIOUR COUNSELS FOR
SRI.SHIVASHANKAR H.MANUR, ADVOCATE)
AND:
1. FOOD SAFETY INSPECTOR
DEPARTMENT OF THE FOOD SAFETY
AND STANDARDS, VIJAYAPURA
VIJAYAPURA DISTRICT-586 101.
2. DESIGNATED OFFICER
DEPARTMENT OF THE FOOD SAFETY
AND STANDARDS, VIJAYAPURA
VIJAYAPURA DISTRICT-586 101.
....RESPONDENTS
(BY SRI.Y.H.VIJAYA KUMAR, AAG A/W
SRI. SHARANABASAPPA M.PATIL, HCGP)
2
THIS W.P. IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA R/W SECTION 482 OF CR.P.C.,
PRAYING TO CALL FOR THE RECORDS AND QUASH THE ORDER
DATED 25.11.2015 PASSED IN C.C. NO. 307/037/225/2015-16
ON THE FILE OF ADDITIONAL DISTRICT MAGISTRATE CUM
ADJUDICATING AUTHORITY, VIJAYAPURA (ANNEXURE-A) AND
ETC.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING :
ORDER
This petition is filed under Article 226 of the
Constitution of India read with Section 482 of Cr.P.C with
the following prayer :-
"Issue a writ of certiorari or any other
appropriate writ or order or direction quashing the
order dated 25.11.2015 passed in
C.C.No.307/037/225/2015-16 on the file of
Additional District Magistrate cum Adjudicating
Authority, Vijayapura (Annexure-A)."
2. The brief facts of the case are as follows :-
The petitioner is a Proprietor of a Wholesale
Distributing Agency operating from the premises in APMC
Yard, Vijayapura and is engaged in the distribution of
various products, including instant noodles manufactured
by the ITC Limited under the brand name of "Sunfeast
Yippee! Noodles". Sunfeast Yippee! noodles has got
different flavours namely "Classic Masala", "Magic Masala"
and "Chinese Masala". Each pack of the instant noodles
contain noodle pack with a sachet of masala mix with
cooking instructions provided on the pack label. The noodle
block is made from wheat flour and the sachet of masala
mix is made of spices, herbs, dehydrated vegetables etc.
The sample of the product label of "Sunfeast Yippee!
Classic Masala" is also produced before the court as
Annexure-B to the petition.
3. It is contended that on 11.06.2015 the Food
Safety Inspector, picked up a sample of Sunfeast Yippee!
Noodles Classic Masala packet from the premises of the
petitioner and issued Form VA under Rule 2.4.1(3) of the
Food Safety and Standards Rules, 2011. The collected
sample has been sent to the Food Analyst, Belgaum for
testing. On receipt of sample Food Analyst after analyzing
the sample, gave a report on 23.06.2015 opining as
under :-
"The sample conforms to the standards as
per above parameters, but it is misbranded as per
Rule 2.2.1(3) of rule 2.2 of Food Safety and
Standards (Packaging and Labelling) Regulations,
2011.
Note : Due to non-availability of the facility
test for lead and flavour enhancers (MSG) could
not be performed. It is suggested to get the sample
analysed for the same, from NABL accredited or
referral laboratory."
4. However, the sample was not tested for Mono
Sodium Glutamate [hereinafter referred to as 'MSG' for
short] as observed in the report itself. Despite, absence of
any method to ascertain presence of MSG in the sample,
Food Analyst arrives at a conclusion that the product is
misbranded.
5. It is further contended that when the label
mentioned that there is no added MSG, the question of
misbranding product does not arise and therefore, the
further action based on the report given by the Food
Analyst is contrary to the Act and Rules.
6. It is also contended that there is no Laboratory
established in Karnataka to find out the presence of MSG
in a given sample. When such being the factual aspect, the
report given by the Food Analyst as misbranded is per se
illegal and therefore, no action should be initiated against
the petitioner.
7. Further, the first respondent - Food Safety
Inspector orally sought information from the petitioner
about the manufacturers' details from whom he purchased
the product. Thereafter, petitioner provided necessary
information and he received the notice on 10.8.2015 from
the Additional District Magistrate - cum - Adjudicating
Authority, Vijayapura stating that action has been initiated
against the petitioner under the Food Safety and
Standards Act, 2006 [hereinafter referred to as 'FSSA' for
short] and the petitioner was required to appear before the
authority on 31.08.2015. Petitioner was also surprised to
note that the Adjudicating Authority by order dated
11.8.2015, provided an opportunity to the petitioner to get
the sample re-tested by Referral Laboratory. It is further
contended that such an opportunity was extended to the
petitioner only after the product has already been labeled
as misbranded and the petitioner was not provided with a
right to appeal the test report of the Food Analyst, before
the Designated Officer as is provided under Section 46 (4)
of the Food Safety and Standards Act, 2006 and in
conformity with Rule 4.2 of the Food Safety and Standards
Rules [hereinafter referred to as 'FSS Rules' for short].
Therefore, the petitioner approached this court with the
aforesaid prayer.
8. Heard Sri Udaya Holla, learned Senior Counsel
and Sri Sajjan Poovaiah, learned Senior Counsel on behalf
of the petitioners. Heard learned High Court Government
Pleader and Additional Advocate General attached to
Kalaburagi Bench, High Court of Karnataka.
9. The principal ground on which the prayer is
sought for, is that the presence of MSG cannot be
determined with the laboratory facility available in
Karnataka and further when the label of the product
specifically mentions that there is no added MSG, in order
to ascertain whether there was any presence of MSG which
has been added to the product, a specific methodology has
been prescribed and for which a laboratory report assumes
great importance in arriving at a finding that there is a
presence of MSG in a given product or not. Since the Food
Analyst himself has clearly opined in the report that there
is no facility available to ascertain the presence of MSG,
launching of prosecution under the unconfirmed report that
the product is misbranded has affected the rights of the
petitioner and therefore, the criminal prosecution launched
against the petitioner needs to be quashed.
10. Per contra, learned High Court Government
Pleader submits that based on the report given by the
Food Analyst, the product has been mis-branded and an
opportunity was provided to the petitioner to get the
sample re-tested in any other referral laboratory and place
evidence on record so as to ascertain the genuineness of
the product. Therefore, the action initiated by the Addl.
District Magistrate cum Adjudicating authority, Vijayapura
is perfectly valid under the provisions of the Act and
sought for dismissal of the petition.
11. In reply, the learned counsel for the petitioner
relied on the judgment of the co-ordinate bench of this
court passed in WP No.207484/2015 on 23.07.2021,
wherein the court, almost on the similar set of facts, took
note of the fact that there is no proper laboratory facility
available to find out the presence of MSG in a given
sample and quashed the further proceedings. Co ordinate
bench fo this court while passing the said order followed
the dictum of the judgment in ITC Ltd., Vs. State of
Madhya Pradesh reported in 2018 (1) Crimes 150(MP) and
also taking note of the dictum of law in following cases:
(1) State of Haryana & Others Vs. Bhajanlal
and Others reported in (1992) SUPP (1) SCC 335
(2) Satish Mehra Vs. Delhi Administration
and another - reported in (1996) 9 SCC 766 -
(3) Pepsi Foods Limited and another Vs.
Special Judicial Magistrate and Others - reported in
(1998) 5 SCC 749 -
(4) Mansukhlal Vithal Das Chauhan Vs. State
of Gujarath reported in AIR 1997 SC 3400
(5) Jaswant Sing Vs. State of Punjab
reported in AIR 1958 SC 124
(6) P.L. Tatwal Vs. State of Madhya Pradesh
reported in AIR 2014 SC 2369
(7) C.B.I. Vs. Ashok Kumar Aggarwal
reported in AIR 2014 sc 827.
12. In the light of the rival contentions, this court
meticulously considered the provisions of the said Act and
Rules, and the laboratory report which reads as under:
"Divisional Food Laboratory,
Belagavi Division, Vaccine
Institute Compound,
Belagavi - 590 006.
___________________________________________________
FORM B
Report of the Food Analyst
(Refer Regulation (ii) of 2.3.1)
Report No.DFL/BGM/FSSA/442/2015
Certified that I SHRI B.LINGAPPA duly appointed under
the Provisions of Food Safety and Standards Act, 2006 (34 of
2006), for Vijayapur-Dist received from F.S.O, Vijayapur Tq
and sample of Classic masala bearing Code number and Serial
Number : 307/037/225/2015, dtd : 11.06.2015 of Designated
Officer of Vijayapura-Dist area* on 17.06.2015 for analysis.
The condition of seals on the container and the outer
covering on receipt was as follows : Seals were intact and found
correct.
I found the sample to be Noodles falling under
Regulation No.2.12 of Food Safety and Standards (Food
Products and Food Additives) Regulations, 2011. The sample **
was in a condition fit for analysis and has been analysed on
19.06.2015 to 23.06.2015 and the result of its analysis is given
below/** was not in a condition fit for analysis for the reasons
given below :
Reasons : ............................................................
Analysis report
1 Sample Description Classic Masala
2 Physical Appearance Satisfactory
3 Label Sunfeast YiPPee noodles classic Masala
i) Pkd : 11 May 15, ii) B.No.BP 31,
iii) B.B : 9 months from manufacture
iv) No added MSG
v) Mfd by : ITC Limited, Plot No.D-1,
MIDC, Ranjangoan, Taluka Shirur, Dist
Pune - 412 220.
Sl. Quality Name of Result Results Prescribed
No Characteristics the Standard as per (a)
. Method The Food Safety
of the and Standards
test (Food Products
used Standards and
Food Additive s)
Regulations, 2011
(b) As per label
declaration for
proprietary food
© As per provisions
of the Act, Rules
and Regulations for
both the above.
1 Extraneous DGHS Not detected Should not be
matter present
2 Added colour DGHS Not detected Should not be
present
3 Presence of DGHS Not detected Should not be
vegetable fat present
4 Presence of DGHS Not detected Should not be
animal fat present
5 Total ash DGHS 0.475 Not more than
1.0%
6 Ash insoluble in DGHS 0.028% Not more than
Dil.HC1 0.1%
7. Nitrogen DGHS 2.08% Not less than 1.7%
Opinion :- The sample conforms to the standards as per
above parameters, but it is misbranded as per rule 2.2.1(3) of
Rule 2.2 of FSSA (Packaging & Labeling) Rules 2011.
* Note : Due to non availability of the facility test for lead
and flavor enhancers (MSG) could not be performed. It is
suggested to get the sample analysed for the same, from NABL
accredited or referral laboratory.
rd
Signed this on 23 day of June 2015.
Sd/-
Chief Food Analyst
Divisional Food Laboratory,
Belgaum Division, Belgaum."
13. Further, the petitioners have placed reliance on
the order dated 31.3.2016 issued by the Food Safety and
Standards Authority of India to substantiate their
contentions. In order to appreciate the case of the
petitioners, it is necessary for this court to cull out the said
order, which reads as under:
"File No:1 (105) Maggi Noodles/2015/FSSAI (Part-I)
Food Safety and Standards Authority of India
(A Statutory Authority established under Food Safety
and Standards Act, 2006)
(Enforcement Division)
FDA Bhawan, Kotla Road, New Delhi-110 002
_____________________________________
Dated, the 31st March, 2016
ORDER
Subject: Clarification on use of Monosodium
Glutamate as flavour enhancer in seasoning for
Noodles and Pastas.
Under Regulation 3.1.11 of the Food Safety and
Standards (Food Product Standards and Food
Additives), Regulations, 2011, Monosodium
Glutamate (MSG), a flavour enhancer bearing INS
number 621, may be added to specified foods as per
the provisions of Appendix A, subject to Good
Manufacturing Practice (GMP) level and under proper
declaration as provided in 2.4.5 (18) of the Food
Safety and Standards (Packaging and Labelling)
Regulations, 2011.
2. It is widely known that Glutamate is
naturally found in several common foods such as
milk, spices, wheat, vegetables, etc. MSG is the
sodium salt of Glutamic acid and one of the many
forms of glutamate. Presently, there is no analytical
method to determine whether MSG was added to the
product during its manufacture or was naturally
present in the product. This can however be checked
through inspection of the manufacturing premises.
3. To prevent, both, avoidable harassment/
prosecution of Food Business Operators (FBOs) as
well as to ensure that consumers are facilitated to
exercise informed choices in respect of what they
eat, proceedings may be launched against FBOs only
when the labels state "No MSG" or "No added MSG"
and MSG is actually found in the impugned foodstuff.
Commissioners of Food Safety are advised that
specific enforcement/ prosecution may not be
launched against the manufacturers of Noodles/
Pasta on account of presence of MSG/Glutamic Acid
unless it is ascertained by the department that
Monosodium Glutamate flavour enhancer (INS E-
621) was deliberately added during the course of
manufacture without required declaration on the
label as indicated in Para 1 above.
4. This issues with the approval of the
Competent Authority.
Sd/-
(Rakesh Chandra Sharma)
Director (Enforcement)
011-23220994"
14. It is also relevant to note the instructions given
by the Food Safety and Standards Authority of India dated
24.09.2018 to all the States and Union Territories
Commissioner of Food Safety. The same reads as under:
"File No:13 (3) 2016/HUL/Enf./FSSAI
Food Safety and Standards Authority of India
(A Statutory Authority established under Food Safety and
Standards Act, 2006)
FDA Bhawan, Kotla Road, New Delhi-110 002
_____________________________________________
Dated, the 24th September, 2018
To,
Commissioners of Food Safety,
All States/ UTs.
Subject- Adjudication proceedings against FBOs. in
States/UTs for "Mis-branding" due to the
presence of the claim of "No MSG" or "No
added MSG" on the packaging of Noodles and
Pastas- regarding
Sir Madam,
1. This has come to the notice of the Food Safety and
Standards Authority of India that there are pending
adjudication proceedings against FBOs in States/ UTs for
"mis-branding" due to the presence of the claim of "No
MSG" or "No added MSG" on the packaging of Noodles
and Pastas.
2 Attention is invited to FSSAl's Order F. No 1(105)
Maggi Noodles/ 2015/ FSSAI (Part-1) dated 31st March,
2016 where it was mentioned that Glutamate was naturally
found in several common foods and there was no
analytical method to determine whether MSG was added
to the product during its manufacturer or was naturally
present and, therefore, could be checked only through
inspection of the manufacturing premises. The State
Authorities were advised that specific enforcement /
prosecution processes might not be launched against the
manufacturers of Noodles / Pasta on account of presence
of MSG/ Glutamic Acid unless it was ascertained that
Monosodium Glutamate flavor enhancer (INS E-621) was
deliberately added during the course of manufacture
without required declaration on the label. This Order
directed the authorities to launch proceedings against
FBOs only when the labels stated "No MSG" or "No added
MSG", and it was ascertained by the department that MSG
flavor enhancer (INS E- 621) was added during the course
of manufacture without required declaration on the label
under Regulation 2.4.5 (18) of the Food Safety and
Standards (Packaging and Labelling) Regulations, 2011.
3. Thus adjudication proceedings launched against
any FBO for the offence of 'mis-branding' due to a claim of
"No MSG"/"No added MSG", on the label without
determining whether MSG was added during the
manufacturing process would be inconsistent with the
orders issued by the FSSAI.
4. Commissioners of Food Safety. States/ UTs are.
therefore, advised that wherever adjudication proceedings
have been iniiated against FBOs. for the presence of the
claim "No MSG/No added MSG" without ascertaining the
stage at which the MSG was added to the product need to
be examined and action taken in terms of FSSAI's Orders
dated 31st March, 2016.
5. It is requested that the report on the action taken in
this regard may please be communicated to this
organization.
Yours faithfully,
Sd/-
(Daya Shankar)
Joint Director (RCD)"
15. As could be seen from the above, the order
and the instructions given by the Food Safety and
Standards Authority, the component sample 'MSG' can be
of two types in any sample. One is of natural origin and
the other is a synthetic product, popularly known as
"aginomoto".
16. As the globalization is taking place a galloping
pace, the food taste across the globe has also undergone a
radical change since few decades. What was not even
dreamt of few decades earlier is a daily routine food,
practically in every nook and corner of the country. Even
in remote villages, the Chinese food including noodle
packets are available easily. The taste of a food product
differs from person to person. Needless to emphasize that
multinational companies have catered to the needs of the
general public in the form of packaged food. Practically,
every house today consumes noodles. May be because of
the taste or because of its easy preparation and less time
consumption. However, the after effects of consuming such
'fast foods' would not appear immediately and it may take
some time for the people to understand the bad effects of
fast foods. There are series of studies conducted by the
researchers in the medical field in this regard. Thousands
of research papers are published about the bad/ill effects
of consuming fast food on regular basis.
17. In this background, the object of the said Act
assumes great significance. The object of the Act is culled
out hereunder which reads thus:
1. Multiplicity of food laws, standard setting
and enforcement agencies pervades different
sectors of food, which creates confusion in the
minds of consumers, traders, manufacturers and
investors. Detailed provisions under various laws
regarding admissibility and levels of food additives,
contaminants, food colours, preservatives, etc.,
and other related requirements have varied
standards under these laws. The standards are
often rigid and non-responsive to scientific
advancements and modernisation. In view of
multiplicity of laws, their enforcement and standard
setting as well as various implementing agencies
are detrimental to the growth of the nascent food
processing industry and is not conducive to
effective fixation of food standards and their
enforcement.
2. In as early as in the year 1998, the Prime
Minister's Council on Trade and industry appointed
a Subject Group on Food and Agro Industries,
which had recommended for on comprehensive
legislation on Food with a Food Regulatory
Authority concerning both domestic and export
markets. Joint Parliamentary Committee on
Pesticide Residues in its report in 2004 emphasized
the need to coverage all present food laws and to
have a single regulatory body. The Committee
expressed its concern on public health and food
safety in India. The Standing Committee of
Parliament on Agriculture in its 12th Report
submitted in April, 2005 desired that the much
needed legislation Food Law should be expedited.
3. As an on going process, the then Member-
Secretary, Law Commission off 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 in
depth survey of the International scenario, the then
Member-Secretary recommended that the new
Food Law be seen in the overall prospective 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 modernisation and convergence of
regulations of Food Standards with the elimination
of multi-level and multi-departmental control.
Presently, the emphasis is on (a) responsibility with
manufacturers, (b) recall, (c) Genetically Modified
and Functional Foods, (d) emergency control, (e)
risk analysis and communication and (f) Food
Safety and Good Manufacturing Practices and
Process Control viz., Hazard Analysis and Critical
Control Point.
4. 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 has been named as "The
Food Safety and Standards Bill, 2005". The main
objective of the Bill is to bring out a single statute
relating to food and to provide for a systematic and
scientific development of Food Processing
Industries. It is proposed to establish the Food
Safety and Standards Authority of India, 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 will be
assisted by Scientific Committees and Panels in
fixing standards and by a Central Advisory
Committee in prioritization of the work. The
enforcement of the legislation will be through the
State Commissioner for Food Safety, his officers
and Panchayati Raj/Municipal bodies.
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 envisages 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 novel/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 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.
6. The above said 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.
18. In view of the above, as a principle of State
Policy, the State has onerous responsibility to ensure that
the quality of the food items that would be
manufactured/imported to our country, keeping in view the
general health condition of the public at large. Under such
circumstances, the provisions contained in the Act,
assumes greater significance.
19. Likewise, it is necessary that while the need of
the general public is to be satisfied by the manufacturer,
importer, the menace of adding spurious/impermissible
chemicals added into the food items needs to be curbed.
In other words, taste and the health and safety of the
human body is to be harmoniously balanced in meeting
this requirement.
20. Franklin Delano Roosevelt, 32nd President of
United States in the year 2000 in Gostin said as under:
"The success or failure of any Government in
the final analysis measured by the well being of its
citizens. Nothing can be more important to a State
than its public health; the States paramount
concern should be the health of its people."
21. Article 21 of the Constitution of India embraces
in itself the general health of a citizen of India as integral
part of right to life. Therefore, State is necessarily
required to take steps to maintain the general health of all
public at large and in that regard, the object of the Act is
to be properly implemented at the manufacturing level
itself and curb such menaces. For the purpose of gain of
few people, the health of the general public cannot be
compromised, more so, when such of the food materials
are consumed by the children and young adults.
22. In this regard, gainfully, this court places
reliance on the judgment of the Hon'ble Apex Court in the
case of Vincent Vs. Union of India reported in AIR
1987 SC 990 wherein it is held as under:
"A healthy body is the very foundation for all human activities.
That is why the adage "Sariramadyam Khaludharma Sadhanara". In a
welfare State, therefore, it is the obligation of the State to ensure the
creation and the sustaining of conditions congenial to good health. This
Court in Band- hua Mukti Morcha v. Union of India, [1984] 3 SCC 161
aptly observed:-
"It is the fundamental right of everyone in this country, assured
under the interpretation given to Article 21 by this Court in Francis
Mullin's case--1981] 1 SCC 608 to live with human dignity, free from
exploitation. This right to live with human dignity enshrined in Article
21 derives its life breath from the Directive Principles of State Policy
and particularly clauses (e) and (f) of Article 39 and Articles 41 and 42
... ........".
23. It is needless to emphasise that public at large,
who consumes packaged food are entitled to know the
contents of the same. Therefore, a duty is cast on the
manufacturer to mention on the cover or the package as to
the contents contained in it.
24. The manufacturers are required to disclose the
information about the contents truly so that the consumer
will have a choice to buy it or reject it. In other words, the
consumer is made known about the contents of the
packaged food so as to make him aware of consequences
of consuming such a food and if he chooses to do so, he
will be doing it so, with possible consequences.
25. In that regard, the Act prescribes a duty on the
manufacturers for disclosure of the presence of artificial
flavours or chemicals including MSG in a given product. As
such, the Manufacturer/importer is duty bound to make a
declaration about the presence of MSG in a given product.
26. In the background of the above requirements,
when the case on hand is analysed, the sample collected
by the first respondent (Food Safety Inspector) is sent to
the laboratory for testing the quality of the product in
conformity of the above requirements. The laboratory
report marked as Annexure-A referred to supra clearly
indicate that the food analyst was unable to find out the
presence of MSG in the sample. There is a clear
declaration on the cover of the seized sample that "no
added MSG". Without there being any proper laboratory
facility to find out the presence of MSG, strangely and
surprisingly, the food analyst branded the sample as mis-
branded. How exactly the seized sample is mis-branded is
not even forth coming in the report. Further, without
affording an opportunity for the petitioner, straight away
action is initiated by the Additional District Magistrate cum
Adjudicating Authority, under the provisions of the Act,
and a notice came to be issued for prosecution of the
petitioner. After petitioner appeared before the authority,
very strangely, the authority directs the petitioner to get
the sample re-tested in a referral Laboratory and to file a
report.
27. It is pertinent to note that the sample which is
collected by the first respondent is sent to the laboratory
and the Food Analyst was unable to find out the presence
of MSG with the facilities available in the laboratory and
has specifically opined that presence of MSG can be
ascertained only by sending the sample to NABL. In the
teeth of such a finding, how a prosecution came to be
launched against the petitioner without even providing an
opportunity of appeal regarding the mis-branding of the
product and thereafter, providing an opportunity for the
petitioner to prove contra, is a question that needs to be
explained by the respondent-State. However, no such
explanation is forthcoming from the respondent-State.
28. Admittedly, prosecution is launched by the
Additional District Magistrate cum Adjudicating Authority
and therefore, it is the duty of the department to establish
the alleged offence by placing positive evidence on record.
Per contra, expecting the petitioner to provide a report,
contrary to the report issued by the Food Inspector cannot
be countenanced under the criminal jurisprudence.
Therefore, the order passed by the Additional District
Magistrate cum Adjudicating Authority in pending case in
case number CC No. 307/037/225/2015 cannot be
continued and further proceedings needs to be quashed.
29. Having said thus, this court cannot turn blind
eye in arresting menace of misbranded food items or
substandard food items sold and consumed in the society
day in and day out. In this regard, this court requested
the learned Senior counsel Sri Udaya Holla and learned
Senior counsel Sri Sajjan Poovaiah, who represents the
petitioners in these cases to assist the court in framing
proper guidelines for proper and effective implementation
of provisions of Act by the Food Safety and Standard
Department. Both the learned Senior counsels have
promptly responded it and spent their time. They have
analysed the interplay of different provisions of the Act and
furnished a detailed flow chart for proper and effective
implementation of the Act keeping in view of the safety of
the general public at large and unnecessary hardship that
would be caused to manufactures/importers as well.
30. The Flow chart is culled out hereunder:
MEMO ON EFFECTIVE ADJUDICATION OF
CASES UNDER THE FOOD SAFETY AND
STANDARDS ACT, 2006
Food Safety Officer ['FSO'] purchases samples of
packaged food from a Food Business Operator ['FBO']
for testing analysis.
FSO gives Notice (in Form V-A) to the FBO,
Manufacturer and Distributor Supplier, which also
contains the testing parameters for the food sample.
If FBO does not acknowledge the purchase of sample,
witnesses have to be requested to be present for
taking of samples.
FSO ensures that four equal samples of packaged food
are taken and sends one of the four samples to Food
Analyst without opening the same by the immediate
successive working day. The sample should be of
the specified quantity.
FSO should ensure that the sample of food is sent for
analysis in a Laboratory which is notified by the Food
Safety & Standard Authority of India ['ESSAI'] and also
accredited by the National Accreditation Board for
Testing and Calibration Laboratories ["NABL"]
Food Analyst has maximum 14 (fourteen) days to
complete the analysis from date of receipt of sample.
Food Analyst sends his report in Form VII-A to the
Designated Officer containing specified details like
batch number, date of analysis etc.
In the case of an adverse report by the Food Analyst,
the Designated Officer ['DO'] gives an opportunity to
the FBO to file an Appeal.
If the DO dismisses the Appeal filed by the FBO and if
penalty is leviable for such contravention, then the DO
authorizes the FSO to file an application before the
Adjudicating Officer notified by the State Government.
Once the FSO has filed an application before the
Adjudicating Officer, the Adjudicating Officer:
(i) Furnishes a copy of the complaint and all other
documents/reports relied on by FSO to
respondents.
(ii) Provides opportunity to file written response
(iii) Provides Oral hearing
(iv) Pronounces the order
Legal Provisions:
1. A Food Safety Officer [FSO'] appointed
under Section 37 of the Food Safety & Standards
Act, 2006 [FSS Act'], can purchase samples of food
from a Food Business Operator ['FBO'] under
Section 38(1) read with Section 38(3) of the FSS
Act for the purpose of sending such sample of food
for analysis/testing to a Food Analyst.
2. Thereafter, as per Rule 2.4.1.3 of the
Food Safety & Standards Rules 2011 ['FSS Rules']
read with Section 47(1)(a) of the FSS Act, the FSO
has to give a Notice in Form V-A to the FBO
indicating the FSO's intention to have such sample
of food analysed by a Food Analyst.
3. As per Rule 2.4.1.4 of the FSS Rules, the
FSO should ensure that the Notice in Form V-A is
also given to the Manufacturer and the Distributor
or Supplier of such sample of food.
4. FSO should also ensure that Form V-A
lists out the parameters on which such sample of
food will be tested/analysed.
5. As per Rule 2.4.1.2 of the FSS Rules read
with Section 38(7) of the FSS Act, the FSO should
ensure that a sample of food must be taken in front
of one or more witnesses and that the signature of
such witnesses shall also be taken. As per the
Proviso to Section 47(1)(b) of the FSS Act, this
requirement of witnesses will only arise if the FBO
from whom the sample of food is taken, refuses to
sign the relevant documents.
6. While taking samples of food, the FSO
should ensure that the FSO takes 4 (four) equal
samples of food in accordance with Section
47(1)(b) of the FSS Act.
7. As per Rule 2.4.1.14 of the FSS Rules
read with Regulation 2.3.1 of the Food Safety &
Standards (Laboratory & Sample) Analysis
Regulations 2011, the FSO should send the
specified quantity of the sample of food to the Food
Analyst for analysis. Regulation 2.3.1 of the Food
Safety & Standards (Laboratory & Sample) Analysis
Regulations 2011 gives the list of specified quantity
for various types of foods which should be sent for
analysis and testing.
8. If the sample of food which is sent for
analysis is sold in a package, then such package
should not be opened, and such sample of food
should be sent by the FSO to the Food Analyst for
analysis in its original condition without opening
the package along with the original label. This is as
per the Explanation to Rule 2.4.1.14 of the FSS
Rules.
9. After the FSO collects the sample of food,
then the FSO should send such sample of food to
the Food Analyst by the immediate succeeding
working day. This is in accordance with Section
47(2) of the FSS Act.
10. The FSO should ensure that the sample
of food is sent for analysis in a Laboratory which is
notified by the Food Safety & Standards Authority
of India [FSSAI"] and also accredited by the
National Accreditation Board for Testing and
Calibration Laboratories ['NABL] for the purpose of
carrying out analysis of samples by the Food
Analyst under the FSS Act. This is in accordance
with Section 43(1) of the FSS Act.
11. The Food Analyst appointed under
Section 45 of the FSS Act, has to finish the analysis
within 14 (fourteen) days from the date of receipt
of such food sample from the FSO. This is in
accordance with Section 46(3) read with Section
42(2) of the FSS Act.
12. As per Section 46(3)(i) of the FSS Act
read with Rule 2.1.4.2(ii) & Rule 2.4.2.5 of the FSS
Rules, the Food Analyst should send its Report in
Form VII-A to the Designated Officer (DO). A
Designated Officer is appointed under Section 36 of
the FSS Act.
13. The Food Analyst in its Report in Form
VII-A should mention the following important
details: date of receipt of the sample of food; batch
number, date of analysis; sample description; label
declaration; method of test used/method of
analysis. As per Rule 2.14.2(i) read with Rule
2.4.2.7 of FSS Rules, the methods listed therein or
if FSSAI has passed an Order notifying a particular
method of analysis to be used then such method of
testing/analysis should only be used.
14. In the event, the Food Analyst's Report
is adverse, the DO should give an opportunity to
the FBO to file an Appeal against the Food Analyst's
Report in accordance with Section 46(4) of the FSS
Act read with Rule 2.4.6.1 of the FSS Rules.
15. As per Rule 3.1.1.1 of the FSS Rules
read with Section 42(3) of the FSS Act, if the DO
dismisses the Appeal filed by the FBO and if
penalty can be levied for such contravention then
as per Rule 3.1.1.2 of FSS Rules, the DO shall
authorize the FSO to file with the Adjudicating
Officer an application for adjudication of the alleged
contravention.
16. Then, as per Rule 3.1.1.3 of the FSS
Rules, the FSO should file an Application for
Adjudication before the Adjudicating Officer. As per
Section 68(1) of the FSS Act, the Adjudicating
Officer is notified by the State Government who is
not below the rank of an Additional District
Magistrate.
17. After receipt of an application for
adjudication from the FSO, the Adjudicating Officer
in accordance with Section 68(2) of the FSS Act
read with Rule 3.1.1.6 of the FSS Rules, issues
notice to the FBO seeking its response at least by
30 days, with respect to the contravention alleged
by the FSO. As per Rule 3.1.1.7 of the FSS Rules,
every such notice shall indicate the nature of
contravention committed by the FSO, the sections
of the FSS Act alleged to have been contravened
and the date of hearing as per Rule 3.1.1.9, the
Adjudicating Officer has to give an opportunity to
the FBO to produce such documents or evidence as
the FBO may consider relevant. After hearing the
matter, the Adjudication Officer may either dismiss
the case or impose on the FBO, a penalty in
accordance with the FSS Act.
Date:31.01.2022
Kalaburagi
Sd/-
Advocate for Petitioner"
31. The Copy of the memo along with flow chart is
furnished to Sri S.K.Biradar, through learned High Court
Government Pleader.
32. On perusal of the same Sri Biradar submits
that the flow chart prepared by the petitioners would meet
all requirements for effective implementation of the
provisions of the Act. His submission is placed on record.
33. This court by order dated 16.2.2022 directed
Sri. Biradar to place on record the difficulties faced by the
department if any in effectively implementing the
provisions of the Act. In pursuance thereof, a memo came
to be filed by learned High Court Government Pleader with
the letter dated 18.2.2022.
34. On perusal of the said letter, furnished by Sri
S.K. Biradar, it is seen that basic requirement for effective
implementation of the Act is the establishment of the NABL
in the State of Karnataka. Many times, the delay occurs
because of the want of proper laboratory facility. As an ad
hoc arrangement, a Memorandum of Understanding (MOU)
is entered into with a private laboratory by the
department, where under, the samples would be sent to
the private laboratory and reports would be obtained.
35. Acceptability/admissibility of a report given by
a private laboratory for the purpose of adjudication of a
offence under the Act is doubtful. It is the bounden duty
of the Government to establish necessary laboratory for
testing the samples under the Act. Such a responsibility
cannot be outsourced by Government. Further, the
opinion given by the laboratory is the basis for launching
the prosecution under the said Act. When the very report
itself is questionable, given by a private laboratory, it
would open flood gates by practically challenging every
report before this court and prosecutions being quashed by
this court perhaps only on that ground eventually
defeating the very purpose and object of enactment.
36. Further, it is also submitted by Sri Biradar that
there is no proper men support to implement the
provisions of the Act inasmuch as atleast one person to be
appointed as a Food Safety Officer in every Taluk and such
an appointment has not at all taken place as per the Act
and Rules. As of now, again an ad hoc arrangement is
being made by deputing a person who is having necessary
educational qualification from Health and Family Welfare
Department in addition to discharge of work in his parent
department.
37. Admittedly, such deputed staff is required to
carry out the work of Health and Family Welfare
Department as well as work under the Act. How far, such
a person would be effectively discharging the duty is again
doubtful and it acts as a hindrance in properly
implementing the provisions of the Act.
38. Therefore, it is necessary for this court to issue
few more guidelines to the Government for the purpose of
effective implementation of the Act. Hence, following
order is passed:
ORDER
(i) This Writ Petition is allowed.
(ii) Consequently, the initiation of the criminal
proceedings which is now pending in CC
No.307/037/225/2015-16 dated 25.11.2015 passed by the
Additional District Magistrate-cum-Adjudicating Authority,
Vijayapura, is hereby quashed. The deposit of money in
terms of the interim order is ordered to be refunded to the
petitioner.
(iii) For effective implementation of the provisions of
the said Act and Rules, following guidelines have been
issued:
x The State Government shall take necessary
steps to establish proper laboratory in
consultation with NABL to the Standards of
NABL, to ascertain the presence of samples as
per the Food, Safety standards prescribed
under the Act.
x The laboratory should be equipped with proper
and adequate staff.
x The State Government shall also Endeavour to
appoint Food Safety Officer in each and every
Taluka at the earliest.
x A proper training be imparted to all the Food
and Safety Officers for effective
implementation of the Act, in collection of the
samples, preservation of the samples and
sending it to the laboratory, obtaining report
and place it before the Additional District
Magistrate cum Adjudicating Authority at the
earliest.
(iv) Let a copy of this order be sent to the learned
Additional Advocate General under acknowledgement for
compliance.
(v) The compliance report be filed in this regard in
the first week of January, 2023, failing which, the matter
be listed before the court for further directions.
Sd/-
JUDGE
PL*
