'Right To Get Unadulterated Food Fundamental Right' : Kerala High Court Asks Centre To Examine Lacunae In Food Safety & Standards Act

The Kerala High Court has directed the Central Government to look into the lacunae in the Food Safety and Standards Act of 2006 and its Regulations. The Court stated that it is the duty of the government to have a fool proof Act and Rules to ensure that citizens are given unadulterated food.In this case, the Court was considering whether prosecution could be initiated against Pepsico India Holdings Private Limited for allegedly selling unsafe and misbranded Mint & Lemon Flavoured Green Ice Tea when the reports from the Food Analyst and Food Laboratory were divergent. Justice P.V.Kunhikrishnan stated that due to the lacunae in the Act, prosecution can be initiated only when the Food Laboratory report confirms the Food Analyst's report and not when the reports are divergent. The Court thus quashed the proceedings and held thus: “It is a fact that, in this case, the Referral Laboratory found that the sample is unsafe and misbranded. Even then, this court is now forced to quash the proceedings against the petitioner, because of the lacuna in FSS Act and Rules. It is the duty of the state and the union to see that, only unadulterated food items are available in the market. A person who sells adulterated food should face the consequences and such persons should not escape from the clutches of law on technical grounds. A foolproof Act and Rules are the need of the hour. Right to get unadulterated food is part of the fundamental right of every citizen.”BackgroundThe Pepsico India Holdings Private Limited is the 4th accused who was alleged of commission of offences punishable under the Food Safety and Standards Act, 2006 read with Regulation No.2.12 of the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 and Food Safety and Standards (Packaging and Labelling) Regulations, 2011. The complainant purchased 4 identical and sealed bottles of Mint & Lemon Flavoured Green Ice Tea from a hypermarket. One part of the sample purchased in a sealed packet was sent for examination as per the provisions of the FSS Act and Regulations. On examining the sample, the Food Analyst opined that the sample contained saccharin as sodium saccharine and was unsafe as per the FSS Act and Regulations. Upon appeal of the accused, the Director of the Referral Food Laboratory reviewed the sample and concluded that it was unsafe and misbranded due to the presence of caffeine, which was not disclosed on the label, thus violating the FSS Act and Regulations.Based on this, the Food Safety Commissioner initiated prosecution against accused 1 to 4 for producing and selling unsafe and misbranded Mint & Lemon Flavoured Green Ice Tea. The 1st accused is the seller of the 2nd accused, who holds the FSS licensee of the hypermarket from where the product was purchased. The 3rd accused is the distributor, while the 4th accused is the manufacturer and marketer. The counsel for 4th accused argued that prosecution is unsustainable due to the existence of divergent findings from the Food Analyst and the Referral Food Laboratory. It was argued that one report indicated the sample contained Saccharin as Sodium Saccharin, while another report showed the presence of caffeine. FindingsThe Court stated that as per Section 46 (4) of the FSS Act that deals with the functions of the Food Analyst, an appeal against the Food Analyst's report may be submitted to the Designated Officer. The Designated Officer at his discretion may refer it to the Food Laboratory for opinion. “Section 46 (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.”Rule 3.1 of the FSS Regulations deals with adjudication proceedings and Rule 3.1.1 pertains to holding of inquiry by the adjudicating officer. The Court noted that as per the Rules, the Designated Officer shall cause an examination only in three situations, one, when appeal under Section 46 (4) against report of Food Analyst has been dismissed; two, when the Food Laboratory confirms the findings of the Food Analyst in an appeal under Section 46 (4); third, when there is no appeal preferred under Section 46 (4). The Court went on to state that if the Designated Officer feels that the Food Analyst's report is erroneous, then he can refer it to the Food Laboratory as per Rule 2.4.3 of the FSS Rules. It stated that in such cases, prosecution can be initiated under the FSS Regulations even if the report of the Food laboratory is divergent from the report of the Food Analyst.Court said, “Hence, if the Designated Officer is of the opinion that the report delivered by the Food Analyst is erroneous, he can forward one part of the sample to the referral laboratory and even if the report of the referral laboratory is divergent from the report of the Food Analyst, the provisions of Rule 3.1 is applicable.”However, the Court stated that as per...

'Right To Get Unadulterated Food Fundamental Right' : Kerala High Court Asks Centre To Examine Lacunae In Food Safety & Standards Act

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