WHO HAS THE POWER TO TAKE SAMPLES UNDER FOOD SAFETY AND STANDARDS ACT 2006 AND WHAT IS THE PROCEDURE FOR SAME?

This article was written by Anuj verma, a student of Guru Gobind Singh Indraprastha University.

The Food Safety and Standards Act, 2006 (FSSA, 2006) was passed by Indian Parliament and notified in the Gazette of India on 24th August, 2006. The Act aims to establish a single-reference point for all matters relating to food safety and standards, by moving from multi-level, multi-departmental control to a single line of command thereby establishing an independent statutory Authority – the Food Safety and Standards Authority of India (FSSAI) – headquartered at Delhi. FSSAI and the State Food Safety Authorities are mandated to enforce various provisions of the Act.

The Food Safety Officer has been clothed with the power to take samples of food by virtue of S.38 of FSSA, 2006. The Food Safety Officer may take a sample of any food, or any substance, which appears to him to be intended for sale, or to have been sold for human consumption; or of any article of food or substance which is found by him on or in any such premises; which he has reason to believe that it may be required as evidence in proceedings under any of the provisions of this Act or of the regulations or orders made thereunder. He may seize any article of food which appears to be in contravention of the Act or the regulations made thereunder; and keep it in the safe custody of the food business operator after taking a sample; and in both cases send the same for analysis to a Food Analyst for the local area within which such sample has been taken subject to getting a bond executed from the food business operator for a sum of money equal to the value of such article with one or more sureties to his satisfaction in case he keeps such article in the safe custody of the food operator.

The Food Safety Officer is empowered to enter and inspect any place where the article of food is manufactured, or stored for sale, or stored for the manufacture of any other article of food, or exposed or exhibited for sale and where any adulterant is manufactured or kept while taking samples of such articles of food or adulterant for analysis.

While taking sample, its cost calculated at the rate at which the article is usually sold to the public shall be paid to the person from whom it is taken.

 If any article of food seized is of a perishable nature and the Food Safety Officer is satisfied that such article of food is so deteriorated that it is unfit for human consumption, he may, after giving notice in writing to the food business operator, cause the same to be destroyed.

The Food Safety Officer shall, follow, as far as may be, the provisions of the Code of Criminal Procedure, 1973 relating to the search or inspection of a place by a police officer executing a search warrant issued under that Code, in exercising the powers of entry upon, and inspection of any place under this section.

 Any adulterant found in the possession of a manufacturer or distributor of, or dealer in, any article of food or in any of the premises occupied by him as such and for the possession of which he is unable to account to the satisfaction of the Food Safety Officer and any books of account or other documents found in his possession or control and which would be useful for, or relevant to, any investigation or proceeding under this Act, may be seized by the Food Safety Officer and a sample of such adulterant submitted for analysis to a Food Analyst with prior approval of his superior authority in the presence of independent witness(s).

 The books of account or other documents seized by the Food Safety Officer shall be returned within a period of thirty days to the person from whom they were seized after retaining copies thereof or extracts therefrom.

On seizure of any adulterant, the onus of proving that such adulterant was not meant for purposes of adulteration shall lie on the person from whose possession such adulterant was seized.

Section 42 of the Act prescribes the procedure for launching prosecution by the Food Safety Officer. The Food Safety Officer shall be responsible for inspection of food business, drawing samples and sending them to Food Analyst for analysis. Thereafter, the Food Analyst after receiving the sample from the Food Safety Officer shall analyze the sample and send the analysis report mentioning method of sampling and analysis within fourteen days to Designated Officer with a copy to Commissioner of Food Safety followed by its scrutiny by the Designated Officer to decide quantum of punishment for the contravention. In case of contravention punishable with imprisonment, he shall send his recommendations within fourteen days to the Commissioner of Food Safety for sanctioning prosecution. The Commissioner of Food Safety considering the gravity of offence shall decide for referring  the matter to a court of ordinary jurisdiction in case of offences punishable with imprisonment for a term up to three years; or a Special Court in case of offences punishable with imprisonment for a term exceeding three years. Finally, the Commissioner of Food Safety shall communicate his decision to the Designated Officer and the concerned Food Safety Officer who shall launch prosecution before courts of ordinary jurisdiction or Special Court, as the case may be; and such communication shall also be sent to the purchaser if the sample was taken under section 40 whereby purchaser may have food analysed.

In Lochamesh B Hugar vs. UOI (W.P.No.17713/2012) decided on 9/11/12, petitioner was seeking for a direction in the nature of mandamus to the respondents to take all necessary steps to prevent manufacture/sale of drinking water without ISI standard as prescribed under Section 15 of the Bureau of Indian Standards Act. It was held and directed by the court to the respondent authorities to ensure that all necessary steps are taken to prohibit, prevent the manufacture and sale of packaged drinking water without certification from the Bureau of Indian Standards. The respondent authorities were directed to take action against the manufacturers of packaged drinking water if found to be running the units without certification from the Bureau of Indian Standards.

In M/S Dhariwal Industries Ltd. vs. The State of Maharashtra (decided on 15/9/2012), the petitioners challenged the validity of the following provisions of two different Regulations under the Food Safety and Standards Act, 2006  as well as the statutory order dated 19 July 2012 of the Commissioner of Food Safety, Maharashtra  in State vs. SRK (3 of 48 wp-1631-12)( decided on 19.9.12) under Section 30(2)(a) of the Food Safety Act. The regulations impugned in these petitions are -“An Act to prohibit the advertisement of, and to provide for the regulation of trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products and for matters connected therewith or incidental thereto”. It was, hence, held that prayer for interim stay against implementation of the impugned statutory order dated 19/7/12 issued by the Food Safety Commissioner, of Maharashtra State in   the public interest in exercise of the powers conferred by section 30(2)(a) of the Food Safety and Standards Act, 2006 is rejected.