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:

                THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

            TUESDAY, THE 13TH DAY OF OCTOBER 2015

                                 WP(C).No. 30005 of 2015 (A)
                                 
           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




m
Print Page

No comments:

Post a Comment