Law Web: 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