1. Instant writ appeals are filed by the petitioner in W.P(C) Nos.35151 of 2018 and 28041 of 2018, being aggrieved by the judgments dated 12.04.2019 and 17.09.2018, wherein the writ petitions, as well as the review petition were dismissed by the writ court.
2. Short facts leading to the appeals are that, appellant is the proprietor of Amrutha Oil Products. Respondents have declared the product, as misbranded, based on the reports dated 6.9.2018 and 6.10.2018 (Exhibits- P5 and P6) of the Food Analyst, Regional Analytical Laboratory, Kozhikode, respondent No.2, wherein it was stated that 'the label on the package bears the design of Coconut, which is false, misleading and the package is deceptive with respects its contents'.
3. Appellant has stated that the product is blended edible vegetable oil, which is a combination of 80% Raw Coconut Oil and 20% RBD Palmolin Oil by weight. Appellant has further stated that the content of the packet is clearly written on the packet with weight and the package, and, therefore, in no way, is deceptive with respect to its contents. It bears the design of palm nut as well, which is not evident in Exhibits-P5 and P6, while ordering the product as misbranded.
4. The appellant has further contended that, the functions of the Food Analyst have been stated in Section 46 of the Food Safety and Standard Act, 2006 (hereinafter referred to as, 'the Act', in short). According to him, the Act does not confer power on the the Food Analyst, Regional Analytical Laboratory, Kozhikode, 2nd respondent, to give any opinion on the label on the package for the purpose of misbranding the product. By the report dated 6.9.2018 of the Food Analyst, the product has no complaint. Appellant has printed the package based on the approval obtained from the Assistant Agricultural Marketing Adviser, Kochi, respondent No.3, as per Exhibit-P6. Respondents have misbranded the product, without giving notice or affording an opportunity of being heard to the appellant. Hence, the appellant has approached this Court by filing the writ petitions.
5. W.P.(C) No.35151 of 2018 has been filed challenging the report dated 6.9.2018 of the Food Analyst, respondent No.2, in particular, the finding that the petitioner/appellant's product 'Kera Co', is misbranded.
6. Earlier, W.P.(C) No.28041 of 2018 has been preferred challenging an identical report issued on July, 2018, as well as order of the Assistant Commissioner of Food Safety dated 2.8.2018 communicating the report to the appellant. W.P(C) No.28041 of 2018 has been disposed of directing submission of an appeal and consideration of contentions raised by the writ petitioner in the appeal.
7. Thereafter, a review petition has been filed by the appellant as against the judgment dated 17.09.2018 in W.P.(C) No.28041 of 2016, contending that the report of the Food Analyst, is not appealable in terms of the Food Safety and Standards Act, 2006 and Food Safety and Standards (Packaging and Labelling) Regulations, 2011, and that, unless the contention of the petitioner/appellant is considered by this Court, there would be no purpose of considering an appeal under Section 46(4) of the Act.
8. In W.P.(C) No.35151/2018, on behalf of the Assistant Commissioner of Food Safety, Kasaragod, respondent No.1, a statement has been filed by learned Senior Government Pleader, wherein Section 3(1)(zf) of the Food Safety and Standards Act has been relied on, to contend that an article of food is said to be misbranded when the package containing the article or the label of the package bears any statement, design or device regarding the ingredients of the substances contained which is false or misleading in any material particularly or if the package is otherwise deceptive with respect to its contents.
9. Learned Senior Government Pleader has also relied on Regulation 18.104.22.168 of the Food Safety and Standards (Packaging and Labelling) Regulations, 2011.
10. Writ court, by common judgment dated 12.04.2019 in W.P.(C) No. 35151/2018 and R.P. No.1051/2018 in W.P.(C) No.28041/2018 ordered thus:
'6...........The legal question raised by the petitioner is that the Food Analyst can only analyse an article of food and send a report to the Designated Officer and that there cannot be finding of misbranding at the instance of the Food Analyst. On facts, the contention is that the packet clearly says that the product is blended vegetable oil and that there is no attempt to mislead the public and therefore the finding of misbranding is misconceived. With regard to the initial contention of the petitioner, going by the provisions of Section 3(zf) of the Act, an article of the food can be said to be misbranded, if the package bears any statement, design or device regarding the ingredients which is false or misleading. In the instant case, the contention of the respondents is that there is a pictorial representation on the package and an attempt to pass off the product, which is deceptively named 'Kera Co' as coconut oil, while the product is blended vegetable oil. The contention of the petitioner that there is no misbranding involved in the instant case, therefore, cannot be accepted.
7. With regard to the legal contention, Section 46(2) of the Act requires the Food Analyst to analyse the article and submit a report to the Designated Officer. The purpose of the analysis would be to find out the nature of the product. There is a specific requirement under Section 46 of the Act as also under the provisions of the Food Safety and Standards (Laboratory and Sample Analysis) Regulations 2011, to submit a report of analysis of the article involved, taking note of the contents of the label and the package as well. Therefore, when an article, which is labelled as one product, is sent for analysis, the Food Analyst should analyse the article and report the contents thereof with specific reference to whether it is, as a matter of fact, what is claimed in the package. The contention of the petitioner that there should be no reference to the package at all and that all that is required is analysis of the contents and a report on the same, according to me, cannot be accepted in view of the fact that what is sent for analysis is a package containing the sample and the analysis contemplated is inclusive of whether the article is the same as represented on the package. In the above view of the matter and in view of the provisions of the Act and Regulations, I am unable to accept the contention of the petitioner that the Food Analyst can only submit a report on anlaysis of the contents and cannot make the finding as to the misbranding of the article.
8. The further contention of the petitioner that an improvement notice is liable to be served on the petitioner before any action is taken against him is also not sustainable in view of the clear language of Section 32. Section 32 is clearly a directory provision and it is well within the power of the designated office to decide, in a given case, whether an improvement notice is liable to be served and an opportunity granted to rectify the non compliance. As such, the non serving of an improvement notice will not be a ground for challenging an action taken by the designated officer on the basis of a test report.
9. In the above view of the matter, the writ petition as well as the review petition fail. The same are accordingly dismissed. In case the petitioner has any contention as against the report of the Food Analyst, he will be free to raise the same in a properly constituted appeal. Since these writ petitions have been pending before this Court, the time taken for prosecuting these writ petitions will be exempted for the purpose of the time limit for preferring an appeal under Section 46 of the Act.'
11. In the judgment dated 17.09.2018 in W.P.(C) No.28041 of 2018 writ court held as under:
'............The specific case of the petitioner is that any examination of sample could only be in respect of the contents of the package and there is no specification in the Act, Rules or Regulation with respect to designs in the label. It is stated that the label was printed with the approval of the 3rd respondent and that in view of the functions of the Food Analyst under Section 46 of the Act, there is no power to inspect the label on the package. In view of the provisions of Sections 46, 47 and Section 3(b) as also the form of the report to be submitted by the Food analyst, I am not prepared to accept the contention that the orders are liable to be interfered with since the Food Analyst has no power to examine the pictorial representation on the label to enter a finding of misbranding. In any view of the matter, I am of the opinion that these are aspects which have to be considered in a duly constituted appeal. I am not inclined to interdict the orders issued on the basis of a finding of misbranding. All contentions of the petitioner are left open. In case the petitioner avails the appellate remedy as against Exhibit P5 order, the same will be considered by the appellate authority without delay in accordance with law.'
12. Being aggrieved by the judgments, extracted above, instant writ appeals are filed on the grounds, inter alia, that,-
'(a) The Food Analyst, Regional Analytical Laboratory, Kozhikode made the product misbranded without giving notice to the appellant or without affording him an opportunity of being heard.
(b) In Exhibit-P8, which is the design and other details of the package, it is mentioned that the product is 100% edible grade and blended vegetable oil which is a combination of 80% Raw Coconut Oil and 20% RBD Palmolin Oil by weight. The respondents went wrong in finding that the label is deceptive with respect to its contents.
(c) The package contains pictorial representation of coconut as well as palm seeds. But, the respondent Municipality reported that the package contains the picture of coconut only.
(d) If there is any violation in the regulation, that can be rectified by issuing Section 32 improvement notice. However, they have not taken such a step.
(e) The analyst can examine and give opinion with respect to the samples of food only as per the Act, Rules and Regulations. With respect to the container and the outer cover, the food analyst can only compare the seal of the container and the outer cover with specimen impression received separately and shall note the conditions of the seal thereon. The label was printed with the approval of respondent No.3, Assistant Agricultural Marketing Adviser, Regional office, Kochi, as evident from Exhibit-P7.
(f) The respondents failed to issue Section 32 notice (improvement notice) under Food Safety and Standards Act, 2006 to the appellant before taking action against him.
(g) From Exhibit-P6 lab report, it could be deduced that the analytical report of the product stated in columns are within the prescribed limits. The analyst can only analyse the produce with respect to its contents, quality and specification and not with respect to labelling.
(h) The analyst has to furnish his report in Form VIIA as per Rule 2.42:5 of the Food Safety and Standard Rules, 2011. From form VIIA, only the appellant would get an opportunity to file appeal. Form A certificate and Form B report can be issued by the referral laboratory only, from which there is no appeal and the decision of the referral laboratory is final.
(I) It has to be declared that the 2nd respondent/Analyst has no authority to inspect or give opinion upon the labelling on the package for the purpose of misbrand the product, apart from analysing the product with respect to its contents, quality and its specifications.'
13. Heard learned counsel for the parties and perused the material available on record.
14. Points raised for consideration in these appeals are:
(1) Food Analyst, Regional Analytical Laboratory, Kozhikode, has no power or jurisdiction to give any opinion on the label on the package, for the purpose of misbranding the product.
(2) Even if the Act confers power to do so, he can do so, only after providing an opportunity of hearing to the appellant, and before doing so, he must also provide an opportunity to improvise.
15. Issues raised are, (1) power of the Food Analyst to give opinion, (2) whether principles of natural justice have to be followed, in forming an opinion and reporting; and (3) whether improvement notice, be given before misbranding and further action.
16. Let us consider the relevant provisions of the Food Safety and Standards Act, 2006, which are extracted hereunder.
'(j) 'food' means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food to the extent defined in clause (zk), genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants, prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances:
PROVIDED that the Central Government may declare, by notification in the Official Gazette, any other article as food for the purposes of this Act having regards to its use, nature, substance or quality;
(l) 'Food Analyst' means an analyst appointed under section 45;
(m) 'Food Authority' means the Food Safety and Standards Authority of India established under section 4;
(q) 'food safety' means assurance that food is acceptable for human consumption according to its intended use;
(t) 'Food Safety Officer' means an officer appointed under section 37;
(w) 'improvement notice' means a notice issued under section 32 of this Act;
(y) 'ingredient' means any substance, including a food additive used in the manufacture or preparation of food and present in the final product, possibly in a modified form;
(z) 'label' means any tag, brand, mark, pictorial or other descriptive matter, written, printed, stencilled, marked, embossed, graphic, perforated, stamped or impressed on or attached to container, cover, lid or crown of any food package and includes a product insert;
(zf) 'misbranded food' means an article of food–
(A) if it is purported, or is represented to be, or is being–
(i) offered or promoted for sale with false, misleading or deceptive claims either;
(a) upon the label of the package, or
(b) through advertisement, or
(ii) sold by a name which belongs to another article of food; or
(iii) offered or promoted for sale under the name of a fictitious individual or company as the manufacturer or producer of the article as borne on the package or containing the article or the label on such package; or
(B) if the article is sold in packages which have been sealed or prepared by or at the instance of the manufacturer or producer bearing his name and address but–
(i) the article is an imitation of, or is a substitute for, or resembles in a manner likely to deceive, another article of food under the name of which it is sold, and is not plainly and conspicuously labelled so as to indicate its true character; or
(ii) the package containing the article or the label on the package bears any statement, design or device regarding the ingredients or the substances contained therein, which is false or misleading in any material particular, or if the package is otherwise deceptive with respect to its contents; or
(iii) the article is offered for sale as the product of any place or country which is false; or
(C) if the article contained in the package–
(i) contains any artificial flavouring, colouring or chemical preservative and the package is without a declaratory label stating that fact or is not labelled in accordance with the requirements of this Act or regulations made thereunder or is in contravention thereof; or
(ii) is offered for sale for special dietary uses, unless its label bears such information as may be specified by regulation, concerning its vitamins, minerals or other dietary properties in order sufficiently to inform its purchaser as to its value for such use; or
(iii) is not conspicuously or correctly stated on the outside thereof within the limits of variability laid down under this Act.
(zh) 'package' means a pre-packed box, bottle, casket, tin, barrel, case, pouch, receptacle, sack, bag, wrapper or such other things in which an article of food is packed;
(zu) 'standard', in relation to any article of food, means the standards notified by the Food Authority;
(zw) 'substance' includes any natural or artificial substance or other matter, whether it is in a solid state or in liquid form or in the form of gas or vapour;
16. Duties and functions of Food Authority.–
(1) It shall be the duty of the Food Authority to regulate and monitor the manufacture, processing, distribution, sale and import of food so as to ensure safe and wholesome food.
(2) Without prejudice to the provisions of sub-section (1), the Food Authority may by regulations specify–
(a) the standards and guidelines in relation to articles of food and specifying an appropriate system for enforcing various standards notified under this Act;
(b) the limits for use of food additives, crop contaminants, pesticide residues, residues of veterinary drugs, heavy metals, processing aids, myco-toxins, antibiotics and pharmacological active substances and irradiation of food;
(c) the mechanisms and guidelines for accreditation of certification bodies engaged in certification of food safety management systems for food businesses;
(d) the procedure and the enforcement of quality control in relation to any article of food imported into India;
(e) the procedure and guidelines for accreditation of laboratories and notification of the accredited laboratories;
(f) the method of sampling, analysis and exchange of information among enforcement authorities;
(g) conduct survey of enforcement and administration of this Act in the country;
(h) food labelling standards including claims on health, nutrition, special dietary uses and food category systems for foods; and
(i) the manner in which and the procedure subject to which risk analysis, risk assessment, risk communication and risk management shall be undertaken.
(3) The Food Authority shall also–
(a) provide scientific advice and technical support to the Central Government and the State Governments in matters of framing the policy and rules in areas which have a direct or indirect bearing on food safety and nutrition;
(b) search, collect, collate, analyse and summarise relevant scientific and technical data particularly relating to–
(i) food consumption and the exposure of individuals to risks related to the consumption of food;
(ii) incidence and prevalence of biological risk;
(iii) contaminants in food;
(iv) residues of various contaminants;
(v) identification of emerging risks; and
(vi) introduction of rapid alert system;
(c) promote, co-ordinate and issue guidelines for the development of risk assessment methodologies and monitor and conduct and forward messages on the health and nutritional risks of food to the Central Government, State Governments and Commissioners of Food Safety;
(d) provide scientific and technical advice and assistance to the Central Government and the State Governments in implementation of crisis management procedures with regard to food safety and to draw up a general plan for crisis management and work in close co-operation with the crisis unit set up by the Central Government in this regard;
(e) establish a system of network of organisations with the aim to facilitate a scientific cooperation framework by the co-ordination of activities, the exchange of information, the development and implementation of joint projects, the exchange of expertise and best practices in the fields within the Food Authority’s responsibility;
(f) provide scientific and technical assistance to the Central Government and the State Governments for improving cooperation with international organisations;
(g) take all such steps to ensure that the public, consumers, interested parties and all levels of panchayats receive rapid, reliable, objective and comprehensive information through appropriate methods and means;
(h) provide, whether within or outside their area, training programmes in food safety and standards for persons who are or intend to become involved in food businesses, whether as food business operators or employees or otherwise;
(i) undertake any other task assigned to it by the Central Government to carry out the objects of this Act;
(j) contribute to the development of international technical standards for food, sanitary and phytosanitary standards;
(k) contribute, where relevant and appropriate to the development of agreement on recognition of the equivalence of specific food related measures;
(l) promote co-ordination of work on food standards undertaken by international governmental and nongovernmental organisations;
(m) promote consistency between international technical standards and domestic food standards while ensuring that the level of protection adopted in the country is not reduced; and
(n) promote general awareness as to food safety and food standards.
(4) The Food Authority shall make it public without undue delay–
(a) the opinions of the Scientific Committee and the Scientific Panel immediately after adoption;
(b) the annual declarations of interest made by members of the Food Authority, the Chief Executive Officer, members of the Advisory Committee and members of the Scientific Committee and Scientific Panel, as well as the declarations of interest if any, made in relation to items on the agendas of meetings;
(c) the results of its scientific studies; and (d) the annual report of its activities.
(5) The Food Authority may, from time to time give such directions, on matters relating to food safety and standards, to the Commissioner of Food Safety, who shall be bound by such directions while exercising his powers under this Act.
(6) The Food Authority shall not disclose or cause to be disclosed to third parties confidential information that it receives for which confidential treatment has been requested and has been acceded, except for information which must be made public if circumstances so require, in order to protect public health.
23. Packaging and labelling of foods.–(1) No person shall manufacture, distribute, sell or expose for sale or despatch or deliver to any agent or broker for the purpose of sale, any packaged food products which are not marked and labelled in the manner as may be specified by regulations:
PROVIDED that the labels shall not contain any statement, claim, design or device which is false or misleading in any particular concerning the food products contained in the package or concerning the quantity or the nutritive value implying medicinal or therapeutic claims or in relation to the place of origin of the said food products.
(2) Every food business operator shall ensure that the labelling and presentation of food, including their shape, appearance or packaging, the packaging materials used, the manner in which they are arranged and the setting in which they are displayed, and the information which is made available about them through whatever medium, does not mislead consumers.
24. Restrictions of advertisement and prohibition as to unfair trade practices.–No advertisement shall be made of any food which is misleading or deceiving or contravenes the provisions of this Act, the rules and regulations made thereunder.
(2) No person shall engage himself in any unfair trade practice for purpose of promoting the sale, supply, use and consumption of articles of food or adopt any unfair or deceptive practice including the practice of making any statement, whether orally or in writing or by visible representation which–
(a) falsely represents that the foods are of a particular standard, quality, quantity or gradecomposition;
(b) makes a false or misleading representation concerning the need for, or the usefulness;
(c) gives to the public any guarantee of the efficacy that is not based on an adequate or scientific justification thereof:
PROVIDED that where a defence is raised to the effect that such guarantee is based on adequate or scientific justification, the burden of proof of such defence shall lie on the person raising such defence.
27. Liability of manufacturers, packers, wholesalers, distributors and sellers.–
(1) The manufacturer or packer of an article of food shall be liable for such article of food if it does not meet the requirements of this Act and the rules and regulations made there under.
(2) The wholesaler or distributor shall be liable under this Act for any article of food which is–
(a) supplied after the date of its expiry; or
(b) stored or supplied in violation of the safety instructions of the manufacturer; or
(c) unsafe or misbranded; or
(d) unidentifiable of manufacturer from whom the articles of food have been received; or
(e) stored or handled or kept in violation of the provisions of this Act, the rules and regulations made there under; or
(f) received by him with knowledge of being unsafe.
(3) The seller shall be liable under this Act for any article of food which is–
(a) sold after the date of its expiry; or
(b) handled or kept in unhygienic conditions; or
(c) misbranded; or
(d) unidentifiable of the manufacturer or the distributors from whom such articles of food were received; or
(e) received by him with knowledge of being unsafe.
32. Improvement notices.-(1) If the Designated Officer has reasonable ground for believing that any food business operator has failed to comply with any regulations to which this section applies, he may, by a notice served on that food business operator (in this Act referred to as an "improvement notice")-
(a) state the grounds for believing that the food business operator has failed to comply with the regulations;
(b) specify the matters which constitute the food business operator's failure so to comply;
(c) specify the measures which, in the opinion of the said Authority, the food business operator must take, in order to secure compliance; and
(d) require the food business operator to take those measures, or measures which are at least equivalent to them, within a reasonable period (not being less than fourteen days) as may be specified in the notice.
(2) If the food business operator fails to comply with an improvement notice, his licence may be suspended.
(3) If the food business operator still fails to comply with the improvement notice, the Designated Officer may, after giving the licensee an opportunity to show cause, cancel the licence granted to him: Provided that the Designated Officer may suspend any licence forthwith in the interest of public health for reasons to be recorded in writing.
(4) Any person who is aggrieved by-
(a) an improvement notice; or
(b) refusal to issue a certificate as to improvement; or
(c) cancellation or suspension or revocation of licence under this Act, may appeal to the Commissioner of Food Safety whose decision thereon, shall be final.
(5) The period within which such an appeal may be brought shall be-
(a) fifteen days from the date on which notice of the decision was served on the person desiring to appeal; or
(b) in the case of an appeal under sub-section (1), the said period or the period specified in the improvement notice, whichever expires earlier;
Explanation.-For the purpose of this sub-section, the making of the complaint shall be deemed to be the bringing of the appeal.'
36. Designated Officer.–
(1) The Commissioner of Food Safety shall, by order, appoint the Designated Officer, who shall not be below the rank of a Sub-Divisional Officer, to be in-charge of food safety administration in such area as may be specified by regulations.
(2) There shall be a Designated Officer for each district.
(3) The functions to be performed by the Designated Officer shall be as follows, namely:-
(a) to issue or cancel licence of food business operators;
(b) to prohibit the sale of any article of food which is in contravention of the provisions of this Act and rules and regulations made there under;
(c) to receive report and samples of article of foods from Food Safety Officer under his jurisdiction and get them analysed;
(d) to make recommendations to the Commissioner of Food Safety for sanction to launch prosecutions in case of contraventions punishable with imprisonment;
(e) to sanction or launch prosecutions in cases of contraventions punishable with fine;
(f) to maintain record of all inspections made by Food Safety Officers and action taken by them in the performance of their duties;
(g) to get investigated any complaint which may be made in writing in respect of any contravention of the provisions of this Act and the rules and regulations made there under;
(h) to investigate any complaint which may be made in writing against the Food Safety Officer; and
(i) to perform such other duties as may be entrusted by the Commissioner of Food Safety.'
37. Food Safety Officer.– (1) The Commissioner of Food Safety shall, by notification, appoint such persons as he thinks fit, having the qualifications prescribed by the Central Government, as Food Safety Officers for such local areas as he may assign to them for the purpose of performing functions under this Act and rules and regulations made there under.
(2) The State Government may authorise any officer of the State Government having the qualifications prescribed under sub-section (1) to perform the functions of a Food Safety Officer within a specified jurisdiction.
38. Powers of Food Safety Officer.–(1) The Food Safety Officer may–
(a) take a sample–
(i) of any food, or any substance, which appears to him to be intended for sale, or to have been sold for human consumption; or
(ii) 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 there under; or
(b) seize any article of food which appears to the Food Safety Officer to be in contravention of this Act or the regulations made there under; and
(c) keep it in the safe custody of the food business operator such article of food after taking a sample; and in both cases send for analysis to a Food Analyst for the local area within which such sample has been taken:
Provided that where the Food Safety Officer keeps such article in the safe custody of the food business operator, he may require the food business operator to execute a bond for a sum of money equal to the value of such article with one or more sureties as the Food Safety Officer deems fit and the food business operator shall execute the bond accordingly.
(2) The Food Safety Officer may 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, and take samples of such articles of food or adulterant for analysis.
(3) Where any sample is taken, 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.
(4) Where any article of food seized under clause (b) of sub-section (1) 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, the Food Safety Officer may, after giving notice in writing to the food business operator, cause the same to be destroyed.
(5) The Food Safety Officer shall, in exercising the powers of entry upon, and inspection of any place under this section, follow, as far as may be, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to the search or inspection of a place by a police officer executing a search warrant issued under that Code.
(6) 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:
Provided that no such books of account or other documents shall be seized by the Food Safety Officer except with the previous approval of the authority to which he is subordinate.
(7) Where the Food Safety Officer takes any action under clause (a) of sub-section (1), or sub-section (2), or sub-section (4) or sub-section (6), he shall, call one or more persons to be present at the time when such action is taken and take his or their signatures.
(8) Where any books of account or other documents are seized under sub-section (6), the Food Safety Officer shall, within a period not exceeding thirty days from the date of seizure, return the same to the person from whom they were seized after copies thereof or extracts there from as certified by that person in such manner as may be prescribed by the Central Government have been taken:
Provided that where such person refuses to so certify and a prosecution has been instituted against him under this Act, such books of account or other documents shall be returned to him only after copies thereof and extracts there from as certified by the court have been taken.
(9) When any adulterant is seized under sub-section (6), the burden of proving that such adulterant is not meant for purposes of adulteration shall be on the person from whose possession such adulterant was seized.
(10) The Commissioner of Food Safety may from time to time issue guidelines with regard to exercise of powers of the Food Safety Officer, which shall be binding:
Provided that the powers of such Food Safety Officer may also be revoked for a specified period by the Commissioner of Food Safety. Provided that the powers of such Food Safety Officer may also be revoked for a specified period by the Commissioner of Food Safety.'
40. Purchaser may have food analysed.–
(1) Nothing contained in this Act shall be held to prevent a purchaser of any article of food other than a Food Safety Officer from having such article analysed by the Food Analyst on payment of such fees and receiving from the Food Analyst a report of his analysis within such period as may be specified by regulations:
PROVIDED that such purchaser shall inform the food business operator at the time of purchase of his intention to have such article so analysed:
PROVIDED FURTHER that if the report of the Food Analyst shows that the article of food is not in compliance with the Act or the rules or regulations made thereunder, the purchaser shall be entitled to get refund of the fees paid by him under this section.
(2) In case the Food Analyst finds the sample in contravention of the provisions of this Act and rules and regulations made thereunder, the Food Analysts shall forward the report to the Designated Officer to follow the procedure laid down in section 42 for prosecution.
42. Procedure for launching prosecution.–
(1) The Food Safety Officer shall be responsible for inspection of food business, drawing samples and sending them to Food Analyst for analysis.
(2) The Food Analyst after receiving the sample from the Food Safety Officer shall analyse 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.
(3) The Designated Officer after scrutiny of the report of Food Analyst shall decide as to whether the contravention is punishable with imprisonment or fine only and in the case of contravention punishable with imprisonment, he shall send his recommendations within fourteen days to the Commissioner of Food Safety for sanctioning prosecution.
(4) The Commissioner of Food Safety shall, if he so deems fit decide, within the period prescribed by the Central Government, as per the gravity of offence, whether the matter be referred to,–
(a) a court of ordinary jurisdiction in case of offences punishable with imprisonment for a term up to three years; or
(b) a Special Court in case of offences punishable with imprisonment for a term exceeding three years where such Special Court is established and in case no Special Court is established, such cases shall be tried by a Court of ordinary jurisdiction.
(5) 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.'
'45. Food Analysts.–The Commissioner of Food Safety may, by notification, appoint such persons as he thinks fit, having the qualifications prescribed by the Central Government, to be Food Analysts for such local areas as may be assigned to them by the Commissioner of Food Safety:
PROVIDED that no person, who has any financial interest in the manufacture or sale of any article of food shall be appointed to be a Food Analyst under this section:
PROVIDED FURTHER that different Food Analysts may be appointed for different articles of food.'
'46. Functions of Food Analyst.–
(1) On receipt of a package containing a sample for analysis from a Food Safety Officer or any other person, the Food Analyst shall compare the seal on the container and the outer cover with specimen impression received separately and shall note the conditions of the seal thereon:
PROVIDED that in case a sample container received by the Food Analyst is found to be in broken condition or unfit for analysis, he shall within a period of seven days from the date of receipt of such sample inform the Designated Officer about the same and send requisition to him for sending second part of the sample.
(2) The Food Analyst shall cause to be analysed such samples of article of food as may be sent to him by Food Safety Officer or by any other person authorised under this Act.
(3) The Food Analyst shall, within a period of fourteen days from the date of receipt of any sample for analysis, send-
(i) where such sample is received under section 38 or section 47, to the Designated Officer, four copies of the report indicating the method of sampling and analysis; and
(ii) where such sample is received under section 40, a copy of the report indicating the method of sampling and analysis to the person who had purchased such article of food with a copy to the Designated Officer:
PROVIDED that in case the sample cannot be analysed within fourteen days of its receipt, the Food Analyst shall inform the Designated Officer and the Commissioner of Food Safety giving reasons and specifying the time to be taken for analysis.
(4) An appeal against the report of Food Analyst shall lie before the Designated Officer who shall, if he so decides, refer the matter to the referral food laboratory as notified by the Food Authority for opinion.'
47. Sampling and analysis.–
(1) When a Food Safety Officer takes a sample of food for analysis, he shall–
(a) give notice in writing of his intention to have it so analysed to the person from whom he has taken the sample and to the person, if any, whose name, address and other particulars have been disclosed;
(b) except in special cases as may be provided by rules made under this Act, divide the sample into four parts and mark and seal or fasten up each part in such a manner as its nature permits and take the signature or thumb impression of the person from whom the sample has been taken in such place and in such manner as may be prescribed by the Central Government:
PROVIDED that where such person refuses to sign or put his thumb impression, the Food Safety Officer shall call upon one or more witnesses and take his signature or thumb impression, in lieu of the signature or thumb impression of such person;
(c) (i) send one of the parts for analysis to the Food Analyst under intimation to the Designated Officer;
(ii) send two parts to the Designated Officer for keeping these in safe custody; and
(iii) send the remaining part for analysis to an accredited laboratory, if so requested by the food business operator, under intimation to the Designated Officer:
PROVIDED that if the test reports received under subclauses (i) and (iii) are found to be at variance, then the Designated Officer shall send one part of the sample kept in his custody, to referral laboratory for analysis, whose decision thereon shall be final.
(2) When a sample of any article of food or adulterant is taken, the Food Safety Officer shall, by the immediate succeeding working day, send the sample to the Food Analyst for the area concerned for analysis and report.
(3) Where the part of the sample sent to the Food Analyst is lost or damaged, the Designated Officer shall, on a requisition made to him, by the Food Analyst or the Food Safety Officer, despatch one of the parts of the sample sent to him, to the Food Analyst for analysis.
(4) An article of food or adulterant seized, unless destroyed, shall be produced before the Designated Officer as soon as possible and in any case not later than seven days after the receipt of the report of the Food Analyst: Provided that if an application is made to the Designated Officer in this behalf by the person from whom any article of food has been seized, the Designated Officer shall by order in writing direct the Food Safety Officer to produce such article before him within such time as may be specified in the order.
(5) In case of imported articles of food, the authorised officer of the Food Authority shall take its sample and send to the Food Analyst of notified laboratory for analysis who shall send the report within a period of five days to the authorised officer.
(6) The Designated Officer, the Food Safety Officer, the authorised officer and the Food Analyst shall follow such procedure as may be specified by regulations.
52. Penalty for misbranded food.–
(1) Any person who whether by himself or by any other person on his behalf manufactures for sale or stores or sells or distributes or imports any article of food for human consumption which is misbranded, shall be liable to a penalty which may extend to three lakh rupees.
(2) The Adjudicating Officer may issue a direction to the person found guilty of an offence under this section, for taking corrective action to rectify the mistake or such article of food shall be destroyed.'
17. Section 32 of the Food Safety and Standards Act empowers the Designated Officer to issue improvement notice, and the section does not cast any duty on the Food Analyst to issue notice. A conjoint reading of Sections 46 and 52 make it clear that Food Analyst, respondent No.2, is the only competent authority under the Food Safety and Standards Act, to analyse the samples sent by the Food Safety Officer under Sections 38 or 47 of the Act.
18. Material on record discloses that as per Exhibit-P7 approval, given by the Assistant Agricultural Marketing Adviser (3rd respondent), appellant has printed the label on the package, which bears not only the designs of coconut, but also the design of palm seeds and it is also written that it is blended vegetable oil. Exhibit-P7 is reproduced herein:
Amrutha Oil Products,
14/4858, Mundakkottukurussi (Post)
Shorunur - 2, Kerala - 679 122.
Sub: Grant of permission to get print AGMARK replica from M/s.
Unique Multi Films - reg.
With reference to your application on the subject cited, permission is hereby accorded to print AGMARK Replica in lieu of AGMARK Labels on Multi Layer Film Pouches to pack Blended Edible Vegetable Oil under AGMARK. The Agmark Replica design along with the approved TRADE BRAND LABEL may be got printed/manufactured on approved packing materials/containers through the approved Printing Press of M/s. Unique Multi Films, Virudhunagar.
In this connection, you are required to comply all the rules and instructions of this Directorate issued from time to time in this regard. Before placing each order for printing AGMARK REPLICA to the aforesaid Printing Press, you are requested to intimate this office the particulars of printing like number of packages, pack size etc, as per the procedure and guidance of this Directorate.'
All records relating to AGMARK REPLICA bearing containers printed/manufactured at the above Printing Press shall be maintained properly giving reference of printing orders placed by you. All the concerned records shall be made available for inspection to the authorized officers of the Directorate as and when called for the same.
Any lapse or violation in following the Rules/Instructions which are in force or issued from time to time by this Directorate shall lead to withdrawal of this permission.
Receipt of this letter may please be acknowledged.
Assistant Agricultural Marketing Adviser
Regional Office, DMI, Kochi.'
19. Exhibit-P1 licence issued by the Food Analyst, Kozhikode, is extracted hereunder:
'COMMERCIAL TAXES DEPARTMENT
GOVERNMENT OF KERALA
CERTIFICATE OF REGISTRATION
See Rule 17(4) of KERALA VALUE ADDED TAX RULES, 2005
This is to certify that Ms./Sri.Smt/ VAZHAKKOTTAIL BALAKRISHNAN MURALIDHARAN (Trade Name: AMRITHA OIL PRODUCTS) is registered with Commercial Taxes Department, Government of Kerala under Section 16 of the Kerala Value Added Tax Act, 2003
|2||CST Registration Number:||32091104744C|
|3||Assessment Circle:||CT OFFICE PATTAMBI|
|4||Registration Category||VAT Registration|
|5||Name of the Applicant:||VAZHAKKOTTAIL BALAKRISHNANMURALIDHARAN|
|6||Principal Place of Business:||DOOR NO.9/978,MUKUNDAKKOTTUKURUSSI PO,|
PALAKKAD DT. PIN.679122
|7||Number of branches if any:||Nil|
|8||Number of Godowns if any||Nil|
|9||This certificate is valid from 21-APR-06 to 31-March-2018|
|10||No. of Commodities dealt with. 9(Annexued)|
Signature of the Assessing Authority’s
Name, Designation and Office
COMMERCIAL TAX OFFICER,
Officer Remarks: NIL'<