Sunday 29 November 2015

When order prohibiting manufacture, storage, sale, and distribution of food articles under food safety Act can be set aside?

It appears that the Commissioner has acted invoking power


under Section 34 of the FSS Act. This power can be invoked if there exist



health risk condition. The Commissioner of Food Safety has power under



Section 30(2)(a) to prohibit manufacture, storage, distribution or sale of any



article of food in the interest of public health. The pre-requisite of exercise



of this power is satisfaction, in respect of article of food that it is unsafe for



human consumption. Existence of this jurisdictional fact is sine qua non for


exercise of this power. In the absence of any finding relating to the unsafe



nature of food, this power cannot be exercised. Section 26 of the FSS Act



places responsibility on the food business operator. This responsibility



includes not to manufacture or sell sub-standard food [see Section 26(2)



(ii)]. But it is to be noted that violation would entail only in penalty under



Section 51 of the FSS Act. Withdrawal of a food under Section 26 or recall



under Section 28 would arise only if the food is 'unsafe' for human



consumption. There is no finding in Ext.P1 that the banned foods are



unsafe for human consumption. The statutory provision under the FSS Act



clearly delineate proportionate measures in case of 'food' which is found



unsafe for human and food of sub-standard which is fit for human



consumption. This proportionality stems from different provisions related to



prohibition and penalty for sub-standard food. The power prohibition can



be invoked either with reference to Prohibition Regulation 2011 or on being



satisfied that food is unsafe for human consumption.



       i.j.    In the absence of any finding that banned food are unsafe or



can be banned invoking power of Prohibition Regulation 2011, prohibition



now effected is unwarranted and is done in excess of the jurisdiction vested



with the Commissioner of Food Safety. It is also to be noted that the



adjudication and challenge regarding report from referal labs are pending.


It is also seen from the impunged order that the petitioner was not heard in



the matter. Therefore, the irresistible conclusion is that Ext.P1 order is



unsustainable in as much as there is no finding that extraneous substance



would cause threat to human life and health or it is unsafe.

IN THE HIGH COURT OF KERALA AT ERNAKULAM


                                              PRESENT:



                MR. JUSTICE A.MUHAMED MUSTAQUE



            TUESDAY, THE 13TH DAY OF OCTOBER 2015



                                 WP(C).No. 30005 of 2015 

                                 
           K.K.R FOOD PRODUCTS, Vs   M/S. T.V.ANUPAMA,


            


        This writ petition is filed by a company engaged in manufacture and


distribution of spices powder and other food products. They challenge



Ext.P1 order passed by the Commissioner of Food Safety, Kerala



prohibiting manufacture, storage, sale and distribution of Nirapara Brand of



chilly, turmeric, and coriander powder, manufactured by the petitioner.



        2.   The impugned order is produced as Ext.P1. It is seen from



the impugned order that the Food Safety Officers in the State took random



samples of Nirapara brand spices powder from different parts of the State



on different dates. The report of the Food Analyst would indicate that the



products referred as above contain added starch.



        3.   It is stated in Ext.P1 that 30 cases of the same nature have



been reported in various parts of the State containing extraneous starch in



the products. It is noted that in spite of the notices issued under the Food



Safety and Standards Act, 2006 (for short, the "FSS Act") the petitioner was


continuing manufacture and sale of adulterated spices powder. Since the



manufacturer did not stop the unscrupulous activity of adultering spices



powder with cheaper starch, an order has been issued prohibiting



manufacture, storage, sale, and distribution of the Nirapara brand of chilly,



turmeric, and coriander powder, manufactured by KKR Food Products, Kalady,



under relevant provisions of the Food Safety and Standards Act of India, to



protect the interest of the consumers.



       4.     Heard Shri Mathai M.Paikeday, learned Senior Counsel



appearing for the petitioner and Shri Tom K.Thomas Special Government



Pleader.



       5.     The learned Senior Counsel would submit that the petitioner



has not been finally found in adultering spices powder. It is submitted that



various proceedings are pending and they have challenged reports of



referal lab. Therefore, it is submitted that in the absence of the matter



attaining finality, the prohibitory order is illegal. It is further submitted that



the Commissioner of Food Safety has no power referable in the order to



issue such a prohibition. The learned Senior Counsel also submitted that



the Commissioner exceeded his authority by issuing the order.                The



learned Senior Counsel pointed out to the definintion of "sub-standard"



under the FSS Act. According to the learned Senior Counsel, the findings



in Ext.P1 for prohibition is that prohibition is necessitated on account of the


fact that the spices powder of the petitioner is of sub-standard. It is further



submitted that there is no provision to prohibit sale of sub-standard food.



The learned Counsel also attempted to demonstrate mala fides in issuing



such an order. It is also submitted that Ext.P1 was issued without giving an



opportunity of being heard to the petitioner.



       6.    On the other hand, the learned Special Government Pleader



referred to the statement filed by the fifth respondent. It is submitted that



there were 33 cases of adulteration of spices product and various



Adjudicating Officers imposed penalties ranging from Rs.10,000/- to



Rs.5 lakhs.     It is also submitted that the cases are pending before the



Authority for adjudication across the State. In view of large number of



reports of cases of adulteration and in the interest of public at large, it is



submitted that the Commissioner of Food Safety was constrained to take



such an action against the petitioner.



       7.    Though, a specific ground of mala fides has been alleged, no



notice was issued to the officials in personal capacity.



       8.    On going through the pleadings and after hearing both sides,



the following points arise for consideration:



      i.     Whether the Commissioner of Food Safety is justified in


issuing the order of prohibition?



      ii.    If the Commissioner is not justified in issuing order of



prohibition, what is the extent of the power that could be exercised when



spices powder or condiments are found as sub-standard?



      iii.   Whether there exist any mala fides on the part of the



Commissioner of Food Safety for issuing Ext.P1?



      Point No.(i):



      i.a.   FSS Act is a consolidated law relating to food safety and



standards in India. A right to have food without contamination or without



any element which poses risk to human life can be treated as a larger right



of a citizen in terms of Article 21 of the Constitution.     The statutory



provisions in the FSS Act are only to supplement Constitutional obligation



of the State to protect a citizen by way of FSS Act. The FSS Act need not



be understood as a wholesome scheme or in exclusive domain within the



statutory scheme therein to protect human.        Therefore, even in the



absence of any statutory provisions, the paramount power is invested with



the State under the Constitution, as an obligation to act to protect human



from the possible contamination of adulterated food from stand point of



view of health.



      i.b. The Hon'ble Supreme Court in the Centre for Public Interest


Litigation v. Union of India [2014 (2) KLT Suppl.52 (SC)] has held as



follows:



                  "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.





                  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. But the fact remains, many of the food



            articles like rice, vegetables, meat, fish, milk, fruits available in



            the market contain insecticides or pesticides residues, beyond



            the tolerable limits, causing serious health hazards. We notice,



            fruit based soft drinks available in various fruit stalls, contain



            such pesticides residues in alarming proportion, but no



            attention is made to examine its contents. Children and infants



            are uniquely susceptible to the effects of pesticides because of



            their physiological immaturity and greater exposure to soft



            drinks, fruit based or otherwise."



      i.c.  It appears that on account of adulteration of the spices powder



manufactured by the petitioner and repetition of the offence, the



Commissioner of Food Safety was constrained to pass such an order. The



question is whether there exists any health risk conditions warranting



immediate action?



      i.d.  it is to be noted that the finding in the impugned order is that



the petitioner's spices powder contained added starch. In some of the



cases, the petitioner compounded the offence by payment of fine; in other



cases, the adjudication is pending. As noted in the impugned order, the



petitioner's product is now classified as sub-standard. Section 3(zx) of the


FSS Act defines "sub-standard" as follows:



             "An article of food shall be deemed to be sub-standard if it



             does not meet the specified standards but not so as to render



             the article of food unsafe."



       i.e.  The adulteration in the case in hand would clearly indicate that



it does not cause any health risk condition. It is not a food substance of



unsafe nature. The prohibition is an ultimate act to avert harmful effects on



health. The sub-standard in this context would clearly indicate that the



attempt of the manufacturer is only to mislead the public or, to make



maximum gain or profit by adding starch or any extraneous substance. No



doubt the Commissioner of Food Safety or any other officer under him



would have the power for prohibition; even in the absence of any statutory



provisions, to prohibit manufacture and sale of foods, which are unfit for



human consumption or pose risks to the human life or health.



       i.f.  The learned Special Government Pleader heavily relied upon



the provisions under Sections 51 and 54 and under the FSS Act for



imposing penalty for manufacturing or selling food articles of sub-standard



and argued that the Food Safety and Standards (Food Products Standards and



Food Additives) Regulations, 2011 (for short, the "Food Additives Regulation



2011") clearly prohibit any added starch in the food products banned.





       i.g.  It is to be noted that the above Regulation prescribes standard



of various food products. No doubt, for want of such standards, an action



can be initiated for imposing penalty either under Section 51 or under



Section 54 of the FSS Act. However, that does not extend a power to issue



an order in the nature of prohibition.



       i.h.  In exercise of the powers under Section 92 of the FSS Act, a



Regulation was formulated by the Food Safety and Standards Authority of



India under the title Food Safety and Standards (Prohibition and



Restrictions on Sales) Regulations, 2011 (hereinafter referred to as the



"Prohibition Regulation 2011") It empowers prohibtion and restriction on



sales of certain items of food referred therein. The food items now banned



in this case do not figure in the above Regulation. Therefore, prohibition



can be effected only if otherwise satisfied that the banned food items would



cause health hazards or risk to human life.



       i.i.  It appears that the Commissioner has acted invoking power



under Section 34 of the FSS Act. This power can be invoked if there exist



health risk condition. The Commissioner of Food Safety has power under



Section 30(2)(a) to prohibit manufacture, storage, distribution or sale of any



article of food in the interest of public health. The pre-requisite of exercise



of this power is satisfaction, in respect of article of food that it is unsafe for



human consumption. Existence of this jurisdictional fact is sine qua non for


exercise of this power. In the absence of any finding relating to the unsafe



nature of food, this power cannot be exercised. Section 26 of the FSS Act



places responsibility on the food business operator. This responsibility



includes not to manufacture or sell sub-standard food [see Section 26(2)



(ii)]. But it is to be noted that violation would entail only in penalty under



Section 51 of the FSS Act. Withdrawal of a food under Section 26 or recall



under Section 28 would arise only if the food is 'unsafe' for human



consumption. There is no finding in Ext.P1 that the banned foods are



unsafe for human consumption. The statutory provision under the FSS Act



clearly delineate proportionate measures in case of 'food' which is found



unsafe for human and food of sub-standard which is fit for human



consumption. This proportionality stems from different provisions related to



prohibition and penalty for sub-standard food. The power prohibition can



be invoked either with reference to Prohibition Regulation 2011 or on being



satisfied that food is unsafe for human consumption.



       i.j.    In the absence of any finding that banned food are unsafe or



can be banned invoking power of Prohibition Regulation 2011, prohibition



now effected is unwarranted and is done in excess of the jurisdiction vested



with the Commissioner of Food Safety. It is also to be noted that the



adjudication and challenge regarding report from referal labs are pending.


It is also seen from the impunged order that the petitioner was not heard in



the matter. Therefore, the irresistible conclusion is that Ext.P1 order is



unsustainable in as much as there is no finding that extraneous substance



would cause threat to human life and health or it is unsafe.



        Point No.II:



        ii.a. "Informed choice" is the right of choice in selecting a food



product by a consumer. If the manufacturer claims certain standards either



by depiction or otherwise, the Authorities under the FSS Act have to ensure



that those standards are maintained by the manufacturer.          If certain



standards are to be required to be maintained in terms of the standards



prescribed under the Additives Regulation 2011, those standards have to



be achieved. It is a perplexed question when a violator continues to violate



the standards even after imposition of punishment without further remedy



available to the officials against the violator. The consumer cannot be



deceived by merely paying penalty by the manufacturer of such food



products. The consumer has every right to know what is the standard of



the product.     A sub-standard product can also be sold provided, the



consumer must know what are the contents of it. The penalty imposed



under Section 51 of the FSS Act is as a deterrant measure. Certainly,



when violation remains unabated even after imposition of the penalty, it is a


question that perplexes the mind of the Court as well.            There is no



provision to prohibit manufacture or sale of sub-standard food products



which are safe for human consumption. 'Deception' of consumers has to



be distinguished from 'sale of unsafe food products' to the consumers.



Therefore, in those circumstances, responsibility attached with the food



officers is to avert deception. This is a Constitutional obligation, even in the



absence of statutory provision, as it directly intermeddles the 'right of



choice' of the consumers.



       ii.b.  The Food Authority has a duty to inform the citizens, as the



citizens have a correlated right to know about the standards of food they



consume. In this context it is appropriate to refer Section 16 of the FSS



Act. In terms of Section 16, every functionary has a duty to ensure that the



public, consumers, etc. are put to the notice of the food standards. Food



safety matter is not a matter between a manufacturer or a distributor with



the Authority under the FSS Act in relation to the standards. It is rather an



issue relating to the right of human to protect their life. Therefore, that right



cannot be obliterated by allowing the offender to escape by paying penalty.



       ii.c.  As noted above, informed choice of a consumer is his right.



The right of choice to select a food is integral part of his choice, revolved





around right to life, subject to any restriction imposed under law. This right



is also to protect his life from any possible health hazard or risk in his life.



In fact, "shaming penalties" were evoked in our ancient society to punish



those who commit crime which may have a repugnance in the ancient



Society at large. This is how public flogging and public execution of the



offenders were adopted in the Society. This Court is of the view that



'shaming penalty' can be resurrected to protect the consumers.            The



consumers must be put to notice that the manufacturer of sub-standard



products have been punished for violation. Therefore, in future, in cases



where violation remains unabated, the Commissioner of Food Safety can



give a publicity of the offence and also cause manufacturer to label his



product with inscription in conspicuous manner that he has been punished



for manufacturing sub-standard food products. This is essential to protect



the right of the consumers. Even in the absence of statutory provisions,



such duty is endowed on the food safety officers based on Constitutional



obligation to protect right to life. It is to be noted that the spices powder



have to be sold only in packed conditions as per the Prohibition Regulation



2011. Thus, it is open for the Commissioner of Food Safety to put public



on notice of sub-standard products manufactured by the petitioner, by



directing the manufacturer to label his products in the above manner.





      ii.d.  It is also equally important to note the power vested with the



Designated Officer under the FSS Act.           Section 31 of the FSS Act



mandates the licencing and registration of food business. If the licensee



violates any Regulations under the Act, a notice for improvement has to be



served on the holder of the licence by the Designated Officer under Section



32 of the FSS Act. Section 32(3) contemplates cancellation of licence, if



the food business operator fails to comply with the improvement notice.



Therefore, it is possible to cancel the licence if violation remains unabated.



      ii.e.  In this case, this Court is of the view that there are clear



findings that the petitioner's products are sub-standard, thus, after giving



one more opportunity to the petitioner to comply with the standards, the



Commissioner is free to take such measures to put public at alert about



sub-standard products sold by the petitioner or to cancel the licence under



Section 32(3) of the FSS Act.



      Point No.iii:



      iii.a The petitioner raises a question of mala fides. The mala fides



alleged is based on a personal relationship with the Commissioner of Food



Safety. Except describing it in general terms, nothing has been stated in



specificity to demonstrate mala fides. It is to be noted that the petitioner



has filed a review petition before the Commissioner of Food Safety as



against Ext.P1 order and therein, the petitioner has not raised any


contention based on mala fides.         It is further to be noted that the



Commissioner acted based on certain materials before her. The facts



otherwise would clearly disclose the bona fides in the matter. It is only in



the absence of any materials to act upon, the allegations in the writ petition



may have a relevance in considering the issue on mala fides. Mala fide is



a state of mind of a person who is acting in a particular circumstance.



There is hardly any dispute regarding various actions initiated against the



petitioner for violation.  Therefore, this Court is of the view that the



materials would substantiate that the decision of the Commissioner of



Food Safety is based on a bona fide discharge of function. In view of the



fact that further probe is not required of projected enmity, the point is



answered against the petitioner. It is only when the petitioner makes out a



prima facie case, this Court need to issue a notice to the officer concerned



in personal capacity to answer the question regarding mala fides. Since no



notice was issued to the officer in personal capacity, this Court is of the



view that the petitioner shall be spared from imposition of cost for raising



allegation of mala fides.



       9.    Thus, in the light of the above discussions, the writ petition is



disposed of as follows:





      i.     The prohibitory order in Ext.P1, as against manufacturing,



storing, selling and distributing Nirapara brand chilly powder, turmeric



powder and coriander powder is set aside.



      ii.    The Commissioner is free to take samples of the petitioner's



products as above and if it is found that it do not meet the standards under



the Additives Regulation 2011, the Commissioner is free to take such



measures as adverted in the discussions in para.8 (Point No.ii). No costs.



                                                         Sd/-



                                       A.MUHAMED MUSTAQUE, JUDGE




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